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

Aleš Pejchal;André Potocki;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Nebojša Vučinić;Paul Lemmens;Pauliine Koskelo;Pieter Van Dijk;Robert Spano;Yonko Grozev;Pere Pastor Vilanova

The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva.

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

According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment stating that he represented a threat to Italian State Security. He alleges that he was then taken to Tunis by Tunisian officials. By his own account, he has never instituted proceedings against the Italian authorities in respect of those events.

The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout the entire period of detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.

The applicant submits that he suffers from a series of physical and psychological injuries and disorders.

After having been subjected to the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for asylum in the same year. The applicant has since been living in the Canton of Geneva.

On 8 November 1995 the Swiss authorities granted the applicant asylum.

On 14 February 2001, having learnt that A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Republic and the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, causing danger to health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages.

On the same date the Principal Public Prosecutor transmitted to the head of the security police, by internal mail, a request to “attempt to locate and identify the accused individual, who [was] supposedly hospitalised in the Geneva University Hospital, for heart surgery” and “if possible, to arrest him and bring him before an investigating judge”. On receipt of this request, the police immediately contacted the hospital, which informed them that A.K. had indeed been a patient there, but that he had already left the hospital on 11 February 2001.

On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him. This decision to discontinue the proceedings was not challenged by the applicant.

By his own account, on 22 July 2003 the applicant asked a Tunisian lawyer to represent him with a view to bringing a civil action for compensation against A.K. and the Tunisian Republic. On 28 July 2003 the lawyer informed the applicant that this type of action had never been successful and advised him not to lodge such a claim. It was allegedly impossible to lodge a civil action of this sort in Tunisia.

By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Court of First Instance of the Republic and the Canton of Geneva (“the Court of First Instance”) against Tunisia and against A.K. He claimed 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation in respect of the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under section 133 (2) of the Federal Law on Private International Law (Loi fédérale sur le droit international privé, the LDIP, see paragraph 37 below), had been met.

On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented.

By a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the grounds that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows:

“With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant’s detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 of the LDIP.”

Under section 3 of the LDIP (see paragraph 37 below), the Swiss courts also lacked jurisdiction under the forum of necessity, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows:

“All of the acts with regard to whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary damage, were allegedly inflicted on him, as he submits, in Tunisia in 1992, within the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its officials. The mere fact that on account of those acts the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not, in itself and in the light of current case-law, amount to a sufficient connection enabling a forum of necessity to be established against the defendants in Switzerland and Geneva.”

By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of the Republic and the Canton of Geneva (“the Court of Justice”). His appeal was rejected in a judgment of 15 September 2006. After noting that the appellant had shown that he was unable to bring a civil action in Tunisia, the Court of Justice found as follows:

“As the outcome of the present appeal depends on the immunity from jurisdiction of the respondent parties, the question whether there exists a forum of necessity in the appellant’s place of residence can, however, remain undecided.”

The Court of Justice thus held that the respondents enjoyed immunity from jurisdiction, since the acts of torture had been perpetrated in the exercise of sovereign authority (iure imperii) and not under private law (iure gestionis). Referring to the judgment delivered by the Court in the case of Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001-XI), it further considered that there had been no violation of the applicant’s right of access to a court.

The applicant lodged an appeal with the Federal Supreme Court, dated 20 October 2006, in which he asked it to rule that the courts of the Republic and the Canton of Geneva had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction. With regard to the jurisdiction of the Swiss courts, he argued that the purpose of the introduction of a forum of necessity in section 3 of the LDIP (see paragraph 37 below) had been to avoid denials of justice, especially in cases of political persecution, and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court. As to the immunity from jurisdiction purportedly enjoyed by Tunisia and A.K., the applicant submitted that the exercise of public power did not include an entitlement to commit international crimes such as torture. He specified in this regard that the very definition of torture in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereafter: “the Convention against Torture”; see paragraphs 45 et seq. below) ruled out any immunity. Lastly, he referred, in very general terms, to Article 16 of the United Nations Convention relating to the Status of Refugees (see paragraph 60 below).

By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Supreme Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Supreme Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Supreme Court’s judgment read as follows:

“It must first be considered whether the Swiss courts have jurisdiction to examine the action.

3.1 As Tunisia is not a party to the Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention, RS 0.275.11), there exists no convention rule between the two States governing the question of forum, which must therefore be examined in the light of the LDIP (sections 1(1)(a) and 1(2) LDIP).

3.2 In this instance, the jurisdiction of the Swiss authorities cannot be derived from the general rule concerning the international jurisdiction of the State of domicile of the defendant contained in section 2 of the LDIP, since the respondents are not domiciled in Switzerland. The cantonal court was, moreover, right in finding that the criteria, set out in section 129 of the LDIP, for establishing jurisdiction over actions in respect of wrongful acts were not met in so far as the defendants had neither their domicile nor their place of habitual residence or business in Switzerland (section 129(1) LDIP), and neither the wrongful act nor the resultant injury occurred in Switzerland (section 129(2) LDIP).

3.3 In the absence of an ordinary forum, the problem must be addressed under section 3 of the LDIP, which concerns the forum of necessity ... Under the latter provision, where no forum is provided for in Switzerland by the LDIP and where proceedings in another country prove impossible or one cannot reasonable require that they be brought in that country, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction.

The application of this rule for assigning jurisdiction thus calls for three cumulative conditions to be met: firstly, the Swiss authorities do not have jurisdiction under another provision; secondly, legal proceedings in another country are impossible or cannot reasonably be required; and, thirdly, the case in question has a sufficient connection with Switzerland. In the present case, the first condition is indisputably fulfilled. Fulfilment of the second condition appears more problematic, but in the light of the third condition, which merits more extensive discussion, it is not necessary to elaborate further on this question.

3.4 Section 3 of the LDIP, which must be interpreted restrictively ... represents a safety valve, intended to avoid denials of justice ... in the event of a negative conflict of jurisdiction.

In this connection, the Federal Council, in its authoritative interpretation of this provision, noted that “there are cases that have such a tenuous connection with Switzerland that it is not appropriate to set in motion the entire judicial system in order to resolve them. However, section 3 lays down an exception to this principle. The Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible to bring proceedings or to lodge an appeal abroad. It is for the claimant or the appellant to demonstrate this impossibility. Where this evidence has been adduced, jurisdiction reverts to the authority of the locality with which the case has a sufficient connection. Where there are several competing fora in Switzerland, it is the first authority before which an action is brought that has jurisdiction. Clearly, the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case; it will ultimately be for the court to recognise, or not, its jurisdiction” .... .

Although section 3 LDIP may thus seem innately paradoxical in so far as proceedings for which there is no basis for connection with an ordinary forum in Switzerland are, ipso facto, lacking in any particular connection with this country, in such a way that determining a “sufficient connection” may prove challenging, and the aim pursued by the law – to prevent a formal denial of justice – difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy... .

Moreover, legal writers have noted that a subsidiary forum must necessarily be recognised in situations of political persecution... However, neither the case-law nor legal opinion provide much in the way of guidance concerning civil actions for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed abroad, by foreign perpetrators.

3.5 That being stated, it is necessary to consider what is meant by “case” [“cause” in the French version] in section 3 LDIP.

It is settled case-law that the law must, in the first instance, be interpreted literally. An interpretation which deviates from the literal meaning of a text expressed in clear terms is allowable only where there are objective reasons for considering that the text fails to convey the true meaning of the provision concerned. Such reasons may derive from the drafting history, from the aim and sense of the provision concerned and from the structure and layout of the law. If the text is not absolutely clear, if it can be interpreted variously, the approach must be to seek out the true import of the provision having regard to all relevant factors, including in particular the drafting history, the intention pursued by the rule, the spirit and values on which it is based or again its relationship with other legal provisions. The Federal Supreme Court does not favour any one method of interpretation but adopts a pragmatic plurality in its search for the true meaning of the rule; in particular, it takes as a basis a literal understanding of the text only where this offers, with no ambiguity, a solution that is substantively just (ATF 133 III 175 § 3.3.1, V 57 § 6.1; 132 III 226 § 3.3.5 and the judgments cited therein).

In itself, the meaning to be attributed to the term “cause” is uncertain in the sense that it does not have a general definition in the laws of civil procedure of the French-speaking cantons (see, however, Bertossa/Gaillard/Guyet/ Schmidt, Commentaire de la loi de procedure civile genevoise, vol. I, Geneva 2002, n.10 ad Article 99/LPC/GE, concerning the force of res judicata, in which the authors consider that identical claims, in terms of their content, based on the same arguments and the same combination of alleged facts, constitute the objective limit of res judicata; that identity is determined by the complete set of legal considerations which formed part of the first application and were adjudicated upon; this was how “cause” was to be understood in former Article 99(2); the alleged facts of the case determine an overall situation [“Sachverhalt”, “Prozessstoff”] which it is for the court to assess) but would appear to equate to “procédure” or “demande en justice” or in German to “Rechtsstreit”, “Rechtssache”, “Prozess”, “Angelegenheit”, “causa litigandi” or “Streitgrund”. At all events, “cause” is not the literal and unambiguous translation of the terms “Sachverhalt” or “fattispecie” used in the German and Italian versions of section 3 of the LDIP. It should be borne in mind, at this point, that the latter terms are usually translated in French as “énoncé” or “exposé des faits” or “état des faits”.

As the versions of the law drafted in the three official languages have the same standing, the question arises whether the difference between the French wording and that of the other two versions results from an error in the legislative process, from a difference in meaning which becomes apparent only in the context of specific cases according to a varying understanding of the legal provision in each of the languages, or, lastly, from a linguistic difference attributable either to the non-translatability knowingly taken into account in the drafting or to uncertainty on the part of the legislator as to the meaning to be conveyed (see Schubarth, Die Auslegung mehrsprachiger Gesetzestexte, in Rapports suisses présentés au XVIIe Congrès international de droit comparé, Zurich 2006, p. 11 et seq., especially p. 12 s.).

It seems clear that the first of these possibilities can be ruled out. To distinguish between the second and third possibilities the understanding of the term “cause” in legal French terminology must be considered. In this regard, the “cause” of the action is the basis of the claim [“base de la prétention”] (‘Streitgrund” rather than “Sachverhalt”), though it should be noted that the legal writers are in some disagreement as to the content and scope of that basis. Some argue that the “cause” must be seen as a legal concept allowing the claim to be defined, while for others the “cause” comes down to a set of facts giving rise to the legal issues in debate or the legal interest invoked (see Vincent/Guinchard, Procédure civile, 24th edition, Paris 1996, n. 519 p. 386 et seq., who conclude that the “cause” of the action is constituted by a legally characterised set of facts).

In the case in point, it must be acknowledged that a comparison with the German and Italian versions assists in the interpretation of the French text, supporting the view that the term “cause” should be assigned the restricted meaning of “set of facts” or, to take a literal translation of “Sachverhalt” and “fattispeccie”, “exposé” or “état de faits” and not “procédure”. In other words, it is the “cause” – which concerns the set of facts and the legal argumentation – rather than the person of the applicant which must have a sufficient connection with Switzerland.

In the present case, however, the claimant complains of acts of torture that were allegedly committed in Tunisia, by Tunisians resident in Tunisia, against a Tunisian residing in Italy. All of the specific features of the case come back to Tunisia, except for the fact of residence in Italy at the relevant time. The facts of the case thus have no connection with Switzerland, so that the question of whether or not the link with this country is sufficient does not arise. In those circumstances, it is not possible to recognise the jurisdiction of the Swiss courts, short of disregarding the clear text of s[ection] 3 of the LDIP [see paragraph 37 below]. The fact that the claimant then chose to come to Switzerland cannot change anything, since it is a fact subsequent to the events of the case and, moreover, does not form part of it.

Since the absence of a sufficient connection between the facts of the case and Switzerland suffices to establish the Swiss courts’ lack of jurisdiction, the appeal must be dismissed, without it being necessary to examine the issue of immunity from jurisdiction.

The Swiss Government made submissions before the Grand Chamber describing the action taken by the Tunisian Republic after the fall of the regime in January 2011 in order to establish a new democracy and a political system based on respect for human rights and the rule of law. They considered that the possibility of submitting complaints to the newly established courts was the most direct and “natural” means of promoting reconciliation, re-establishing social peace and improving prevention, whilst also respecting the steps taken to repair the harm done to the victims. In this context, the Government referred to Article 148 § 9 of the Tunisian Constitution of 14 January 2014, worded as follows:

“The State commits to implementing the transitional justice system in all areas within the timeline set by the related legislation. In this regard, no claim in respect of the non-retrospective nature of laws, or the existence of a previous amnesty or pardon, or the binding force of double jeopardy, or the statute of limitations or prescription of the crime or punishment, shall be admitted.”

The Government observed that the constituent elements of transitional justice had already been set out in “Organic Law no. 2013-53 of 24 December 2013, on the introduction of transitional justice and related organisational arrangements”, enacted by the Tunisian Parliament on 23 December 2013 and published in the Official Gazette on 31 December 2013. The respondent Government specified that Part III of Title I covered “Accountability and criminal liability”, in order to “prevent impunity and ensure that offenders do not escape punishment” (section 6). Section 8 provided for the establishment of specialised divisions in the courts of first instance, composed of judges who would receive special training in transitional justice. They “[would] rule on cases relating to serious violations of human rights”, including torture (section 8 (2)(3)), which – in accordance with section 9 – were not subject to statutory limitation.

The Government explained that Part IV of Title I focused more specifically on “Reparation and Rehabilitation” (sections 10 to 13). Pursuant to section 11 § 1:

“[t]he compensation of victims of violations is a right guaranteed by law and the State shall offer every form of sufficient, effective redress commensurate with the extent of the violations committed and the individual situation of each victim.”

The Government further added that Title II of the law established a “Truth and Dignity Commission” (TDC), which was an independent body whose members were chosen by the Legislative Assembly from among public officials known for their neutrality, impartiality and competence (sections 16, 19 and 38 of the Organic Law). Under section 17, the TDC’s work was to cover the entire period from 1 July 1955 to 31 December 2013, the date of the law’s promulgation. The duration of the TDC’s work was limited to four years, starting from the date of appointment of its members (section 18).

Lastly, the Government informed the Court that, according to information obtained by it from the Swiss Embassy in Tunis, persons who considered themselves victims of the former regime had until 15 June 2016 to apply to the TDC. The Commission was currently dealing with over 60,000 cases. In this capacity, it was holding hearings which, since November 2016, had also been held in public. According to the information received, it was foreseen that selected cases would be transmitted to the courts at a later stage in the investigation process.

The applicant has not contested these submissions by the Swiss Government (see paragraphs 31-35 above). He specified at the hearing of 14 June 2017 that he had in fact contacted the TDC and had received a simple acknowledgment of receipt in February 2016, but had had no further communication from the TDC since then.


CASE OF BUHANIUC v. THE REPUBLIC OF MOLDOVA

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

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1990 and lives in Chișinău.

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

On 5 April 2009 general elections took place in Moldova. On 6 and 7 April 2009 large crowds gathered in the streets to protest against alleged electoral fraud. Hundreds of persons were arrested on 7 April 2009 and thereafter.

The applicant was arrested in the evening of 7 April 2009 and on the next day was sentenced by a court to ten days’ administrative detention. According to the applicant, he was punched in the eye by a plain-clothes police officer during his arrest and then subjected to ill-treatment in the Buiucani police station and subsequently at the General Police Directorate (“the GPD”). He was hit by groups of five to twelve persons, both in uniform and plain clothes, taken through a “death corridor” in which officers lined up and kicked or hit each victim as he or she passed through the corridor while being taken to or from the police station or, especially, the GPD.

He was also hit on both ears simultaneously (a form of torture known as “the telephone”), and struck on the head with fists and rubber sticks, all while his hands were handcuffed behind his back. He was also forced to keep his hands up for long periods of time while being hit periodically. He lost consciousness several times as a result of the ill-treatment.

The applicant was also allegedly held with eight other persons in a damp humid cell measuring 4 x 4 metres, where he had no access to daylight or any means of determining the time of the day or the date; he also had no access to the outside world, his relatives, a lawyer or a doctor.

No water was provided to him during the first twenty-four hours of his detention. Thereafter dirty water was distributed in unhygienic plastic bottles to be used by everyone in the cell. The applicant was subsequently diagnosed with hepatitis of an unknown origin. No food was provided. In the congested damp cell he had no opportunity to sleep for three days. There was no toilet in the cell and access to the toilet outside the cell was allowed at random and only after subjecting the person to humiliation.

Psychological ill-treatment was also allegedly used: the applicant was threatened with a lengthy term of imprisonment, with rape and death. He was subjected to interrogation by several persons simultaneously and was forced to sign blank papers.

On 11 April 2009 the applicant was seen by a doctor, who found a haematoma on his left eye.

On 15 April 2009 the applicant complained to the military prosecutor of ill-treatment by the police.

On 29 April 2009 the applicant was examined at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). On 15 December 2009 it issued an “Extract from the medical file” (Extras din Fişa Medicală) concerning the applicant’s examination. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the applicant was suffering from, inter alia, the consequences of a head injury, which included intracranial hypertension syndrome and post-traumatic stress disorder, as well as a post-traumatic ear condition.

The prosecutor in charge of the case interviewed the police officers in charge of the applicant’s arrest, who declared that they had not used force against him. On 29 May 2009 the prosecutor decided not to initiate a criminal investigation into the applicant’s allegations as he found that there was no evidence that a crime had been committed. On 5 February 2010 the applicant complained to the Prosecutor General’s Office, noting that he had been sent a copy of the prosecutor’s decision only on 22 January 2010. On 18 February 2010 the Prosecutor General’s Office confirmed the decision of 29 May 2009.

On 25 March 2010 the applicant challenged in court the decisions of 29 March 2009 and 18 February 2010. On 19 April 2010 the investigating judge at the Buiucani District Court annulled the two decisions and ordered that a supplementary investigation be carried out. The court found that the prosecutors’ decisions had been based only on the statements of the police officers accused of ill-treating the applicant. Moreover, while one of the prosecutors had found that force had been used to apprehend the applicant, which could explain any injuries on his body, the arresting officers had denied the use of any force.

On an unknown date prior to 10 May 2010 a formal criminal investigation into the applicant’s allegations was initiated.

On 19 May 2010 the applicant was officially recognised as a victim in the investigation of the alleged crime. He described the circumstances of his alleged ill-treatment and participated in a photograph identity parade, but did not recognise any of the persons in the photographs.

On 25 May 2010 the prosecutor in charge of the case suspended the investigation on the basis that no suspect had been identified.

Following the Court’s communication of the present application to the respondent Government on 12 December 2011, on 8 February 2012 the Prosecutor General’s Office recommended to the Chișinău Military Prosecutor that the proceedings in respect of the applicant’s complaints should be reopened. The prosecutor considered that the decision of 25 May 2010 had been groundless and drew up a list of twelve investigative actions be taken in the new investigation of the complaint. This list included actions such as hearing S., who had been arrested together with the applicant; hearing the persons detained together with the applicant during the events of April 2009; hearing the doctor who had examined him at the Buiucani police station; obtaining various medical evidence concerning the applicant’s state of health prior to and after his detention in April 2009, including the report of the “Memoria” centre; examining the documents in the file concerning the accusations against the applicant; and organising cross-examinations involving both the applicant and the officers who had arrested him on 7 April 2009.

On 22 March 2012 the doctor who had examined the applicant at the Buiucani police station was heard as a witness. He declared that he had noted all the injuries present on the applicant’s body. He added that a police officer had been present in the room during the examination, but had not put pressure of any kind on the applicant.

On 26 March 2012 two officers were officially declared suspects in the case and were interviewed by a military prosecutor. The parties did not inform the Court of any further developments in this regard.

The relevant non-Convention material is summarised in Taraburca v. Moldova (no. 18919/10, §§ 33-37, 6 December 2011).


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

On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. However, the applicants were unable to obtain the enforcement of the decisions in due time.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant, Mr Kastytis Špakauskas, is a Lithuanian national, who was born in 1975 and lives in Kaunas. He was represented before the Court by Mr D. Ramanauskas, a lawyer practising in Jurbarkas.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

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

The applicant was born in 1975 and lives in Kaunas.

In January 1992 M.G. asked the national authorities to restore his property rights to a plot of land in Šakiai Region, that had originally belonged to his deceased wife’s father. He gave only his own name in his restitution request, failing to mention the fact that after his spouse’s death he had married again in 1976, to P.G., or that there were any other successors to whom the property rights could be restored.

M.G. died in November 1996.

On 17 August 1998 M.G.’s property rights were restored in respect of 3 hectares of land in Šakiai Region. The decision stated that M.G. had passed away and that it should be served on his heir.

In June 2008 P.G. authorised the applicant, who was the husband of M.G.’s granddaughter, to act on her behalf in the matter of the inheritance from M.G. and to represent her before the national authorities.

P.G. asked the Šakiai District Court to establish as a legal fact that she was the owner of M.G.’s property for the purposes of inheritance. The claim was signed by the applicant. During the proceedings before the Šakiai District Court, where the applicant was present, M.G.’s children contested P.G.’s right to inherit the property, including the plot of land. They argued that the land did not belong to M.G., but to his deceased wife’s father. Nevertheless, on 20 November 2008 the Šakiai District Court established as a legal fact that P.G. had become the owner of the property, including the plot of land in question, after M.G.’s death.

In February 2009 the applicant received a certificate which stated that P.G. had inherited M.G.’s property, including the land in question.

On 23 March 2009 P.G. sold the 3 hectares of land and associated buildings to the applicant and his wife for 30,000 Lithuanian litai (LTL – approximately 8,689 euros (EUR)) in total. The price of the land itself was LTL 10,000 (approximately EUR 2,896).

On 26 July 2010 a prosecutor started court proceedings and asked the Šakiai District Court to annul the order which had restored M.G.’s property rights, the part of M.G.’s will concerning the land and the purchase agreement on the grounds that M.G. had not had the right to seek the restoration of ownership of the land in question (see paragraphs 34-36 below). The applicant submitted that the prosecutor had missed the thirtyday time-limit for lodging such a complaint.

On 7 October 2011 the Šakiai District Court granted the prosecutor’s application in part. It annulled the property restitution order of 17 August 1998 and the parts of the will and purchase agreement concerning the land. As regards the time-limit, the court held that the prosecutor had started court proceedings on 26 July 2010. However, he had not received a letter about an act that was allegedly contrary to the public interest until 13 May 2010, when he had also had to ask for additional documents from the authorities, which he had only received on 23 June 2010. The court held that the timelimit had not been missed by much and decided that it was not an obstacle to examining the case on the merits. The court decided to apply the rules on restitution and to return the land to the State. The court held that M.G. had not had any property rights to restore because the land in question had belonged to his deceased wife’s father, while M.G., a widower at the time, had remarried in 1976, to P.G. That meant he had not fallen within the scope of persons to whom property rights could be restored in accordance with domestic law (see paragraphs 18, 20 and 22 below). The court noted that M.G. had failed to mention that he had remarried and an employee of the National Land Service confirmed that if M.G. had provided that information he would not have been able to claim the property. The court also noted that the applicant had been authorised to represent P.G. before the national authorities in the inheritance procedure and that his wife was one of M.G.’s granddaughters. He should therefore have known that restoring those property rights to M.G. had been unlawful. The court thus declared that the applicant and his wife were not acquirers of the property in good faith.

As a result of the decision of the Šakiai District Court (see paragraph 13 above), on 29 March 2012 the plot of land was returned to the State.

On 14 November 2012 title to 3 hectares of land was restored to V.J., one of the original owner’s heirs. The plot included the land in question, apart from 20 ares under the buildings owned by the applicant and his wife, which were excluded. The remaining 20 ares were restored to V.J. in the adjacent plot of land.

The applicant and his wife appealed, and on 29 November 2012 the Kaunas Regional Court upheld the decision of the court of first instance. It held that the applicant and his wife had acted in bad faith and that the guarantees for owners who had acquired property in good faith were not applicable. The applicant and his wife argued that the prosecutor had missed the time-limit of thirty days to lodge a complaint, but the court held that the prosecutor had only become aware of an act that was contrary to the public interest on 28 June 2010 and had started court proceedings on 26 July 2010. The time-limit had therefore not been missed.

On 5 March 2013 the Supreme Court dismissed an appeal on points of law by the applicant as not raising any important legal issues.

Article 2 of the Law on the Procedure and Conditions for the Restoration of Citizens’ Ownership Rights to Existing Real Property (Įstatymas „Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų“), enacted on 18 June 1991 and amended on numerous occasions, provided that when the owner of property died, title could be restored to the person’s children, including adopted children, parents, including adoptive parents, or any surviving spouse. After the death of the former owner’s child, ownership rights could be restored to that person’s spouse or children if they were citizens and permanent residents of Lithuania.

On 15 November 1991, the Government approved Resolution no. 470 on the “Order for Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property” (Lietuvos Respublikos įstatymo „Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų” įgyvendinimo tvarka), which provided that when the owner of property died, title could be restored to the person’s children, including adopted children, parents, including adoptive parents, or any surviving spouse, if they were citizens of Lithuania, had a document proving the citizenship and were permanent residents of Lithuania.

On 1 July 1997 the Seimas (the Lithuanian Parliament) enacted a new law on restitution, the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “the Law on Restitution”), which repealed the 1991 law. Article 2 § 1 of the Law on Restitution provided that ownership of existing real property could be restored to a spouse, parents, including adoptive parents, and the children, including adopted children, of an owner who had died without making a will. It could also be restored to the spouse or children, including adopted children, of an owner’s deceased child, including an adopted child.

Article 19 § 1 of the Law on Restitution provided that decisions by the national authorities concerning the restitution of existing real property were subject to appeal within thirty days.

On 29 September 1997, the Government approved Resolution no. 1057 on the “Order for the Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property” (Lietuvos Respublikos piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymo įgyvendinimo tvarka), which provided that spouses who had not remarried had the right to have property rights restored to them if the marriage had ended because the owner of the property had died and the owner’s child was also dead (Point 3).

Article 25 § 1 of the Law on Land provided that agricultural land contained plots of land, that were used of could be used for producing agricultural products; plots of land that were built upon by the private houses and farm houses of the landowner, if they were not delimited as separate plots of land; yards; plots of land, suitable for transforming into agricultural land; plots of land that had buildings used for producing agricultural products and plots of forest approved by the Government, provided that they are not delimited as separate plots, as well as other nonagricultural plots of land that are in between the above mentioned plots of land.

Article 1.6 of the Civil Code establishes the presumption of knowledge of the law and provides that ignorance or insufficient understanding of laws does not absolve anyone of application of sanctions and does not justify the failure to comply with requirements of the law or inadequate compliance with them. This was confirmed by the Supreme Court (for example, decisions of 16 October 2006 (no. 3K-3-558/2006); 30 March 2007 (no. 3K-3-126/2007)).

The Supreme Court has held that laws are public and every responsible person can find out about his or her rights and obligations. Ignorance of laws and failure to show interest in one’s rights and obligations is unreasonable, and such person cannot justify him or herself that he or she does not know the law (for example, decisions of 22 October 2007 (no. 3K-3-384/2007); 14 March 2013 (no. 3K3146/2013); 19 March 2013 (no. 3K-3-174/2013)).

Article 1.80 of the Civil Code provides that any transaction that fails to comply with mandatory statutory provisions is null and void. When a transaction is declared null and void, each party is required to restore to the other party everything that he or she has received by means of that transaction (restitution). Where it is impossible to restore the assets received in kind, the parties are required to compensate each other in money, unless the law provides for other consequences as a result of the transaction’s being declared void.

Article 4.26 § 4 of the Civil Code provides that possession in bad faith comes about when an owner knew or ought to have known that he or she had no right to become the owner of a possession or that another person had more rights to the possession in question.

Article 4.95 of the Civil Code provides that an owner has the right to claim a possession when it is owned illegally by someone else.

According to Article 4.97 § 2 of the Civil Code, a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it.

The Supreme Court has held that a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it (see decision of 21 December 2009 (no. 3K-3-569/2009)).

Article 6.145 of the Civil Code provides that restitution is to take place where a person is bound to return to another person the property he has received either unlawfully or by error, or as a result of the transaction in which the property was received being annulled ab initio, or as a result of the obligation becoming impossible to perform because of force majeure. In exceptional cases, a court may modify the method of restitution or refuse restitution altogether where it would impose an undue and unfair burden on one party and, accordingly, bring undue advantage to the other party.

Article 6.153 of the Civil Code provides that third parties acting in good faith who in a transaction for valuable consideration acquire property subject to restitution can rely on that transaction against a person who claims restitution. Third parties acting in good faith who in a transaction without valuable consideration acquire property subject to restitution cannot rely on that transaction against a person who claims restitution if the timelimit for such a claim has not been exceeded by the latter. Any other actions performed in favour of a third party acting in good faith may be relied on against a person who claims restitution.

Article 6.245 § 1 of the Civil Code provides that civil liability is a pecuniary obligation by which one party has the right to require compensation and the other party has to pay compensation.

In accordance with Article 49 of the Code of Civil Procedure, prosecutors can bring a claim in order to protect the public interest in the cases established by law.

Article 31 § 1 (2) of the Law on Prosecution Service provides that a prosecutor, after having received a request or any other information about violations of state interests or persons’ rights, prepares documents necessary to start civil proceedings if the state proprietary interests had been breached and the authorities had not taken any actions to eliminate the violations.

The Supreme Court has held that the restoration of property rights is a public interest (for example, decisions of 24 April 2006 (no. 3K3242/2006); of 23 July 2007 (no. 3K-3-310/2007); 9 October 2009 (no. 3K-3-397/2009)).


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1979 and before his conviction lived in Izhevsk.

According to the applicant, on 18 February 2005 the police carried out a search of the applicant’s flat in connection with the murder of a lawenforcement officer, which took place during the night of 7-8 February 2005.

On 3 March and 10 March 2005 the police interviewed the applicant, in the presence of the applicant’s lawyer, about the circumstances of the murder case under investigation. No suspicions were raised against the applicant.

At 6 p.m. on 22 March 2005 the applicant was apprehended on the street in Izhevsk and taken to the Ustinovskiy district police station of Izhevsk (Устиновский РОВД г. Ижевска – “Izhevsk police station”). He was allegedly beaten and coerced into confessing to having committed the murder and to signing a record of his surrender and confession (явка с повинной).

According to that record, at 9.50 p.m. on 22 March 2005 in office no. 312 at Izhevsk police station, a police officer, M., obtained from the applicant a confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation. In particular, the record stated that at the beginning of February 2005 the applicant had been drinking alcoholic beverages in the company of a certain S. after work. At an unspecified time after midnight he left S.’s flat. On his way home he entered a nearby house to urinate. There he saw a man who made a rude remark about the applicant’s behaviour. The man was also drunk. They began to fight, in the course of which the applicant hit the man several times on the head with a knife handle, and also punched and kicked him. The latter fell down the stairs. When the applicant left the man was still lying on the ground floor. The record further stated that the confession had been handwritten by the applicant himself without any coercion on the part of police officers, and that the applicant had been informed of Article 51 of the Constitution (the right not to give self-incriminating statements), which he had understood.

The applicant furthermore wrote a similarly worded confession addressed to the Prosecutor of the Republic of Udmurtiya.

At 00.05 a.m. on 23 March 2005 a record of the applicant’s arrest was drawn up. He was formally assigned the status of a criminal suspect and was informed of all his rights, including the right to remain silent, the right to a lawyer and the right not to incriminate himself. The record contained the applicant’s handwritten note to the effect that he accepted his arrest, as he had committed a murder on 8 February 2005. The record further contains the applicant’s request for access to his lawyer.

Later on the same day, 23 March 2005, the applicant was provided with a legal-aid lawyer and questioned as a suspect. During the questioning the applicant retracted his confession, asserting that it had been given as a result of coercion and in the absence of a lawyer. He consistently repudiated his confession throughout the ensuing proceedings.

On 23 March 2005 the applicant was made to undergo a forensic medical examination, which revealed no injuries on his body aside from a scar on the edge of his hairline dating back two to three months (forensic medical examination report no. 2672).

On 27 March 2005 the applicant was remanded in custody and transferred to the Izhevsk SIZO-1 remand prison.

On 29 March 2005 charges of murder were brought against the applicant.

On 22 April 2005 the applicant lodged a complaint with the Ustinovskiy district prosecutor’s office of Izhevsk, alleging that he had been ill-treated.

On 27 May 2005 an investigator from the Ustinovskiy district prosecutor’s office issued a decision not to initiate criminal proceedings against the police officers who had allegedly ill-treated the applicant.

On 25 July 2005 the criminal case against the applicant was submitted to the Supreme Court of the Republic of Udmurtiya for trial.

On 22 August 2005 the trial against the applicant commenced.

Before the court the applicant denied committing the murder and reaffirmed that his confession had been given under pressure from police officers and in the absence of his lawyer.

On 19 December 2005 the Supreme Court of the Republic of Udmurtiya convicted the applicant of murder and sentenced him to twelve years’ imprisonment. The court based the conviction on the following evidence:

- statements by a police officer, M., who had been involved in the investigation and who had submitted that (i) in the course of the investigation it had been determined that the murder had been committed by the applicant; and (ii) the latter had been apprehended and brought to Izhevsk police station, where he had voluntarily confessed to having committed the murder of G. and had written a statement of surrender and confession (явка с повинной), describing the details of the committed crime; no violence had been exerted on the applicant;

- statements by a police officer, N., involved in the investigation of the murder, who submitted that (i) in the course of the investigation it had been determined that the crime had been committed by the applicant; (ii) in March 2005 the latter had been brought to the police station, where he had confessed to the murder; and (iii) a statement of surrender and confession had been drawn up in which the applicant had described in detail the circumstances under which he had committed the murder;

- statements by a police officer, O., who submitted that (i) on 8 February 2005 he had participated in the inspection of the scene of the murder of G.; (ii) it had been established that the applicant had been involved in the crime; (iii) in March 2005 the applicant had been brought to Izhevsk police station, where he had confessed to the murder (his confession had been recorded in the statement of surrender and confession); and (iv) no violence had been applied to the applicant.

- a statement by a police officer, S., who had participated in the inspection of the crime scene on 8 February 2005 – he submitted that (i) during the check it had been established that a man nicknamed “Gunya” [the applicant] could have committed the crime; (ii) the applicant had been apprehended by the police; (iii) the applicant had been interrogated at about 9 p.m. on 22 March 2005 by M., O., P. and himself; (iv) in the course of the interrogation the applicant had confessed to having committed the murder; and (v) no violence had been applied to him;

- statements by a police officer, Nam., who submitted that he had learned from police officer M. that the applicant had confessed to having committed the murder of G.;

The above statements were found to be confirmed by the applicant’s statement of surrender and confession of 22 March 2005 and by statements by independent witnesses in the case, specifically:

- statements by an anonymous witness, “Akulov”, to whom the applicant had supposedly confided about the murder on 8 February 2005; during the trial “Akulov” had been placed in a separate room, and questions from the parties had been asked through a court bailiff; the parties had heard the witness’s answers by means of a radio communication device with acoustic shielding;

- statements by a witness, M., who had been detained together with the applicant at Izhevsk police station during the night of 22-23 March 2005, and whom the applicant had supposedly told about his having committed the murder of a police officer;

- statements by a witness, S., who submitted that (i) he had worked with the applicant as a painter and decorator since 2003; (ii) they had been drinking alcoholic beverages after work on 7 February 2005 until 10 p.m., after which they had each gone home; (iii) the following morning at 8 a.m. he had picked the applicant up and gone to work with him; (iv) he had found out about the murder of G. on the evening of 8 February 2005 from a certain M. and later from the police; (v) the applicant had had his right arm in plaster since January 2005, which had not prevented him from working; (vi) that the applicant had had a folding knife, which he had lost in January 2005; and (vii) that the applicant had been nicknamed “Gunya”;

- statements by a witness, Ts., the applicant’s colleague and neighbour, who submitted that (i) he had been drinking alcoholic beverages with the applicant and S. until 10 p.m. on 7 February 2005, following which he had left while the applicant and S. had stayed on; (ii) he had found about the murder on 8 February 2005 from the police; (iii) he had known that the applicant was suspected of that murder;

- statements by other witnesses with no interest in the outcome of the case;

- the applicant’s handwritten statement of 22 March 2005 addressed to the Ustinovskiy district prosecutor’s office describing the circumstances of the murder;

- the record of the applicant’s arrest, in which the applicant noted that he accepted his arrest, as he had committed a murder;

- records of forensic biological examinations, which did not exclude the possibility that the traces of blood on the applicant’s coat could have been the victim’s; the conclusions of those forensic biological examinations were confirmed by the record of the crime-scene examination and the record of the forensic medical examination of the victim’s corpse;

- records of forensic chemical examinations of the fibres discovered at the crime scene, the origin of which could not be excluded as being from the clothes worn by the applicant at the time of the murder;

- the record of the forensic medical examination, which concluded that the applicant’s having a plastered right arm did not exclude the possibility of him administering active purposeful actions with that arm;

- the record of the applicant’s forensic psychiatric examination.

The court dismissed the applicant’s allegation that his confession had been obtained through ill-treatment, referring to the statements made by the police officers and to expert report no. 2672, which had not recorded any injuries on the applicant’s body.

The applicant appealed against the conviction. In his statement of appeal he submitted, in particular, that his confession was inadmissible evidence, as it had been obtained under duress and in the absence of a lawyer.

On 14 June 2006 the Supreme Court of Russia dismissed the appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. The Supreme Court held, in particular, that the law did not require the presence of a lawyer at the moment of giving a confession.

On 4 July 2006 the applicant was transferred to correctional colony IK-8 of the Republic of Udmurtiya to serve his sentence.

On 19 August 2006 the applicant was transferred to the IZ-16/2 remand centre of Kazan with ankle-joint oedema, skin erosion and fever.

On 30 August 2006 the applicant was transferred to the surgical unit of that facility for medical treatment.

On 25 October 2006 the applicant was transferred to penal institution LIU-19 of the Republic of Mordoviya (a medical penal establishment designed for the treatment and detention of drug addicts, alcoholics, and HIV- and tuberculosis-infected prisoners), where he underwent compulsory treatment for drug addiction until 21 November 2008.

According to the applicant, there had been a high percentage of HIVpositive detainees in the facility, some of whom had worked with the applicant at the facility’s sewing workshop. The applicant believed, therefore, that he had faced a serious risk of contamination via the working utensils (for example, scissors and sewing needles).


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

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

The applicant was born in 1976 and is currently serving a prison sentence in Croatia.

In 1997 an investigation was opened in respect of the applicant on suspicion of murder. He was remanded in custody during the investigation from 5 February to 21 May 1997.

Following his release from custody, the applicant became unavailable to the Croatian authorities, and on 18 December 1998 the Osijek County Court (Županijski sud u Osijeku), as the competent trial court, ordered his trial in absentia.

On 8 February 1999 the Osijek County Court found the applicant guilty as charged and sentenced him in absentia to nine years’ imprisonment. The judgment became final on 22 February 1999.

On 27 September 2005 a judge responsible for the execution of sentences at the Osijek County Court ordered that the applicant should start to serve his prison sentence. Given that at the time the applicant was still at large, the judge ordered that a warrant be issued for his arrest.

On the basis of the arrest warrant, the applicant was arrested in Bosnia and Herzegovina and on 21 July 2011 he was extradited to Croatia, where he immediately started to serve his prison sentence.

The day following his extradition, the applicant requested the Osijek County Court to reopen the proceedings conducted in his absence (see paragraph 30 below). He relied on the Code of Criminal Procedure, which provided for the automatic reopening of proceedings conducted in absentia at the request of the convicted person.

A three-judge panel of the Osijek County Court granted the applicant’s request for reopening of the proceedings on 26 August 2011. The decision became final on 6 September 2011.

On 4 October 2011 the Osijek County Court discontinued the applicant’s prison sentence on the ground that the reopening of the proceedings had been granted and that therefore the execution of the sentence had to be stayed, as required under Article 507 § 5 of the Code of Criminal Procedure (see paragraph 31 below).

In the meantime, on 27 September 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) had requested the Osijek County Court to order that the applicant be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding) pending the retrial.

In connection with that request, on 5 October 2011 a three-judge panel of the Osijek County Court heard the applicant and his lawyer. They argued, in particular, that the applicant had not sought to avoid trial and that his detention should be replaced by the application of a less restrictive measure, such as bail, which could be effected by the seizure of his mother’s house and of documents.

On the same day the Osijek County Court accepted the request of the State Attorney’s Office and ordered the applicant’s pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding). The relevant part of the decision reads:

“Having considered the [available] evidence, this panel has found that the accused Nenad Kovačević received an indictment [from the competent prosecutor] on 24 June 1997 ..., that the Osijek-baranja Police Department informed the Osijek County Court that the accused Nenad Kovačević was absent from his place of residence [in Croatia] as he had gone away in March 1998 and was [at the time] allegedly in Bosnia and Herzegovina, as stated by his mother. Furthermore, it was established that the accused Nenad Kovačević had been found guilty by the above-mentioned final judgment of the Osijek County Court of the offence of murder ... for which he had been sentenced to nine years’ imprisonment. It was also established that the accused Nenad Kovačević ... had been arrested [in Bosnia and Herzegovina] because a sentence-execution judge of this court ordered that he should start to serve his prison sentence, and therefore the objection that the general conditions for ordering detention under Article 123 of the Code of Criminal Procedure have not been met is unfounded. The final judgment adopted in the criminal proceedings conducted in the absence of the accused, by which he was found guilty on charges of murder and sentenced to nine years’ imprisonment, represents a reasonable suspicion that the accused Nenad Kovačević committed the offence of murder ... The fact that he fled, given that the order for his pre-trial detention and the arrest warrant remained futile and there was no possibility for the police to bring him [before the court] for a hearing, and that he was arrested only on the basis of [an arrest warrant] for the execution of the prison term to which he had been sentenced, suggests the existence of grounds for ordering pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure; that is to say, special grounds justifying a risk that, if at large, the accused might abscond and thus hinder the proper conduct of these criminal proceedings.

As already stated above, the accused Nenad Kovačević received the mentioned indictment by which he is charged with murder ... It follows [from the case file] that he was also detained. This suggests that the accused knew that the criminal proceedings at issue had been pending against him and that he had been charged with a serious criminal offence. He [nevertheless] left his residence and the territory of Croatia and was arrested on the territory of a country where he did not have residence, namely Bosnia and Herzegovina, while he himself stated that he had residence in Serbia. All these circumstances as well suggest that there is a risk that the accused might again abscond and thereby hinder the termination of the reopened proceedings at issue.

In addition, as the panel of this court has found that the conditions for ordering detention in respect of the accused Nenad Kovačević under Article 123 § 1(1) of the Code of Criminal Procedure have been met, [it considers that] the measure of detention is necessary in order to avert the risk of absconding, which could not be achieved by bail or the alternative measures suggested by the accused and his defence lawyer. This is particularly true given the circumstances and severity of the offence at issue, and the fact that [the accused] is also a national of Serbia and that he himself stated that he had no residence in Croatia, which means that he could very easily leave the territory of Croatia.”

The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske), arguing that the indictment had not been served on him but on his brother, who had been a minor at the time, and that he had left Croatia for personal reasons. He offered his Croatian and Serbian passports and his mother’s house in Croatia as bail to guarantee that he would not abscond. The applicant also contended that the decision of the Osijek County Court lacked the relevant reasoning concerning the possibility of his conditional release.

The Supreme Court dismissed the applicant’s appeal as ill-founded on 4 November 2011. The relevant part of the decision reads:

“Contrary to the appeal arguments, the Supreme Court as the second-instance court finds that the first-instance court correctly established that the defendant should be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure.

Reasonable suspicion that the defendant committed the offence [of murder] follows from the final judgment by which he was found guilty and sentenced to nine years’ imprisonment, which had been adopted after a trial in absentia and in respect of which a retrial was granted. The general requirement for detention has therefore been met.

Furthermore, it should be noted that the defendant, although aware that criminal proceedings were pending against him (he was questioned by an investigating judge, he was detained from 5 February to 21 May 1997, and he received the indictment), left the territory of Croatia and thereby became unavailable during the proceedings conducted before the Osijek County Court. He was arrested only after a sentence-execution judge issued an order for his arrest for the execution of the prison sentence, and [the arrest] was effected on the basis of an international arrest warrant in Bosnia and Herzegovina, although he stated that his residence was in Serbia.

All these circumstances, in the view of the Supreme Court as the second-instance court, suggest that there is a fear that the defendant, who is also a national of Serbia, if at large, could abscond and thereby hinder the course of the criminal proceedings. This in particular follows from his previous behaviour, the fact that he was unavailable to the judicial authorities for fourteen years and that he is again being tried for a serious criminal offence for which he had been found guilty in absentia and sentenced to nine years’ imprisonment ...

The appeal arguments of the defendant that he did not know that the criminal proceedings at issue were pending as he had not received the indictment are unfounded because the material from the case file suggests the opposite. The case file contains signed delivery notices which demonstrate that he duly received the indictment. He was also questioned before an investigating judge concerning the offence of which he was later found guilty, and for which he had also spent some time in pre-trial detention. There is therefore no doubt that he knew about the criminal proceedings pending against him.

Moreover, the appellant is wrong in contending that a fundamental procedural omission occurred in that the impugned decision is not sufficiently reasoned in respect of the possibility of applying bail or some other alternative measure. The first-instance court provided sufficient and clear reasons for considering it necessary to order pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure and why the same purpose could not be achieved by bail or any other alternative measure; and this second-instance court fully endorses those reasons.”

On 9 December 2011 the applicant again requested that his pre-trial detention be replaced by bail or an alternative less restrictive measure. At the hearing held on 16 January 2012 he reiterated his request.

The Osijek County Court dismissed the applicant’s request on 16 January 2012 and extended his detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasoning.

On 2 February 2012, following a retrial, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. It was also decided on the same day that the applicant should remain in detention pending a final judgment.

The applicant appealed against that judgment to the Supreme Court. On 23 October 2012 the Supreme Court quashed the judgment and remitted the case to the Osijek County Court for re-examination on the grounds of the existence of procedural flaws.

At the same time, the Supreme Court extended the applicant’s detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasons.

On 7 December 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision on his pre-trial detention. He argued in particular , his detention was disproportionate and should be replaced by bail or an alternative less restrictive preventive measure.

On 13 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. That decision was served on the applicant’s representative on 17 December 2012.

On 18 December 2012, having reheard the case, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. The applicant was remanded in custody pending a final judgment.

That judgment was upheld by the Supreme Court on 18 June 2013 and it thereby became final. On 18 October 2013 the applicant challenged it before the Constitutional Court and the proceedings before that court are still pending.


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

The first applicant, Ms Hermine Rupp (application no. 60889/12), is a German national who was born in 1955 and lives in Schongau. She was represented before the Court by Mr K. Wittmann, a lawyer practising in Ingolstadt.

The second applicant, Ms Manuela Rupp (application no. 60893/12), is a German national who was born in 1985 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms R. Rick, a lawyer practising in Munich.

The third applicant, Ms Andrea Rupp (application no. 60879/12), is a German national who was born in 1986 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms A. Brossin de Méré, a lawyer practising in Paris.

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

The first applicant is the mother of the other two applicants.

The first applicant was married to R.R., who was the father of the other two applicants.

R.R. disappeared in the night of 12 October 2001 and subsequently did not reappear; neither did his car, which had disappeared the same night.

On 14 October 2001 the first applicant reported R.R. missing.

The investigations had initially been terminated without any results. They were reopened by the Ingolstadt police in November 2003.

On 13 January 2004 the applicants and the second applicant’s fiancé, M.E., were taken to the police station. The applicants’ house was searched the same day, without any evidence being found. All three applicants were questioned that day, first as witnesses and after a couple of hours as suspects. They were represented by counsel from that day on.

When being questioned on that day, the first applicant confessed that R.R. had come home drunk in the night of 12 October 2001 and she had pushed him during an argument. As a consequence R.R. had fallen down the stairs. She and M.E. had carried R.R.’s corpse away. On 14 January 2004 she added that she had wiped away a pool of blood, carried the corpse to R.R.’s car and submerged both the car and the corpse in a pond near the village of Irgertsheim the same night. On 21 January 2004 she withdrew these confessions. During subsequent questioning she repeatedly stated that R.R. had not come home that night.

The second applicant stated in her first interview, on 13 January 2004, that her father had not returned home that night. A couple of days later she changed her statement and alleged that her mother had accidentally pushed her father and he had fallen down the stairs. On 4 February 2004, during a video-taped reconstruction of the crime scene with the police, she stated that her fiancé alone had killed her father with a club. On that day she was told by a police officer that there was a rumour that her father’s corpse had been fed to the dogs. Later the same day she stated that her mother had also hit her father with a club. On 18 and 21 February 2004 she stated that it had been her fiancé alone who had killed her father, cut the corpse into pieces and fed it to the dogs. After she had withdrawn all confessions, on 1 June 2004 she incriminated herself, alleging that she had killed her father with a hammer, and her fiancé had burnt the corpse. She withdrew that confession as well, alleged sexual abuse by her father and repeated some of the other versions.

The third applicant stated in her first interview, on 13 January 2004, that she did not know whether her father had returned that night or not. After a police officer alleged that her mother and the second applicant’s fiancé had confessed to the killing, she complained of sexual abuse by her father that night, after which her mother and father had had a row and her mother had pushed him down the stairs. On 23 January 2004 she declared that the second applicant’s fiancé and her mother had killed her father with a club. On 3 February 2004 she changed her version and alleged that a hammer had been used. On 19 March 2004 she again alleged abuse by her father that night. As a consequence, the second applicant’s fiancé had pushed him down the stairs and disposed of the corpse along with the car. On 28 April 2004 she changed her story once more, alleging that the hitting had taken place on the staircase and that her father’s corpse had been cut into pieces and fed to the dogs. Afterwards she denied having seen anything at all. Finally she withdrew all confessions.

The second applicant’s fiancé, M.E., stated at his first interview that the first applicant had killed R.R. with a club and that he had helped her to dispose of the corpse and the car in a pond near the village of Irgertsheim. He repeated this version several times until 15 April 2004. Then he alleged that he had hit R.R. with a club, carried the corpse into the cellar, cut it into pieces, boiled the head in a pot and fed the pieces to the dogs. Later on he alleged that the first and the second applicants had participated in hitting R.R. On 11 May 2004 he changed his confession, and alleged that he alone had hit R.R. in the neck. In October 2004 he withdrew all confessions.

After the withdrawal of their confessions, all the applicants alleged that they had made their confessions because the police officers had put pressure on them.

The applicants were in pre-trial detention throughout the criminal proceedings.

On 13 May 2005 the Ingolstadt Regional Court convicted the first applicant and the second applicant’s fiancé M.E. of manslaughter and sentenced the first applicant to eight years and six months’ imprisonment. The second and third applicants were convicted of having aided and abetted the manslaughter by omission and were sentenced to three years and six months’ and two years and six months’ imprisonment respectively. The Ingolstadt Regional Court was convinced that R.R. had returned home drunk with his car that night, had been killed by the first applicant and the second applicant’s fiancé, and had then been cut into pieces and fed to the dogs. The car had been destroyed in a scrap baling press. The second and third applicants had witnessed the killing without helping R.R. The court’s findings with regard to the events of the crime were based on the testimony of the police officers who had interviewed the applicants and the second applicant’s fiancé during the investigations. At that time neither R.R.’s corpse nor the car had been found.

As regards the applicants’ criminal liability the Regional Court relied in detail on two expert reports. The first report concerned the applicants’ and M.E.’s mental health. It asserted that the first applicant had an intelligent quotient of 53 and she therefore suffered from reduced mental capacity on the threshold of severe mental retardation (Debilität im Grenzbereich zur Imbezilität), the second applicant had an intelligence quotient of 71 which could be classified as a learning disability (unterdurchschnittliche Intelligenz im Bereich der Lernbehinderung), and the third applicant had an intelligent quotient of 63 and she therefore suffered from reduced mental capacity as well (Debilität). The second applicant’s fiancé, M.E. was found to have an intelligence quotient of 70. The second report concerned the question whether their reduced mental capacity diminished or excluded their criminal liability, which was answered in the negative.

The applicants appealed on points of law. On 10 January 2006 the Federal Court of Justice dismissed their appeal.

The applicants and M.E. served their sentences: the first applicant until 12 November 2009, the second applicant until 2 February 2006 and the third applicant until 27 October 2005.

On 10 March 2009 R.R.’s corpse was found, sitting in his car at the Bergheim barrage of the Danube in Neuburg a.d. Donau. A commissioned expert came to the conclusion that R.R. had not been killed by blunt force to his head, backbone or rib cage. The corpse, which was in rather good condition considering the fact that it had been in the water for several years, did not show any appearance of having suffered external force.

In July 2009 the applicants and M.E. requested the reopening of the proceedings and claimed monetary compensation for wrongful detention on remand and imprisonment after trial.

On 17 November 2009 the Landshut Regional Court rejected the request to reopen the proceedings. On the applicants’ and M.E.’s appeal against this decision, the Munich Court of Appeal granted their request to reopen the proceedings.

On 31 March 2010 the Landshut Regional Court reopened the proceedings and subsequently held several hearings. The proceedings against the third applicant were separated from those of the first and second applicants and M.E. due to her physical condition (see paragraph 33 below).

On 25 February 2011 the Landshut Regional Court acquitted the first applicant and M.E. of manslaughter and the second applicant of having aided and abetted manslaughter by omission.

In part B of the judgment the Regional Court assessed the first and second applicants’ mental health. It relied on two expert opinions, which confirmed those obtained in the first set of proceedings, namely that the first applicant had an intelligence quotient of 53 and the second applicant of 71 and both therefore suffered from reduced mental capacity.

Part E of the judgment contained the reasons for the acquittal. The court expressed its conviction that R.R. had arrived home at 12.45 a.m. The court was unable to establish what exactly had happened afterwards, but it was certain that one, some or all of the accused had acted in a way which had finally caused R.R.’s death during that night. The court was unable to establish which of the accused had participated in these actions, how R.R.’s death had been caused and how the corpse and the car had come to be disposed of at the barrage of the Danube. As nothing pointed to suicide or death by violence on the way home, in the acquitting court’s view R.R.’s death must have occurred after he arrived home. The fact that R.R. had returned home had been confirmed by the applicants and M.E. during the first set of proceedings.

The Regional Court considered that the applicants’ and M.E.’s statements could be used as evidence as there was nothing to indicate that prohibited methods of questioning had been used. In so far as the police officers had confronted the applicants in a few cases with incorrect facts, their method of questioning had to be considered as a minor attempt to mislead which did not interfere with the applicants’ right to silence. The fact that the applicants had been interrogated as witnesses at the beginning of their first interview, and not immediately as suspects, did not lead to the inadmissibility of the statements as evidence either. Furthermore, throughout the proceedings neither the applicants nor their counsel had claimed specifically that the police officers had used illegal pressure during questioning. The general allegation in this regard was unsubstantiated and nothing in the course of the proceedings indicated that the police officers had used leading questions to obtain confessions. Furthermore, the videotaped reconstruction of the crime scene, which the court had viewed, had not given any impression of psychological pressure on the applicants’ free will when talking about the crime.

In two separate sections subsequent to the acquitting part of the judgment the Regional Court also issued the decision concerning costs and expenses and the decision concerning compensation. The decision concerning costs and expenses was titled part F and the decision concerning compensation part G. The Regional Court ordered the treasury to pay the costs of the proceedings but declined to reimburse the applicants’ legal costs and expenses in accordance with Article 467 § 3 of the Code of Criminal Procedure (see paragraph 45 below). It further dismissed the applicants’ monetary compensation claims with regard to their pre-trial detention and their imprisonment in accordance with Article 5 § 2 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen, see paragraphs 46 to 49 below).

The court found that these claims were to be rejected because the applicants had caused both their detention on remand and their imprisonment by culpable negligence. It argued that the applicants had acted with culpable negligence because they incriminated themselves by making either deliberately wrong statements, or statements which could be proved neither true nor false.

As to the confessions of the first applicant, the court held that the first applicant’s statement of 14 January 2004, that she had lowered R.R.’s corpse and the car into a pond near the village of Irgertsheim, had been untrue because both the corpse and the car had been found at a barrage of the Danube. Furthermore, in 2004 the first applicant had incriminated herself during the first set of proceedings when stating that R.R. had returned home on the night of his disappearance, while in 2001 she had reported him missing. Thus she herself had created a strong suspicion that she had killed R.R. As a result, she had caused the indictment and the judgment by culpable negligence. Regarding the question of whether her reduced mental capacity discharged the first applicant of culpable negligence, the court observed that she had been able to follow the court proceedings and had been capable of answering questions during the police investigations in 2004 after thorough reflection. Her mental capacity was not such that she could not easily foresee that her statements would lead to the strong suspicion that she had killed R.R.

In so far as on 1 June 2004 the second applicant had admitted to having hit R.R.’s skull with a hammer, the Landshut Regional Court found that this self-incrimination had been untrue because the expert who examined R.R.’s corpse had come to the conclusion that R.R.’s skull had been intact. As a consequence, the second applicant had created a strong suspicion against herself concerning R.R.’s death. Furthermore, the court found that the second applicant had incriminated herself by her statements when questioned on 13 January, 4, 18 and 21 February 2004, even though the court was not able to determine whether these statements had been true or false. Despite her reduced mental capacity, the Landshut Regional Court was convinced that in 2004 the second applicant had been able to foresee that her statements would create a strong suspicion against her, because most of her self-incriminating statements had been very grave, repeated and given after having consulted her counsel. In the court’s view, the commissioning of an expert on grounds of her reduced mental capacity had not therefore been necessary. Lastly, nothing indicated that these statements were made in response to unlawful questioning.

On 11 May 2011 the third applicant was also acquitted of having aided and abetted manslaughter by omission for the same reasons as set out in the Regional Court’s judgment of 25 February 2011. The Regional Court found that she had an intelligent quotient of 63 and that she therefore suffered from reduced mental capacity. As regards the reimbursement of costs and compensation, the third applicant was awarded monetary compensation solely for the first day of her detention on remand. The acquitting court found that the third applicant caused both her detention on remand and her imprisonment by culpable negligence. Her statement of 28 April 2004, that M.E. had killed R.R. with a hammer and that the corpse had been cut into pieces and fed to the dogs, had been untrue because the corpse had been found at the barrage. Therefore, the third applicant had also created a strong suspicion against herself concerning R.R.’s death. Regarding her allegation that she had been sexually abused by R.R. on the night of his disappearance, the court could not determine whether this statement was true or false. However, since she had withdrawn these statements later on this was of only minor importance, because she had equally caused her indictment and imprisonment by culpable negligence. The court found that the third applicant’s reduced mental capacity did not discharge her of culpable negligence. Despite this disability she had been able to express herself clearly and had incriminated herself gravely and repeatedly while advised by counsel. Nothing indicated that she had not been able to understand the importance and meaning of her statements. Furthermore, she made her statements in the presence of her counsel.

The applicants appealed against the Landshut Regional Court’s two decisions to refuse monetary compensation and the reimbursement of legal costs and expenses.

On 14 July 2011 (concerning the third applicant) and 26 July 2011 (concerning the first and the second applicants) the Munich Court of Appeal rejected the appeals against the refusal of monetary compensation for their imprisonment. The court pointed out that, when assessing whether the criminal proceedings and the convictions had been caused by culpable negligence, the point of view at the time of the first set of proceedings was decisive. A refusal of monetary compensation under Article 5 § 2 of the Act on Compensation for Prosecution Measures was limited to cases where the person concerned had acted with gross negligence. It was therefore not sufficient to draw a suspicion on oneself. The person concerned must have substantially influenced the criminal proceedings or the conviction by his conduct.

Applying these principles to the applicants’ cases, the Munich Court of Appeal fully endorsed the legal reasoning of the Landshut Regional Court in part G of the judgment concerning compensation. The alleged use of psychological pressure during the police questionings did not change this assessment. Even if there might have been such a situation, both the constancy and severity of the self-incrimination and the fact that the applicants had been represented by counsel during their various statements had to be taken into account. Furthermore, in view of the expert opinions commissioned in 2004 and during the proceedings at issue nothing indicated that the applicants’ criminal liability had been diminished or excluded at the time they had made their statements. The Munich Court of Appeal noted that during the hearings before the Landshut Regional Court the court had received advice both from a psychologist and a psychiatrist. There had been no reason on the basis of the related request to take further evidence to obtain an additional psychological expert opinion in respect of the applicants’ statements during the first set of proceedings.

In the decision dated 26 July 2011 concerning the denial of compensation for the first and the second applicant the Munich Court of Appeal additionally mentioned that the Landshut Regional Court had respected the applicants’ right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention. It noted that the Landshut Regional Court had been permitted to voice a remaining suspicion against the applicants, as long as it clearly stated that any remaining suspicion did not amount to a finding of guilt. These requirements were fulfilled because the Regional Court, in stating that it was convinced that one or all of the accused had caused R.R.’s death without being able to establish which of the accused and in what way, had not commented on the applicants’ guilt but on whether the evidence before it left any suspicious circumstances.

On 12 September 2011 the Munich Court of Appeal further rejected the applicants’ appeal against the refusal of reimbursement of legal costs and expenses, fully endorsing the Munich Court of Appeal’s reasoning in its decision of 26 July 2011 while referring to part F of the Regional Court’s judgment.

The first applicant complained of a violation of her right to be heard regarding both decisions of the Munich Court of Appeal. The second applicant lodged a motion to be heard and statement of objections (Gegenvorstellung) against the Court of Appeal’s refusal to pay monetary compensation. The third applicant lodged a motion to be heard against the refusal of monetary compensation and statements of objections against the refusal to reimburse legal costs. All requests were rejected by the Munich Court of Appeal.

The first applicant lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal’s decisions denying compensation and reimbursement of costs and expenses. In so far as they have submitted, the second and third applicant only lodged constitutional complaints with the Federal Constitutional Court against the Court of Appeal’s decisions refusing the reimbursement of legal costs and expenses. All the applicants alleged that the Munich Court of Appeal’s decisions violated their right to be heard, their right to be presumed innocent and their right to an effective remedy.

On 15 March 2012 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint concerning the refusal of reimbursement of legal costs without providing reasons (file no. 2 BvR 2192/11).

On 16 March 2012 the Federal Constitutional Court declined to consider the first applicant’s constitutional complaints concerning both the refusal to reimburse legal costs and the refusal to pay monetary compensation, without providing reasons (file no. 2 BvR 2368/11).

On 16 March 2012 the Federal Constitutional Court declined to consider the third applicant’s constitutional complaint (file no. 2 BvR 2374/11).

Article 467 § 1 of the Code of Criminal Procedure provides, inter alia, that where the indicted accused is acquitted, his necessary costs and expenses shall be borne by the Treasury.

Article 467 § 3 of the Code of Criminal Procedure reads as follows:

“(3) The indicted accused’s necessary expenses shall not be charged to the Treasury if the indicted accused caused the preferring of public charges by filing criminal information in which he claimed to have committed the offence with which he was charged. The court may dispense with charging the indicted accused’s necessary expenses to the Treasury if

he caused the preferring of public charges by falsely incriminating himself with regard to material points or in contradiction to his later statements or by concealing material exonerating circumstances despite having made a statement in response to the accusation, or ....”.

Compensation for damage caused, inter alia, by wrongful prosecution, detention on remand or imprisonment is covered by the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen).

Pursuant to section 1 of that Act, a defendant is notably entitled to compensation for damage incurred by a criminal conviction if the conviction is quashed in re-opened proceedings.

According to Article 2 § 1 of the Act on Compensation for Prosecution Measures, a person who has been held in detention on remand may claim compensation if he was acquitted or if the proceedings against him were otherwise discontinued.

Article 5 § 2 of the Act on Compensation for Prosecution Measures provides that compensation under that Act is ruled out if the accused caused the prosecution deliberately or by culpable negligence (vorsätzliche oder grob fahrlässige Verursachung). The latter is established when it has to be said of an accused that he himself prompted the criminal proceedings by behaving in a way which failed to take into account the elementary fact that such behaviour would obviously lead to criminal proceedings.


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

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1934 and lives in Yerevan.

She owned a plot of land which measured 815 sq. m. and was situated in the centre of Yerevan. She also owned two houses and a garage situated on the plot. It appears that the applicant shared her household with her four children.

Before 1993 the applicant, without permission, built on her plot of land a pavilion (շվաքարան) measuring about 230 sq. m which she used as a venue for trade. The pavilion featured in the ownership certificate issued to the applicant on 30 November 1998 as a “half-ruined construction”.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, having a total area of 345,000 sq. m. It appears that the applicant’s plot of land fell within one such zone.

On 7 May 2004 the applicant applied to a notary office with a request to donate her property to her four children and seeking to make that transaction official.

The notary office refused this request, with reference to Government Decree no. 1151-N, stating that the applicant’s property was situated in an expropriation zone.

The applicant contested this refusal before the courts. It appears that on 14 June 2004 the Kentron and Nork-Marash District Court of Yerevan dismissed her claim. The applicant lodged an appeal.

On 28 July 2004 the Civil Court of Appeal granted the applicant’s claim and ordered the notary office to formalise the transaction. It found that the refusal was in violation of the law since the applicant’s request derived from Article 163 of the Civil Code. Besides, Government Decree no. 1151-N did not envisage any limitations on the type of transaction that the applicant sought to conclude. No appeal was lodged against this judgment, which entered into force.

On an unspecified date the applicant applied to the State Real Estate Registry (“SRER”), seeking to divide her property into four parts and to transfer ownership to her children. She also requested that her title be registered in respect of the pavilion.

It appears that on 23 February 2004 the SRER refused both requests. As regards the refusal of the second request, it appears that the SRER referred to Article 221 of the Civil Code and Government Decree no. 1748N.

In the proceedings before the Kentron and Nork-Marash District Court of Yerevan the representative of the SRER submitted that the applicant’s request had been refused because her property was situated in an expropriation zone and included unauthorised constructions. Its division would be contrary to Government Decrees nos. 1151-N and 2020N.

On 20 May 2004 the District Court decided to dismiss the applicant’s claim. It found that the applicant was the sole owner of the property in question and it was groundless to seek its division or sever any part of it. As regards the registration of ownership in respect of the pavilion, this claim was similarly groundless since the applicant’s plot of land was situated in an expropriation zone, while the procedure prescribed by Government Decree no. 1748-N, pursuant to its paragraph 3, did not apply to unauthorised constructions built on plots of land falling within such expropriation zones.

On 28 May 2004 the applicant lodged an appeal.

On 29 April 2005 the Civil Court of Appeal upheld the judgment of the District Court. The Court of Appeal found that the applicant had applied to the SRER with a request to have her property divided into four parts, which had been refused because the property was situated in an expropriation zone and included unauthorised constructions. Its division into four parts would be contrary to Government Decrees nos. 1151-N and 2020-N. As regards the refusal to register her title in respect of the pavilion, the Court of Appeal recapitulated the findings of the District Court.

On 12 May 2005 the applicant lodged an appeal on points of law. In her appeal she argued that the Court of Appeal had ignored the findings made in its final judgment of 28 July 2004. Furthermore, the fact that the plot of land was situated in an expropriation zone could not serve as a basis for restricting her rights as an owner which she enjoyed under Article 163 of the Civil Code. She further argued that the pavilion in question was immovable property and the refusal to register her title in its respect deprived her of the right to receive compensation at the time of expropriation.

On 17 June 2005 the Court of Cassation dismissed the applicant’s appeal on the same grounds.