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

The applicant was born in 1962 and lives in Pomarkku.

On 9 June 2005 the applicant’s husband was injured in a car accident and he received insurance benefits from an insurance company. However, on 2 and 5 March 2006 the insurance company refused his applications for compensation for rehabilitation. On 30 March and 4 April 2006 the husband appealed against these decisions to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). The husband died on 3 August 2006 but the applicant and the estate decided to continue the appeals.

On 3 May 2010 the Insurance Court rejected the appeals. No appeal lies against these decisions. The judgment of the Insurance Court was sent to the applicant on 1 June 2010.

On 26 February 2010 the applicant lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) complaining, inter alia, about the excessive length of the proceedings in the Insurance Court.

On 17 November 2011 the Ombudsman gave a reply, after having requested a statement from the Insurance Court which included reports from the referendary and the judges responsible for examining the applicant’s case. The Ombudsman considered that the proceedings in the applicant’s case had taken, in total, a long time. However, the Ombudsman accepted the reasons given by the Insurance Court, namely that the case had been exceptionally extensive, complex and time-consuming. The Insurance Court examined the case as a first instance, which required more preparation than when it examined appeals as a second instance. Also the case file had been incomplete and several requests for information had been made. The applicant, on her part, had sent a considerable number of documents during the course of the proceedings, which had also contributed to the length. The Ombudsman considered that there had been no particular inactivity in the Insurance Court. Hence it considered that, despite the lengthy proceedings, there had not been unjustified delays in the course of the proceedings.

On 20 October 2010 the applicant initiated extraordinary proceedings before the Supreme Court (korkein oikeus, högsta domstolen), requesting that the decisions of the Insurance Court be quashed because the referendary in the Insurance Court had been biased.

On 29 July 2011 the Supreme Court dismissed the application for being outside its competence. As the proceedings before the Insurance Court were administrative, it was the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) that was competent to examine an extraordinary appeal concerning an alleged procedural flaw.

On 5 October 2011 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, claiming that the proceedings before the Insurance Court had been flawed due to the partiality of the referendary and the wrong application of law.

On 31 May 2012 the Supreme Administrative Court dismissed the complaint concerning the wrong application of law without examining the merits and rejected the partiality complaint after having examined it. The Supreme Administrative Court considered that the applicant had reasoned her complaint about the referendary’s partiality only with the fact that she had complained about the referendary to the Parliamentary Ombudsman. The court was of the opinion that the mere fact that the applicant had complained about the referendary to the Ombudsman did not put the impartiality of the referendary into question.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1954 and lives in Zagreb.

On 25 April 1992 the applicant married Ms Z.J.

On 9 October 1993 Z.J. gave birth to their son I.R.

In December 1993 Z.J., together with their son, moved out of the flat in which she had lived with the applicant and went to live with her parents. After that she started avoiding contact with the applicant. Prior to the institution of the divorce and custody proceedings in February 1996 (see paragraphs 9-30 below) the applicant saw his son only twice, in January 1994 and in 1995 during Easter holidays. The applicant and Z.J. officially divorced by a court judgment to that effect on 12 February 2002 (see paragraphs 21-22 below).

On 19 February 1996 Z.J. brought a civil action against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking divorce, custody of, and the maintenance for their son.

On 22 April 1997 the court asked the Zagreb Social Welfare Centre (Centar za socijalnu skrb Zagreb, hereafter “the local social welfare centre”) to prepare a report on the family situation in the Ribić family and submit its recommendation as to whom of the parents custody of their son should be awarded.

The Government submitted that the applicant had ignored the local social welfare centre’s calls to attend interviews necessary for the preparation of the report by not collecting the centre’s letters to that effect from the post office. The applicant denied that allegation, noted that the Government had not substantiated it by relevant documents and invited them to do so. He further submitted that while it was true that in the period between 1993 and 2003 he had worked in Ljubljana (Slovenia) on weekdays, he had been staying in Zagreb every weekend. If there had been any problem with the service of the local social welfare centre’s correspondence to him, the centre should have contacted the advocate who had represented him in the civil proceedings in question.

On 7 July 1997 the applicant’s and Z.J.’ legal representatives agreed to temporarily suspend the proceedings (mirovanje postupka) for a period of three months with a view to reaching an amicable solution, which however did not materialise.

Thus, in the further course of the proceedings, on 23 January 1998, the court decided to obtain information on the parties’ income, and scheduled the next hearing for 20 April 1998 with a view to hearing the parties.

However, the hearing scheduled for 20 April 1998 was adjourned because the applicant did not attend it.

At the hearing held on 22 May 1998 the court again decided to hear the parties and invited Z.J. to provide information on her income, something the applicant had already done.

At that hearing and in his written submission of 9 March 1999 the applicant asked the court to issue a provisional measure whereby it would provisionally regulate his contacts with his son. According to the information submitted by the parties, the court did not decide on the applicant’s motion, apparently because under the legislation in force at the material time interim contact orders were in the exclusive jurisdiction of the social welfare centres as administrative authorities (see paragraph 81 below).

At the hearing held on 9 October 1998 the court heard the parties and decided to obtain an opinion from an expert in psychiatry with a view to deciding on custody and access rights. However, since the applicant and Z.J. did not advance the costs of the expert opinion until seven months later, the case-file was not sent to the appointed expert institution before 11 June 1999.

In the course of the preparation of the expert opinion, on 26 February 2000 the applicant met with his son, for the first time since Easter of 1995 (see paragraph 8 above). On the same date the applicant and Z.J. signed an agreement regarding the contact schedule they would propose to the court. In particular, it was agreed to propose to the court that the contacts between the applicant and his son take place in the presence of both parents for two hours on the premises specified by the local social welfare centre and in the presence of a child-welfare professional designated by the centre. In the first three months, the contacts were to take place twice a month, and thereafter every week. After a year the local social welfare centre were to assess the situation and propose further arrangements.

By 3 April 2000 the designated expert institution had finalised the expert opinion, which was received by the court 11 days later. The experts’ recommendation was in line with the parties’ agreement of 26 February 2000, which they endorsed. The experts particularly emphasised the need for the contacts between the applicant and his son to take place in the presence of Z.J. and a child-welfare professional designated by the local social welfare centre.

Since both parties objected to the expert opinion, the court held three more hearings, on 25 May and 14 and 28 September 2001 during which the court heard the psychiatrist who had prepared it. The court also obtained fresh information on the parties’ income with a view to deciding on the maintenance for their son.

On 26 October 2001 the Municipal Court pronounced judgment whereby it: (a) dissolved the marriage between the applicant and Z.J., (b) awarded custody of their son to Z.J., (c) granted the applicant access (contact) rights, and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for his son. The relevant part of that judgment reads as follows:

“Contacts between I.R. and his father Zdenko Ribić shall take place twice a month on Saturdays for two hours for the period of two months, and after that once a week on Saturdays in the child’s home in the presence of the mother and a psychologist or social worker. After a year the local social welfare centre may propose changes in the frequency [of contacts].

Since both parties repeatedly, by their non-attendance and their failure to advance the costs of the expert opinion, caused hearings to be postponed and thereby protracted the proceedings for several years ... each party should bear their own [litigation] costs.”

Following an appeal by both parties, on 12 February 2002 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment in so far as it concerned access rights and maintenance and remitted the case. It upheld the contested judgment in so far as it concerned divorce and custody, which part thereby became final.

In the resumed proceedings, the Zagreb Municipal Court held hearings on 5 July 2002, and on 27 January, 19 March and 12 July 2003.

In addition, on 26 August 2002 the court invited the local social welfare centre to prepare a report and submit its recommendation on the applicant’s contact with his son. In the course of their preparation the expert team of the centre, consisting of a social worker and a psychologist, conducted several joint and separate interviews with the parties. The centre’s experts also contacted the applicant’s son’s school and obtained an opinion on his school performance.

On 7 February 2003 the local social welfare centre submitted its report and recommendation to the court. Its expert team recommended that the contacts between the applicant and his son take place every second Saturday for two hours for the period of three months, and after that every Saturday, in the presence of the mother and a child-welfare professional. However, the centre’s experts suggested that the contacts should not take place in the child’s home as it was not a neutral ground and could give rise to conflicts between the applicant on the one side and Z.J. and her parents on the other. Their report indicated that the applicant’s son was very emotionally attached to his mother, that he did not know his father but wanted to meet him. The expert’s opinion also suggested that the centre impose a child-protection measure of supervision of exercise of parental authority focusing on contacts between the applicant and his son, with a view to facilitating those contacts and assisting the parents in improving communication between them (see paragraph 59 below).

At the hearing held on 19 March 2003 the court heard the parties.

On 4 July 2003 the court rendered a partial judgment whereby it decided on the maintenance for the applicant’s son. At the same time it decided to stay the proceedings in so far they concerned the applicant’s access rights pending the outcome of the concurrent civil proceedings his former wife had instituted against him with a view to depriving him of parental responsibility (see paragraphs 77-78 below). The applicant appealed.

On 3 February 2004 the Zagreb County Court dismissed the applicant’s appeal against the partial judgment on maintenance and upheld it. At the same time it quashed the first-instance decision to stay the proceedings and remitted the case. It held that the applicant had the right to maintain contact with his son as long as he was not deprived of parental responsibility.

In the resumed proceedings, on 23 July 2004 the Zagreb Municipal Court adopted a judgment whereby it again granted the applicant access rights and issued a detailed contact schedule. In particular, the court decided that in the first three months the contacts between the applicant and his son were to take place every second Saturday for two hours on the premises of the local social welfare centre and in the presence of the mother and either a psychologist or social worker designated by the centre. In the next three months the contacts were to be arranged in the same manner but every Saturday, and, after another three months, in the same way but in the absence of the mother. After nine months the applicant were to exercise his access rights for four hours every Tuesday and Thursday in those weeks when the applicant’s son had school in the morning, every second weekend, thirty days of summer and seven days of winter holidays, as well as every second official or church holiday.

On 12 April 2005 the Zagreb County Court dismissed an appeal by Z.J. and upheld the first-instance judgment. The first-instance judgment of 23 July 2004 became final when the second-instance judgment of 12 April 2005 was served on both parties on 29 June 2005.

As Z.J. refused to comply with the above judgment of 23 July 2004 and obstructed the exercise of the applicant’s access rights, on 12 May 2005 he applied for enforcement of that judgment before the Zagreb Municipal Court.

On 25 August 2005 that court issued a writ of execution (rješenje o ovrsi) whereby it ordered Z.J., at the risk of fine of 3,000 Croatian kunas (HRK), to allow the applicant to exercise his access rights.

On 8 November 2005 the Zagreb County Court dismissed an appeal by Z.J. and upheld the writ.

On 2 December 2005 the local social welfare centre informed the court that Z.J. was not complying with judgment of 23 July 2004 as she had not been bringing the applicant’s son to the scheduled meetings on the centre’s premises where the contacts between him and the applicant were to be arranged. The centre thus asked to court to enforce the judgment through a judicial enforcement officer.

On 22 December 2005 the Zagreb Municipal Court issued a decision whereby it fined Z.J. HRK 3,000 for non-compliance with the judgment of 23 July 2004, and again ordered her, at the risk of further fine of HRK 6,000, to do so within fifteen days. Z.J. appealed but on 21 November 2006 the County Court dismissed her appeal.

In the meantime, on 29 December 2005, Z.J. asked for postponement of enforcement but the Municipal Court dismissed her motion.

Since Z.J. had paid the fine but nevertheless did not comply with the judgment, on 30 November 2006 the Zagreb Municipal Court accepted the applicant’s motion of 27 September 2006 and issued a new writ of execution whereby it ordered a judicial enforcement officer, with the assistance of a pedagogue or a social worker employed with local social welfare centre, and a police officer, to take the applicant’s son from Z.J., or any other person each time the applicant was entitled pursuant to the contact schedule to exercise his access rights, and to return him to her afterwards. Even though the court ordered that the costs of that intervention by the enforcement officer were to be borne by Z.J., it invited the applicant to advance those costs within eight days of the service of the writ.

By a decision of 14 February 2007 the Municipal Court discontinued the enforcement proceedings because the applicant had not advanced the costs. The applicant then first on 7 March 2007 appealed against that decision but, on 29 March 2007 withdrew that appeal and, eventually, on 23 November 2007 withdrew his application for enforcement of 12 May 2005 (see paragraph 31 above).

Accordingly, on 4 December 2007 the Zagreb Municipal Court discontinued the enforcement proceedings.

Meanwhile, on 23 April 2007 the applicant again applied for enforcement of the above judgment of 23 July 2004 (see paragraph 29 above) before the Zagreb Municipal Court.

On 6 December 2007 that court issued a writ of execution identical to the one of 30 November 2006 (see paragraph 37 above).

On 24 December 2007 Z.J. appealed against the writ and on 2 January 2008 sought that the enforcement be postponed.

On 6 February 2008 the Zagreb Municipal Court dismissed Z.J.’s motion for postponement of the enforcement. On 25 February 2008 Z.J. appealed against that decision.

On 28 February 2011 the Municipal Court forwarded Z.J.’s appeals of 24 December 2007 and 25 February 2008 to the Zagreb County Court for a decision.

By a letter of 19 April 2011 the County Court returned the case file to the Municipal Court asking it to correct certain errors in the first-instance proceedings.

In the meantime, on 10 June 2009 the applicant had lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining about the length of the second set of the enforcement proceedings.

On 26 September 2011 the Supreme Court found a violation of the applicant’s right to a hearing within a reasonable time and: (a) awarded him HRK 5,000 in compensation, (b) ordered the Zagreb Municipal Court to correct the errors indicated in the Zagreb County Court’s letter of 19 April 2011 within a month (see paragraph 45 above), and (c) ordered the Zagreb County Court to decide on Z.J.’s appeals of 24 December 2007 and 25 February 2008 within three months upon receiving the case file again from the Municipal Court.

By decisions of 6 March 2012 the County Court dismissed Z.J.’s appeals of 24 December 2007 and 25 February 2008.

Meanwhile, on 9 October 2011 the applicant’s son turned eighteen and became an adult. Accordingly, the above enforcement proceedings became obsolete. Consequently, by a decision of 13 January 2013 the Municipal Court discontinued the enforcement proceedings.

Parallel to the above civil proceedings concerning inter alia custody and access, the local social welfare centre acted in various ways in order to solve the family conflicts.

On 20 March 2003 the local social welfare centre issued a decision whereby it provisionally granted the applicant access rights until the judgment in the above civil proceedings became final, and issued a contact schedule. In particular, the centre decided that the contacts between the applicant and his son were to take place every second Friday for one hour on its premises in the presence of a child-welfare professional for a period of three months. The decision specified that an appeal against it did not suspend its enforcement. On 14 April 2003 Z.J. appealed against that decision.

On 15 April 2003 the centre informed Z.J. of the need to cooperate with it and enable the contacts between the applicant and his son. It warned her that the failure to do so may be considered as dereliction of her duties as a parent calling for more stringent child-protection measures.

On 27 June 2003 the applicant applied to the centre for enforcement of its decision of 20 March 2003.

However, acting on the appeal by Z.J. of 14 April 2003, on 22 September 2003 the relevant Ministry, as the second-instance administrative authority, quashed the centre’s decision of 20 March 2003 and remitted the case. Accordingly, on 3 December 2003 the centre discontinued the administrative enforcement proceedings instituted by the applicant on 27 June 2003.

On 30 October 2003 the applicant applied to the centre to issue a new decision on his access rights.

On 22 December 2003 the local social welfare centre issued a new decision whereby it again provisionally granted the applicant access rights until the judgment in the above civil proceedings became final, and issued a new contact schedule. The decision specified that an appeal against it did not suspend its enforcement. On 19 January 2004 Z.J. appealed.

On 13 July 2004 the relevant Ministry dismissed that appeal and upheld the centre’s decision. Z.J. then brought an action in the Administrative Court against the Ministry’s decision, which that court dismissed on 17 February 2005.

In the meantime, on 15 October 2004 the applicant applied for enforcement of the local social welfare centre’s decision of 22 December 2003 (see paragraph 56 above). However, it would appear that before 29 June 2005, that is, the date on which the judgment of the Zagreb Municipal Court of 23 July 2004 in the above civil proceedings became final (see paragraph 29-30 above) and thus superseded the decision the applicant sought to enforce, the local social welfare centre did not issue an enforcement order or undertake other steps to enforce its decision.

Concurrently with the administrative proceedings described above (see paragraphs 51-58), the local social welfare centre conducted other administrative proceedings. In particular, by a decision of 23 December 2003 the local social welfare centre imposed a child-protection measure of supervision of the exercise of parental authority (see paragraph 82 below) for a period of one year, appointed a supervising officer and drafted a supervision programme.

On 2 February 2004 the supervision officer informed the centre that Z.J. ignored her calls to arrange the first meeting between the applicant and his son in the execution of the centre’s decision of 22 December 2003 (see paragraph 56 above) granting him provisional access rights. On the same day the centre adopted the opinion that the supervision measure should be discontinued as ineffective and that criminal-law measures should be set in motion instead (see paragraph 68 below).

On 1 March 2004 the supervising officer submitted her report to the centre stating that no contacts between the applicant and his son had taken place since the adoption of the centre’s decision of 22 December 2003 (see paragraph 56 above). At the same time she proposed that the contacts between the applicant and his son be arranged on school premises in the presence of a pedagogue.

By a decision of 9 March 2004 the centre discontinued the application of the child-protection measure of supervision of the exercise of the parental authority imposed by its decision of 23 December 2003 (see paragraph 59 above). It stated that the measure was ineffective given Z.J.’s lack of cooperation and that other, more stringent, child-protection measures were warranted. On 17 March 2004 Z.J. appealed against that decision.

On 17 February 2005 the relevant Ministry quashed the centre’s decisions of 23 December 2003 and 9 March 2004 (see paragraphs 59 and 62 above) and remitted the case.

In the resumed proceedings, after having heard the applicant and Z.J. on 19 April 2005, by a decision of 13 May 2005 the centre again imposed the child-protection measure of supervision of the exercise of parental authority for a period of one year, appointed a supervising officer and prepared a programme of supervision. Z.J. appealed.

On 3 June, 4 and 31 July 2005 the supervising officer informed the centre that contacts between the applicant and his son had not taken place due to Z.J.’s lack of cooperation.

On 29 December 2005 the relevant Ministry dismissed an appeal by Z.J. and upheld the centre’s decision of 13 May 2005 (see paragraph 64 above).

The child-protection measure imposed by the centre in its decision of 13 May 2005 expired on 15 May 2006. Monthly reports submitted by the supervising officer suggest that in that one-year period the applicant had not met his son.

On 5 February 2004 the local social welfare centre invited the Zagreb State Attorney’s Office to bring criminal charges against Z.J. for her failure to cooperate with the centre and the supervising officer, obstruction of measures issued by the centre and dereliction of her duties as a parent regarding her son’s contacts with his father.

On 24 March 2004 the Zagreb State Attorney’s Office informed the social welfare centre that, for the time being, there were no grounds to prosecute Z.J. for the criminal offence of obstruction of the child-protection measures defined in section 215 of the Criminal Code (see paragraph 84 below) because the decisions whose execution Z.J. allegedly obstructed had not become final.

On 14 April 2004 the applicant filed a criminal complaint against Z.J. with the same State Attorney’s Office accusing her of the same criminal offence.

On 29 September 2004 the State Attorney’s Office dismissed his criminal complaint. In so doing, it advanced the same reasons as those stated in its letter to the social welfare centre of 24 March 2004 (see paragraph 69 above).

On 18 November 2005 the local social welfare centre informed the State Attorney’s Office that decisions whose execution Z.J. had been obstructing had become final and invited the State Attorney’s Office to criminally prosecute her.

On 5 December 2005 the State Attorney’s Office indicted Z.J. before the Zagreb Municipal Court for having been obstructing the court-ordered contacts between the applicant and his son. In particular, she was charged with the criminal offence of obstruction of child-protection measures laid down in section 215 of the Criminal Code (see paragraph 84 below).

By a judgment of 24 June 2008 the Municipal Court found Z.J. guilty as charged and convicted her but the judgment was subsequently quashed by the Zagreb County Court following her appeal and the case was remitted.

In the resumed proceedings, by a judgment of 24 January 2011 the Zagreb Municipal Court again found Z.J. guilty as charged and sentenced her to five months’ imprisonment but imposed a suspended sentence with supervision (uvjetna osuda sa zaštitnim nadzorom) for a period of three years provided that in that (probation) period she did not commit a further offence. In its judgment the court noted, inter alia, the following:

“This court is deeply aware that all decisions and judgments including this one can no longer remedy the harm and evil caused by the conduct of the accused, primarily to her child, who grew up without a father ... However, it can at least emphasise that such behaviour is unacceptable and punishable ... When determining the penalty the court took into account, as aggravating circumstances, the fact that for a number of years the accused deliberately, perfidiously and deceitfully obstructed enforcement of any court decision or decision of the social welfare centre and in so doing behaved arrogantly and acted as if she was untouchable and in that way hindered a healthy and undisturbed development of her son. The court did not find any special mitigating circumstances.”

By a judgment of 16 March 2012 the Zagreb County Court dismissed an appeal by Z.J. and upheld the first-instance judgment.

In 2002 Z.J. instituted non-contentious proceedings against the applicant before the Zagreb Municipal Court with a view to depriving him of parental responsibility for his son.

By a judgment of 2 November 2004 the court dismissed Z.J.’s petition. It held that her claims that the applicant had abandoned his son, grossly neglected his duties as a parent and failed to pay (regularly) for his maintenance were unfounded. In so doing it relied on the report of the local social welfare centre suggesting that it was Z.J. who had obstructed the applicant’s contacts with his son.


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

The applicant, Mr Ioan Pătrînjei, is a Romanian national, who was born in 1947 and lives in Timişoara. He was represented before the Court by Mr S. Secoban, a lawyer practising in Timişoara.

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

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

On 26 November 1990 the applicant, a Timişoara Post Office employee, signed a lease with the Timişoara Radiocommunications Agency, an organisation attached to the Timişoara Post Office, for one of the accommodation units located in a building owned by the said Radiocommunications Agency.

On 29 July 1992 Law no. 85/1992 on the sale of dwellings and spaces for other purposes built by the State and State-owned companies entered into force.

On an unspecified date the Timişoara Post Office and the Timişoara Radiocommunications Agency split into two distinct organisations. While the applicant remained a post office employee, the Agency remained the owner of the building in which the applicant was a tenant.

By a decision of 28 December 1993 the board of the Timişoara Radiocommunications Agency decided that for the purposes of Law no. 85/1992 the apartments located in the building the applicant was living in constituted standby personnel accommodation (locuințe de intervenție), that they were intended exclusively for employees of the Agency, and that they could not be sold.

On an unspecified date, the tenants’ association of the building in which the applicant lived asked the Timişoara Radiocommunications Agency’s board to allow its members to purchase the apartments they were leasing. The request addressed to the Agency’s board was personally signed by the applicant and twelve other tenants and bore the seal of the association.

On 8 March 2004 the Timişoara Radiocommunications Agency notified the applicant that his lease would be terminated and asked him to vacate the apartment he was leasing because – amongst other things – he was not an employee of the Agency and the apartment in question was classified as standby personnel accommodation.

On 22 April 2004 the applicant dismissed the Timişoara Radiocommunications Agency’s request of 8 March 2004 on the grounds that the lease was still valid.

On 29 July 2004 the Timişoara Radiocommunications Agency brought proceedings against the applicant seeking the termination of his lease and his eviction. It argued, inter alia, that the applicant was not an employee of the organisation which owned the building, and the apartment in question was classified as standby personnel accommodation.

On the same date, the applicant lodged a counterclaim against the Timişoara Radiocommunications Agency before the domestic courts seeking – on the basis of Law no. 85/1992 – an injunction ordering the company to sell to him the apartment he was leasing. He argued that the apartment in question could not be classified as standby personnel accommodation and that, although over the years he had repeatedly asked the Agency to sell him the apartment, he had received contradictory and evasive verbal answers.

By a judgment of 20 September 2005 the Timişoara District Court dismissed the Timişoara Radiocommunications Agency’s action and allowed the applicant’s counterclaim and ordered the Agency to sell him the apartment he was leasing. It held that the applicant held a valid lease which he had signed before the Agency’s board decided to change the main purpose of the building in which the apartment was located.

On 6 April 2006 a bailiff notified the Timişoara Radiocommunications Agency on the applicant’s behalf that, according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. In addition, it asked the Agency to inform the applicant in writing – within five days of the date on which it received the notification – of the date and place where the contract of sale would be signed.

The Timişoara Radiocommunications Agency appealed against the aforementioned judgment. It argued that although the applicant contended that he had repeatedly asked to purchase the apartment, he had failed to submit any written documents to support his claim.

By an interlocutory judgment of 19 May 2006 the Timiş County Court granted the Timişoara Radiocommunications Agency’s application and asked the applicant to submit evidence that he had asked the Agency to sell him the apartment.

By a judgment of 10 November 2006 the Timiş County Court dismissed the Timişoara Radiocommunications Agency’s appeal on the basis of the available evidence. It held that the applicant fulfilled the conditions laid down in Law no. 85/1992 for purchasing the apartment. Moreover, the applicant’s right to purchase the apartment could not be considered time-barred because Law no. 85/1992 did not lay down a timelimit for the applicant to exercise his right to purchase the apartment. Furthermore, the lease could not be considered terminated as long as the applicant had exercised his right of purchase.

The Timişoara Radiocommunications Agency appealed on points of law (recurs) against the judgment. It argued that the applicant had not submitted any evidence in support of his claim that he had asked to purchase the apartment prior to the notification sent to him by the Agency that his lease had been terminated.

On 29 November 2006 a bailiff notified the Timişoara Radiocommunications Agency for the second time on the applicant’s behalf that according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant.

By a final judgment of 21 May 2007 the Timişoara Court of Appeal allowed in part the Timişoara Radiocommunications Agency’s appeal on points of law in so far as it concerned the applicant’s counterclaim. It held that the building containing the apartment leased by the applicant had been constructed during the communist regime using Agency funds. According to the expert report available on file, the apartment leased by the applicant was not standby personnel accommodation because some of the tenants leasing apartments in the building were not employees of the Agency. The applicant remained an employee of the Post Office and the leased apartment was owned by the Agency. At the time, the Agency did not wish to sell the apartment leased by the applicant and wanted to keep it in its possession. The court took the view that it could not usurp the will of the owner by its judgment and order the sale of the apartment in circumstances other than those desired by the owner. If the applicant asked the board of the Agency to sell him the apartment and his request was approved, a consensus between the wishes of the parties could be achieved and the contract desired by the parties concluded. However, in the present case the lower courts had misapplied the provisions of Article 7(1) of Law no. 85/1992. In so far as the Agency’s application seeking the termination of the applicant’s lease and his eviction was concerned, the court considered that it had been correctly rejected by the lower courts, that the validity of the applicant’s lease had been extended, and that he occupied the apartment on the basis of valid title.

The applicant lodged an extraordinary appeal seeking a review of the judgment (revizuire).

On 10 October 2007 the Timişoara Court of Appeal dismissed the applicant’s extraordinary appeal as being time-barred.

Section 7(1), (6) and (7) provides that apartments other than standby personnel accommodation built by State-owned companies before the date on which the law entered into force are to be sold to the lease-holders at their request. The provisions of subsection 1 apply also to tenants who are not employees of the companies that own the properties.

Section 2 (e) provides that standby personnel accommodation denotes apartments designated as housing for employees of the companies who under the terms of their employment contracts perform activities and functions which require their constant or urgent presence on company premises.

The parties submitted eight court judgments delivered between 9 March 2005 and 11 November 2009 concerning the interpretation of the provisions of Law no. 85/1992. These court judgments had been delivered by various domestic courts ranging from the Hunedoara County Court to the Court of Cassation, and were final. They included a judgment on an extraordinary appeal in the interests of the law (recurs ȋn interesul legii) delivered by the Grand Chamber of the Court of Cassation on 21 January 2008 with a view to harmonising the domestic courts’ practice in interpreting the aforementioned legal provisions with regard to leases concluded after the entry into force of Law no. 85/1992. According to those judgments, Sections 1 and 7 of Law no. 85/1992 impose a legal obligation on the companies owning the apartments to sell them. The creation of the legal relationship (raport juridic) is left to the discretion of the lease-holder who has the right to purchase the apartment. A legal obligation to sell exists only when three cumulative conditions are met: the apartment was built by State-owned companies before the date the law entered into force; the person asking to purchase it was the holder of the lease, regardless of whether or not he was an employee of the company which owned the apartment; and the apartment was not classified as standby personnel accommodation within the meaning of the law.

According to the judgment on extraordinary appeal in the interests of the law, delivered by the Grand Chamber of the Court of Cassation on 3 April 2013 with a view to harmonising the domestic courts’ practice in interpreting the provisions of Sections 1 and 7 of Law no. 85/1995 concerning the sale of apartments by privately owned companies which had become owners of the apartments as a result of the privatisation process, the legal obligation to sell also applies in respect of the aforementioned privately owned companies.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1983 and has lived in Moscow since 15 May 2012.

On 27 April 2013 the applicant was arrested in Moscow on the basis of an arrest warrant that had been issued on 15 November 2012 by a criminal court in the Uzbek city of Qarshi. The applicant was charged with participation in banned religious organisations, including the Islamic Movement of Uzbekistan, dissemination of ideas of religious extremism, and organisation of illegal departure of persons to foreign countries, including for training in terrorist camps in Pakistan.

On 30 April 2013 the Simonovskiy District Court of Moscow approved the applicant’s detention pending extradition. Following the receipt of extradition request, the applicant’s detention was extended until 27 October 2013.

On 22 October 2013 the Russian Prosecutor General granted the request of his Uzbekistani counterpart for the applicant’s extradition. The extradition decision read in particular as follows:

“Mr Eshonkulov is accused of ... having committed the following crimes in the period from December 2011 to September 2012 in the territory of the Russian Federation:

- undermining the constitutional foundations of the Uzbekistan Republic by means of public calls to extremist activities ... calls for forcible removal of the State leaders of Uzbekistan ... incitement to undergoing training in the special sabotage and terrorism training facilities of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ...

- used the money from his accomplices to purchase videos of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ... propagating the ideas of religious extremism, separatism and fundamentalism, calls to pogroms and extermination of unfaithful, and distributed those videos among Uzbek nationals ...

The fact that Mr Eshonkulov committed crimes ... in the territory of the Russian Federation is not an obstacle to his being extradited, since the Russian competent authorities did not institute any criminal proceedings in connection with these crimes ...”

On 27 October 2013 the maximum six-month period of the applicant’s detention pending extradition expired. From the remand prison he was taken to the Donskoy district police station where an assistant prosecutor communicated the release order to him. On his way out of the police station, the applicant was arrested for an infringement of migration rules.

On 1 November 2013 counsel for the applicant submitted an appeal against the extradition decision to the Moscow City Court, complaining that the Prosecutor General gave no assessment to the risk of torture.

By judgment of 28 November 2013, the Moscow City Court rejected their challenge to the extradition decision, finding that there was no evidence that the applicant would be subject to unlawful prosecution or torture in Uzbekistan, and noting the assurances provided by the Uzbekistani Government to the Russian Prosecutor General. It refused to examine the reports by international human rights NGOs and UN bodies about the situation in Uzbekistan which the defence prayed in aid, finding that those documents had no direct bearing on the issues considered.

On 19 February 2014 the Supreme Court of the Russian Federation examined and rejected the final appeal against the extradition order. It refused likewise to take into consideration translations of the Court’s judgments in similar cases or the documents from NGOs and UN bodies.

Following the applicant’s release from custody, by judgment of 28 October 2013, the Simonovskiy District Court of Moscow found him guilty of having been unlawfully resident in Russia from February 2013 and until his arrest on 27 April 2013. The District Court sentenced the applicant to a fine and administrative expulsion from Russia. Pending expulsion, he was to be detained in Moscow Centre for Detention of Foreign Nationals no. 1.

On 27 February 2014 the Moscow City Court upheld the District Court’s judgment. It refused to take into account the arguments by the defence about the risk of ill-treatment that the applicant would face in Uzbekistan, stating that such arguments were “based on conjectures” and were not supported with the materials in the case file. In the City Court’s view, the information on Uzbekistan concerned the general situation in the country and was not indicative of a violation of the rights of the specific individuals. As regards the alleged violation of Article 5 of the Convention, the City Court simply stated that there was no violation and that the Court’s findings in the Azimov v. Russia case were irrelevant.

On 20 May 2013 the applicant applied for asylum; the Russian Federal Migration Service rejected his application on 24 September 2013. On 24 October 2013 he asked for a judicial review of the refusal.

On 16 December 2013 the Basmannyi District Court of Moscow dismissed the applicant’s appeal, finding that the applicant had not produced sufficient evidence of the risk of persecution. It held that the “reason why [the applicant] does not wish to return to Uzbekistan is his fear of the real danger of criminal prosecution”. The court found no political motives in the charges levelled against the applicant and observed that the acts he was charged with were also criminal under Russian criminal law. The District Court observed that the applicant had applied for asylum only after his arrest in Russia rather than immediately after he had arrived to Russia.

The applicant appealed to the Moscow City Court. The City Court considered and rejected his appeal on 20 June 2014. On the alleged risk of ill-treatment, it held as follows:

“...The claimant’s assertion that ‘his cousins are serving sentences in Uzbekistan for their religion’ ... cannot be taken into consideration because he has not produced any evidence to substantiate his claim. Making a global assessment of the submissions, the first-instance court correctly considered that there were no grounds to assume that the claimant would face a real risk of inhuman treatment. Applying the standards for the assessment of the allegation of ill-treatment in case of his return to Uzbekistan (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 65, ECHR 2005I), the court considers that the ill-treatment which the claimant may allegedly face in Uzbekistan would not reach the minimum threshold of severity attracting the protection of Article 3 of the Convention.”


Preliminary objections joined to merits and dismissed (Article 35-3 - Ratione materiae;Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1969 and lives in Sigulda. She is the widow of Mr Egils Elberts (“the applicant’s husband”), a Latvian national who was born in 1961 and who died on 19 May 2001.

On 19 May 2001 the applicant’s husband was involved in a car accident in the Allaži parish. An ambulance transported him to Sigulda Hospital but he died on the way there as a result of his injuries. He was placed in the mortuary at Sigulda Hospital. The applicant’s mother-in-law, who worked at Sigulda Hospital and thereby learnt about her son’s death immediately, stayed next to his body at Sigulda Hospital until it was transported to the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas expertīžu centrs) (“the Forensic Centre”) in Riga.

At 5 a.m. on 20 May 2001 the body was delivered to the Forensic Centre in order to establish the cause of death. Between 1 p.m. and 3 p.m. an autopsy was carried out and numerous injuries were found to the deceased’s head and chest, including several broken ribs and vertebrae. There were bruises on his right shoulder, thigh and knee. A forensic medical expert, N.S., classified the injuries as serious and life-threatening and established a causal link between them and his death.

According to the Government, after the autopsy N.S. had verified that there was no stamp in Mr Elberts’ passport denoting his objection to the use of his body tissue and he had removed tissue from Mr Elberts’ body with a total area of 10 cm x 10 cm – the outer layer of the meninges (dura mater). According to the applicant, N.S. could not have checked whether or not there was a stamp in Mr Elberts’ passport because at that time it had been at their home in Sigulda. The applicant submitted that the area of removed tissue was larger than 10 cm x 10 cm and that it was not only dura mater that had been removed.

On 21 May 2001 the prosecutor’s office issued a permit to bury the body. According to the applicant, on 21 or 22 May 2001 her sister had arrived at the Forensic Centre with a view to obtaining the certificate showing the cause of death, in relation to which she had signed the Forensic Centre’s registration log. On 22 May 2001 her sister submitted that document, together with Mr Elberts’ passport, to the relevant authority in Sigulda to obtain the death certificate.

According to the Government, on 25 May 2001 the body of Mr Elberts had been handed over to a relative. According to the applicant, his body had been handed over to another person who was merely helping with its transportation prior to the funeral.

On 26 May 2001 the funeral took place in Sigulda. The applicant first saw her deceased husband when his remains were transported back from the Forensic Centre for the funeral. She saw that his legs had been tied together. He was buried that way. The applicant herself was pregnant at the time with their second child.

The applicant was not aware that tissue had been removed from her husband’s body until about two years later, when the Security Police informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue, and that tissue had been removed from her husband’s body.

On 3 March 2003 the Security Police (Drošības Policija) opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established.

In January 1994 the predecessor institution of the Forensic Centre concluded an agreement with the company to cooperate for the purpose of scientific research. Under the agreement various types of tissue were to be removed from deceased persons ‒ selected by the Forensic Centre in accordance with international standards ‒ and sent to the company for processing. The company transformed the tissue received into bio-implants and sent them back to Latvia for transplantation purposes. The Ministry of Welfare agreed to the content of the agreement, reviewing its compliance with domestic law on several occasions. The Prosecutor’s Office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the Protection of the Bodies of Deceased Persons and the Use of Human Organs and Tissue (“the Law”).

Any qualified member of staff (“expert”) of the Forensic Centre was allowed to carry out the removal of tissue on his or her own initiative. The Head of the Thanatology Department of the Forensic Centre was responsible for their training and the supervision of their work. He was also responsible for sending the tissue to Germany. The experts received remuneration for their work. Initially, the tissue removal was performed at forensic divisions located in Ventspils, Saldus, Kuldīga, Daugavpils and Rēzekne. After 1996, however, tissue removal was carried out only at the Forensic Centre in Riga and the forensic division in Rēzekne.

Under the agreement, experts could remove tissue from deceased persons who had been transported to the Forensic Centre for forensic examination. Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect. If relatives objected to the removal, their wishes were respected, but the experts themselves did not attempt to contact relatives or to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person.

Experts were obliged to comply with domestic law but, according to their own testimonies, not all of them had read the Law. However, the content of it was clear to them as the Head of the Thanatology Department of the Forensic Centre had explained that removal was allowed only if there was no stamp in the passport denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal.

In the course of the inquiry the investigators questioned specialists in criminal law and the removal of organs and tissue. It was concluded that, generally speaking, two legal systems exist for regulating the removal of organs and tissue – “informed consent” and “presumed consent”. On the one hand, the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the experts at the Forensic Centre were of the opinion that at the relevant time (that is to say, after the Law’s entry into force on 1 January 1993) there had existed a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “everything which is not forbidden is allowed”. The investigators, on the other hand, were of the opinion that section 2 of the Law gave a clear indication that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, that is to say when consent had been given either by the donor during his or her lifetime or by the relatives.

More particularly, as regards the removal of tissue from the applicant’s husband’s body, on 12 May 2003 the expert N.S. was questioned. Subsequently, on 9 October 2003 the applicant was recognised as an injured party (cietušais) and she was questioned on the same date.

On 30 November 2005 it was decided to discontinue the criminal inquiry into the activities of the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the Head of the Rēzekne Forensic Division in respect of the removal of tissue. The above considerations were noted down in the decision (lēmums par kriminālprocesa izbeigšanu) and differences concerning the possible interpretations of domestic law were resolved in favour of the accused. Moreover, the 2004 amendments to the Law were to be interpreted to mean that there was a system of “presumed consent” in Latvia. It was concluded that sections 2-4 and 11 of the Law had not been violated and that no elements of a crime as set out in section 139 of the Criminal Law had been established.

On 20 December 2005 and 6 January 2006 prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified.

On 24 February 2006 a superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. He established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was quashed and the case file was sent back to the Security Police.

On 3 August 2007 the criminal inquiry, in so far as it related to the removal of tissue from the body of the applicant’s deceased husband, was discontinued owing to the expiry of the statutory limitation period of five years. However, the legal ground given for this discontinuation was the absence of any elements of a crime. On 13 August 2007 the applicant was informed of that decision. On 19 September and 8 October 2007, in response to complaints lodged by the applicant, the prosecutors stated that the decision had been lawful and justified.

On 3 December 2007 another superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. She established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the Security Police.

On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the statutory limitation period. On 27 March 2008, in response to a complaint from the applicant, the prosecutor once again quashed the decision.

A fresh investigation was carried out. During the course of that investigation it was established that in 1999 tissue had been removed from 152 people; in 2000, from 151 people; in 2001, from 127 people; and in 2002, from 65 people. In exchange for the supply of tissue to the company, the Forensic Centre had organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company had paid for these purchases. Within the framework of the agreement, the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see immediately below) it was noted that the tissue was not removed for transplantation purposes in accordance with section 10 of the Law but was actually removed for transformation into other products to be used for patients not only in Latvia, but also in other countries.

On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the statutory limitation period. In the decision it was noted that whenever an expert from the Rēzekne Forensic Division, for example, had interviewed the relatives prior to the removal of organs or tissue, he had never expressly informed them about such potential removal or indeed obtained their consent. According to the testimonies of all the relatives, they would not have consented to the removal of organs or tissue had they been informed and their wishes established. According to the experts’ testimonies, they had merely checked passports for stamps and had not sought relatives’ consent as they had not been in contact with them. It was also noted that with effect from 1 January 2002, information was to be sought from the Population Record, which the experts had failed to do. It was concluded that the experts, including N.S., had contravened section 4 of the Law and had breached the relatives’ rights. However, owing to the fiveyear statutory limitation period (which started running on 3 March 2003) the criminal inquiry was discontinued, and on 9 May and 2 June 2008 the prosecutors upheld that decision in response to complaints lodged by the applicant. The applicant lodged a further complaint.

In the meantime, the experts, including N.S., lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry (kriminālprocesa izbeigšanas pamatojums). They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed about this inquiry and argued that, accordingly, they had been unable to exercise their defence rights. On 26 June 2008 in a final decision the Riga City Vidzeme District Court upheld their appeal (case no. 1840000303), quashed the 14 April 2008 decision and sent the case file back to the Security Police. The court found as follows:

“Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in Latvia, there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes. Therefore, the court considers that there is no evidence in the case file that the removed tissues were used for purposes other than transplantation...

There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out disregarding the deceased person’s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or disregarding any refusal expressed by the closest relatives.

Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased persons’ bodies to inform persons about their rights to refuse tissue or organ removal, the court considers that the experts did not have any obligation to do so; by not informing the deceased person’s relatives about their intention to remove tissue, the experts did not breach the provisions of the [Law], as effective from 1994 to March 2003. Section 4 of the [Law] provides for the right of the closest relatives to refuse the removal of the deceased person’s organs and/or tissue, but does not impose an obligation on the expert to explain these rights to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives about their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent, the court considers that a person cannot be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force. Therefore, the court finds that the experts, by carrying out the tissue and organ removal from the deceased, did not breach ... the [Law].

... The court finds that the experts’ actions did not constitute the elements of a crime proscribed by section 139 of the Criminal Law; therefore, it is possible to discontinue the criminal proceedings for exonerating reasons – namely on the grounds of section 377 (2) of the Criminal Procedure Law ‒ owing to the absence of the elements of a crime.”

On 2 July 2008 the superior prosecutor responded to a complaint lodged by the applicant. She admitted that the inquiry had taken a long time owing to numerous complaints against the decisions. However, she did not find any particular circumstances which would indicate that it had been unduly protracted. At the same time, she informed the applicant that the court had quashed the 14 April 2008 decision upon the appeal by the experts. She further stated that a new decision to discontinue the criminal inquiry had been adopted on 27 June 2008 and that the applicant would soon be duly notified.

Indeed, the applicant received the 27 June 2008 decision a few days later. It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal. Section 4 of the Law provided for the right of the closest relatives to object to the removal of the deceased person’s organs and tissue, but did not impose any obligation on the expert to explain these rights to the relatives. A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision; the experts had therefore not breached the Law. The applicant lodged further complaints.

On 15 August 2008 the prosecutor replied, inter alia, that there were no circumstances indicating the desecration of a human body. At the same time, she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes. After the removal of tissue, other material was commonly implanted to restore the visual integrity of dead bodies. Therefore, the criminal inquiry had concerned actions under section 139 of the Criminal Law and not under section 228 of the Criminal Law proscribing desecration of a dead body.

On 10 September 2008 a superior prosecutor replied that there were no grounds for examining the actions of the persons who proceeded with the tissue removal under section 228 of the Criminal Law as desecration of a dead body. The experts had proceeded in accordance with an instruction issued by the Ministry of Justice, implanting other material in the place of the removed tissue. According to the instruction, tissue was to be removed in such a way so as not to mutilate the body, and, if necessary, subsequent restoration was to be carried out.

On 23 October 2008 another superior prosecutor of the Office of the Prosecutor General replied with a final negative decision.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicants were born in 1976, 1984 and 1976 respectively. The first and second applicants live in Prokuplje and the third applicant lives in Belgrade.

On 18 September 2004 at about 2.30 a.m. they were implicated in a minor road traffic accident. Soon thereafter, the police arrived at the scene.

According to the applicants, the police immediately handcuffed them and took them to the Prokuplje Police Station where they were beaten up. However, according to the official reports on the use of force prepared by three duty officers, the applicants were drunk and violent from the arrival of the police at the scene of the accident. As they tried to flee the scene and, moreover, attacked the officer who tried to stop them, the police decided to arrest them. At the police station, the applicants continued to behave violently. In order to subdue the applicants, the three duty officers hit them a couple of times with truncheons and then handcuffed them. In the process, as they resisted being handcuffed, Mr Zoran Đekić and Mr Dragan Končar struck their heads against office furniture.

Having spent the night at the police station, the applicants were taken to the hospital. According to medical reports, Mr Dragan Đekić had a bruise on his right shoulder, Mr Zoran Đekić had bruises on his head, right arm and right shoulder, and Mr Dragan Končar had bruises on his head, chest, abdomen, back and right shoulder.

On the same morning the police lodged a criminal complaint against the applicants accusing them of the offence of obstructing a police officer in the discharge of his duty. At about 8.30 a.m. the applicants were taken to the investigating judge. They complained that they had been beaten up by the police. However, the judge took no action in that regard. They were released at about 1 p.m.

On 20 September 2004 two daily newspapers with a large circulation published the applicants’ allegations that they had been beaten up by the police. The next day the Press Service of the Ministry of Interior issued an official denial. Between 21 and 27 September 2004, the Inspector General’s Service (the internal control service of the Ministry of Interior) carried out an internal investigation into the applicants’ allegations. It interviewed the applicants, 18 police officers and 19 civilians (while no civilians were present at the premises of the police station when the police resorted to the use of force against the applicants, the Inspector General’s Service interviewed a number of eyewitnesses to the applicants’ arrest and the doctor who had examined the applicants on the critical day). All of them except the applicants maintained that the applicants had been drunk and violent at the relevant time. The Inspector General’s Service concluded in its report of 27 September 2004 that the police had acted in accordance with law. The report was not made available to the applicants.

On 18 November 2004 the public prosecutor charged the applicants with the offence of obstructing a police officer in the discharge of his duty. The applicants were ultimately convicted as charged and given suspended sentences.

On 8 December 2004 the applicants lodged a criminal complaint against three police officers accusing them of ill-treatment. Having obtained an official report finding that the police had acted in accordance with law, on 28 January 2005 the public prosecutor decided not to prosecute. On 2 March 2005 the applicants started a subsidiary prosecution by lodging a bill of indictment against the same officers. They did not file a civil-party claim.

The first hearing before the Prokuplje Municipal Court took place on 11 October 2005. Having heard the police officers accused of ill-treatment, some other officers, the applicants and some eyewitnesses to their arrest, on 18 April 2006 the Prokuplje Municipal Court decided that the use of force against the applicants had been lawful. It therefore acquitted the accused police officers. On 24 October 2006 the Prokuplje District Court upheld that ruling. The last judgment of 24 October 2006 was served on the applicants on 27 November 2006.

In December 2006 the applicants applied to the public prosecutor to lodge a request for the protection of legality on their behalf. On 7 August 2007 the public prosecutor decided not to do so.

The Criminal Code 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89; and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows:

“Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment of from three months to three years.”

The Code of Criminal Procedure 2001 (Official Gazette of the FRY nos. 70/01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10) was in force between 28 March 2002 and 1 October 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) were subject to public prosecution, but some minor offences were only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor had to prosecute when there was sufficient evidence that a person had committed a criminal offence which was subject to public prosecution. Article 61 of the Code provided that when the public prosecutor decided not to prosecute such an offence because of a lack of evidence, the victim of the offence had the possibility of starting a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision.

The Inspector General’s Service of the Ministry of Interior was set up by the Inspector General’s Service Ordinance 2001. The first Inspector General was appointed in June 2003. As the Ordinance is not in the public domain, little is known about the work of that body in the first years of its existence. It is, however, certain that the Inspector General was answerable to the Minister of Interior. The Service was reorganised and renamed (it is now called the Sector for the Internal Control of the Police) in November 2005, but this is irrelevant in the present case.

The Civil Obligations Act 1978 (Official Gazette of the SFRY nos. 29/78, 39/85, 45/89 and 57/89; and Official Gazette of the FRY no. 31/93) has been in force since 1 October 1978. Section 200(1) thereof provides that anyone who has suffered fear, physical pain or mental anguish as a result of a breach of his human rights (prava ličnosti) is entitled to sue for damages. In accordance with section 172(1) of the Act, a legal entity, which includes the State, is liable for any tort committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions.

The Civil Proceedings Act 2004 (Official Gazette of the Republic of Serbia nos. 125/04 and 111/09) was in force from 22 February 2005 until 1 February 2012. Section 13 of the Act provided that if a victim of a criminal offence had brought a civil action for damages against the offender, the civil court was bound by a final decision, if any, of the criminal court finding the offender guilty. The civil courts have persistently interpreted that provision so that a criminal conviction was not a condition for an award of damages (see, for instance, judgment Gž. 1739/06 of the Kragujevac District Court of 29 September 2006; judgment Gž. 1257/11 of the Novi Sad Appeals Court of 2 June 2011; judgment Gž. 3273/11 of the Novi Sad Appeals Court of 16 November 2011; judgment Gž. 146/12 of the Novi Sad Appeals Court of 5 April 2012; judgment Gž. 5676/11 of the Belgrade Appeals Court of 2 August 2012; and judgment Gž. 4357/12 of the Novi Sad Appeals Court of 26 October 2012; in which civil courts awarded non-pecuniary damages for injuries sustained during an arrest operation and/or in police custody in the absence of a criminal conviction against any police officer).

The Civil Proceedings Act 1977 (Official Gazette of the SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91; and Official Gazette of the FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02), which was in force until 22 February 2005, contained the same provision (see section 12(3) thereof).

The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16 December 1966, entered into force in respect of Serbia on 12 March 2001. The “concluding observations” on Serbia of the Human Rights Committee, the body of independent experts set up to monitor the implementation of this treaty, read, in the relevant part, as follows (document CCPR/CO/81/SEMO of 12 August 2004, § 15):

“While taking note of the establishment in Serbia of [Inspector General’s Service] in June 2003, the Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations. The State party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police.”