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

The applicant, Mr Duško Vidaković, is a Montenegrin national, who was born in 1964 and lives in Bar. He is represented before the Court by Mr M. Mirović, a lawyer practising in Bar.

On 8 September 1987 the applicant, a bus driver, was involved in a car accident in which two people died.

On 17 August 1988 he was charged with a serious traffic offence.

On 11 November 2002, after two remittals, the Court of First Instance (Osnovni sud) in Kotor found the applicant guilty in his absence and sentenced him to two years of imprisonment. On 23 September 2004 the High Court (Viši sud) in Podgorica upheld this judgment.

It transpires from the case-file that on various occasions the applicant had relied on his health and an alleged trip to Italy as reasons for not appearing at some hearings, had dismissed his representative, had challenged judges, and had registered a false address as his address of residence.

On an unspecified date between 23 September 2004 and 28 February 2005 the above judgments were transmitted to the Court of First Instance in Bar for enforcement against the applicant, which is when the applicant learned about them.

On 22 March 2005 the Court of First Instance in Kotor reopened the proceedings, following the applicant’s request to that effect filed on 28 February 2005. The same decision ordered the applicant’s detention due to the fear that he might abscond.

On 9 May 2005 the Court of First Instance found the applicant guilty of endangering traffic, sentenced him to two years of imprisonment and prohibited him from driving. The court noted that the applicant had attempted in various manners to prolong the proceedings, including health reasons, “being occupied by other affairs”, dismissing his representative, challenging judges, registering a false address as the address of his residence, and an alleged trip to Italy. On 19 December 2006 the High Court quashed this judgment.

On 30 March 2007 the Court of First Instance in Kotor issued a detention order against the applicant so as to ensure his presence at the next hearing, given that neither the applicant nor his representative had appeared at the previous hearing scheduled for 29 March 2007, “thus obviously obstructing” the proceedings. The court noted in this regard that the applicant’s father had appeared instead and had submitted that the applicant was in hospital, but that the medical certificate provided stated that the applicant had been both admitted to and released from hospital on 26 March 2007. In its decision the court further stated, inter alia, that the proceedings at issue had been pending for 20 years and that the criminal prosecution was to become time-barred on 8 September 2007.

Between 12 April and 17 September 2007 at least four other hearings were scheduled, notably for 12 April, 21 May, 6 June and 17 September 2007, at which the applicant failed to appear. Between 5 May and 23 July 2007 he was in hospital.

On 14 March 2008 the Court of First Instance found the applicant guilty and sentenced him to two years of imprisonment. The court noted, inter alia, that the applicant was “deliberately stalling the proceedings in different ways” (na razne načine svjesno odugovlačio postupak). It made no reference to whether the trial had become time-barred.

On 5 May 2008 the applicant appealed. He submitted that the prosecution against him had become time-barred and relied on Article 125 of the Criminal Code (see paragraph 29 below).

On 12 February 2009 the High Court dismissed the applicant’s appeal, and proceeded ex officio to uphold the judgment rendered by the Court of First Instance on 11 November 2002. The court also held that the application of statutory provisions relating to prescription was “out of the question as the reopened criminal proceedings were not a criminal prosecution (which was concluded by a judgment) but were conducted upon the applicant’s request and for his benefit”.

On 24 March 2009 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud) proposing, inter alia, that the proceedings be terminated as the prosecution had become time-barred.

On 4 June 2009 the Supreme Court upheld the High Court judgment, concluding that “the court decided as above given that the judgments of the lower courts are based on law, the law was not breached in the proceedings against [the applicant] nor were there any significant procedural violations of criminal proceedings”. It did not address directly the question of whether the criminal prosecution had become time-barred or not.

Between October and December 2007 the applicant challenged all the judges of the Court of First Instance in Kotor, including the judge processing his case, on the ground that they had pursued the proceedings against him even though the criminal prosecution had become time-barred, and requested that the case be transferred to another court. These requests were rejected by the Supreme Court by 14 December 2007.

On 21 January 2008 the applicant filed a criminal complaint (krivična prijava) for abuse of office against the judge in charge of processing the case against him. In doing so the applicant maintained, in particular, that the court should have terminated the proceedings against him as the prosecution of the criminal offence that he was charged with had become time-barred.

On 26 January 2008 the State Prosecution (Osnovno državno tužilaštvo) rejected the applicant’s criminal complaint, relying on the Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts issued in March 1985, which provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were later reopened (see paragraph 30 below). The Conclusion was apparently explained by an opinion that if the prosecution could become time-barred that would favour those defendants who by cunning managed to avoid being tried. The decision also noted that the applicant had failed to appear for hearings scheduled for 29 March, 12 April, 21 May, 6 June and 17 September 2007. No appeal was allowed against this decision.

On 13 February 2008 the applicant addressed the Supreme Court, complaining apparently that his prosecution had become time-barred. On 3 March 2008 the Supreme Court, by means of a letter, informed the applicant that the trial in his case had not become time-barred and referred to the Conclusion of 1985.

On an unspecified date in 2008 the applicant filed a compensation claim against the State for convicting him after the prosecution of a particular criminal offence had become time-barred.

On 9 March 2010 the Court of First Instance ruled against the applicant, which decision was upheld by the High Court and the Supreme Court on 6 July 2010 and 26 October 2010 respectively. The High Court relied on the Conclusion of 1985, and the Supreme Court considered that the provisions on prescription did not apply if the prescription period had ended in the course of the reopened proceedings. On 12 July 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as unfounded, relying on the Supreme Court’s reasoning.

On 28 November 2011 the Court of First Instance in Bijelo Polje dismissed the applicant’s request for amnesty. The court noted, inter alia, that on 8 April 2009 the applicant had been served with a writ issued by the court in Bar relating to the enforcement of his prison sentence. The next day the applicant’s representative had submitted that the applicant was residing in Mojkovac and the writ should be forwarded to the court in Bijelo Polje. After the relevant authorities had attempted unsuccessfully to serve the writ on the applicant on two occasions in Mojkovac they had sought the assistance of the police. The police had informed them that the applicant actually had had residence in Bar at an unknown address, after which an arrest warrant (potjernica) had been issued against the applicant.

Article 371 provided that the Federal Court, the Supreme Courts of republics and provinces, and relevant military courts would deliver conclusions (načelne stavove) in respect of issues relevant for the implementation of federal regulations.

Section 33 provided that the Federal Court, the Supreme Courts of republic and provinces, and the Supreme Military Court convened common sessions (zajednička sednica) and, through their delegates, delivered conclusions on issues relevant for the implementation of federal regulations. In particular, common sessions were to be convened when there was inconsistency in the case-law on issues relevant for the uniform implementation of federal regulations.

Section 185 (3) provided that a person who was involved in traffic and failed to comply with the traffic rules negligently (iz nehata), thus jeopardising human lives and causing light bodily injuries, would be punished with imprisonment of up to one year.

Section 190 (5) provided that if the criminal offence under section 185 (3) led to the death of one or more persons, the perpetrator would be punished with imprisonment of between one year and eight years.

Section 95 (1) provided, inter alia, that a criminal prosecution could not be initiated (ne može se preduzeti) more than ten years after the commission of those criminal offences for which the courts could impose imprisonment of more than five years and less than ten years.

Pursuant to section 96 (6) the criminal prosecution of the crime defined in section 190 (5) of the Criminal Act of the Socialist Republic of Montenegro became time-barred in any event when more than twenty years had elapsed since the commission of the crime.

This Code entered into force on 1 April 2004 and thereby repealed all incompatible criminal law provisions thereto. Articles 124 § 1 and 125 § 7, however, correspond to sections 95 (1) and 96 (6), respectively, of the Criminal Act of the Federal Republic of Yugoslavia.

The said Conclusion (načelni stav) provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were reopened.

By judgment of 24 January 2014 the High Court found X guilty in absence and sentenced him to one year’s imprisonment. Following X’s request the proceedings were reopened and by 2 July 2014 the High Court dismissed the indictment as the criminal prosecution had become time-barred in the meantime. On 1 December 2014 the Supreme Court accepted the Supreme State Prosecution’s request for protection of legality and found that the High Court’s decision of 2 July 2014 was in breach of the law. In its decision Kzz. Br. 11/14 the Supreme Court explicitly held that when criminal proceedings were reopened in respect of a person who had been tried in his absence, the statutory provisions on prescription were not applicable regardless of whether the statutory prescription time had expired in the meantime. According to the Supreme Court the reopened proceedings were not a new criminal prosecution, given that the criminal prosecution had already ended by means of a final judgment issued in the defendant’s absence. The reopened proceedings were conducted exclusively upon the request of the defendant in whose favour the proceedings were re-opened and in order to examine the earlier final judgment.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

In 1961 the applicants’ predecessors were deprived of certain land in favour of the State.

On 26 January 2006 the Niš Municipal Court ordered PIK Niš (the debtor), a company predominantly comprised of socially-owned capital, as the end user of that land, to pay the applicants specified amounts on account of the compensation for the land in question.

On 25 October 2006 and 1 February 2007 respectively, upon the applicants’ request to that effect, the Niš Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicants the enforcement costs. This judgment became both, final and enforceable by 16 August 2006.

Only one applicant, Mr Tomislav Đorđević, never lodged an enforcement request.

On 3 June 2009 the Niš Commercial Court opened insolvency proceedings in respect of the debtor (St. 10/09).

Only one applicant, Ms Milica Nikolić Jajčević, duly submitted her claims therein.

These insolvency proceedings are still ongoing.

On 2 March 2009, 31 August 2009 and 9 June 2010 respectively, all applicants lodged their constitutional appeals.

On 17 March 2011, 4 April 2012 and 23 May 2012, respectively, the Constitutional Court found a violation of the right to a hearing within a reasonable time in respect of all applicants, except Mr Tomislav Đorđević. However, the court did not award the applicants any damages, merely stating that the applicants “had not claimed non-pecuniary damages”.

The Constitutional Court dismissed the appeal in respect of one applicant, Mr Tomislav Đorđević, since he had failed to request enforcement of the judgment in question.


CASE OF ZAMMIT AND ATTARD CASSAR v. MALTA

Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicants were born in 1943 and 1957 and live in Zabbar and Birkirkara respectively.

The applicants own, in equal shares, a property built in the 1960s in Zabbar and which is known today as the Cressi-Sub Store. According to the applicants, the property is used as a storage facility for a nearby shop. At first, this was not contested by the Government, but at a later stage in the proceedings, they submitted that the property had been abandoned and was not in use.

The applicants inherited the property from their uncle on 7 October 2000. At the time, the property was already leased to E., a company registered in Malta, for 185 Maltese lira (MTL) (equivalent to 431 euros (EUR)) every six months, that is, EUR 862 a year on the basis of a voluntary lease agreement. Although there was no evidence of the parties’ ever having signed a lease agreement, it appears that the lease commenced in 1971. Rent is payable every six months in advance, and in accordance with the law the lease is renewed automatically every six months.

In such circumstances, the Reletting of Urban Property (Regulation) Ordinance (hereinafter “the Ordinance”), Chapter 69 of the Laws of Malta, (see Relevant domestic law below) provides that the eviction of a tenant or a change in the conditions of a lease requires the authorisation of the Rent Regulation Board (“the RRB”).

In 2002, the applicants undertook a valuation of the property with a view to making a request for an increase in the rent. The architect who carried out the valuation indicated that the current rental value of the property was EUR 7,000 a year.

In accordance with legal requirements (see Relevant domestic law below), on 22 April 2002, the applicants informed E. by means of a judicial letter that they intended to raise the rent to EUR 7,000 a year with effect from 1 July 2002.

By means of a judicial letter dated 17 May 2002, E. replied that it did not agree to the request. It failed, however, to apply to the RRB for the rejection of such an increase or for new conditions, as required by law (see Article 14 of the Ordinance).

As from the second term of 2002 the applicants stopped accepting rent for fear it would prejudice their claim. In consequence, company E. continued to pay the rent by means of a schedule of deposit filed with the domestic courts.

On 27 March 2003 the applicants brought an action before the Civil Court, requesting it to impose on E. an obligatory time-limit within which to make an application to the RRB. They considered that in default of such action by E., the increase in rent requested should be deemed to have been agreed. E. having eventually filed the said application (see below), the applicants’ action was dismissed.

On 31 May 2004 E. applied to the RRB, requesting it to dismiss the claim for the increase in rent. The applicants responded, arguing that the rent should reflect market values.

In a report dated September 2006 two court-appointed architects concluded that the rent of EUR 862 was already more than 40% over and above the rent level at which the premises were or could have been leased before 4 August 1914 (Article 4 (1) (b) of the Ordinance, see Relevant domestic law below). It followed that in the light of Article 4 (1) (b) of the Ordinance, the increase in rent could not be recommended.

By a note filed on 30 November 2006 the applicants submitted that an unfavourable decision would breach their rights under the Convention.

On 9 January 2008 the RRB dismissed the applicants’ request on the basis of the opinion of the two court-appointed architects. It noted that it had no jurisdiction to determine the human rights issue raised by the applicants, who had not made a request for a constitutional referral.

On 25 January 2008 the applicants appealed. They argued that the RRB’s decision had breached their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. They requested the court to refer the matter to the constitutional jurisdictions.

By decree of 13 May 2008 the Court of Appeal referred the matter to the constitutional jurisdictions. Following the constitutional proceedings (described below) and the applicants’ lodging of an application with the Court, on 4 October 2013 the Court of Appeal adjourned the case sine die, pending the outcome of the present proceedings.

By a judgment of 7 July 2010 the Civil Court (First Hall), in its constitutional jurisdiction, upheld the applicants’ claim, holding that their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention had been breached. Referring to the Court’s case-law, it considered that the applicants had not had an effective remedy, in so far as they had been constrained by the capping of rent levels set out in the law. In relation to their property rights, it upheld the finding of a violation, on the basis of the reasoning in the case of Amato Gauci v. Malta (no. 47045/06, § 63, 15 September 2009) – namely the low level of the rent, the applicants’ state of uncertainty as to the possibility of recovery of the property, the lack of procedural safeguards, and the rise in the standard of living in Malta over the past decades – coupled with the applicants’ argument that the interference had been disproportionate, as it had caused them to bear an excessive burden, given that the property was used for a commercial purpose. Indeed, the lessor could have used other property it had owned, but had preferred to sell that other property for EUR 350,000 and to continue to rent from the applicants at a low rate.

On appeal, by a judgment of 5 July 2011, the Constitutional Court reversed the first-instance judgment. It considered that although when the parties had concluded the contract they had been aware of the law as it stood (and had stood for a number of years), they had nevertheless opted to enter into that contract. Therefore, they and their legal successors could not now complain of a breach of their human rights. Indeed, the original lease agreement had neither stipulated a low level of rent nor envisaged future increases in rent. Given that the original owner had opted to lease the premises, knowing the legal consequences attached, the impact on their property rights had been neither unforeseen nor arbitrary; nor had there been a state of legal uncertainty. Moreover, recent amendments to the law had improved their position from 2010 onwards (Act X of 2009; see Article 1531D of the Civil Code below).

As mentioned above (see paragraph 12) as soon as they inherited the property, the applicants refused to accept the rent to avoid prejudicing their legal position. In consequence, it transpires from the documents provided to the Court that from 2002 to 2010 the tenants deposited in court by means of schedules of deposit the sum of EUR 431 every six months (EUR 862 annually). For the subsequent years those deposits amounted to EUR 496 and EUR 570 in 2011, and EUR 656 every six months until 2013.

In 1995 Article 46 of the Ordinance was amended to stipulate that the impugned restrictions would not apply to leases entered into after 1 June 1995.

While the above-mentioned constitutional proceedings were pending, a new law was enacted, stipulating that with effect from 1 January 2010 the rent applicable to commercial leases was to be increased by 15% per year, and that an increase at that level should also take place for the years 2011, 2012 and 2013 (Section 1531 D of the Civil Code).

Thus the amounts of rent payable to the applicants in those years were as follows: in 2010 EUR 990; in 2011 EUR 1,138; in 2012 EUR 1,309; and in 2013 EUR 1,505. For the years 2014 onwards the rent would increase by 5% a year.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1980 in Tetovo and lives in Golema Rečica in the municipality of Tetovo in “the former Yugoslav Republic of Macedonia”. He arrived in Switzerland in 1989 via family reunification and was granted a permanent residence permit.

On 1 July 1999 the applicant married a national of “the former Yugoslav Republic of Macedonia”, born in 1978, who arrived in Switzerland in 1990 and who also held a permanent residence permit. The couple has two children, born in 2001 and 2005, who are likewise nationals of “the former Yugoslav Republic of Macedonia”.

After leaving school, the applicant did not undergo professional training, but worked in a variety of jobs, namely as a postman, mailman, plasterer and construction worker, with brief periods of unemployment.

On 13 March 2003 the Zurich District Court convicted the applicant of embezzlement for having sold a rental car to a third person in September 2000 and gave him a suspended sentence of three months’ imprisonment.

On 16 December 2004 the Supreme Court of the Canton of Zurich convicted the applicant of homicide with indirect intent (Eventualvorsatz) and serious violations of the rules of road traffic. On 4 October 2000, while he was engaged in a car race on a public road with an acquaintance, the applicant, driving at a speed of at least 170 kilometres per hour, lost control of his car and crashed into a lamppost, which caused the death of his passenger. That court took the view that the applicant, by agreeing to engage in the race, had deliberately taken the risk of killing him. It found that the applicant had acted with a high degree of recklessness and sentenced him to five years and three months’ imprisonment.

The applicant’s appeals against this conviction were dismissed by the Cantonal Court of Cassation on 10 December 2005 and by the Federal Supreme Court on 28 March 2006.

On 25 April 2006 the applicant started serving his sentence.

On 30 September 2007 the Hinwil District Office (Statthalteramt) sentenced the applicant to a fine of 120 Swiss Francs (CHF) for the purchase and consumption of marihuana.

On 28 October 2009 the applicant was released on parole after having served two thirds of his sentence.

On 27 July 2009, after having heard the applicant, the Migration Office of the Canton of Zurich revoked the applicant’s permanent residence permit. It found that the conditions for revocation pursuant to, inter alia, Article 63 § 1 lit. a in conjunction with Article 62 lit. b of the Federal Act on Foreign Nationals (Ausländergesetz, AuG, see relevant domestic law and practice paragraph 27 below) were met. Ait concluded that the public interest in the applicant’s removal outweighed his interest in enjoying his family life with his wife and children in Switzerland. It ordered his expulsion pursuant to Article 66 § 1 of the Federal Act on Foreign Nationals.

On 30 September 2009 the government (Regierungsrat) of the Canton of Zurich dismissed the applicant’s appeal lodged on 27 August 2009.

On 10 February 2010 the Administrative Court of the Canton of Zurich dismissed the applicant’s appeal lodged on 20 October 2009. It considered that the applicant had committed a serious criminal offence, that he was not well integrated in Switzerland despite the length of his stay, that expert prognosis regarding the likelihood that he would reoffend was positive but did not rule out any such risk, that he spoke Albanian and was familiar with the culture in “the former Yugoslav Republic of Macedonia”, where he spent parts of his childhood and which he had visited since. It concluded that the decision to revoke his permanent residence permit was proportionate. Moreover, the court noted that the applicant’s wife was a national of “the former Yugoslav Republic of Macedonia” as well, knew Albanian and the country’s culture, and was not well integrated in Switzerland either. Observing that the couple’s children were five and nine years old and thus of an adaptable age, it concluded that the applicant’s wife and children could reasonably be expected to relocate to “the former Yugoslav Republic of Macedonia” with him.

On 9 March 2010 the applicant appealed that decision, arguing that the decision to revoke his permanent residence permit was disproportionate.

On 27 July 2010 the Federal Supreme Court dismissed the appeal. It considered that the main criminal offence, of which the applicant was convicted, intentional homicide, was a particularly serious one. While it acknowledged that he had lived in Switzerland for over twenty years, which had thus become the centre of his life, it found that he was neither professionally nor socially integrated. It considered that he had no stable employment, but considerable debts. Both he and his wife and children had benefitted significantly from social welfare. Moreover, the court considered that the applicant could reasonably (re-)integrate in “the former Yugoslav Republic of Macedonia”, considering that he spoke Albanian, was born there and had spent a part of his childhood there and had visited the country since. It observed that the same was true for his wife, who likewise originated from “the former Yugoslav Republic of Macedonia”, where she spent the first twelve years of her life and still had relatives. She knew Albanian and visited the country annually on holiday. At the same time, she was not well integrated in Switzerland as she did not undergo any professional training after leaving school, had received social welfare as from 2005 and only started to work in 2010. As far as their children were concerned, the court considered that they attended primary school and kindergarten, respectively, and were still of an adaptable age. The Federal Supreme Court concluded that the public interest in the applicant’s removal outweighed the applicant’s interest in remaining in Switzerland and enjoying respect for his family life there, also noting that his wife and children had a choice between either following him to “the former Yugoslav Republic of Macedonia” or remaining in Switzerland and maintaining contact through short but regular visits.

On 16 October 2010 the applicant left Switzerland in compliance with the expulsion order.

On 10 December 2010 the Federal Office for Migration issued an entry ban against the applicant for a period of nine years.

In late 2011 the applicant’s wife and children relocated to “the former Yugoslav Republic of Macedonia” to live with him.

On 14 May 2013 the Federal Administrative Court, on the applicant’s appeal, reduced the duration of the re-entry ban to seven years due to proportionality considerations. It found that the conditions in Article 67 §§ 2 lit. a and 3 of the Federal Act on Foreign Nationals for the issuance of an entry ban for a period of more than five years were met (see relevant domestic law and practice paragraph 26). It considered that the offence committed by the applicant was particularly serious and that he continued to be a serious threat to public order, notwithstanding his mostly good behaviour since the commission of the offence and positive personality development. It noted that the applicant could ask for a temporary suspension of the entry ban for humanitarian or other important reasons (Article 67 § 5 of the Federal Act on Foreign Nationals) and that the applicant’s wife, who originated from “the former Yugoslav Republic of Macedonia” herself, could visit him there together with their children and also maintain contact by various means of communication.

In August 2015, i.e. after almost four years, the applicant’s wife and children returned to Switzerland to avoid the expiry of their permanent residence permit pursuant to Article 61 § 2 of the Federal Act on Foreign Nationals (see relevant domestic law and practice paragraph 27) and because their socioeconomic living conditions in “the former Yugoslav Republic of Macedonia” were difficult. They live in Zurich.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1961 and lives in the village of Tatariv, which forms part of Yaremche, a resort town in the Ivano-Frankivsk Region of Ukraine.

The applicant owns a house and an adjacent plot of land in Tatariv. The village of Tatariv is situated in a mountainous region and because of its location holds the status of mountainous residential area. It is also known as a resort for “green tourism” in Carpathy region. It is situated on the banks of Prut river.

On 10 February 2000 Tatariv Village Council (“Tatariv Council”), having considered four sites on which to construct a new cemetery, chose the land previously occupied by garages belonging to a company called Vorokhtya Lisokombinat (“the VL plot”) as it was not occupied, it was located in the village and the cemetery could be constructed at low cost.

The VL plot is located near the applicant’s house (for further details see paragraphs 14 and 33 below), in which he was residing with his family at the time. Two rivers flow at a distance of 30 and 70 metres from the VL plot. Drinking water for Tatariv comes from wells fed by groundwater; there is no centralised water supply system and the wells are not protected.

On 24 May 2000 the All-Ukrainian Bureau of Environmental Investigations informed the Chairman of Yaremche Town Council (“Yaremche Council”) that the construction of the cemetery on the VL plot might cause contamination of the river and the wells situated on adjacent plots of land by ptomaine carried by the groundwater flow.

The cemetery was opened for use by the Yaremche Council in August 2000. It is being administered by the Yaremche Council.

On 6 February 2001 the Yaremche Environmental Health Inspectorate (санітарно-епідеміологічна станція) concluded that the cemetery should not have been constructed on the VL plot in view of its proximity to residential buildings and the risk of contamination of the surrounding environment by ptomaine.

On 20 August 2002 the Regional Environmental Health Inspectorate of the Ministry of Health refused to approve the construction plan. In particular, it stated that the cemetery should not be situated in the proposed area as its distance from private housing did not comply with the norms and standards of a health protection zone (санітарно-захисна зона).

On 30 August 2002 and 20 January 2003 the Marzeyev Institute of Hygiene and Medical Ecology, part of the Academy of Medical Sciences, informed the applicant and Yaremche Council that another location would have to be found for the cemetery. It was of the view that constructing the cemetery on the VL plot would breach environmental health laws and regulations and would worsen the living conditions of the residents of adjacent houses. In particular, it would be located less than 300 metres from the nearest residential buildings, which are 38 metres away from the edge of the cemetery (which would not allow for the establishment of the necessary health protection zone). It could lead to contamination of the groundwater reservoir used by the residents of adjacent households for drinking water and of the nearby rivers with by-products of human decomposition. It further stated that a health protection zone was also intended to reduce psychological pressure on the residents of adjacent houses.

The applicant alleges that from 2002 to the present moment he has been receiving treatment for hypertension and various cardio-related diseases. He supplied in this respect sick leave certificates and medical certificates from 2002 and 2006, relating to him and his wife. He has also provided the Court with death certificates for two of his neighbours Mr R.G. and Mr D.B., who also resided in the vicinity of the prohibited cemetery and died at the age of 68 and 43, respectively.

On 17 September 2002 the Ivano-Frankivsk Regional Prosecutor’s Office informed the applicant that it could not intervene in respect of unauthorised burials taking place on the VL plot: the issue was in the competence of local authorities, including the Yaremche Council, which was responsible for management and maintenance of the cemetery.

On 22 April 2003 the Executive Board of Yaremche Council informed the Regional State Administration that Tatariv Council was considering resettling the applicant. He had twice been invited to discuss a proposal for resettlement of his family to another part of the village but no response had been received.

On 5 May 2003 the Regional Urban Development and Architecture Department (“the Urban Development Department”) informed Yaremche and Tatariv Councils that the area near the applicant’s house was not suitable for construction of the cemetery as it did not respect a 300-metre wide health protection zone that would protect the residential buildings and a 50-metre wide water protection zone to protect the Prutets river.

On 18 May 2003 the Tatariv Council resolved inter alia that the relevant local authorities were prepared to consider the purchase of a house or apartment for the applicant, or to pay him compensation if he refused to reside in the cemetery’s vicinity.

On 21 April 2004 the issue of the site of the cemetery was examined by officials from the Urban Development Department, the Municipal Housing Department, the environmental health inspectorate and the Land Management Department. They recommended to the Chairman of Tatariv Council that another plot on the outskirts of the village of “Ventarivka” be used as a cemetery.

On 22 June 2005 the Regional State Administration informed the applicant that the only way to resolve the issue was to resettle him. They asked him to agree to such a resettlement. They also confirmed that Yaremche Council was willing either to buy a house for the applicant or to provide him with an equivalent plot of land and the funds necessary to construct another house

On 18 July 2005 the Chairman of Yaremche Council invited the applicant to inform the authorities whether his family was willing to resettle and, if so, on what conditions.

In reply, the applicant sought more information on the proposal, such as, details of the specific land plot, house and facilities to be provided.

By letter of 27 July 2005 the Chairman of Yaremche Council, in reply to the applicant’s request for specific proposals, invited the applicant to discuss the proposal in person with a view to a possible compromise.

On 15 August 2005 the Chairman of Tatariv Council asked the Ukrainian State Urban Planning Institute (Дніпромісто – “the Institute”) to develop proposals for the site of a cemetery in the village.

On 21 December 2005 the Institute informed the applicant that it was not within its competence to decide matters such as the question of where to situate the cemetery. It also mentioned that the local development plan for Tatariv proposed a plot in the Chertizh area for the cemetery. However, this was subject to approval by the local council and environmental health inspectorate. It also informed the applicant that no letter of 15 August 2005 with proposals to investigate possible site of the cemetery (see paragraph 25 above) had been received from Tatariv Council.

By letter of 6 March 2006 addressed to the applicant and the Chairman of Tatariv Council, the Urban Development Department stated that it had repeatedly proposed to Tatariv Council that it use an area called Venterivka for the site of the cemetery. However, the council had not taken up that suggestion for unspecified reasons. It also informed the applicant that it was within Tatariv Council’s competence to decide on the allocation of a plot of land for a cemetery.

On several occasions between August 2006 and June 2008 the applicant and members of his family, who resided together, asked Tatariv Council to grant each of them a plot of land on which to construct a house because they felt that living in the cemetery’s vicinity was intolerable. Tatariv Council rejected the requests because of a lack of available plots of land.

According to the results of examinations of drinking water from the applicant’s well conducted by the Yaremche Environmental Health Inspectorate dated 21 August 2008 and 7 July 2009, the toxicological, chemical and organoleptic indices of the water complied with national standards (no E. coli index examination had been made). A conclusion was reached that water could be used for household needs.

On 23 August 2008 and 6 July 2009 the Yaremche Environmental Health Inspectorate carried out a bacteriological analysis of the water from the same well. It established, contrary to the results of the examinations held on 21 August 2008 and 7 July 2009 (see paragraph 29 above) that the E. coli bacteria index in the water gave a reading of 2,380, whereas the normal reading was 10 (see paragraph 72 below), and concluded that the water could not be used for household needs. It also recommended disinfecting the water supply. The cause of water pollution was not established and would require an additional expert report.

On 14 December 2009 in response to a request from the Government, the Yaremche Environmental Health Inspectorate concluded that the reading obtained from the bacteriological analysis which had indicated water contamination did not have any connection to the location of the cemetery, but could also have been caused by other sources.

On 15 December 2009 the Regional Environmental Health Inspectorate informed the applicant that the reasons for the bacterial contamination of the water supply could be established on the basis of a hydrogeological assessment as to whether there were any connections between the drinking water reservoirs and possible sources of contamination. It further stated that according to an analysis of water taken from different parts of the village, the E. coli index exceeded the allowed reading established by law, which provided that drinking water should not contain any index of E. coli or be less than 1 in that index per 100 cm3 (see paragraph 72 in relation to the domestic drinking water standards), nevertheless the E. coli index ranged from 23 to 2,380.

The applicant’s house and well are some 38 metres from the nearest boundary of the cemetery.

By letters of 10, 15 and 16 December 2009 from the Tarariv Council, Yaremche Executive Committee and the Ivano-Frankivsk Regional State Administration, the authorities informed the Government’s agent that the applicant had failed to manifest any interest in being resettled.

On 10 August 2000 the Verkhovyna Court, following the applicant’s claim in proceedings against the Tatariv Council, held that the Council’s decision to situate the cemetery on the VL plot had been unlawful.

At the end of August 2000 residents of Tatariv carried out the first burial at the cemetery.

On 1 December 2000 the Yaremche Court, in another set of new proceedings, found that Tatariv Council had failed to follow the proper procedure for the allocation of a plot of land for a cemetery, namely obtaining an environmental health assessment, and ordered it to prohibit burials on the VL plot.

On 24 December 2000 the residents of Tatariv were informed of the court’s decision to stop the use of the VL plot as a cemetery. Nevertheless, burials continued at the site.

On 29 December 2000 Tatariv Council prohibited burials on the VL plot. On 2 February 2001 the State Bailiffs’ Service terminated enforcement proceedings in the case, considering that the judgment had been fully complied with by the Tatariv Council.

On 2 March 2001 Tatariv Council again decided that the VL plot could be used for the new village cemetery. On 26 March 2001 the applicant lodged a new claim against that decision with the Yaremche Court.

In the meantime, on 22 August 2001 the Regional Environmental Health Inspectorate informed the relevant judge of the Yaremche Court, which assumed jurisdiction over the claims lodged on 26 March 2001 (see paragraph 40 above), that the site of the cemetery did not comply with national environmental health laws and regulations on the planning and construction of urban areas. In particular, the location did not comply with the requirement of a health protection zone between the cemetery and the nearest residential buildings.

On 16 October 2001 the Yaremche Court declared Tatariv Council’s decision of 2 March 2001 unlawful. On 17 April 2002 the Supreme Court upheld that judgment.

On 25 December 2001 Tatariv Council cancelled its decision of 2 March 2001 in pursuance of the judgment of 16 October 2001.

On 3 July 2003 Tatariv Council approved a new development plan for the village. The plan again authorised the use of the VL plot as a cemetery.

On 22 July 2003 the applicant again instituted proceedings against Tatariv Council, seeking to have the approval of the new development plan for the village, insofar as it concerned the location of the cemetery, declared unlawful. He also sought compensation for non-pecuniary damage, court fees and legal expenses.

On 22 August 2003 the Verkhovyna Court ordered Tatariv Council to inform the residents of the village that burials at the unauthorised cemetery near the applicant’s house were prohibited.

By that time, up to seventy burials had been carried out on the VL plot. The distance between the applicant’s house and some of the graves was less than 120 metres.

The Chairman of Tatariv Council argued before the court that there was no other suitable area for a cemetery in the village. She further submitted that the applicant’s allegation of possible contamination of the water supply was unfounded, as the groundwater flowed away from his property.

On 26 December 2003 the Verkhovyna Court allowed the applicant’s claims and held that the new construction plan was unlawful as regards the location of the cemetery. It found that the VL plot was not suitable for use as a cemetery. In particular, constructing the cemetery on the VL plot had breached the environmental health laws and regulations requiring the establishment of: (a) a health protection zone 300 metres wide separating residential areas from a risk factor; and (b) a water protection zone 50 metres wide separating water supply sources from a risk factor. It observed that those distances could not be reduced. It ordered Tatariv Council to close the cemetery and to pay the applicant 25,000 hryvnias (UAH) in compensation for non-pecuniary damage and UAH 609.45 for costs and expenses.

On 28 May 2004 the Ivano-Frankivsk Regional Court of Appeal (“Court of Appeal”) upheld the judgment of 26 December 2003 in part. In particular, it decided that no award of non-pecuniary damage should be made to the applicant, and it reduced the award for costs and expenses to UAH 151.

On 9 October 2006 the Supreme Court upheld the ruling of 28 May 2004.

On 18 June 2004 the Verkhovyna Court issued two writs of execution ordering Tatariv Council to adopt a decision declaring the new development plan unlawful and to close the cemetery.

On 7 July 2004 the State Bailiffs’ Service instituted enforcement proceedings in the case.

Between July 2004 and February 2005 the State Bailiffs’ Service imposed fines on Tatariv Council several times for its refusal to comply with the judgment of 26 December 2003.

On 3 March 2005 the Bailiffs terminated the enforcement proceedings, stating that it had been impossible to enforce the decision without the involvement of Tatariv Council, whose members had failed to adopt a decision in pursuance of the judgment of 26 December 2003.

In March 2005 the applicant requested the Verkhovyna Court to change the terms of the enforcement of the judgment of 26 December 2003. In particular, he sought to have the Chairman of Tatariv Council ordered to execute the judgment.

On 17 October 2005 the Verkhovyna Court rejected the applicant’s request. It held that the Chairman had acted only as a representative of Tatariv Council, the respondent in the case. The Chairman had not been involved as a party to the proceedings. On 6 December 2005 the Court of Appeal upheld the ruling of 17 October 2005.

In August 2005 the applicant challenged the alleged omissions and inactivity of the Chairman of Tatariv Council as regards the enforcement of the judgment of 26 December 2003 before the Verkhovyna Court.

On 8 November 2005 the Verkhovyna Court found no fault on the part of the Chairman and rejected the applicant’s claim. On 12 January 2006 the Court of Appeal upheld that decision.

On 16 August 2006 Tatariv Council again refused to declare the new development plan unlawful and to close the cemetery.

On 28 August 2006 the State Bailiffs’ Service informed the applicant that the enforcement proceedings were not subject to renewal.

The applicant also unsuccessfully sought to institute criminal proceedings against the Chairman of Tatariv Council for her alleged failure to enforce the judgment of 26 December 2003.

On 7 May 2002 the Yaremche Court, acting upon the applicant’s request, refused to institute criminal proceedings against a private individual, K.M., for using the VL plot for a burial. On 16 July 2002 and 21 January 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision.

On 3 October 2002 the Yaremche Court in two separate judgments rejected as unsubstantiated damages claims brought by the applicant and his neighbour, D.B., against K.M. and F.G. (private individuals) concerning the unlawful use of the land near their houses for burial purposes. It found no breach of applicant’s rights by the respondents.

The judgments were upheld on 24 December 2002 (in two separate rulings) by the Court of Appeal and subsequently on 15 September 2005 and 15 February 2006 by the Supreme Court.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

The applicant was born in 1955 and lives in Pula.

In 1985 the applicant was employed by the T. company of Pula. On 22 August 1992 he sustained a work-related injury. He continued working for the T. company in another post.

On 6 February 2004 the applicant was made redundant following organisational changes within the company. The following day he concluded an agreement with the T. company shortening the notice period for the termination of his employment.

On 19 February 2004 the applicant was given his redundancy notice and his employment was terminated on 23 February 2004.

On 9 April 2004 the applicant was granted a disability pension with effect from 24 February 2004 on the grounds of his inability to work.

On 28 June 2004 the applicant instituted civil proceedings against the T. company in the Pula Municipal Court (Općinski sud u Puli). He alleged that he would have received more income if he had not sustained the work-related injury in 1992. He claimed damages relating to the difference between his disability pension and the salary he had received until the termination of his employment.

On 20 February 2008 the Pula Municipal Court dismissed his claim as unfounded.

The applicant appealed against the first-instance judgment, challenging all the factual and legal aspects of the case.

On 12 September 2011 the Pula County Court (Županijski sud u Puli), relying on section 373a of the Civil Procedure Act, dismissed the applicant’s appeal as unfounded. It agreed with the outcome of the case but held that the first-instance court had failed to take into account all the facts from the proceedings that had supported the dismissal of the claim. The relevant part of the judgment reads as follows:

“... this appellate court finds that although the first-instance court failed to take into account all the facts emerging from the first-instance proceedings which meant [the plaintiff’s] claim had to be dismissed, the decision on dismissing the claim as unfounded is in any event correct, therefore the first-instance judgment is upheld by application of section 373a of the Civil Procedure Act.

This appellate court therefore holds that the plaintiff’s claim was certainly to be dismissed, but for the reasons set out in this appellate decision; that is, that the reasons the first-instance court stated in the reasoning of its decision would not suffice for the claim to be dismissed.

Therefore the first-instance decision is upheld on the basis of section 373a of the Civil Procedure Act ...”

On 5 December 2011 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the lower courts’ judgments. He stated that the appellate court had relied expressly on section 373a of the Civil Procedure Act, and that therefore he was lodging his appeal on points of law on the basis of section 382(1)(3) of that Act.

On 14 May 2013 the Supreme Court declared the applicant’s appeal on points of law inadmissible on the grounds that the appellate court in fact had not applied section 373a of the Civil Procedure Act, and that therefore his appeal on points of law could not be allowed. The relevant part of the decision reads as follows:

“The first-instance court and the appellate court found that the plaintiff had not been dismissed because of his inability to work caused by the work-related injury, but that his employment had been terminated by dismissal due to redundancy and that therefore there was no causal link between his dismissal and the granting of the disability pension, so his claim for damages ... was dismissed as unfounded.

Therefore, in this court’s assessment, the requirements for the application of section 373a of the Civil Procedure Act were not met, given that the appellate court did not establish, in the manner prescribed by section 373a of the Civil Procedure Act, a different set of facts to the one established by the first-instance court, but based its decision on the same facts.”

The applicant subsequently complained to the Constitutional Court (Ustavni sud Republike Hrvatske) about the Supreme Court’s decision on his appeal on points of law. He made no allegations of any violation of his rights in respect of the proceedings before the first-instance court or the appellate court.

On 16 October 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. The decision was served on the applicant’s representative on 25 October 2013.


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

The applications were lodged by 256 individual Slovak nationals, whose particulars appear in the Appendix (“the applicants”). They were represented by Mr P. Chrašč, a lawyer practising in Bratislava.

The applications were also lodged by the civic association Right to Housing (Právo na bývanie – “the applicant association”), whose registered office is in Bratislava and of whom the applicants are members. The applicant association was represented by Mr K. Straka, its President.

The facts of the cases, as submitted by the applicants and the applicant association, may be summarised as follows.

Between 1945 and 2002 public authorities allotted flats to the applicants or their predecessors in accordance with the law then in force. Following the developments described below, their rights of use were transformed into tenancies and the houses in which the flats were located were restored to their original owners or denationalised. The applications concern the public authorities’ actions in connection with the denationalisation of the housing fund in Slovakia, the dismantling of rent control and the impact this has had on the individual applicants. The following facts are relevant.

Prior to the fall of the communist regime in 1989, the housing system in Czechoslovakia was part of a planned State-run economy. Citizens in cities and towns lived mostly in flats owned by the State or “legal persons”, such as State-owned companies. The construction of flats and their use and allocation were managed, financed and controlled by public authorities through a centralised management structure.

Others lived in flats which had been built by housing cooperatives of which they were members. Cooperative housing was also funded primarily from public sources. Under the relevant legislation, direct and nonrefundable government grants represented more than 60% of the total costs of construction.

Mostly in rural areas, inhabitants built their own family homes which were in their “personal” ownership. Their construction was also subsidised and promoted by the State by various means.

Persons living in flats owned by the State were holders of a right of use (osobné užívanie) under the Civil Code. They were entitled to use their flats for an indefinite period. Members of the same household as a person having a right of use were entitled to continue living in the flat after the latter’s death. Holders of a right of use were allowed to participate in the decision-making processes regarding alterations and reconstruction of the houses in which they lived. Exchanges of flats between holders of a right of use were permissible and frequent. They were subjected to approval by the owner, which was generally only a formality. The amount payable for the use of flats was regulated in accordance with the central wage policy. It did not reflect the costs of construction and maintenance. Users could be evicted only in exceptional circumstances, for example if they had failed to pay the sum due for three consecutive months or had committed a serious breach of the law in their use of a flat.

In the former Czechoslovakia, to which Slovakia has been one of the successor States as of 1 January 1993, housing reforms started in 1990 in the context of (i) measures aimed at redressing certain wrongs that had been committed under the communist regime and (ii) the country’s transition towards a market-oriented economy. It involved the restitution of houses to former owners, the denationalisation of State-owned housing stock and later the gradual deregulation of rent.

New laws allowed for the restitution of property which had been taken away from owners under the communist regime. A number of dwelling houses, especially in towns, were returned to the original owners or their successors. The restitution of dwelling houses as such did not formally affect the legal position of those who had a right of use of individual flats.

In 1991 the process of “large-scale privatisation” was started. It consisted of the denationalisation of State-owned enterprises. In some cases, new owners divided the property of the company of which part, including the company’s housing stock, was transferred to third parties. In such cases, the users’ position was similar to that described in the preceding section. In 1999 a law was passed prohibiting the transfer of company-owned flats to persons other than their actual tenants.

The main objective of the housing reforms after 1989 was the introduction of private ownership of housing stock. The reforms were primarily related to housing in flats.

With effect from 1 January 1992 the Civil Code was amended so that rights of use in respect of flats were cancelled and replaced by tenancies. Rents remained regulated. In the event of death of a tenant of a flat rented by spouses, the survivor is entitled to become the sole tenant. In other cases, tenancies are transferrable to a deceased tenant’s children, grandchildren, siblings or sons or daughters-in-law, if they can prove they shared the same household at the time of death and do not have their own flat. The same right may be enjoyed by other persons who took care of the deceased tenant’s household or were dependent on him or her for at least three years prior to his or her death, and who do not have their own flat.

The relevant provisions of the Civil Code restrict a landlord’s ability to terminate a tenancy to a limited number of cases, such as where the latter needs the flat for their own or their next of kin’s purposes, or where the tenant did not need the flat or failed to comply with his or her obligations. Termination of a tenancy by a landlord must be approved by a court, and in most cases tenants may only have to vacate the flat once they have been provided with substitute accommodation.

Law no. 42/1992 provided for the transformation of cooperatives in the context of the country’s transition towards a market-oriented economy. Members of housing cooperatives were entitled to have ownership of the flats in which they lived transferred to them. They only had to pay the outstanding part of the State loan which had been provided in respect of the dwelling. In practice, tenants acquired ownership of cooperative flats either at a nominal price or, where the State loan had already been repaid, at no additional cost.

The Ownership of Flats and Non-Dwelling Premises Act 1993 (Law no. 182/1993) was enacted with effect from 1 September 1993. It allowed tenants in publicly-owned dwelling houses to buy their flats on favourable terms. The basis for calculating the price was the statistical value of a dwelling as defined in the period of the centrally planned economy. Tenants had a number of further advantages and benefits. As a result, they obtained ownership of flats at a nominal price which was only a fraction of their actual market value. The applicants indicated that one of the reasons for the large-scale denationalisation of public housing stock was so that the majority of the population could be compensated in a situation where the denationalisation of a substantial part of State property, such as companies, had resulted in it being transferred to a limited number of persons.

Subsequent amendments to Law no. 182/1993 extended its scope to cover flats the ownership of which had been transferred to a number of legal persons, such as consumption, agricultural and production cooperatives and companies. In its findings in case PL. ÚS 26/00, the Constitutional Court dismissed a challenge by the Prosecutor General to some of the amendments. It held, among other things, that the denationalisation of housing stock, in addition to being part of the economic transformation process, aimed at eliminating discrimination against residents of flats as compared to owners of individual houses who had acquired them with the help of public resources.

The large-scale denationalisation of housing stock in Slovakia, especially in big towns, resulted in almost all flats being transferred to private ownership. The rental sector nearly ceased to exist, with rental flats remaining mostly in restored and privatised houses.

From 1992 a number of instruments of subordinate legislation were issued providing for a gradual increase in regulated rent.

On 25 September 2008 the Ministry of Finance issued Measure no. 02/R/2008. It allowed the rent-control scheme to continue to apply after 31 December 2011 where (i) tenants or persons sharing their household did not own or co-own, on 1 October 2008, a comparable flat or inhabitable real property in the same municipality or within 50 kilometres of its boundaries; (ii) the landlord and the tenant did not reach a different agreement on the rent before 1 January 2012; and (iii) the tenants concerned submitted a registration form to the Ministry of Construction and Regional Development before 31 December 2008.

Documents of that Ministry indicate that, by 20 January 2009 registration forms had been submitted by tenants in respect of 923 flats where rent control was applied. 2,311 persons lived in those flats. The documents indicate that it was envisaged that substitute accommodation would be made available to those concerned by the reforms where this was justified by their social situation. 76.5% of the tenants thus registered lived in flats located in Bratislava.

On the basis of that data, the authorities estimated that the rent-control scheme concerned approximately 1,000 flats, that is to say 0.24% of rented flats in houses that existed in 1991 and 0.06% of the inhabited housing facilities which were available in Slovakia in 2001.

On 15 September 2011 the Termination and Settlement of Tenancy (Certain Flats) Act came into force. It was enacted with a view to eliminating rent restrictions concerning individual owners (see “Relevant domestic law and practice” below).

In application no. 11809/12, 135 of the 201 individual applicants had received notice of termination of their tenancies by 23 January 2013. By that date the applicants’ claim for substitute accommodation had been granted in thirty-six cases and refused in eight.

In application no. 35284/13, fifty-one individual applicants had received notice by the time their applications had been lodged on 21 May 2013. With the exception of four, the applicants in that case considered that they met the criteria of persons in “material need” of housing within the meaning of Law no. 260/2011.

Details of the relevant domestic law and practice are set out in the case of Bittó and Others v. Slovakia (no. 30255/09, §§ 32-70, 28 January 2014). In addition, the following information is relevant.

The Termination and Settlement of Tenancy (Certain Flats) Act 2011 (Law no. 260/2011), as amended, applies in particular to flats used by individuals whose rent has been regulated. It entitled landlords, until 31 December 2012, to give notice of termination of a tenancy which was to take effect after twelve months. Tenants who are entitled to substitute accommodation or whose corresponding claim has not yet been determined do not have to vacate their flats until a municipality has provided substitute housing to them. Law no. 260/2011 further entitles landlords to increase rent by 20% once a year from 2012 to 2015 (sections 1 to 4).

Pursuant to section 5(1) to (3), tenants who received notice under the above provisions are entitled to substitute accommodation subject to them (i) submitting a claim in compliance with the provisions of Law no. 260/2011 and (ii) being in “material need” of housing, namely where they or persons sharing their household do not own an appropriate flat within the boundaries of the same municipality or district and where it is justified by their financial situation.

Subsections (4) to (6) of section 5 define the substitute accommodation to be made available, namely rental flats in the same municipality comprising of one room for a single tenant, two rooms for two to three tenants, three rooms for four to five tenants, and four rooms for six or more individuals.

Persons applying for substitute accommodation must submit a declaration of their property and indicate its overall value (section 6). Applications must also indicate the particulars of the tenants and persons living with them, including their date of birth, family status, identity card number and address. They must also comprise the claimants’ consent to the data contained therein being processed and published in conformity with the Personal Data Protection Act (section 8).

A municipality’s decision on a request for substitute accommodation is reviewable by the courts (section 9(6)).

Under section 9(8), municipalities keep lists of persons applying for substitute accommodation. The lists are public and to be made accessible on public noticeboards and, where available, websites of the municipalities.

Section 12 obliges municipalities to provide successful claimants with substitute accommodation by 31 December 2016, or else they must pay the flat owners the difference between the free market rent and regulated rent.

Law no. 261/2011 governs the funding of flats in which substitute accommodation is to be provided.

Section 11 defines the size of such flats and how they should be equipped. Their surface area may not exceed 45 square metres in singleroom flats and 90 square metres in four-room flats. Standards are set as regards heating, personal hygiene facilities and kitchen equipment.

The aim of the Act has been, among other things, to protect individuals against an unjustified interference with their private life in the processing of their personal data (section 1(a)). It sets out in detail the requirements for personal data to be obtained and processed with or without the consent of the person concerned, and its storage and destruction. Those intending to publish personal data must not interfere in an unjustified manner with the personal rights and privacy of those concerned (section 12(5)).

The Act further entitles those concerned to obtain information as regards the storage and processing of their personal data, and request redress where appropriate. If they consider the relevant legal provisions to have been disregarded, they are entitled to apply to the Personal Data Protection Office, which may order any shortcomings found to be remedied and sanction those liable. Its decisions in that regard are reviewable by the courts.

The website of the Bratislava municipality contains, among other things, lists of persons whose claims for a rental flat, within the meaning of Law no. 260/2011, have been granted by a final decision. Separate lists are kept according to the number of rooms to which claimants are entitled. They indicate the first name, surname and address of those concerned.

The website further contains guidelines explaining the procedure under Law no. 260/2011 and forms which persons claiming substitute accommodation are required to complete. These comprise a claim form setting out the particulars of the claimant and persons living with him or her, information about the flat to be vacated and an indication whether the claimant and/or persons living with him or her have their own flat elsewhere.

Claim forms are to be accompanied by a declaration of property pursuant to section 6 of Law no. 260/2011. The claimant and persons concerned have to provide full details of their immovable property and its value. They are further required to declare any movable property exceeding 20,000 euros in value.

In addition, those concerned have to confirm in writing that they voluntarily consent to the above data being processed, in accordance with the Data Protection Act, by the municipality concerned, for the purposes of and to the extent that it is necessary for the decision on their claim for substitute accommodation, the granting of such accommodation and verification of the information submitted. The validity of the consent is expressly limited to the duration of the examination of the claim or, as the case may be, conclusion of a tenancy agreement in respect of a substitute flat.

The Bratislava municipality also publishes on its website lists of persons to whom municipal flats have been allocated outside the procedure set out in Law no. 260/2011. They contain the first name and surname of persons to whom a municipal flat has been rented and its size. The accompanying comment indicates that the information has been made public with a view to increasing the control and involvement of the public in municipal life.

Lists of persons whose claims for a rental flat within the meaning of Law no. 260/2011 have been granted, similar to those described in paragraph 36 above, are published on the websites of other municipalities, for example Trenčín, Žilina and Banská Bystrica.

Information about relevant international documents and comparative law in respect of housing policies is set out in the case of Berger-Krall and Others v. Slovenia (no. 14717/04, §§ 87-92 and 112-16, 12 June 2014).

On 9 November 2010 the Court of Justice of the European Union (Grand Chamber) delivered a judgment in joined cases C-92/09 and C93/09 (Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen), which concerned the protection of natural persons with regard to the processing of personal data. It held that, by requiring publication of the names of all natural persons who were beneficiaries of aid from agricultural funds and the exact amounts received by them, the Council of the European Union and the European Commission had “exceeded the limits which compliance with the principle of proportionality impose[d]”.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1990 and lives in Tallinn.

In 1995 the applicant’s grandmother N. privatised (bought on favourable terms from the public authorities) an apartment at 9 Mahtra Street in Tallinn. In 1996 she gave the apartment to the applicant, who was represented by her mother V. in the transaction.

On 21 April 2003 Zh. signed a power of attorney, witnessed by a notary, whereby he authorised N. to sell his apartment at 33 Punane Street in Tallinn. On 20 May 2003 N., acting on behalf of Zh., sold the apartment to her daughter V. For Zh., N. bought an apartment in the countryside worth about a twentieth of the value of the apartment at Punane Street.

It appears that on 7 August 2003 V. asked the social security service of the local municipality to approve the sale of the then thirteen-year-old applicant’s apartment at 9 Mahtra Street. She submitted that she had bought another apartment at 33 Punane Street by means of a loan. She wished to pay back the loan with the money to be received from the sale of her daughter’s apartment and give the newly acquired apartment to her daughter. It appears that the approval was granted by the social security service and the apartment at Mahtra Street was sold. On 28 October 2003 V. gave the apartment at Punane Street to the applicant, while V. herself acted as the applicant’s legal representative in the transaction.

On different dates several sets of criminal investigations into the circumstances of the sale of several apartments by various persons, including Zh., were initiated. The persons concerned had sold their apartments in Tallinn and in some cases acquired cheaper apartments in rural areas. For various reasons, such as mental health problems or alcohol abuse, these individuals had had difficulties in understanding the true nature of their transactions. Some of the individuals in question died soon after the transactions. Thus, Zh. died on 3 January 2004 of ethylene glycol poisoning. Criminal investigations into these deaths were also opened.

In the meantime, on 27 November 2003, an investigator ordered the attachment of the apartment at 33 Punane Street. The attachment order was quashed on 6 February 2004 and the criminal proceedings concerning the apartment at Punane Street were discontinued on 13 January 2005.

In the spring of 2007 a fresh criminal investigation was opened in respect of transactions concerning an apartment, and several other sets of criminal proceedings which had been discontinued in the meantime were reopened and joined to the criminal case. On 5 April 2007 the Harju County Court remanded N. in custody.

On 14 June 2007 the Harju County Court attached at the prosecutor’s request two apartments, including the one at 33 Punane Street. The County Court noted that the apartment at Punane Street had been acquired by N. and V., whereas V. had been registered as its owner immediately after the apartment had been obtained fraudulently from Zh. The court found that there was reason to believe that with the aim of avoiding transfer of the property it was deliberately registered in the name of the applicant, although its actual owner was V. The court noted that the apartments had to be attached in order to ensure the protection of the interests of the victims and to prevent them from being sold. In ordering the attachment of the apartments the court relied on Article 142 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), and on Article 83-1 §§ 1 and 2 of the Penal Code (Karistusseadustik). The court added that in this case it could be suspected that the financial means of the suspects derived from crime, and therefore a possible outcome was confiscation of the property as received through crime; securing the confiscation by any other measure than attachment was not possible. In accordance with the County Court’s decision copies of the decision were to be sent to V. and the applicant for information. The copy of the decision on file bears V.’s signature next to a notice that she had received a copy of it. It was noted in the decision that an appeal against it could be lodged within ten days.

On 31 July 2007 the applicant was interviewed as a witness. She said that she did not remember the details of the purchase of the apartment at Punane Street, as she was still a young child in 2003. She further said that she and her mother had sold the apartment at 9 Mahtra Street, and the apartment at Punane Street had been bought with the money received. She affirmed that she knew that the apartment was in her name but she had never lived there, it was undergoing repair, and her mother was paying for the apartment.

On 28 September 2007 the Prosecutor’s Office approved the statement of charges and on 2 October 2007 N. and V., with two others, were committed for trial by the Harju County Court. N. was charged with a number of offences, including the murder of Zh. and the attempted murder of another person, as well as several counts of fraud. V. was charged with several counts of fraud and aiding and abetting an attempted murder.

On 27 April 2008 the applicant reached the age of eighteen.

The episode concerning the apartment at Punane Street was dealt with at several hearings. In particular, at the hearing on 6 May 2009 the accused N. submitted that the apartment at Punane Street had been meant for the applicant from the very beginning, but as she was a child at the time she had not been told any details. The deed of gift had been drawn up after the applicant’s apartment at 9 Mahtra Street had been sold and V. had paid her debt. N. gave explanations about the origin of the money allegedly paid by N. to Zh. for the apartment.

At the hearing on 8 June 2009 the accused V. gave statements about the origin of the money with which the apartment had allegedly been bought. She submitted that she had received permission from the social security service to sell her daughter’s (the applicant’s) apartment at 9 Mahtra Street and to buy her the apartment at Punane Street.

At the hearing on 23 November 2009 V.’s counsel noted that, as concerned the apartment belonging to the applicant, Article 83-1 §§ 2 and 3 of the Penal Code was applied only if the property had been acquired completely or in substance on account of the actions of the offender as a gift, emphasising that confiscation would not necessarily be applied if it would be unreasonably burdensome on the person. When the deed of gift was drawn up the applicant was still a minor; confiscation would therefore be unjustified.

By a judgment of 12 January 2010 N. and V. were convicted as charged. N. was sentenced to fifteen years and V. to eight years’ imprisonment. In respect of the transactions related to the apartment at 33 Punane Street, the County Court established, relying on a psychiatric expert opinion, that Zh., who had been suffering from paranoid schizophrenia, had not understood the meaning of his actions when he signed the power of attorney for the sale of the apartment. Zh. had died by the time of the court hearing, but according to the statements he made during the preliminary investigation N. had promised to pay him for the apartment and also to buy him another apartment. She had told him to sign a confirmation that he had received the money, but in fact he had got no money. The court found implausible the allegation of the accused, supported by N.’s husband, that V. had borrowed some of the money to pay for the apartment from N.’s husband, who had sold his apartment five years before and kept the cash at home. It noted that according to N. the money from the sale of her husband’s apartment had been used to buy yet another apartment. The court also noted that V. had been unable to explain the origin of the second half of the money allegedly paid to Zh. for the apartment at Punane Street, and established that Zh. had received no money. Relying on Article 83 § 3 (2) of the Penal Code, the court ordered the confiscation of the apartment at 33 Punane Street, belonging to the applicant, as property obtained through crime committed against Zh. The court noted that the apartment had been transferred from Zh.’s ownership against his will, and that the applicant, who was thirteen years old in 2003, could not have been a bona fide acquirer, because the transaction had been concluded by her mother V. on her behalf. The transaction had been concluded a couple of months after the purchase of the apartment in order to prevent it from being confiscated.

V. and N. appealed. V. argued, inter alia, that the apartment at 33 Punane Street belonged to the applicant. In order to buy the apartment, another apartment at 9 Mahtra Street had been sold, with the approval of the social security service. Thus, the apartment at Punane Street had not been obtained through crime and it was not subject to confiscation.

By a judgment of 14 June 2010 the Tallinn Court of Appeal dismissed the appeals. In respect of the confiscation of the applicant’s apartment at Punane Street, the Court of Appeal noted that she had obtained the apartment when she was a minor, and was not capable of understanding the transaction at the time. The apartment had been the object of the commission of an offence (a fraud) by the accused, and was liable to be confiscated under Articles 83 § 3 (2) and 83-1 § 2 of the Penal Code. The Court of Appeal noted that the apartment had not been obtained legally but on account of the actions of the offenders N. and V.

On 18 August 2010 the Supreme Court decided not to examine the appeals lodged by N.’s and V.’s counsel, and the lower courts’ judgments became final.


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1962 and lives in Maribor.

On the evening of 3 November 1983, the applicant, who was eight months pregnant and was returning home from work, was attacked by three men, A.M., T.D. and N.T. They pulled her into a car, drove to a remote location and raped her one after the other.

Immediately after the incident, the applicant went to the Maribor Police. The police arrested the three men at around midnight. They remained in custody following an investigating judge’s order. They were released from custody on 24 November 1983. The applicant was taken to the Maribor Hospital to be medically examined.

On 5 November 1983 the police lodged a criminal complaint against A.M., T.D. and N.T. accusing them of rape. Three days later, the Maribor District Public Prosecutor asked the investigating judge of the Maribor Basic Court to open an investigation.

During the investigation, three reports concerning the examination of the crime scene were prepared, and the three accused men and witnesses were heard by the investigating judge. T.D. and N.T. admitted to having had sex with the applicant, but denied that any force had been used. A.M. denied having had sex with the applicant.

On 13 March 1984 A.M., T.D. and N.T. were charged with aggravated rape under section 100 § 2 of the Penal Code of the Republic of Slovenia. The proceedings that followed were conducted in secrecy in order to protect the private lives of those involved.

The first trial hearing was scheduled for August 1988. However, it was adjourned due to the absence of A.M. and N.T. Another hearing to be held on 24 February 1989 was adjourned because it had proved impossible to serve a court order on N.T. In this connection, the Government pointed out that all three men had been born outside the territory of Slovenia and were Roma. At the time of the incident, two of them (A.M. and T.D.) resided in Slovenia, while the third (N.T.) resided in another part of what was then Yugoslavia.

On 14 December 1989, an order for detention pending trial was issued against N.T. because he was considered to pose a flight risk. However, he could not be found and went missing. Therefore, an arrest warrant was issued against him on 25 April 1990, which could not, however, be executed. In May 1995, the court conducted inquiries as to the whereabouts of all three defendants and established the places of residence of A.M. and T.D., but not that of N.T. A hearing on 13 October 1995 was adjourned due to the absence of A.M.’s defence counsel. As his whereabouts could not be established, on 26 October 1995 the charges against N.T. were severed into a separate case.

N.T. could not be found and brought to trial in the following years, so an international arrest warrant was issued against him in 2004. However, his whereabouts remained unknown and the charges against him were dropped on 1 October 2008. The international arrest warrant was revoked on 29 September 2010.

The main hearing in the case against A.M. and T.D. began on 18 November 1996 and continued on 27 and 30 March 1998, 29 April 1998 and 5 June 1999. Thirty-one other hearings were scheduled between 29 November 1995 and 4 March 2002, though they were all postponed, mainly due to the absence of the defendants or of their counsel. From 2000 onwards, a number of steps were taken in order to ensure the presence at trial of T.D., who had apparently been absent from Slovenia for some time. At the end of 2000, the presiding judge proposed that he be placed in detention to prevent him failing to appear at court for hearings, but the extrajudicial panel rejected this proposal, ordering that less severe measures, such as bringing him to hearings by force, should be envisaged first.

On 7 July 2003 T.D., who was then fifty years old, died. On 16 January 2004 the part of the case concerning the charges against him was severed from the ongoing proceedings.

The Maribor District Court held hearings on 26 May 2004 and on 3 November 2004. The court, amongst other things, heard A.M., the applicant, her husband and five other witnesses, read out the statements given by T.D. and N.T. earlier in the proceedings, and looked into the applicant’s medical reports, the record of the examination of the scene of the crime, the record of the examination of A.M.’s car and a variety of other documents.

On 3 November 2004 the court issued a judgment finding A.M. guilty of the criminal offence of aggravated rape. He was sentenced to two-and-a-half years in prison. When setting the sentence, which was below the minimum three-year sentence prescribed by law, the court referred to the significant lapse of time from the commission of the crime. It noted that the reasons for the delays in the proceedings had been predominantly caused by the behaviour of T.D. and N.T.

Following an appeal by A.M., on 10 November 2006 the Maribor Higher Court quashed the judgment and remitted the case for re-examination. It instructed the Maribor District Court to examine whether A.M. had committed the criminal offence in question or had only attempted to commit it, and whether he had previously known the applicant, which might have raised doubts as to her credibility.

On 24 April, 15 June, 14 September, 19 October and 6 November 2007, the court held hearings at which it heard the applicant and a number of witnesses. On the last of those dates, the Maribor District Court issued a judgment finding A.M. guilty of aggravated rape under section 100 § 2 of the Penal Code of the Republic of Slovenia. It sentenced him to two-and-a-half years in prison, referring to the extreme amount of time that had passed since the commission of the offence.

Following a further appeal by A.M., on 10 July 2008 the Maribor Higher Court further reduced his sentence to one year in prison, referring to the passage of time, A.M.’s young age (namely 21) at the time of the event, the fact that he had not been later convicted of any other criminal offence, his deteriorating health and the fact that he had a minor child. It upheld the reminder of the Maribor District Court’s judgment.

A.M. submitted an appeal on points of law (a request for the protection of legality), which was rejected by the Supreme Court on 3 September 2009.

Meanwhile, on 28 July 2009 the applicant had instituted civil proceedings against A.M. seeking damages in the amount of 50,000 euros (EUR) for non-pecuniary damage suffered as result of the rape which had been established by the final criminal judgment.

On 31 March 2010 the court issued a default judgment. On 18 May 2010 A.M. appealed, arguing that he had not been duly summoned to appear. A hearing was held on 6 September 2010. On 23 December 2010 the court granted reinstatement and summoned the parties to appear at a hearing on 31 March 2011. However, this hearing was adjourned until 24 May 2011 at the request of the defendant’s counsel. On that date the parties reached a court settlement by which A.M. was to pay EUR 15,000 (by means of a number of instalments) to the applicant. The civil case was consequently concluded. The applicant alleged that she has not received any compensation to date.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

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

The applicant was born in 1966 and lives in Istanbul.

In a decision of 22 May 2007, which became final on 20 July of that year, the Üsküdar Family Court (Istanbul) authorised the applicant, who was then single, to adopt a child, E., born on 5 November 2003 to Ms S.Ö.

Consequently, under Article 314 §§ 2 and 3 of the Civil Code (no. 4721), “Gözüm” was registered as the surname of E. in the register of births and on the child’s identity documents. However, the registrar refused to indicate the applicant’s forename under the heading “mother”, where the name “S.” was retained, this being the forename of the child’s biological mother.

On 23 November 2007 the applicant applied to Üsküdar District Court seeking the replacement of the forename “S.” by her own. In her view, the fact that her forename had not been given as that of the mother of her adopted son was both discriminatory and unconstitutional, likely to undermine their personal, family and social development, and thus constituting a violation of, among other provisions, Articles 8 and 14 of the Convention. She argued that in relation to single-parent adoptions there was a lacuna in the Civil Code which required the court to make provision for such a situation of its own motion, pursuant to Article 1 of that Code or, failing that, to request a preliminary ruling of the Constitutional Court.

On 26 February 2008 the court dismissed the applicant’s request on the ground that it had no legal basis. It found that the Civil Code, in choosing to regulate only two-parent adoptions – those granted to a couple jointly –, intended to treat the legal relationship between the adoptive parents and the adopted child as “a biological relationship”, which was not possible in the case of single-parent adoptions, where either a mother or a father was absent. Thus the legal situation obtaining in the present case could not be regarded as unconstitutional.

On 14 April 2008 the applicant appealed on points of law.

On 15 March 2009, when those proceedings were still pending, a new regulation entered into force entitled “Regulation on the implementation of mediation services for the adoption of minors” (“the Regulation”), enabling a single adoptive parent to have his or her forename registered in the place of that of the biological parent ...

On 5 November 2009 the Court of Cassation upheld the decision of the court below in a judgment which made no mention of the legislative reform.

On 14 December 2009 the applicant was notified of that judgment.

On 9 November 2010 she applied to the registry office for the registration of her forename as that of the mother of E., relying on Article 20 § 4 of the new Regulation. That request was granted on the same day and the record entries concerning the child were consequently amended with immediate effect.