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

The applicant, Mr Ján Mihal, is a Slovak national, who was born in 1956 and lives in Pezinok. He was represented before the Court by Černejová & Hrbek, s.r.o., a law firm with its registered office in Bratislava.

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

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

The applicant is a judge. At the relevant time he was on the criminal law bench of the Supreme Court.

On 2 July and 21 August 2009 the President of the Supreme Court filed two separate disciplinary charges against the applicant.

The applicant was accused of having negligently failed to take a decision within the prescribed time-limit which had ultimately led to the release from detention on remand of a defendant who was in the process of appealing against a previous first-instance life sentence given in a criminal case. In addition, the applicant was accused of having caused unjustified delays in two other sets of proceedings.

These offences were classified as “serious disciplinary offences” and the penalty of removal from judicial office was proposed.

Meanwhile, on 14 July 2009, the Judicial Council, which is the supreme governing body of the judiciary in Slovakia, suspended the applicant from office pending the outcome of the disciplinary proceedings.

The applicant’s charges fell to be determined at first instance by the Supreme Court, sitting as a disciplinary tribunal (“the first-instance tribunal”).

The first-instance tribunal set hearings for 6 October, 3 November, and 8 December 2010, but none of them took place because it had proven impossible to have the summons served on the applicant.

The summons had to be served on the applicant in person. As the summonses had repeatedly not reached him by post at home, they were deposited at the local post office and a notice to that effect was left in the applicant’s post box. However, the summonses were never collected.

In response, the first-instance tribunal asked that the summonses be served on the applicant by the police, by the District Court within the jurisdiction of which the applicant resided, and by the applicant’s mother.

According to the police and the District Court, the applicant was not staying at his home address and their attempts to reach him had been futile.

In the applicant’s submission, his suspension from office led to disruption of his family life, as a result of which he was not staying at his home address but at his mother’s.

On 8 December 2010 the first-instance tribunal again requested that the summons for the hearing then scheduled for 26 January 2011 be served on the applicant by the police and that the police bring him to that hearing. This summons was eventually served on the applicant.

Meanwhile, the applicant in person (1 December 2010) and through the intermediary of his defence counsel (21 December 2010) filed written observations in reply.

The first-instance tribunal eventually heard the case on 26 January, 23 February and 6 April 2011. The applicant and his counsel both attended all of these hearings. The tribunal allowed them to make oral submissions and heard evidence from a representative of the complainant and two Supreme Court judges as witnesses. In addition, it examined extensive documentary evidence.

The applicant offered the following in his defence. The missed time limit had been subject to newly adopted rules. The interpretation of those rules had been unclear and the applicant had been consulting other Supreme Court judges in that respect. He had thus been engaged in a legitimate process of analysing the applicable rules, had ultimately concluded that the given time-limit applied but, as by that time it had already expired, the defendant had had to be released. In the applicant’s view, he was not guilty of negligence and, in addition, his workload at that time had been unmanageable.

Following the hearing of 6 April 2011, on the same day, the first instance tribunal found the applicant guilty as charged and ordered his transfer to a lower-instance court. It did so having dismissed his arguments and having considered that removal from office, as demanded by the complainant, was too harsh a sanction in the circumstances.

On 12 June 2011 the applicant appealed against the above decision and on 14 June 2011 his counsel added reasons to his appeal. The complainant subsequently filed observations in reply and the applicant submitted further written comments.

In sum, he argued that the first-instance tribunal had had no power to try him because its three-year mandate had expired before its decision; that the tribunal had not been impartial because it had favoured the complainant; that the complainant had systematically breached his presumption of innocence with the aim of removing him from his position as a judge; that the tribunal had erred on facts and law, and had been selective in its choice of which evidence to accept (rejecting the applicant’s proposals for evidence to be given by certain witnesses); and that it had failed to support its decision with adequate reasoning.

The appeal fell to be examined by another Chamber of the Supreme Court, sitting as a disciplinary tribunal of appeal (“the appeal tribunal”).

On 3 September 2011 the appeal tribunal scheduled a hearing for 12 October 2011.

On 7 September 2011 the applicant informed the appeal tribunal that he was unable to appear because he was on sick leave. He submitted a general practitioner’s certificate of 6 September 2011 to that effect, stated that he wished to attend the hearing in person, and requested that the hearing be postponed. In the certificate, the applicant’s doctor had indicated his diagnosis as “M54” and authorised him to go for a walk daily between 10 a.m. and noon and between 3 and 5 p.m.

On 12 September 2011 a new date was set for the hearing – 17 October 2011. As for the applicant, the appeal tribunal had the summons sent to him and his lawyer.

At the same time, the appeal tribunal asked the applicant’s doctor in writing to indicate the expected period of his incapacity for work and to specify whether he would be able to attend the scheduled hearing. The doctor was further asked to authorise the applicant to leave his place of residence on 17 October 2011 for the purposes of attending the hearing, health permitting.

The summons was served on the applicant’s lawyer on 16 September 2011 but it twice proved impossible to have it served on the applicant in circumstances similar to those described above.

On 6 October 2011 the presiding judge contacted the doctor by telephone with a view to establishing whether the applicant would be able to attend the hearing.

In a written reply dated 3 October 2011 the doctor confirmed that the applicant had been on sick leave since 6 September 2011. Its expected duration could not be specified as the results of the applicant’s examination by specialists had not yet arrived. Lastly, the letter indicated that the applicant was being treated with medication with analgesic-spasmolytic side effects which could affect his ability to concentrate.

On 14 October 2011 the applicant’s counsel informed the appeal tribunal, without offering anything in support of such claims, that the applicant was still on sick leave and that his condition would not allow him to appear at the forthcoming hearing. He added that the applicant considered his presence necessary, submitted that “they” apologised for “their” absence, requested that the hearing be postponed, and pledged that “they” would inform the tribunal once the applicant’s condition had improved.

The appeal tribunal heard the case as scheduled on 17 October 2011 without the applicant or his counsel present. The complainant’s representative was present but submitted that, in the applicant’s absence, he had no comment to make in respect of the applicant’s appeal other than to refer to the complainant’s previous written submissions.

Following the hearing of 17 October 2011, on the same day the appeal tribunal quashed the first-instance decision and found the applicant guilty on charges relating to the missing of the detention-related deadline and the unjustified delays in one set of proceedings; it acquitted him of the remaining charge.

The appeal tribunal imposed a sanction on him, which was identical to that imposed previously by the first-instance decision, that is to say transfer to a lower court.

The appeal tribunal observed that the judges of the first-instance tribunal had been appointed for three years and that this term had expired before its decision in the applicant’s case. However, under the applicable statute, the tribunal had had to bring to a conclusion any proceedings that had commenced before it irrespective of the three-year period.

Moreover, it considered that the first-instance tribunal had adequately established the facts and that no new evidence was called for. Nevertheless, it was true that the first-instance decision had lacked proper reasoning. Therefore, the appeal tribunal provided comprehensive reasoning of its own for the conviction in its decision. Among other things, it noted that there had been no official record of the applicant having conferred with his colleagues over any question of law that he might have considered controversial. In the circumstances, and in particular in a matter as sensitive as the detention of a notorious criminal defendant, the applicant’s inactivity could not be accepted as being an expression of legitimate judicial activity but rather manifested signs of arbitrariness.

As regards hearing the applicant’s appeal in his absence, the appeal tribunal considered that his and his lawyer’s refusal to attend had been “another part of the former’s efforts to obstruct and delay the proceedings”.

In that connection, the appeal tribunal referred in detail to the difficulties in having the summons served on the applicant both at the first instance stage and on appeal. It observed that the applicant had been on sick leave, which presupposed that he should normally have been at home. It also noted that the applicant had been authorised to leave home for four hours a day, which should have given him ample opportunities to collect his post from the post office.

In addition, the appeal court noted that the applicant’s doctor had avoided a direct response to the question concerning whether the applicant’s condition had been such as to prevent him from participating at the hearing.

At the same time, it noted that there was no doubt that the summons had been properly served on the applicant’s counsel who himself had not provided any reason why he had not been able to appear at the hearing.

In such circumstances, the appeal tribunal considered that the applicant’s sick leave had not been an adequate reason for adjourning the hearing and that it had been justified to have held it in his absence.

On 2 December 2011 the applicant lodged a complaint with the Constitutional Court. He alleged a breach of Article 6 § 1 of the Convention in that the appeal tribunal had determined the case in his absence, notwithstanding the fact that he and his lawyer had duly apologised.

On 14 December 2011 the Constitutional Court declared the complaint admissible; on 18 April 2012 it found that there had been no violation of the applicant’s rights under Article 6 § 1 of the Convention and its constitutional equivalents.

In reaching that conclusion the Constitutional Court considered relevant, in particular, that: (i) the applicant had attempted to delay the proceedings at first instance; (ii) he and his lawyer had been present at the hearings at first instance and had had the possibility of presenting their arguments; (iii) the applicant’s lawyer had indicated no relevant reason preventing him from attending the hearing on appeal; (iv) the applicant had had ample opportunity to set out his arguments in his appeal and in his comments on the complainant’s observations in reply to his appeal; (v) the applicant had been partly successful in his appeal; (vi) the appeal tribunal had accepted the applicant’s first request for the hearing of his appeal to be adjourned; and (vii) the applicant’s state of health had not prevented him from attending.

The Constitutional Court further noted that the representative of the other party had made only a general statement at the hearing and that the court of appeal had not taken further evidence. The principle of equality of arms had been respected and the appeal court’s conclusion had not been arbitrary.

The disciplinary decisions concerning the applicant have been implemented and he is now in active service at a court of appeal.


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

The applicant, Ms G.J., is a Nigerian national who was born in 1985. According to the case file, she lives in Nigeria. She was represented before the Court by Ms G. Fernández Rodríguez de Liévana, a lawyer at the nongovernmental organisation Women’s Links Worldwide (hereafter “WLW”) based in Madrid.

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

In 2006 the applicant arrived in Spain and submitted an asylum request (also referred to hereafter as the first set of asylum proceedings). She alleged that she was a Catholic and had fled Sudan after her father’s assassination by a radical Muslim group.

On 12 July 2007 the Spanish authorities issued an expulsion order in respect of the applicant. According to the case file, the applicant did not seek judicial redress against that order.

Her first asylum request was dismissed on 13 July 2009. The administrative authorities found that the inconsistent and contradictory statement of facts provided by the applicant cast doubts on her current nationality and the existence of the alleged persecution. On 7 December 2009 Ms M.E. was appointed as the applicant’s legal aid lawyer.

The dismissal decision of 13 July 2009 was challenged on 22 March 2010 by means of an appeal introduced by Ms M.E. before the Audiencia Nacional (Court sitting in Madrid with jurisdiction in asylum cases).

On 15 October 2010 the Audiencia Nacional dismissed the appeal on its merits. It found that the applicant had not provided any documents proving her identity and nationality. Nor had the applicant provided a minimum of evidence to support her allegations. The court noted that she did not speak Arabic, the official language in Sudan, and that her mother tongues were English and Niala, the latter being a dialect which was not spoken anywhere in Sudan. Lastly, violent incidents similar to those recounted by the applicant had been reported as occurring in Dafur, but not in Yala, the applicant’s alleged city of origin.

In the meantime, on 19 February 2010 two police officers stopped the applicant on the street and asked her to prove her identity. She was detained and, with a view to enforcement of the 2007 expulsion order, placed in an aliens’ detention centre. At the time of her detention the applicant was pregnant.

On 25 February 2010 the applicant filed a new asylum request (hereafter referred to as the second set of asylum proceedings). She claimed that she was of Nigerian nationality and a Catholic and had fled Nigeria after her parents’ assassination, having been helped to flee by a man called V. Upon her arrival in Spain, however, V. had forced her into prostitution in order to repay her travel expenses, which amounted to 20,000 euros (EUR). After having sex with clients she had become pregnant and V. had suggested she should have an abortion, but she had been detained just a few days prior to her appointment at the abortion clinic. She wished to have the baby and feared being killed if returned to Nigeria as she had not managed to repay her debt.

The United Nations Refugee Agency (hereafter, the “UNHCR”) had supported the applicant’s request since it considered that, on the basis of the facts recounted by the applicant, she had been a victim of ‒ and might still be a victim of ‒ human trafficking. In the second set of asylum proceedings the applicant was represented by the lawyer Mr A.P.

On 26 February 2010 this second asylum request was declared inadmissible by the Deputy Director on Asylum. She found that the applicant’s account of facts as to the alleged persecution was incoherent and inconsistent and she had already presented similar submissions in her first asylum request, which had been rejected.

On 3 March 2010 the NGO Proyecto Esperanza ‒ an agency which specialises in the investigation of trafficking and which had been informed about the applicant’s case by the UNHCR ‒ interviewed the applicant at the aliens’ detention centre and submitted a report to the Asylum Office of the Ministry of Internal Affairs supporting the applicant’s allegations.

On 4 March 2010 the applicant applied for a re-examination of the second asylum request. She departed from her initial claim alleging persecution on religious grounds, instead focussing exclusively on the fact that she had been trafficked to Spain for the purpose of being forced into prostitution, and provided a more detailed account of facts. The request for re-examination was dismissed on 5 March 2010, the applicant’s new submissions not being sufficient to alter the conclusions reached in the inadmissibility decision.

The applicant instituted administrative judicial proceedings (procedimiento contencioso administrativo) against the refusal decision. Additionally, the applicant requested the suspension of the expulsion order, arguing that she was a victim of trafficking and that she should not be removed from Spain until the identification procedure was completed.

On 10 March 2010 Madrid administrative judge no. 6 rejected the applicant’s request to have her expulsion suspended on the following grounds: the applicant had failed to demonstrate the existence of a risk to her life or physical integrity if returned to Nigeria; the applicant had submitted an international protection request only after having been detained and held in immigrant detention; the applicant had already sought asylum unsuccessfully in 2007; the reports compiled by the administrative authorities supporting rejection of the asylum request were better reasoned and more convincing than the report produced by the UNHCR office. According to the case file, the applicant did not appeal against the rejection of the suspension.

On 13 April 2010 Madrid administrative judge no. 6 ruled that he lacked jurisdiction to examine the applicant’s appeal, and relinquished the case to the Audiencia Nacional. It does not follow from the case file that either the applicant or the administrative courts have taken any further steps in pursuance of these proceedings.

On 11 March 2010, while the above-mentioned judicial proceedings were pending before Madrid administrative judge no. 6, two lawyers from WLW visited the applicant in the detention centre. The applicant signed a written authority to act (hereafter referred to as “the authority dated 11 March 2010”), instructing Ms Fernández Rodríguez de Liébana, one of the lawyers, to apply for the granting of a “recovery and reflection period” under section 59 bis of Organic Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain. In the application, which was introduced on 12 March 2010, WLW asked for a stay of the applicant’s expulsion.

WLW informed Mr. A.P., the applicant’s lawyer in the second set of asylum proceedings, that the organisation’s lawyers would represent the applicant from 11 March 2010 onwards. On an unknown date Mr. A.P. gave his consent thereto, but no power of attorney was signed by the applicant to formalise this.

On 15 March 2010 WLW applied to the Government Delegation in the Community of Madrid (Delegación del Gobierno en la Comunidad de Madrid) to have the applicant’s expulsion order revoked. It claimed that the applicant satisfied all the legal requirements to be granted a residence permit in view of her social integration in Spanish society.

On 17 March 2010 at 7 a.m. the applicant was expelled to Nigeria. WLW first learnt of the applicant’s expulsion on 18 March 2010, the date on which she was served with a decision by the Government Delegation dated 16 March 2010 rejecting the request for a recovery and reflection period. On the basis of an interview conducted by police officers, the Government Delegation found that there was no evidence to support the argument that the applicant was a victim of human trafficking. It was clear that she had not been forced into prostitution since she worked independently and voluntarily without being controlled, lived alone and had not been deprived of her freedom of movement. Furthermore, she had no relatives in Nigeria who might be threatened.

On 31 March 2010 WLW instituted administrative judicial proceedings for the protection of fundamental human rights (procedimiento contencioso administrativo para la defensa de los derechos fundamentales), claiming that the applicant had been expelled before the Spanish authorities had examined the substance of her request for a recovery and reflection period.

On 5 April 2010 Madrid administrative judge no. 14 asked WLW to submit a power of attorney signed by the applicant before a relevant authority, namely a notary, a judicial secretary or a consular authority. He stated that the application would be deemed valid if the applicant had signed it herself.

On 7 May 2010 WLW argued before the judge that the manner in which the applicant had been expelled had prevented the organisation from having a power of attorney signed by the applicant before a notary or a judicial secretary. WLW contended that it had not been informed about the expulsion beforehand and had not been able to contact the applicant since then. In its view, the written authority dated 11 March 2010 (see paragraph 16 above) should be regarded as valid for the purposes of representation before domestic courts.

On 7 June 2010 the administrative judge rejected WLW’s submissions. He referred to sections 23 and 45 (2) (a) of Law 29/1998 of 13 July on Administrative Judicial Procedure, which established the obligation to furnish a power of attorney in cases where applicants had instructed a lawyer to represent them before an administrative judge, and to section 24 of Law 1/2000 of 7 January on Civil Judicial Procedure, which provided that the power of attorney must be signed before a notary or a judicial secretary. The judge observed that the aim of these requirements was to demonstrate the genuine existence of the person intending to apply to the judicial authorities for the purpose of defending his or her individual rights.

On 19 July 2010, as a result of a claim lodged by WLW concerning the applicant’s case, the Spanish Ombudsman issued a recommendation to the Asylum Office of the Ministry of Internal Affairs to the effect that the asylum authorities should automatically initiate a procedure aimed at determining whether the alleged victim should be granted a recovery and reflection period in cases where an international protection request has been supported by the UNHCR office because it is thought that the person concerned might be a victim of human trafficking.

On 3 August 2010, after holding a hearing in the presence of WLW, Madrid administrative judge no. 14 declared the appeal inadmissible as WLW had no locus standi to represent the applicant. The judge found that WLW had failed to substantiate its assertion that its lawyers had tried three times to procure the attendance of a notary at the aliens’ detention centre.

On 27 May 2011 the Madrid High Court of Justice upheld this decision, observing that WLW had not demonstrated that it had approached the professional association of notaries for the purpose of requesting the attendance of a duty notary at the aliens’ detention centre. The High Court also found that no evidence had been produced showing that the applicant was unable to avail herself of consular services in her country of origin as provided by section 65 (2) of Organic Law 4/2000 of 11 January on Rights and Freedoms of Aliens in Spain. In view of the above, the High Court declared that the written authority dated 11 March 2010, which was valid for the purposes of the applicant’s representation in administrative proceedings, was not sufficient to satisfy the representation requirements under section 24 of Law 1/2000. On 7 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible for lack of any special constitutional significance.

Section 59 bis of Organic Law 4/2000 of 11 January on the Rights and Freedoms of Aliens in Spain imposes on the competent domestic authorities the obligation to adopt the measures necessary for the identification of victims of trafficking in human beings. This provision reads:

“1. The competent authorities shall adopt the necessary measures for the identification of victims of trafficking in human beings in compliance with Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings, of 16 May 2005.

Whenever they consider that there are reasonable grounds to believe that an illegal immigrant is a victim of trafficking in human beings, the competent administrative bodies shall inform the person concerned of the provisions of this section and shall submit, in accordance with the relevant procedure, a proposal to the competent authority for the adoption of a decision on whether a recovery and reflection period should be granted in the case.

The recovery and reflection period shall last at least thirty days and shall be sufficient for the victim to make a decision on cooperating with the authorities in the investigation of the crime and, if appropriate, in the criminal proceedings thereafter. During the victim identification period and the recovery and reflection period no infringement proceedings may be instituted for a violation of section 53 (1) (a). Any infringement proceedings that may have been instituted and any expulsion or deportation decisions adopted will be suspended. Likewise, during the recovery and reflection period, the person concerned shall be authorised to stay in the territory temporarily and the competent administrations will provide for his or her subsistence and, if necessary, for the security and protection of the victim and any of his or her children who are minors or disabled and were in Spain at the moment of identification ...

The recovery and reflection period may be denied or revoked for reasons of public order or if it is found that victim status has been claimed improperly. The denial or revocation shall be properly reasoned and can be appealed against as provided for by Law 30/1992 of 26 November on the Legal System of the Public Administration and on Common Administrative Procedure.

The relevant Spanish legislation setting out the formal requirement to provide legal representation (in force on the date of the institution of the proceedings for the protection of fundamental rights) provides as follows:

“1. In proceedings before a single judge, the parties may choose to be represented by a procedural representative and shall, in any event, be advised by a legal counsel ...”

“1. Claims for judicial review shall be initiated in the form of a written application that merely cites the decision, act, inaction or action constituting the challenged ultra vires operation and the petitum that the claim be held to have been filed, unless otherwise provided by this law.

This application shall be accompanied by:

a) The document ascertaining the capacity of the person appearing on behalf of the party, unless this document has been previously attached to the judicial file of a case pending before the same court, in which case a certificate may be requested, to be attached to the new judicial file.

“1. The authority to act on behalf of a party shall be conferred through a notarial power of attorney witnessed by a public notary or through the party’s appearance in the office of a judicial secretary.

“1. The administrative decisions imposing an administrative sanction may be appealed against as provided for in the relevant regulations. These decisions shall be enforced according to the relevant general legislation.

Where the alien is outside Spain, he or she may introduce administrative or judicial proceedings through the relevant diplomatic or consular services, which shall forward the appeal to the relevant body in Spain.”


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicants were born in 1984, 1988 and 1987 respectively. The first applicant currently lives in Odessa. The third applicant left Ukraine for Ethiopia on 23 November 2014. His current whereabouts are unknown. The second applicant died on 6 March 2015. According to the applicants’ representative, the second applicant died of a “natural cause”. No further details were given in this regard. The Court was not informed of anyone wishing to pursue the application on his behalf.

The following is a summary of the events that led the applicants to seek asylum outside their countries of origin, as submitted by the applicants.

The first applicant is an Orthodox Christian. When he was fifteen years old he was forcibly recruited to the army in Eritrea. After having served for two months he deserted and left for Djibouti. In the meantime, his father went missing after he had been arrested by the Eritrean authorities for having complained about the first applicant’s forcible military service. The first applicant believed that his father had been tortured and murdered by the authorities.

The second applicant was a Protestant Christian. Initially, he left Eritrea for Ethiopia together with his family. After the outbreak of armed conflict between Ethiopia and Eritrea, the second applicant’s family moved back to Eritrea, though the second applicant remained in Ethiopia as he feared persecution for his religion and forcible military service in Eritrea. As he could have been expelled by the Ethiopian authorities to Eritrea, the second applicant left for Djibouti in 2007.

The first and second applicants stayed in Djibouti illegally for several years. In that country both applicants were repeatedly arrested by the authorities allegedly in connection with the armed conflict between Djibouti and Eritrea in June 2008.

The third applicant left Ethiopia for Djibouti in 2005 for unspecified reasons. From 2008 to 2010 he was employed by an Ethiopian transport company operating in Djibouti. The third applicant submitted that as he had been a member of the “Medre[k] political party”, he had been dismissed by his employer after that party had lost the 2010 election in Ethiopia to the “Ehadeg party”. The third applicant’s identity card issued by the Ethiopian authorities was retained by his former employer. Thus the third applicant remained in Djibouti illegally and was at risk of possible deportation by the Djiboutian authorities to his country of origin, Ethiopia, where he risked persecution “as a traitor to the Ehadeg political regime”.

The Government did not comment on those submissions.

On 18 January 2012, with the intention of seeking asylum in any country other than Djibouti or their countries of origin, the applicants covertly boarded a commercial vessel flying the flag of the Republic of Malta. The vessel was leaving the port of Djibouti and heading for Tuzla, Turkey.

The next day the applicants were discovered by the vessel crew. The vessel’s owner and insurer were informed accordingly.

When the vessel was passing through the Suez Canal, the insurer tried to arrange with the Egyptian authorities that the applicants could disembark in Egypt, but the authorities refused the request.

Following the vessel’s arrival in Tuzla on 3 February 2012 the Turkish authorities and a representative of the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey met with the applicants on board the vessel. The applicants were not allowed to disembark. Their allegations of persecution in their home countries written in the Amharic and Tigre languages were passed by the vessel’s insurer to the representative of the UNHCR office in Turkey.

On 21 February 2012 the vessel left Tuzla in the direction of the port of Mykolayiv in Ukraine.

On 24 February 2012, sometime before the vessel anchored in the port of Mykolayiv, a non-governmental organisation “Faith, Hope, Love”, which at the time was based in Odesa and assisted refugees and asylumseekers under a contract with the UNHCR, contacted the head of the Border Control Service in the Southern Region of Ukraine informing him that there were two nationals of Eritrea and a national of Ethiopia on board the vessel and that, according to the UNHCR, they might require international protection. The organisation requested leave for their lawyer, Z., to meet with the applicants.

On 25 February 2012 Ukrainian border guards embarked the vessel and met with the applicants. According to information provided by the Government, the applicants did not submit any requests to the border guards.

Later on that day, Z. went to Mykolayiv port to see the applicants. She was allowed to embark the vessel and meet with the applicants. She discussed their situation with them and informed them of the asylum procedures in Ukraine. The discussion was in English in the presence of three border guards and two port security officers. As only the first applicant could speak English, he interpreted the discussion into Amharic, which the other two applicants could understand.

According to the applicants, during the discussion they expressed the wish to seek asylum in Ukraine and started filling in asylum applications with the help of one of the border guards who had knowledge of English. That border guard was an official interpreter at the State Border Control Service. However, sometime later the border guards stated that they could not accept the asylum applications from the applicants, as the applicants were on board a vessel flying the flag of a foreign State. Such applications had to be submitted to the vessel’s captain. On the same grounds the border guards refused to allow the applicants to disembark. The border guards asked Z. to leave the vessel. Allegedly, Z. was not given sufficient time and interpretation facilities to provide assistance to the applicants in respect of their asylum claims.

According to the Government, during that meeting the applicants did not submit applications for asylum; nor did they express a wish to do so. As the applicants had no identity documents, the head of the border-guard unit decided to refuse them leave to enter Ukraine. No copy of that decision was provided to the Court. The Government submitted copies of reports drawn up by the border guards who had been present at that meeting, which indicated that the meeting had lasted for five hours and that the applicants had stated that they needed time to decide whether they wished to request asylum in Ukraine. Z. left the vessel without raising any complaints. The head of the border-guard unit stated in her report that she had explained to the applicants that “in the circumstances the border guards had not been able to accept asylum applications from them”.

On 28 February 2012 the applicants, allegedly having been misled by the vessel’s captain who was acting on the instructions of the Ukrainian border guards, signed type-written statements in English, according to which they had boarded the vessel with the aim of reaching Sweden “in search of better living conditions” and that they did not “need the status of refugee, addition[al] [or] temporary protection in Ukraine”. In a letter he sent to the UNHCR on 6 March 2012, the captain stated that the abovementioned type-written statements had been prepared and brought on board by Ukrainian border guards on 28 February 2012.

The Government submitted that the applicants themselves had asked the captain to help them to prepare the above-mentioned type-written statements. The Government relied on the captain’s statements obtained on 3 March 2012 when he had been questioned by the migration authorities. In particular, the captain stated that he and the first applicant had prepared the statements and had given them to the other applicants to sign.

On 2 March 2012 Z., acting on the applicants’ behalf, lodged with the Court a request for interim measures to be imposed under Rule 39 of the Rules of Court. She stated that the applicants risked removal to Saudi Arabia, for which the vessel was scheduled to depart on 3 March 2012. In their submissions before the Court, the Government did not contest this statement. Z. further argued that in Saudi Arabia asylum-seekers were granted no form of protection and were exposed to the risk of being repatriated. According to her, there was a real risk that the authorities of Saudi Arabia would forcibly return the applicants to their countries of origin where they would be subjected to ill-treatment. She essentially requested the Court to indicate to the Government of Ukraine that the applicants should be allowed to leave the vessel and should be granted access to a lawyer and to the asylum procedure.

On the same day the Court granted the request.

On 3 March 2012 the border guards accompanied by an officer from the State Migration Service embarked the vessel and met with the applicants. According to the Government, it was during that meeting that the applicants requested asylum in Ukraine. They were allowed to disembark and to cross the State border.

On 16 March 2012 the applicants were questioned by the migration authorities concerning their asylum applications. According to the applicants, during the questioning they were not provided with adequate translation or any explanation of the relevant regulations. Nor were they provided with legal assistance.

The parties have not informed the Court about the outcome of the applicants’ asylum applications lodged in March 2012; nor have they provided any further details as regards their examination by the migration authorities.

It appears from their submissions that in 2014 the applicants lodged new asylum applications with the authorities.

On 19 August 2014 the Odesa Regional Department of the Migration Service (the “ORDMS”) rejected the third applicant’s asylum application, finding that it was manifestly ill-founded. The third applicant did not challenge that decision on appeal. On 23 November 2014 he decided to leave Ukraine for Ethiopia. The UNHCR helped him to organise the travel arrangements. The applicants’ representative did not provide any further information as regards the third applicant, as since the third applicant’s departure from Ukraine the representative has lost contact with him.

On 9 December 2014 the ORDMS refused the second applicant’s application, finding that his submissions were contradictory and did not concern a situation in which refugee status or complementary protection could be granted. He appealed to the Odesa Administrative Court. The proceedings were eventually terminated as the second applicant died on 6 March 2015.

On 12 August 2015 the ORDMS refused the first applicant’s application, principally for the same reasons as in the case of the second applicant. The first applicant appealed to the Odesa Administrative Court, which has not yet decided on the matter.


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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano

The applicant was born in 1948 and lives in Dnipropetrovsk.

On 18 October 2010 the applicant lodged with the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District Court (“the District Court”) an administrative claim against the Department of the Pension Fund for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District (“the defendant”) seeking an increase in his pension based on the rise in the average wages in the country since his retirement.

On 1 December 2010 the District Court, having considered the applicant’s claim by way of an abridged administrative procedure, allowed the claim. In the judgment it was pointed out that any appeal must be lodged by the appellant within a period of ten days following their receipt of a copy thereof.

The defendant received a copy of the judgment on 27 December 2010.

The defendant lodged its first appeal with the District Court on 13 January 2011 and did not request an extension of the time-limit for appeal.

On 11 April 2011 Judge N. of the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”) dismissed the defendant’s appeal on the grounds that it had been lodged after the time-limit for appeal had expired and the defendant had failed both to explain the reasons for the late lodging of the appeal and to submit a request for an extension. The ruling stated that it could be appealed against before the Higher Administrative Court. The defendant did not appeal.

On 1 June 2011 the District Court, at the applicant’s request, issued a writ of enforcement confirming that the judgment had become final on 11 April 2011.

With effect from 1 August 2011 the defendant complied with the judgment and increased the applicant’s pension.

On 17 June 2011 the defendant lodged a second appeal with the District Court. By letters of 21 June and 5 July 2011 the District Court forwarded the case file, including the appeal and its copy for the applicant, to the Court of Appeal. The case file gives no indication of any steps to follow up on the matter.

On 15 August 2011 the defendant lodged a third appeal, requesting that the Court of Appeal extend the time-limit for its submission. As grounds for its request the defendant stated that it “had begun the process of appealing against” the District Court’s judgment on 31 December 2010.

On 26 October 2011 Judge N. of the Court of Appeal scheduled a hearing for 26 January 2012 to examine the question of extending the time-limit for appeal.

According to a summons dated 26 October 2011 addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 26 January 2012 at which the court was to examine the applicant’s request for an extension of the time-limit for appeal. The summons included the warning that failure to appear would not prevent the Court of Appeal from examining the matter.

It is apparent from the domestic case file that no other document was added to it between 26 October 2011 and 26 January 2012.

On 26 January 2012 a panel of the Court of Appeal, presided over by Judge N., extended the time-limit for appeal, stating that the defendant had missed the deadline for “valid reasons”. The Court of Appeal recounted the sequence of events in the case from 1 December 2010 to 15 August 2011, found it established that the first appeal had been lodged outside the time-limit, namely on 13 January 2011, and observed that the defendant had requested the extension because it had received a copy of the judgment only after the time-limit for appeal had already expired.

On 27 January 2012 Judge N. of the Court of Appeal ruled that appeal proceedings be opened, that copies of the ruling be sent to the parties, and that the applicant be sent a copy of the appeal and be invited to provide his reply.

According to a summons dated 30 January 2012 and addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 13 June 2012 at which the court was to examine the appeal. This summons also contained the warning that failure to appear would not prevent the Court of Appeal from examining the matter.

On 13 June 2012 the Court of Appeal quashed the judgment of 1 December 2010 and rejected the applicant’s claim, holding that the first-instance court had erred in its interpretation of the relevant legislation governing pensions.

On 27 November 2012 the defendant sent a letter to the applicant informing him that his pension had been reduced in accordance with the decision of the Dnipropetrovsk Court of Appeal of 13 June 2012.

On 12 December 2012 the applicant lodged a complaint with the prosecutor’s office for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District alleging that Judge N. had intentionally failed to inform him about the appeal proceedings.

On 29 December 2012 the prosecutor’s office made an entry in the Unified Register of Pre-Trial Investigations to investigate the suspicion that offences of delivering of an intentionally unjust court decision and of failure to enforce a court decision may have been committed.

On 17 May 2013 the prosecutor’s office decided to discontinue the investigation concerning the applicant’s complaint. The prosecutor’s office found, in particular, that the defendant had dispatched the original appeal against the judgment of 1 December 2010 on 31 December 2010 that is to say within the time-limit. As to the applicant’s allegations that he had not been informed about the reopened appeal proceedings, the prosecutor’s office noted that the case file contained copies of court summonses dated 26 October 2012 and 30 January 2012.

On 21 May 2013 the District Court and on 27 May 2013 the Dnipropetrovsk Regional Court of Appeal upheld the prosecutor’s decision.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant in the first case, Mr Zois Kokkonis, is a Greek national who was born in 1964 and lives in Patra. The applicant in the second case, Ms Nikolitsa Chalilopoulou, is a Greek national who was born in 1968 and lives in Patra. They were represented before the Court by Mr A. Regglis, a lawyer practising in Patra.

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

On 7 January 2009 the applicants, a married couple, were convicted in absentia by the three-member Patras Court of First Instance of an offence of theft which they were found to have committed jointly, and sentenced to twelve months’ imprisonment (decision no. 22/2009). The applicants lodged an appeal, which was scheduled to be heard on 15 February 2011 by the three-member Patras Court of Appeal. However, on that date the applicants applied for an adjournment of the hearing, as their lawyer could not be present, and the hearing was rescheduled for 3 May 2011 (adjournment decision no. 543/2011). The applicants did not attend that hearing, and neither did a lawyer acting on their behalf. The Patras Court of Appeal, taking into account that the applicants had been present on 15 February 2011, considered that it was “as if [they were] present”, examined their appeal, and sentenced them to ten months’ imprisonment (decision no. 1084/2011).

The applicants applied for the annulment of the proceedings under Article 341 of the Code of Criminal Procedure, arguing that they had not been present at the court hearing owing to force majeure, which had prevented them from attending the hearing or informing the court of their absence. In particular, Mr Kokkonis submitted that he had been hospitalised on 29 April 2011 owing to acute febrile gastroenteritis, and had left hospital with instructions to stay in bed from 29 April 2011 to 8 May 2011; he attached the relevant documents to his application for annulment. Ms Chalilopoulou argued that she had been prevented from attending the hearing owing to her husband’s illness, as she had had to take care of him and their children at home.

The applicants’ applications for the annulment of the proceedings were heard by the Patras Court of Appeal on 17 May 2011 and the proceedings continued on 25 May 2011. The court dismissed their applications as inadmissible (decision no. 1356/2011). In particular, it held that an application for annulment under Article 341 could only be lodged if the defendant had been tried in absentia, and not when he had been tried “as if [he were] present”.

The relevant parts of the Code of Criminal Procedure read:

If the defendant has been legally summoned but is not present, or is not legally represented by a lawyer, he is tried as if he were present...”

“1. If, as a result of force majeure or other insurmountable obstacles, the convicted defendant could not notify the court of the insurmountable obstacle promptly by any means, so as to request an adjournment of the hearing (Article 349), he can lodge an application for annulment of the proceedings which took place in his absence or in the absence of his representative...

2... If the application for annulment is granted, the decision against which it has been lodged is annulled and the court orders a new hearing for the case on a given date, during which the defendant shall appear without having been summoned. Under no circumstances is the defendant allowed to lodge an application for annulment against the decision [on his application for annulment].”

According to the case-law of the Court of Cassation, the decision that is issued following an application for annulment pursuant to Article 341 of the Code of Criminal Procedure is not subject to an appeal on points of law (decision no. 1245/2008 of the Court of Cassation).


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

The applicants, E.M., C.M. and I.L.M., are Romanian nationals who were born in 1939, 1962 and 1964 respectively and live in Bucharest. The first applicant is the mother of the second and third applicants. They were represented by Mr I. Olteanu, a lawyer practising in Bucharest.

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

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

Mr I.M., a reserve colonel (colonel în rezervă), was the first applicant’s husband and the second and third applicants’ father. On 30 May 2005 he died in hospital, aged seventy-three, following an operation and a twoweek convalescence period.

On 22 April 2005 Mr I.M. developed symptoms of icterus (a yellow discoloration of the skin or whites of the eyes, indicating excess a bile pigment in the blood) and, together with the applicants, went to the military clinic for a consultation. He underwent some tests and was immediately admitted to the Carol Davila Central Emergency Military Hospital (“the hospital”) for further investigations and treatment. His diagnosis was “cholestatic jaundice due to cholestatic calculus – left renal lithiasis clinically significant for approximately three days” (icter colestatic prin calcul colestatic – de circa trei zile litiază renală stânga). Neither the patient nor his family was informed of the diagnosis.

An ultrasound scan performed that evening in the hospital revealed a pancreatic tumour and the patient was prescribed treatment by the doctor on duty, Dr C.D. After two days of treatment, the jaundice disappeared. The treatment continued for two more days.

On 26 and 27 April 2005 Dr C.D. ordered further examinations of the patient’s abdomen, pancreas and bile ducts. I.M. thus underwent a computerized tomography scan (a form of X-ray examination in which the X-ray source and detector rotate around the object to be scanned and the information obtained can be used to produce cross-sectional images by computer) on 3 May 2005 and an ultrasound endoscopy on 6 May 2005. An MRI test (magnetic resonance imaging, a non-invasive method of examination of body organs by recording the responses to radio waves, or other forms of energy, of different kinds of molecules in a magnetic field) was recommended but never carried out. Throughout this time, the applicants were at the hospital with the patient, but they were allegedly not given any information by the medical team.

Dr C.D. conferred with his colleague Dr R.P. and decided, on the basis of the test results, that the patient probably had a pancreatic tumour of a kind requiring surgery.

According to the applicants, neither the patient nor his family was properly informed of the diagnosis, the nature of the intervention, its risks, or its actual duration. The medical team told them that they were going to perform a “routine” operation lasting about an hour and a half, and which had a 100 % chance of success.

On 18 May 2005 Dr R.P., assisted by Drs C.D., V.S., and S.V., and by the specialist anaesthetist Dr D.C., performed the surgery and removed the tumour along with parts of the patient’s pancreas, stomach and duodenum. The intervention lasted for some seven hours.

The tests run after the surgery showed that the tumour had been benign.

The applicant was placed in the intensive care unit under the supervision of Dr D.C. He remained there until his death.

The family was not officially allowed access to the intensive care unit until two days before the patient’s death. For the first few days after the operation, the patient’s general state was stable. However, his general health started to deteriorate and he developed a high fever. He was prescribed broad spectrum antibiotics, which were provided by his family, pending the results of further blood tests.

On 26 May 2005 blood tests were ordered and the results revealed the presence of two types of bacteria: klebsiella and meticillin-resistant staphylococcus.

Meanwhile, his health continued to deteriorate and he finally slipped into a coma. He was in this state when, on 27 May 2005, Dr R.P. operated on him again to remove an abscess and some blood clots which had formed after the first operation.

On 28 May 2005 the applicants spoke with the anaesthetist on duty, who – in Dr D.C.’s absence – acquainted them with the patient’s real diagnosis and informed them of the type of surgery he had undergone on 18 May and of the suspicion of a bacterial infection.

On the evening of 28 May 2005 the patient died of septic shock and multiple organ dysfunctions; he was taken to the hospital mortuary.

The third applicant signed a discharge form provided by the hospital, which read:

“... [we] request that no autopsy be performed as the cause of death is known and we have no complaints concerning the treatment and care provided by the medical and paramedical personnel.”

The applicants collected the deceased’s personal belongings and found that the medicine they had brought to the hospital had not been administered to the patient.

On 30 May 2005, while her father’s body was still in the hospital mortuary, the second applicant brought the case to the attention of the College of Doctors. She sent her complaint to both the Bucharest branch and the National Chamber of the College, by e-mail and by normal post. She informed both associations that her father had contracted a bacterial infection while in the intensive care unit of the hospital and asked that an autopsy be performed before the burial, which was scheduled for the following day.

The disciplinary committee of the Bucharest College of Doctors gave no reply to the request for an autopsy but opened an investigation into the patient’s death, hearing evidence from the applicants and the doctors. It gave its decision on 12 October 2005, ruling that no medical errors had been made, but reprimanding Dr R.P. for his failure to seek the patient’s consent before the surgery, as required by Law no. 46/2003.

The applicants objected to the committee’s conclusions and their appeal was heard by the superior disciplinary committee of the National College of Doctors.

Drs S.V. and V.S. from the medical team that had performed the surgery on 18 May 2005 submitted written statements to the effect that together they had sought the patient’s written consent before the intervention and that the consent form had been attached to the file. The statements were typewritten and identical. The head of the surgery department at the hospital submitted a written statement clarifying that no patients had been operated on in that period without a consent form being attached to their file. Dr I.P., a specialist doctor from a different hospital, was asked to comment on the treatment choices made by Dr R.P. He gave his opinion on 11 January 2006, stating that, in general, icterus was a condition that required surgical intervention under any circumstances, and that – according to the guidelines – the surgery performed in Mr I.M.’s case had presented a certain risk, but one that had not been increased by the patient’s age; he also considered that the postoperative complication and ensuing death had fallen within the generally accepted risks for such an operation.

On the basis of the evidence presented, on 7 July 2006 the National College of Doctors terminated the disciplinary proceedings against Dr R.P. Relying on the two written statements given by the two doctors, the authority considered it established that the patient’s consent had been obtained but that the consent form had been lost.

The second applicant lodged an action for the decision adopted on 7 July 2006 to be quashed, pointing out that Drs R.P. and D.C. (the anaesthetist) had disregarded the patient’s rights and well-being in that they had failed to perform all the requisite tests before the operation, in particular an MRI scan, and had failed to inform either the patient or his family of the real diagnosis and the risks of the surgery and to obtain the patient’s consent before the intervention; she also contended that the postintervention care had been deficient. She reiterated that the patient had contracted a bacterial infection in hospital, which in her opinion had contributed to his death.

On 14 March 2007 the Bucharest County Court gave judgment in the case. It noted that a criminal investigation had taken place, that the medical experts consulted by the prosecutor had expressed the opinion that the patient’s death had not been caused by medical error, and that on the basis of that opinion the case had been closed (see paragraph 26 below). It therefore dismissed the applicants’ action and upheld the decision of the National College of Doctors.

The second applicant appealed against the decision delivered by the County Court, but in a final decision of 23 November 2007 the Bucharest Court of Appeal dismissed the appeal and upheld the findings of the lower court.

On 14 June 2005 the second applicant lodged a criminal complaint against the doctors who had treated her father, naming in particular the two surgeons Drs R.P. and C.D. and the anaesthetist, Dr D.C. They addressed their complaint to the prosecutor’s office attached to the High Court of Cassation and Justice and the Bucharest military prosecutor’s office. As the doctors were career officers, the military prosecutor took over the case and opened an investigation into involuntary manslaughter.

Dr R.P. gave a statement before the military prosecutor. He maintained that the patient’s death had not been directly caused by the surgery and that it had been impossible to establish the cause of death beyond doubt as the family had refused an autopsy. Dr D.C. declared that the patient had received adequate treatment and his death had not been caused by medical negligence.

The prosecutor sought the advice of the Mina Minovici National Institute for Forensic Medicine (“the National Forensic Institute”), asking it to explain the nature and cause of death, whether the treatment had been appropriate to the diagnosis, whether there had been errors of medical practice and conduct (erori de tehnică şi conduită medicală) and, if so, how such errors had contributed to the patient’s death.

On 6 September 2005 the National Forensic Institute issued an expert medical report regarding the case. It took into account the patient’s medical log during his stay in the hospital and the opinion expressed in general terms about Mr I.M.’s condition by Dr B.M., a specialist surgeon at a different hospital from the one where the patient had been treated. It concluded that the cause of death had been multiple organ failure and sepsis occurring during the evolution of a post-surgical abscess. It considered that the treatment had been appropriately determined and administered and that there had been no medical errors at any stage (diagnosis, medical treatment, surgery and post-surgical care).

On the basis of the conclusions of the expert medical report, on 13 October 2005 the prosecutor decided not to prosecute Drs R.P. and C.D.

The first and second applicant objected to the outcome of the prosecutor’s investigation. They pointed out, in particular, that the expert medical report had failed to examine the question of the bacterial infection contracted in the hospital and that the prosecutor had not taken account of the absence of consent for the surgery.

On 8 December 2005 the Chief Prosecutor of the Bucharest Military Prosecutor’s Office dismissed the above-mentioned complaints, finding, in particular, that the expert medical report had not confirmed the applicants’ allegations.

The applicants lodged a complaint against that decision with the Bucharest Military Court; as they became more familiar with the expert medical report, they raised several objections to it and asked that the case be remitted to the prosecutor for further investigation. On 7 April 2006 the court dismissed their complaint as illfounded, on the basis of the medical report of 6 September 2005.

The second applicant appealed against that decision. She contested the accuracy of the expert medical report, stating that Dr B.M. was not an accredited medical expert, and that the conclusions of the report were flawed. She requested that a new expert examination be carried out. She also complained that at the hospital the applicants had been informed of a diagnosis that was different from that appearing on the official documents presented by the hospital as evidence, and that it had only been on the basis of the erroneous diagnosis that her brother had signed the discharge form concerning the autopsy. In any case, she considered that her father’s death had been suspicious, as it had followed what appeared to be a good recovery; moreover, since the presence of hospital bacteria had been identified, an autopsy should anyway have been performed with or without the family’s endorsement. She also pointed out in this connection that as soon as they had become aware of the misrepresentation by the hospital, the applicants had appealed to the College of Doctors to demand an autopsy in the case.

The second applicant emphasised the absence of informed consent from either the patient or his family before the operation and pointed out that that failure on the part of the hospital had prevented them from making informed decisions, for instance seeking a second opinion from a specialist doctor.

In a final decision of 6 November 2006 the Bucharest Territorial Military Court dismissed the appeal. The court referred to the conclusions reached by the College of Doctors, which, in its opinion, had given an exhaustive account of the facts and was better placed than the courts to give a specialist opinion.

On 30 May 2005 the second applicant forwarded to the Ministry of Defence a copy of the complaint she had sent to the College of Doctors on the same day. The Ministry of Defence was responsible for the administration of the hospital. Later on she expanded the complaint, claiming that the hospital had also failed to provide the patient with clerical assistance when he was dying.

On 14 and 30 June 2005 the Medical Department of the Ministry of Defence replied to the second applicant’s complaint. It informed her that the medical treatment given to her father had been adequate and that the surgery performed had fallen within the generally accepted range as regards the risk of complications and fatality, given the patient’s age (seventy-three) and medical history. It also stated that the procedures for sterilisation of instruments in the hospital were in accordance with the existing guidelines and beyond reproach.

The Patients’ Rights Act (Law no. 46/2003) expressly states that there is an obligation to inform a patient about any surgical intervention proposed, the risks involved in the surgery, alternative treatment, and the diagnosis and prognosis (Article 6). The Law also regulates the patient’s right to seek a second medical opinion (Article 11).

According to Article 37 of the Act, a breach of a patient’s rights may result in disciplinary or criminal action, depending on the applicable law.

The judgment delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic law and practice concerning the delivery of expert forensic reports and the authorities competent to issue them, as well as the relevant domestic law and practice concerning the civil liability of medical staff.

Under Article 4 of the Hospital Act (Law no. 270/2003), the hospital has to ensure adequate standards of accommodation, hygiene and food as well as the prevention of hospital-acquired infections, in accordance with the regulations issued by the Minister of Health and Family. The hospital is liable for any damage sustained by patients as a result of the quality of the medical treatment or because of the standards of accommodation, hygiene, food and the prevention of hospitalacquired infections if such damage is established by the competent authorities. Under the same provision, where the damage is caused through medical fault, the liability lies with the person who committed the tort (răspunderea este individuală).


André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The case originated in an application (no. 14976/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Latvian nationals, Mr Jānis Svārpstons (“the first applicant”), Mr Juris Ulmanis (“the second applicant”) and Mr Jānis Zips (“the third applicant”), on 29 March 2005. The applicants were represented by Ms J. Kvjatkovska, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent, most recently Ms K. Līce.

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

The events leading up to the present application took place in the context of a transition in Latvia from analogue to digital terrestrial television broadcasting.

On 14 November 2002 a contract was signed between the Digital Latvian Radio and Television Centre (Digitālais Latvijas radio un televīzijas centrs – “the DLRTC”), a subsidiary company of the State nonprofit joint-stock company, the Latvian State Radio and Television Centre (Latvijas Valsts radio un televīzijas centrs – “the LVRTC”), and Kempmayer Media Ltd. (“KM”), a company registered in England and Wales, for implementation by the latter of the second phase of the digital terrestrial television broadcasting project.

In 2002 Kempmayer Media Latvia (“KML”), a subsidiary company of KM, was incorporated in Latvia. The applicants were at the material time board members of the KML. Subsequently, KM informed the DLRTC that its obligations under the contract of 14 November 2002 would be performed by KML, with KM only overseeing implementation of the project.

In August 2003 the DLRTC lodged a claim against KM with the International Court of Arbitration of the International Chamber of Commerce in Stockholm, seeking to invalidate the contract of 14 November 2002.

On 24 August 2006 that court ruled that, being a “mailbox” company, KM had never had the capacity to fulfil its contractual obligations. It was ordered to repay 6,976,737 United States dollars (USD) to the DLRTC.

On 1 September 2003 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “the KNAB”) opened an investigation into whether, in the context of the transition to digital terrestrial television broadcasting, State officials had abused their authority and failed to act.

The KNAB carried out various investigative actions including numerous searches.

On 24 October 2003, at the request of the KNAB, a judge of the Riga City Vidzeme District Court authorised the searches and seizures.

The judge’s decision authorising the searches and seizures was amenable to appeal before the Riga Regional Court (Rīgas apgabaltiesa) (see paragraphs 17-20 below).

On 27 October 2003 the KNAB searched KML’s business premises and the applicants’ residential premises. The search record indicated that numerous items were seized, such as the first applicant’s mobile phone and SIM card, the second applicant’s notebook, cassette tape, CDs, business card, the third applicant’s CDs, business cards, floppy disks, computers, computer hard drives, photographs and notes.

During the searches of their residential premises, the first and third applicants were also searched.

In October 2003 the applicants asked the KNAB and the Office of the Prosecutor General to return all the items and documents seized, in particular those of a personal nature and having no connection with the criminal case.

In November 2003 the applicants’ request to return the computers was refused because they contained information of evidential value. The KNAB indicated that the applicants could obtain a copy of the information stored on them and that the third applicant could recuperate certain items seized from his residential premises. Other items were being examined and would be returned if found to be of no evidential value.

On 3 November 2003 the applicants lodged complaints regarding the judge’s decision authorising the searches and seizures with the Riga Regional Court, arguing that it had been unsubstantiated and had not specified the items sought. They further contended that items unrelated to the criminal case had been seized from their residential premises.

On 11 November 2003 the Riga Regional Court dismissed the applicants’ complaints.

As regards the conduct of the searches, that Court noted that the actions of the investigating authority could be appealed against to the prosecution service, in accordance with Article 220 of the Criminal Procedure Code. That part of the applicants’ complaints fell outside the scope of the Regional Court’s competence and was therefore left unexamined.

This decision of the Regional Court was final.

On 15 November 2003 a prosecutor of the Office of the Prosecutor General dismissed the applicants’ complaints regarding the conduct of the searches and seizures.

On 3 December 2003 and 8 January 2004 the applicants’ further complaints to two higher levels of prosecutor were dismissed. The applicants’ opinion that certain seized items were of no relevance to the case was deemed without basis. Furthermore, since KNAB employees had had sufficient reasons to believe that the first and third applicants had been in possession of and were hiding items which were of relevance to the case, they could therefore be searched.

On 20 February 2004 the Prosecutor General dismissed the applicants’ complaints with final effect.

On 12 March 2004 the applicants and KML lodged a complaint with the Constitutional Court (Satversmes tiesa), challenging the compliance of Articles 220 and 222 of the Criminal Procedure Code (procedures for lodging complaints about the actions of an investigating authority and for a prosecutor’s decision on such a complaint) with Article 92 of the Constitution (right to a fair trial), Article 96 of the Constitution (right to respect for private life, home and correspondence) and Articles 6, 8 and 13 of the Convention.

They maintained that an investigating authority’s actions could not be the subject of an appeal before a court. A review of those actions by the prosecution service could not be equated to a review by a “court” within the meaning of Article 92 of the Constitution. They further complained in a general manner that their right to respect for private life, home and correspondence had been violated on the grounds that the intervention was not based on law.

On 16 April 2004, a panel of three judges of the Constitutional Court, by relying on Section 20 of the Constitutional Court Law, refused the initiation of constitutional proceedings insofar as it concerned Article 96 of the Constitution and Articles 8 and 13 of the Convention. They held that that part of the complaint did not comply with the criteria provided by Section 19² of the Constitutional Court Law (see paragraphs 29-32 below). In particular, the applicants had not sufficiently demonstrated in the complaint how their fundamental rights under those provisions had been infringed. This decision was final.

On 11 October 2004 the Constitutional Court handed down its judgment in relation to the remainder of the applicants’ complaint. It found that the impugned statutory provisions, namely Articles 220 and 222 of the Criminal Procedure Code, complied with Article 92 of the Constitution. The Constitutional Court also held that the prosecution service may be regarded as an effective and available legal remedy within the meaning of Article 13 of the Convention and that the absence of an appeal to a court does not in itself give rise to a breach of Article 6 or 13 of the Convention. As a result, it dismissed the applicant’s complaint.

Article 92 guarantees the right to a fair trial (see Čalovskis v. Latvia, no. 22205/13, § 71, 24 July 2014). Article 96 enshrines the right to respect for private life, home and correspondence (see Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII).

Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums).

Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used.

Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. Section 20 (5) (3) provides that, when examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-19³ of the Constitutional Court Law. When examining a constitutional complaint, the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)).

For further details regarding the Constitutional Court Law see Meimanis v. Latvia, no. 70597/11, §§ 31-38, 30 June 2015.

The provisions of the Criminal Procedure Code applicable at the time of the national proceedings ceased to be in force on 1 October 2005. The provisions governing the procedure for complaints regarding the actions of an investigating authority provided as follows.

Article 220 provides that a suspect, accused and other persons may lodge complaints with a prosecutor about the actions of an investigating authority.

Article 221 provides that the prosecutor supervising the investigation shall decide on a complaint within ten days of receipt. A higher-ranking prosecutor shall decide on a complaint within ten days, or thirty days if a further inquiry or information is necessary in order to decide [it]. The complainant shall be informed of the outcome. If the complaint is dismissed, the prosecutor shall provide reasons as to why the complaint was considered unfounded and explain the appeal procedure. The investigating authority and complainant may appeal against the prosecutor’s decision concerning the complaint to a higher-ranking prosecutor.

Under Article 222 complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and decided in accordance with the procedure laid down in Articles 220 and 221 of the Criminal Procedure Code.


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)

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. Some applicants also raised other issues under the Convention.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1929 and lives in St Petersburg.

On 17 February 2000 the applicant lodged a claim with the Yakutskiy Town Court of the Republic of Sakha (Yakutiya) (“the Town Court”) against the Government of the Republic of Sakha (Yakutiya) for providing him with a housing subsidy and for a compensation of non-pecuniary damage.

On 2 February 2001 the Town Court dismissed the claims.

On 23 April 2001 this decision was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutiya) (“the Supreme Court”).

On 7 April 2005, following the applicant’s supervisory review appeal, the Presidium of the Supreme Court quashed the decision of 23 April 2001. The Supreme Court remitted the case for a new examination by the court of cassation instance for the applicant had not been duly summoned to the hearing of 23 April 2001.

On 11 May 2005 the Supreme Court dismissed the applicant’s cassation appeal and upheld the judgment of 2 February 2001.

On 26 January 2006, upon the applicant’s supervisory review appeal, the Presidium of the Supreme Court quashed the judgment of 2 February 2001 and the decision of 11 May 2005 as it found that the lower courts misjudged the facts of the case and erred in application of the national law.

On 17 May 2006 the Town Court again dismissed the applicant’s claims.

On 21 August 2006 the Supreme Court set aside the judgment of 17 May 2006 on appeal and remitted the case for a new examination, as the lower court had misapplied the national law.

On 18 December 2006 the Town Court ordered the Government of the Republic of Sakha (Yakutiya) to pay the applicant 683,619 Russian roubles (RUB) from the federal budget funds allocated for providing the housing subsidies for persons leaving the high north regions.

On 12 February 2007 the Supreme Court found the decision of 18 December 2006 to award the applicant money unlawful and unreasoned, quashed the decision and yet again remitted the case for a new examination.

Twice, on 26 April 2007 and 7 September 2007, the Town Court dismissed the applicant’s claims.

Each time, on 18 July 2007 and 19 May 2008, respectively, the judgment of the Town Court was set aside on appeal, and the case was remitted for a new examination. In the first set of the proceedings, the appellate court found the judgment unlawful, and requested to bring into the proceedings the municipality “Nizhnekolymskiy rayon”. In the second set of the proceedings, the appellate court found that the applicant had not been duly summoned to the hearing, and that the municipality should have been joined to the proceedings as a defendant rather than a third party.

On 23 September 2008 the Town Court granted the applicant’s claims in part. It ordered the Government of the Republic of Sakha (Yakutiya) to pay the applicant RUB 1,812,838.10 from the federal budget funds allocated for the housing subsidies for persons leaving the high north regions.

On 17 November 2008 the judgment of 23 September 2008 was upheld on appeal by the Supreme Court.

On 25 November 2010 the applicant requested the writ of execution in respect of the judgment of the Town Court of 23 September 2008.

On 10 February 2010 a writ of execution was issued.

On unspecified dates, the applicant submitted the writ of execution, first, to the Department of the Federal Treasury and, second, to the Ministry of Finance of the Republic of Sakha (Yakutiya).

On 13 April and 8 June 2011 respectively the writ of execution was returned to the applicant as the debtor had no accounts at these bodies.

On 29 July 2011 the Department of the Federal Bailiffs’ Service for the Republic of Sakha (Yakutiya) (“the Bailiffs’ Service) received the writ of execution and opened the enforcement proceedings.

On 24 August 2011 the Head of the Bailiffs’ Service ordered to set aside the above decision to open the enforcement proceedings.

On 30 August 2011 the decision of 29 July 2011 was set aside and the Bailiffs’ Service refused institution of enforcement proceedings with the reasoning that as the enforcement document required recovery of public budgetary funds, it could not be enforced by the Bailiffs’ Service.

On 8 February 2012 the District Court clarified the judgment of 23 September 2008. It explained that the debt had to be recovered from the Government of the Republic of Sakha (Yakutiya) represented by the Federal Treasury of the Republic of Sakha (Yakutiya) from the federal budget sources allocated for the housing subsidies for persons leaving the high north regions.

On an unspecified date the applicant on one more occasion sent the writ of execution to the Department of the Federal Treasury. On 26 April 2012 the writ was returned to him for the debtor had no account at the Treasury.

On 10 July 2012 the Bailiffs’ Service received the writ of execution and opened the enforcement proceedings.

On 10 September 2012 the enforcement proceedings were terminated for the debtor had no property that the debt could be recovered from.

On the same date the bailiff responsible for the execution of the judgment issued an act establishing that there were grounds for returning the writ of execution to the creditor. According to this document, the debtor, the Government of the Republic of Sakha (Yakutiya), was a collective executive body, without the status of a legal entity or any property on their balance sheet.

The judgment of 23 September 2008 remained unenforced.

On 29 November 2010 the applicant lodged a claim under the Compensation Act (see the Domestic Law part below). He complained that the civil proceedings in his case against the Government of the Republic of Sakha (Yakutiya) had been unreasonably long, and asked for a compensation in that respect.

On 20 December 2010 a judge of the Supreme Court of Russia ordered that the application should be returned to the applicant with the reasoning that the proceedings complained of ended on 17 November 2008, i.e. before the entry into force of the Compensation Act.

On 15 March 2011 the applicant’s special appeal against the above decision was dismissed by the Supreme Court of Russia. The court agreed with the judge that had passed the decision of 20 December 2010 that the end date of the proceedings was the date of the decision of 17 November 2008 to uphold the judgment of 23 September 2008 on appeal, while the subsequent period when the applicant applied for supervisory review of that decisions should not be included in the overall length of the proceedings.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1965 and lives in Kranj.

The applicant was detained in the remand section of Ljubljana prison from 31 May 2008 to 29 August 2008. He was again detained in the remand section of Ljubljana prison from 23 April 2009 to 27 January 2010.

In the period from 23 April 2009 to 24 April 2009 he was held for two days in cell 59 alone or with another detainee. From 25 April 2009 to 25 May 2009 he was held for thirty-one days in cell 99 measuring 8.44 square metres (not including a separate 1.39 square metre sanitary facility), alone with 7.05 square metres of personal space. From 26 May 2009 to 27 January 2010 he was held for eight months and three days in cell 50 measuring 8.07 square metres (not including a separate 1.23 square metre sanitary facility), alone with 6.84 square metres of personal space or with another detainee with 3.4 square metres of personal space.

The cell for two detainees, where the applicant was held, contained one bunk bed, one bigger and one smaller table, two chairs, two wardrobes and two 89 x 54 cm windows, which detainees could freely open or close.

As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011.

As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (Mandić and Jović, cited above, § 78).

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.