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

Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1972 and lived until his arrest in the town of Morshansk, Tambov Region.

On 25 October 2004 the applicant was arrested on suspicion of murder committed in a drunken rage. He was placed in temporary detention facility no. IZ-68/2 in Morshansk.

On 1 February 2005 the Morshansk District Court found him guilty of murder and sentenced him to ten years’ imprisonment. The judgment became final on 10 March 2005 and the applicant was sent to serve his sentence in correctional colony no. 5.

Medical certificates submitted by the applicant indicate that in 2000 he was admitted to the neurological department of the Morshansk Town hospital for in-patient treatment as he was suffering frequent seizures and loss of consciousness. He was diagnosed with episyndrome with vascular malformation in the right parietal lobe. In 2001 he was again admitted to the hospital with severe headaches and seizures. Doctors confirmed the previous diagnoses of vascular malformation of the brain accompanied by episyndrome, and designated the applicant as category 2 disabled. The applicant was not allowed to perform any physical activity or work other than “light managerial work in a specially designated environment”.

On admission to detention facility no. IZ-68/2 the applicant complained to a prison doctor of frequent headaches. An examination resulted in his being diagnosed with neurocirculatory dystonia, encephalopathy with complex genesis, and chronic alcoholism. On the following day the applicant was examined by a psychiatrist, who recorded his complaints of regular and lengthy epileptic seizures and prescribed treatment with anticonvulsants. Clinical blood tests and an X-ray examination showed that the applicant was not suffering from any infectious diseases.

In December 2004 a prison psychiatrist and medical assistant saw the applicant three times in response to his complaints of insomnia, extreme irritability and disturbed emotional state. Having noted that close supervision was necessary, the doctor amended the applicant’s treatment to include another anticonvulsant, a strong neuroleptic and a sedative.

A prison paramedic attended the applicant on two occasions in January 2005. The applicant’s complaints intensified, to include not only severe headaches but insomnia and frequent and uncontrolled mood swings, with a depressed emotional state being quickly replaced by aggressive behaviour. The paramedic recorded that the applicant was making continual demands for a large number of drugs, in particular strong tranquillisers to fight insomnia, as the headaches only disappeared when the applicant was asleep. He introduced another anticonvulsant to the applicant’s drug regimen and prescribed a strong tranquilliser.

In February 2005 the applicant was seen at least every four days, by a psychiatrist or the head of the facility medical unit. The doctors registered extremely negative changes in the applicant’s behaviour, numerous complaints, refusal to take medication and subsequent persistent demands for drugs, in particular neuroleptics and tranquillisers. Each time this was done a discussion on the negative consequences of interruption of the treatment followed. The side effects of the treatment with neuroleptics and tranquillisers were also explained to the applicant. Following these “educational” talks, as the psychiatrist called them, the applicant complained of severe headaches and requested an in-depth examination in a specialised prison hospital by medical specialists competent to deal with his medical condition, in particular a neurosurgeon. He also asked for a magnetic resonance imaging (MRI) brain scan. The applicant was notified that the penal institutions in the Tambov region did not employ a neurosurgeon and that MRI scanning was not available free of charge. He continued to insist, however, on a transfer to a hospital and an MRI scan every time he saw a medical specialist. The officials’ response was to amend his drug regime, switching him from one neuroleptic to another and replacing one anticonvulsant with another one.

On 28 February 2005 the applicant was transferred to detention facility no. 1 in Tambov. Having examined the applicant on his admission to the facility, a prison doctor recommended regular consultations with a psychiatrist and a drug addiction specialist. He also made recommendations in view of the applicant’s emotional state, and prescribed injections with a new neuroleptic and a spasmolytic.

The applicant was examined by a psychiatrist and a drug addiction specialist during the week following his admission to that detention facility, and the previous drug regime was reinstated. At the same time the drug addiction specialist noted the applicant’s dependence on tranquillisers, particularly those which had served as the basis for his chemotherapy regime since his arrest. The drug addiction specialist recommended the applicant be admitted to a correctional colony medical facility for treatment.

On 18 March 2005 the applicant was admitted to the Tambov Region prison hospital, where he remained until 6 April 2005. The applicant underwent a number of clinical blood and urine tests, X-ray examinations of the head and chest, an electrocardiogram (ECG) and ultrasound scanning of the abdominal area and kidneys. The tests and examinations did not reveal any pathology. He was also seen by a neurologist and an oculist. He was treated with piracetam, a neurometabolic stimulator, vitamins, analgesics, spasmolytics, sedatives and an antihypertensive drug. The applicant was discharged from the hospital in what the doctors considered a satisfactory condition.

Following his treatment in the hospital, the applicant was transferred to correctional colony no. 5 to serve his sentence. His first consultation with a psychiatrist took place two days after his arrival in the colony. Following the applicant’s complaints of severe headaches, insomnia, anxiety and irritation, the doctor recommended transfer to a prison medical facility for treatment for his alcoholism. That transfer was effected at the end of April 2005.

On 3 May 2005 the applicant was seen by the head of the prison medical facility, to whom he stated that he refused to have treatment for his chronic alcoholism. The applicant insisted on being transferred back to the correctional colony, and asked for a medical expert examination.

Ten days later the applicant was examined by a medical panel comprising the head of the prison medical facility, a drug addiction specialist, a psychiatrist and a physician. The panel’s conclusion was that the applicant required mandatory treatment for his chronic alcoholism, given that the illness was negatively affecting his behaviour, as well as his psychological state. In particular, the doctors recorded the applicant’s continual attempts to obtain additional doses of tranquillisers as a sign of his dependency. The doctors lectured the applicant about the consequences of “simulation and addiction”. The applicant’s medical record showed that he was seen by a number of specialists and underwent a number of clinical tests. He was released from the in-patient facility with a drug regime comprising tranquillisers, analgesics, neuroleptics and a hepatoprotector. He was discharged on the condition that he would be under close supervision by a psychiatrist and a drug addiction specialist.

The applicant continued to receive the psychotherapy, with prison officers and medical staff recording positive effects of the treatment, and noting that the applicant was adjusting rapidly to the conditions of the correctional colony and was complying with the detention regime.

In June 2005 a prison psychiatrist reduced the applicant’s drug regime to one anticonvulsive drug and multivitamins. While his condition was considered moderately satisfactory, he continued to complain of headaches and occasional loss of consciousness. At the same time the applicant acknowledged that he had had no epileptic fits during the entire period of his treatment in the prison medical facility. In July 2005 the applicant’s condition worsened and his complaints intensified, leading to the reintroduction of the drugs that he had been treated with in the prison medical facility. At the same time the colony authorities refused the applicant’s requests to be transferred to the regional prison hospital for examinations, in particular an MRI brain scan, and treatment, considering that his condition could be appropriately treated with outpatient treatment in the colony. The only request from the applicant which was granted concerned the reintroduction of a tranquilliser into his drug regimen.

In August 2005 the applicant’s complaints, which he had been making daily, of a loss of consciousness, loss of appetite and very severe headaches, were heard in a consultation with a prison paramedic, who prescribed pain relief for the headaches, vitamins, an anticonvulsive drug and a herbal sedative. While it was noted that there were injuries on the applicant’s face and body which could have supported his account of loss of consciousness and a resultant accidental fall, the paramedic described his behaviour as an attempt to manipulate and attract attention. In response, the rules of behaviour in penal institutions, the internal regulations of the facility he was in, and the aims of the medical treatment were all explained to him. In September 2005 the applicant was prescribed work and psychotherapy in addition to a course of medication.

The applicant suffered a relapse of his chronic pancreatitis and was sent to the regional prison hospital on 19 September 2005, where he underwent a series of clinical tests and examinations identical to those he had already had during his previous stay in the hospital. The applicant’s diagnosis when he was discharged from the hospital on 6 October 2005 was as follows: encephalopathy with a complex genesis with cephalgia syndrome, chronic pancreatitis, cholecystitis in remission, and alcohol dependency syndrome, aggravated by uncontrolled use of psychotropic drugs.

After he was transferred back to the medical correctional facility on his discharge from the hospital the applicant continued to complain of headaches, nausea, loss of consciousness, numbness in the arms and legs, fatigue and insomnia. The following months consisted of new rounds of complaints when the applicant demanded additional doses of tranquillisers, admission to the regional prison hospital and an MRI scan of the head, and the facility authorities treated his requests as coming from a drug addict and a manipulator. The doctors also concluded that he no longer needed treatment for alcohol addiction as he had been cured and had shown a clear intention to continue with a sober life. In the authorities’ opinion, that intention should have been strengthened through the prescribed work therapy and psychotherapy.

In December 2005 the administration finally acceded to the applicant’s request and sent an official letter to the Tambov regional hospital requesting that he be admitted and receive an MRI scan. While waiting for a response, paramedics, on the recommendation of a psychiatrist who had seen the applicant at least once a month, continued to amend his drug treatment, given that he was not responding well to treatment and his condition appeared to be deteriorating.

Between March and May 2006 the applicant suffered several epileptic fits, which again led to changes in his drug regimen. On 10 May 2006 he was taken to the regional prison hospital for a complex expert examination. The hospital doctors, who employed identical methods of clinical examination and consultations with the same specialists as on the two previous occasions, confirmed the diagnosis and recommended treatment with neurometabolic stimulators, piracetam and vitamins.

After he was discharged from hospital at the end of May, the appliсant was seen at least once a month by a prison medical officer or a psychiatrist; following every consultation there was a change in his treatment, consisting either of the removal of a drug or the introduction of a new drug.

At the beginning of August 2006 the applicant’s condition deteriorated, and he was prescribed bed rest and increased doses of anticonvulsive drugs, sedatives and analgesics. With no sign that the prescribed treatment was working, he was sent back to the prison regional hospital at the beginning of September 2006. In addition to the usual procedures, treatment and examinations he had received in the hospital on previous occasions, he underwent an MRI brain scan. The MRI scan report was as follows: “the ventricle system of [the applicant’s] brain was moderately enlarged; the outline of the sulci in the cerebral hemispheres was drastically sharpened (degeneration); extensive arterial venous malformation in the left side of the parietal lobe with the draining veins in the sagittal sinus; frontal sinusitis on the right side”.

Between November 2006 and January 2007 the applicant had a recurrence of his chronic pancreatitis, for which he received effective treatment in the correctional colony. He also did not cease to complain of headaches, emotional disturbance, fatigue and insomnia. His readmission to the regional prison hospital was the authorities’ response to his increasing complaints about his health. In the hospital the applicant received the usual medical attention and was released in “a satisfactory state” with the recommendation that treatment be continued with piracetam and neurometabolic stimulators. A short stay in the correctional colony was followed by his admission to the Smolensk Inter-Regional Psychiatric prison hospital at the end of March 2007. The applicant did not complete his examinations and treatment in that hospital, as he had broken the rules of the detention regime and had therefore been discharged from the hospital. At this time doctors recommended that the applicant be monitored and treated by a psychiatrist and that he also be treated with neurometabolic stimulators, vascular medication, vitamins, and behaviour modifiers.

On the recommendation of a colony psychiatrist who had seen the applicant at least every two weeks since his return from the Smolensk hospital, the applicant was admitted to the prison hospital in correctional colony no. 1, where he remained until the end of June 2007. The applicant was readmitted to the hospital slightly over a month after being discharged. The usual medical procedures and examinations he had had on other occasions were supplemented by rheoencephalography, which showed negative changes in his cerebral blood flow. Four days after the applicant was discharged from the hospital at the end of September 2007, a colony psychiatrist recorded a deterioration of the applicant’s condition. In October 2007 the applicant suffered an epileptic fit during a consultation with a psychiatrist. The latter described the fit in the applicant’s medical record as accompanied by a lengthy loss of consciousness, convulsions and foaming at the mouth. The applicant was immediately taken to the medical unit of the correctional colony, where he received increased doses of sedatives, anticonvulsive drugs, hepatoprotectors, vitamins and neuroleptics. The applicant was discharged from in-patient care in the unit in the middle of November 2007. The head of the colony medical unit discussed with the applicant the possibility of his being admitted to the Gaaza prison hospital in St Petersburg for surgery.

The following four months featured complaints by the applicant of deteriorating health and inability to stand the severe headaches he was suffering, and attempts by colony staff to give him relief with the range of drugs which had been included in his regimen since his arrest and first complaints of health problems.

In April 2008 the applicant’s medical record, including the results of the MRI scan in September 2006, was studied by the head of the medical unit of the correctional colony. His findings confirmed the rapid deterioration of the applicant’s condition, which could no longer be addressed by medication alone. The head of the unit recommended the applicant be admitted to the regional hospital for an assessment as to whether he would benefit from surgery. A month of treatment in the hospital with the usual chemotherapy regimen led, according to the medical record, to the applicant’s condition becoming “satisfactory”. A rheoencephalography performed in the hospital showed further progress of the illness, with concomitant serious disturbance of the cerebral blood flow. The applicant was again admitted to the regional hospital, slightly over two months after he was discharged. The hospital doctors changed his treatment, introducing new medication for relief of the headaches and for his emotional disorder and insomnia. When he was discharged from the hospital the applicant’s condition was no longer described as “satisfactory” although the only recommendation was to maintain treatment of his symptoms.

During the next twelve months the applicant made a very large number of complaints of headaches, stomach pain, nausea, insomnia and extreme emotional disturbance, to which the colony medical staff responded by conducting visual examinations, which were carried out by the head of the colony medical unit, a prison physician or a prison paramedic, and by prescribing drugs to arrest the negative symptoms of the illness. The drugs were alternated so as to switch between one anticonvulsant and another, and new sedatives and neuroleptics were introduced. On certain days the applicant had to take more than ten different drugs at a time. The medical officers made notes in the applicant’s records, detailing, in addition to his complaints, the results of the visual examinations, stating that he was “slow”, and that his reactions and responses were “sluggish”. On several occasions he was prescribed bed rest.

In October 2009 the applicant suffered an epileptic fit and was taken immediately to the colony medical unit, carried there by his cellmates. A prison medical assistant who examined him recommended continuing with the treatment. She also found it necessary for the applicant to be seen by a psychiatrist. Two weeks later the applicant was transferred to the prison hospital in the correctional colony. For the first time the applicant was subjected to an electroencephalogram (EEG). He was treated with the two usual drugs, including an anticonvulsant and a strong neuroleptic, and was prematurely discharged from the hospital. According to the medical record, the discharge was a consequence of the applicant’s behaving “incorrectly” towards a hospital official.

On 16 October 2009 he lodged a request with the Morshansk District Court for suspension of his sentence in view of the state of his health. The applicant argued that he was suffering from extremely severe headaches and that his seizures were becoming more and more frequent. He also complained that he was unable to receive the medical assistance he needed, including brain surgery, in detention, and asked the court to authorise a forensic medical examination to “determine the nature and severity of the brain damage” in preparation for subsequent surgery, as well as to call a neurosurgeon from a civilian hospital to interpret the MRI scans of his head.

On 9 December 2009 the parties were heard in the District Court, which ruled that it was necessary to send the applicant to a prison hospital for a medical examination to determine whether the state of his health warranted his release.

On 23 December 2009 the applicant was readmitted to the hospital in correctional colony no. 1, where he was assessed by a medical expert panel to determine whether he was suffering from an illness which was serious enough to warrant his early release. The panel concluded that the applicant could not be released on health grounds as he was not suffering from an illness on the List of Illnesses Precluding the Serving of Custodial Sentences, as adopted by a Government decree in 2004.

The District Court received the medical panel’s report and on 26 February 2010 dismissed the applicant’s request for suspension of the sentence. It held as follows:

“The opinion of the special medical panel on the medical examination of [the applicant] performed on 28 December 2009 ... establishes the following diagnosis: organic emotionally labile personality disorder connected with mixed illnesses (dyscirculatory vascular malformation, epilepsy with rare seizures, moderate alcohol dependence syndrome in the stage of forced remission). By virtue of paragraph 20 of the List of Illnesses Precluding the Serving of Custodial Sentences ... [the applicant] cannot be relieved from serving the remaining part of his sentence.

Having considered the opinion of the special medical panel on the medical examination of [the applicant], [and] the nature of his illness, the court finds that treatment of the illness can be ensured in detention. Moreover, taking into account the information provided on [the applicant’s] personality, the nature of the criminal offence of which he was convicted and which is considered particularly serious, [and] the references given [on the applicant] at the place of his former residence, the court considers that at the present time the aim of [the applicant’s] improvement has not been reached and, if his sentence is to be suspended and he is to be released from detention he would present a danger to society [and] may reoffend.”

On 23 March 2010 the Tambov Regional Court upheld that decision, finding the District Court’s reasoning convincing and well-founded.

In the meantime, the applicant was discharged from the hospital and sent back to the correctional colony, only to be returned to the hospital a month later, in February 2010. When the applicant was discharged from the hospital it was with the recommendation that an MRI scan of the head be arranged by his correctional colony. That recommendation was complied with in April 2010. Medical specialists noted negative developments on the scan and stated that the applicant should consult a neurosurgeon.

For six months of his stay in correctional colony no. 5 after his return from the hospital the applicant continued to complain of severe headaches, epileptic seizures, nausea and insomnia. Those complaints were heard by a prison paramedic or a prison psychiatrist and amendments were made to his chemotherapy regimen.

In June 2010 the applicant sent a letter to the Tambov Regional Health Department asking for medical assistance. He provided the Court with an extract from his medical record issued by the Tambov Regional Clinical Hospital and a letter from the acting director of the Tambov Regional Health Department. The first document showed that the applicant required permanent supervision by a neurologist and regular MRI scans of the head. The letter from the acting director of the Health Department indicated that the applicant was in need of “surgery in a specialised federal centre” and that the medical facilities in Tambov Region were not equipped to perform such an operation. The acting director also noted in the letter that he had informed the Tambov Regional Service for Execution of Sentences (hereinafter “the Service”) about the applicant’s state of health and that the surgery was required.

In response to the applicant’s request to be sent to the Gaaza prison hospital in St Petersburg where he could have brain surgery, on 2 July 2010 the director of the Service informed him that there was no medical need for surgery.

On 20 September 2010 the director of the Gaaza hospital sent a letter to the head of correctional colony no. 5, the relevant part of which read as follows:

“In response to your request ... of 12 August 2010 [I] inform you that [the applicant] ... cannot be transferred to [the Gaaza hospital] for in-patient treatment, as the surgery in the present case is of a high-tech nature and [the hospital] does not have the necessary equipment to perform it at the present time.”

The applicant was admitted to the prison hospital in correctional colony no. 1, where he was again seen by an oculist, a neurologist and a psychiatrist, underwent clinical blood and urine tests, ultrasound scanning of the abdominal area, EEG and ECG testing, and received the usual course of drug therapy. The EEG test showed a further negative dynamic in the applicant’s condition in comparison to the results of the previous EEG test in 2009. He was discharged from the hospital at the end of October 2010 but was readmitted in January 2011. He was provided during his stay with the same range of medical services as before.

In December 2010 a medical panel stripped the applicant of his disability status, considering that his vital functions were not affected by his illness.

In 2011 the applicant submitted another request for suspension of the sentence on the grounds of his state of health. He insisted that his health was continuing to deteriorate and that the prison facilities did not have the capability to perform the brain surgery which he needed.

Having studied the medical evidence, including the reports by the medical panel and the applicant’s medical history, on 14 April 2011 the Morshansk District Court concluded that the applicant’s state of health did not warrant his release and that his treatment could be ensured by prison medical staff. The District Court also noted that “an issue pertaining to surgery is at the discussion stage”.

On 21 July 2011 the Tambov Regional Court confirmed the District Court’s conclusions in its decision of 14 April 2011. The Regional Court’s reasoning was as follows:

“The material in [the applicant’s] case file indicates that he had the same health problems before he committed the murder, so [the state of his health] did not prevent him from committing a particularly serious criminal offence.

The conclusions of the medical panel indicate that [the applicant’s] illness does not preclude him from serving the sentence. He receives the required treatment in detention. As regards the surgery, this question is at the decision stage and, if agreed to, [the applicant’s] request [for the suspension of the sentence] will be examined again in compliance with the requirements of the law in force.”

In 2011 the applicant’s treatment consisted of a combination of consultations with colony medical staff and provision of drug treatment for his symptoms, during which time he made a large number of complaints of poor health. Until November 2011 the consultations took place every two months with a prison paramedic. In November 2011 the applicant was seen once by the head of the colony medical unit, once by a psychiatrist, and once by a physician from the prison hospital.

In the meantime, in March 2011 the Tambov Regional Health Department sent the applicant’s record, including the record of the MRI brain scan performed in April 2010, to the director of the Burdenko Neurosurgery Scientific Research Institute in Moscow. Specialists from that institute were asked to develop a plan for the applicant’s treatment. Having examined the applicant’s medical file, a doctor from the Institute concluded that the applicant was in need of supervision by a neurologist and required amendments to the anticonvulsive treatment he was receiving. He also noted that the applicant did not need radiotherapy. The applicant was not seen by a neurologist or neurosurgeon in 2011.

In March 2012 a neurologist invited by the applicant’s mother visited the applicant. He recorded the applicant’s complaints of a severe “burning” pain in the left temporal region of the head and a general continuous pressing ache in the entire head, dizziness, nausea, fatigue, numbness in the legs, occasional loss of consciousness, insomnia, irritation, memory loss, feelings of fear, and panic attacks. Having confirmed the progress of the illness following a visual examination and a number of tests, the neurologist recommended consultations with a neurosurgeon and an angiosurgeon to draw up a schedule for his surgical treatment. He expanded the applicant’s drug regimen to include various sedatives, anticonvulsive drugs and neuroleptics, and recommended a number of examinations and tests, including an MRI heart scan and EEG tests.

There is no evidence in the applicant’s medical record that any of the neurologist’s recommendations were complied with. The medical record indicates that colony staff provided the applicant with only some of the drugs prescribed by the neurologist. He continued to be supervised by prison paramedics at the correctional colony.


CASE OF IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born on 14 July 1946 and lives in Skopje.

On 22 January 2008 the Parliament of the respondent State passed the Additional Requirement for Public Office Act (Закон за определување дополнителен услов за вршење на јавна функција – hereafter “the Lustration Act”), which entered into force eight days later.

The Lustration Act introduced non-collaboration with the State security services in the period between 2 August 1944 and 30 January 2008, the date of the Act’s coming into force (hereafter “the screening period”), as an additional requirement for the holding of public office. In other words, collaboration with the State security services in that period became an impediment to holding public office.

All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the State security services in the above screening period (hereafter “the declaration”). The Lustration Act was to apply for five years from its entry into force (hereafter “the temporal scope”).

The Lustration Act also provided for the establishment of a Facts Verification Commission (Комисија за верификација на факти – hereafter “the Lustration Commission” or “the Commission”), which had to be set up within sixty days of the Act’s entry into force. Its task was to examine the veracity of the public officials’ declarations. The members of the Commission were elected by Parliament on 15 January 2009. The Commission became operational in late March 2009.

On 22 May 2009 amendments to the Lustration Act entered into force, adding several provisions primarily in respect of the functioning of the Lustration Commission and the status of its members. Also, the temporal scope of the Lustration Act was extended, from the five years initially envisaged following the Act’s entry into force, to ten years following the election of the Commission.

On 27 January 2010, following petitions for abstract constitutional review, the Constitutional Court accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of the Lustration Act, including the one extending the screening period (see paragraph 8 above) beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also suspended application of those provisions until it had decided on their compatibility with the Constitution.

Fierce debate ensued, in which a number of politicians severely criticised the Constitutional Court’s decision in the media (see the European Commission’s Progress Report of 9 November 2010 in paragraph 109 below). For example, on 29 January 2010 the coordinator of the ruling party’s Parliamentary group made the following statement:

“Having in mind that the Constitutional Court’s current composition was appointed during the political zenith [of the former President of the Republic], [the ruling party] believes that cancelling lustration’s scope of application after 1991 has one goal only: to prevent the Lustration Commission and the citizens of Macedonia from learning whether [the former President of the Republic and his party] officials, who controlled the secret services, actually used those structures against their political opponents.”

On 4 March 2010 the same MP stated:

“We are convinced that the Constitutional Court wants to harness Macedonian democracy and keep it hostage [bound up] in the web woven by secret service collaborators. People from the secret services are striking back, together with their collaborators who continued to ‘snitch’, violate human rights, destroy people’s lives and wage war against political opponents, even after 1991.”

By a decision of 24 March 2010 the Constitutional Court invalidated certain provisions of the Lustration Act as unconstitutional. In particular, that court held that to extend the screening period beyond 17 November 1991, the date of adoption of the present Constitution, was unconstitutional. In other words, it was incompatible with the Constitution to provide collaboration with the State security services after that date as an impediment to the holding of public office.

Some other provisions were also held contrary to the Constitution, namely those providing for the publication of collaborators’ names in the Official Gazette, automatic lustration in cases where no declaration had been submitted, and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties, civic organisations and religious communities by internal regulations of such non-State entities (see paragraphs 69-71, 78 and 81 below).

On the same date, 24 March 2010, the applicant, as the President of the Constitutional Court at the time, made the following statement to the media, in which he, inter alia, commented on the Parliament’s written response to the petitions for constitutional review in the proceedings before the court:

“The response is seventeen pages long and provides arguments on the necessity to pursue lustration, motives behind the [Lustration] Act’s adoption, implementation procedure and the like, but my impression is that no legal arguments were presented ... I believe that the response should be made public. For example, Parliament, in its response, states ‘in constitutional and legal terms, one cannot contest the Act’s temporal scope’.... That cannot be considered a legal argument.”

By a decision of 29 September 2010 the Lustration Commission established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office (the course of the proceedings in the applicant’s case and the surrounding circumstances are described in detail in paragraphs 24-58 below).

On 25 February 2011 the Lustration Act was amended for the second time, and certain provisions that were similar to the invalidated ones were reintroduced. The provision delimiting the screening period in which the collaboration with the State security services was an impediment to the holding of public office was re-worded in such a way that the end-date remained open. The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non-collaboration.

On 28 March 2012 the Constitutional Court again invalidated several provisions of the Lustration Act, as amended by the 2011 Amendments (see the preceding paragraph 19 above). In so doing, the Constitutional Court held that its earlier decision (see paragraph 15 above) had been circumvented in view of the content of those amendments.

On 17 July 2012 the Lustration Act was repealed by the entry into force of the new Lustration Act (Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност). In 2014 the Constitutional Court refused to institute proceedings for abstract constitutional review of the new legislation.

While the 2008 Lustration Act was in force the Lustration Commission established in a total of eleven cases that the declarations on non-collaboration were false, and that therefore the person who had submitted them did not meet the additional requirement for public office. Apart from the applicant, who was the only incumbent official whose declaration was found to be false, those cases concerned eight former officials and two journalists.

On 1 September 2015 the Act Repealing the 2012 Lustration Act (Закон за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција) entered into force. According to the Act the Lustration Commission is allowed to complete, within two years, any ongoing proceedings in which a decision has already been issued, but may no longer institute new ones. Pending lustration proceedings in which the Commission has not issued a decision must be discontinued. Section 3 of the Act provides that a person in respect of whom the Commission has established that he or she has collaborated with the State security services is banned from holding public office for the period of five years from the time the Commission’s decision to that effect becomes final.

The applicant was a judge of the Constitutional Court between 2003 and 2011, when he was dismissed as a result of the lustration proceedings described below (see paragraphs 25-58). The applicant’s case was the first lustration case in the respondent State. During the lustration proceedings and at the time of his removal from office (see paragraph 56 below) the applicant was also the President of the Constitutional Court.

On 3 September 2009, the applicant, as a public official, submitted to the Lustration Commission a declaration of non-collaboration with the security services, as prescribed by section 6 of the Lustration Act (see paragraph 67 below).

On 5 July 2010 the Commission, by a letter classified as confidential, requested the State Archive to provide it with direct access to all the data, files and documents available in respect of the applicant.

On 12 and 22 July 2010 the State Archive informed the Commission that a personal record of the local branch of the secret police of the former Yugoslavia (hereafter “SFRY”) existed in respect of the applicant, and invited the Commission to consult the documentation.

On and around 15 September 2010, various media, despite the confidential nature of the proceedings before the Lustration Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator with the State security services. In the following days the media continued to speculate that the identified collaborator was actually the President of the Constitutional Court.

During its deliberations held in private on 16 September 2010, the Lustration Commission found that the applicant’s declaration had not been in conformity with the evidence at its disposal. The applicant was notified of the Commission’s findings on 21 September 2010 with a note classified as “strictly confidential” (строго доверливо). He was also instructed that, under the Lustration Act, he could, within five days, submit oral or written observations to the Commission’s findings. The applicant replied and requested a public session on 24 September 2010.

On 22 September 2010 the daily Utrinski vesnik published an article entitled ‘Judge asks to speak publicly about being a ‘snitch’’. The relevant part of the article reads as follows:

“Utrinski ‘unofficially’ learns that a Constitutional Court judge allegedly sinned during his high-school days, in the capacity of a member of a branch of an organisation called ‘United for Macedonia’ that was advocating unification of ethnic Macedonian territories. Once discovered, under pressure from the police, he was forced to disclose the names of the organisers.”

On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “when classified information was not being used” and that he could access the entirety of the classified documentation at the Commission’s disposal for one hour before the session.

On 24 September 2010, in an open letter broadcast in the media and addressed to “opponents of the lustration”, the Prime Minister of the respondent State (signed in his capacity as president of the governing party) stated, inter alia, that the Commission had publicly revealed that a member of the Constitutional Court had been a collaborator with the State security services and that it was now crystal clear that the collaborator sitting in the Constitutional Court, nominated by the former president of the Republic, and controlled by other centres of power, had invalidated a number of the legislative reforms of his Government. The letter was a response to his political opponents, who claimed that he was hindering the lustration process. The Prime Minister described their strategy in the following terms:

“Attack the [ruling party] to [protect] the Constitutional Court, whose member the [Lustration] Commission had publicly declared a collaborator with the secret services. Accuse [the Prime Minister] of hindering the lustration [process] so that [he] would not accuse you of it becoming crystal clear that the secret services’ collaborator in the Constitutional Court scrapped a whole range of [the Prime Minister’s] reforms, and that [the Prime Minister] would not pose a question why [the former President of the Republic] nominated as judge of the Constitutional Court that person who was a collaborator with the [secret] services, and what is that centre of power which still controls the ‘collaborator’.”

“Нападни го ВМРО-ДПМНЕ, за да го затскриеш Уставниот суд за чиј член Комисијата јавно се изјасни дека бил соработник на тајните служби. Обвини го Груевски дека ја кочи лустрацијата, за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од Уставниот суд му сруши цела палета на реформи и за да не постави прашање зошто Бранко Црвенковски го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘соработникот’.”

On 24 September 2010 the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission (see paragraph 31 above). The Commission, in its turn, immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at the State Archive as well as the documents at the disposal of the Commission, in the coming days until the session. The applicant consulted the documents at the Commission on the same day.

Those were the documents forming the applicant’s personal record compiled by the local branch of the SFRY secret police. The record contains around fifty pages of typed reports and forms. It appears from the record that the applicant was on 27 and 28 March 1964 interrogated by the secret police in connection with his involvement in a high-school nationalist group, and was registered as a collaborator under the pseudonym “Lambe”. The “proposal for registration” of 19 May 1964, signed by an inspector, I.K., states that the applicant was approached about collaboration with the secret police and that “he gladly agreed to it, [saying] that he would do anything for the [security] service, as long as his father and the school do not find out”. A “questionnaire” with a handwritten date of 10 February 1965, states, inter alia, that the applicant was recruited on the ground of “compromising material” and that he had not received any material benefit in exchange for his collaboration. That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of 10 January 1968 where, next to the pseudonym “Lambe”, there is a handwritten note “and Lamda”. The record contains a number of reports of various dates between 1964 and 1966, composed mostly by the inspector who relied on “Lambe” as a source of information, about conversations and statements of some high-school and university students on certain political and social issues at the time. “Lambe” provided the information mostly verbally; only a few reports in the file are based on his letters (which were not in the file). There are also copies of two payment receipts dated May and December 1965 and a proposal of 1983 for deregistration of the collaborator “Lamda”. The deregistration referred to a person with the applicant’s name but who in the 1970s was a student at the Technical Faculty, and who in 1983 was working in the municipal branch of the Communist Party.

On 27 September 2010 the Commission held a public session on its premises, in a meeting room of around twenty square metres. A large number of media representatives were present.

During the session, the applicant denied the Commission’s initial findings, calling into question the veracity of his declaration. He disputed the authenticity of the documents the Commission relied on, as he had neither composed nor signed them, and claimed that the reports contained therein had been forged, or taken from others’ and added to his personal record. He further denied the authenticity of the signatures on the two payment receipts, which indicated that he had received money for his collaboration. He alleged a confusion regarding the two different collaboration pseudonyms (“Lambe” and “Lamda”) appearing in the file, and the identity behind them. He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police, due to his involvement with a high-school nationalist group, had been misused.

On 28 September 2010 the Constitutional Court responded to the Prime Minister’s statement of 24 September 2010 (see paragraph 32 above) by means of an open letter. The relevant part of that letter reads as follows:

“The Constitutional Court finds that this attack is the culmination of the continual attacks on the Constitutional Court. The court therefore points out that the Prime Minister went beyond powers conferred on him by the Constitution, because he has no right to assess the legitimacy of decisions taken by the Constitutional Court, but rather [was obliged] to ensure their unhindered implementation. The court considers that his actions indicate [either] profound ignorance, or total disrespect for the constitutional order, to the point of undermining it.

Using a single [pending] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a democratic society.”

By a decision of 29 September 2010 the Commission held that the applicant’s objection to its initial findings of 16 September 2010 (see paragraph 29 above) was not in accordance with the information available, and that consequently he did not fulfil the additional requirement for holding public office. The decision was based on the applicant’s personal record, and contains a list of twenty-two documents. It summarised the contents of the documents and stated that the applicant had begun collaborating in 1964 and had been deregistered in 1983, that he had provided information on students whose activities were monitored by the security service for political reasons and that, as evident from the two payment receipts, he had in 1965 been paid for the collaboration. The relevant part of the Commission’s decision reads as follows:

“... From the data available in the personal record compiled by the [secret police of the SFRY] it was established that in the rubric ‘collaboration relationship’ it is stated that [the applicant] is a collaborator of the [secret police] recruited on the ground of compromising material. It was further established that [the applicant] started his collaboration with the [secret police] as early as 1964 as a high-school student who, when it was proposed to him that he be registered in the collaborators’ network, stated that ‘he gladly accepted the collaboration and would do anything for the service’, and that he was allocated a pseudonym under which he later delivered all the information to the [secret police]. In 1965 he officially became a collaborator of the [secret police]. In the documentation, in ten reports drafted by the Internal Affairs Unit in Strumica, on a number of pages, [the applicant] under his pseudonym appears as a source giving information about his schoolmates, which [information] was used by the [secret police] as operational material on the activities of high-school youth in Strumica. From four reports, it is apparent that also later on, as a student in Skopje, he gave information about students of various faculties, of which in the personal record there are five reports concerning a number of individuals whom the [secret police] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the Macedonians in the Aegean [in Greece] and Pirin [in Bulgaria] Macedonia, as well as for various wrongs committed against Macedonians in the western part of Macedonia. From the personal record it was also established that in 1965 the sums of 10,000 and 20,000 [Yugoslav] dinars had been paid to him. His collaboration officially ended in 1983 when he was employed in the Municipality of Karpoš and was deregistered from the active collaboration network.

The Commission took into account the oral observations provided by [the applicant], in which he expressed his disagreement with the Commission’s findings.

The Commission considers all this information and the files and documents contained in the [applicant’s] record relevant. [It further] considers that that the [applicant’s] declaration [of non-collaboration] submitted to the Commission is not in line therewith [the information, files and documents] and that therefore [the applicant] does not meet the additional requirement for public office in accordance with section 2(1) [and] section 4(4) of the [Lustration] Act.”

The Commission’s decision was served on the applicant on 30 September 2010 and classified as “strictly confidential”.

In an exchange of correspondence on 1 October 2010 the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision. The Commission informed him that they only had copies (препис), but that the originals were available in the State Archive; they advised him to look for them there. Upon the applicant’s request of the same day, the State Archive, either on the same day or on 4 October 2010, provided him with a copy of his personal record.

On 5 October 2010 the applicant pointed out inconsistencies between the files provided to him by the State Archive, the inventory of the documents contained in his record, and the documentation the Commission relied on in its decision. The State Archive responded that they had simply received the personal record as it was, and had listed the documents therein by title without inspecting their contents, as they had not been authorised to do so. Finally, they invited the applicant to consult the contents of his personal record under their supervision.

On 8 October 2010 the applicant brought an action for judicial review in the Administrative Court against the Commission’s decision. He complained that the proceedings before the Commission had been unfair and of errors of fact and law. In particular, he complained that the session before the Commission had been held without Rules of Procedure having been adopted, which the Commission should have done ex lege before commencing the proceedings. The public session had not been, as initially planned, followed by proceedings in camera (see paragraphs 31 and 35-36 above), and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file.

The applicant further objected that the time-limit for the preparation of his appeal had been effectively reduced, since he had received the copies of the documents from the State Archive only on 5 October 2010 (see paragraphs 40-41 above), and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology (графолошко вештачење) as regards the signatures on the two payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police, to which letters reference was made in the record but which were not available in the file. He also submitted that his identity had been confused with that of the person behind the pseudonym “Lamda”, given that in 1983 he was already a law graduate and was working for the Skopje City administration and thus was not working at the municipal branch of the Communist Party, nor had he ever studied at the Technical Faculty as the record indicated (see paragraph 34 above). He proposed additional evidence, asked that a public hearing be held, and requested leave to invite an expert assistant (стручен помагач), in particular, a certain Mr I.B., a university professor of State security and intelligence and retired staff member of the SFRY secret police, with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records.

In its reply, the Commission firstly listed and made reference to twenty-two documents, and then also mentioned “forty-seven written documents”, on which it based its decision. The Commission’s reply was classified as “strictly confidential”.

On 26 October 2010 the Administrative Court held a public hearing in the presence of the applicant and the President of the Commission. The Commission lodged an objection about the Administrative Court’s competence ratione materiae to examine the case.

On 2 November 2010 the court held another hearing, at which the Commission withdrew its objection regarding the court’s jurisdiction (see the preceding paragraph 44 above), the expert assistant I.B. (see paragraph 43 above) gave his testimony and the evidence was examined. The public was excluded from the part of the hearing in which confidential material (the applicant’s personal record) was under consideration.

By a judgment of 8 November 2010 the Administrative Court dismissed the applicant’s action. In its judgment, this court listed twenty-seven documents, and found the Commission’s files identical to the originals received from the State Archive. The Administrative Court held that the Commission had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion (вештачења) in criminal proceedings. It also held that the Commission did not conduct any adversarial proceedings and could admit as fact only the records compiled by the State security services. The applicant’s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected. The Administrative Court concluded that it had been immaterial (беспредметно) to determine whether the payments had been received by the applicant, as other (non-pecuniary) benefits could suffice for someone to be deemed a collaborator in terms of the Lustration Act. The judgment also took into account the testimony of the expert assistant I.B. Parts of the judgment were classified as “strictly confidential”.

The presiding judge was a certain Ms L.K., who was shortly afterwards, in March 2011, promoted to the newly established High Administrative Court.

The relevant part of the Administrative Court’s judgment reads as follows:

“... The plaintiff’s [the applicant’s] representative reiterated the arguments advanced in his action for judicial review, and expanded on them by stating that the Commission’s decision was ill-founded ... [He argued that] the Commission had not assessed the written evidence, because there was none. [In particular,] there was no statement from the plaintiff that he had agreed to collaborate with the [secret police], there was no written consent from him in this regard, and there was no written decision of the [secret police] in which the plaintiff’s consent to collaboration was accepted. Moreover, the Commission had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no. 12736 and on that basis had reached the wrong conclusion, failing to establish the facts ...

In view of the complexity of the case and for the purposes of clarification, the [Administrative] court, upon a proposal of the plaintiff, heard I.B. from Skopje in the capacity of an expert assistant (стручен помагач). The court also consulted (изврши увид) and compared the plaintiff’s personal record available in the State Archive with the copy of the same record delivered to the plaintiff.

The court, having assessed the [plaintiff’s] arguments in the statement of claim, the [Commission’s] reply [thereto], and the submissions made by the expert assistant I.B., [and] having examined the impugned decision within the scope of the action and in terms of section 37 of the Administrative Disputes Act, found:

The action is ill-founded ...

According to section 10 of the [Administrative Disputes] Act, the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure, and in particular, if the facts were not established correctly, or if the facts were established correctly but assessed wrongly ...

According to section 4(4) of the [Lustration] Act, collaboration, within the meaning of that Act, is conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written document, in the a capacity of a secret collaborator or secret informant (hereafter ‘secret collaborator’) with a view to collecting information ... regarding certain persons, in violation of [their] basic rights and freedom on ideological-political grounds, as a result of which a material gain or other benefits in employment or career advancement had been obtained [by the collaborator] ...

Relying on the above, the court found that the Commission, acting within its competence ... and after having correctly conducted the fact-verification proceedings, made a lawful decision ...

It appears from the files that the plaintiff, on the basis of a written document, consciously, secretly, continuously and in organised way collaborated with the [secret police], which collected information that were subject to processing, storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at the State Archive. Having in mind that the Commission only checks the facts concerning collaboration or non-collaboration with the State security services, and given that this [fact-verification procedure] is not an adversarial procedure, the records created by the services and their legal predecessors are to be accepted as facts [thus as reliable evidence] ...

In this court’s assessment, the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill-founded, since the Commission provided him with access to all the evidence.

Regarding [the plaintiff’s] argument that ... the Commission’s session had been held without Rules of Procedure [having been adopted beforehand] ... this court finds it irrelevant ... The Rules are an internal regulation of the Commission and [thus only] regulate its internal functioning ... and not the fact-verification procedure [which] is prescribed by the [Lustration] Act.

This court finds ill-founded [the plaintiff’s] complaint that he had not been given an opportunity to contest the [factual findings of the Commission]. [He argued in particular that] ... the [Commission’s] session had ended after its first part, at the moment when he had expressed his disagreement with the ‘facts’ [underlying] the [Commission’s] findings ... in respect of which he had [also] made written submissions. [In his view] the Commission was obliged to hold a hearing, and not to treat the case as if no observations had been provided in accordance with section 29. [Such complaints] have no support in the evidence available in the file. As evident from the file, the Commission on 27 September 2010 held a public session in the part in which no classified information was under consideration. Having in mind that earlier, on 24 September 2010, the plaintiff had consulted the files and familiarised himself with their content, he had had the opportunity to provide his own observations at the session.

The court also finds ill-founded the plaintiff’s argument that the reports [contained in his personal record], in legal terms, could not be relied on to establish the facts, since they had many shortcomings, both formal and substantive, in particular none of the ten reports had been signed by an authorised person of the [secret police], no letter allegedly sent by the plaintiff had been appended to the reports, ... none of these reports had been entered in the official records of the [secret police], and all reports quote ‘Lambe’ as a source of information, while the Commission [cites] another pseudonym, ‘Lamda’. [The court finds that argument by the plaintiff ill-founded because] the operation of the [secret police] was clarified by the expert assistant at the public hearing, who explained that it had had its own operational methodology for the purpose of gathering information, that was then subject to further processing, collection and use ... The court finds that assessment of the methodology of the [former secret police] is not in the competence of the Commission.

The court did not accept the plaintiff’s complaints that he was recruited as a collaborator while still a minor, because it is apparent from the evidence that he entered into collaboration and gave reports as an adult.

The court finds ill-founded the [plaintiff’s] arguments about errors of fact, [in particular those where he complains] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff’s signature, which could have been easily established by obtaining an opinion from an expert in graphology, those whereby he calls into question the authenticity of the reports he received from the State Archive and [the veracity of] of their content, those [where he argues] that ... the [secret police] registered him as a collaborator on the basis of bogus (спакувани) reports which were planted (подметнати) in his file and that he was not aware of nor had he consented to that [registration], as well as that there were obvious misinterpretation of the facts, since the file on a minor oppressed for his Macedonian nationalism had been transformed into the personal record of a secret collaborator. This [the court’s dismissal of these complaints] comes as a result of the fact that the Commission, after checking and verifying the data that was made available to it, correctly established that the plaintiff ... had been registered as a secret collaborator ... The Commission was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings. ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [, meaning as reliable] evidence. The plaintiff in his submissions pointed to possible criminal offences which, in addition to the Criminal Code, are also sanctioned by sections 36 and 37 of the [Lustration] Act. The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations.

On the other hand, after checking the plaintiff’s personal record, the court established that only a few reports were delivered in writing, and that most of the reports were provided through direct contacts.

In view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [some] reports drafted by the inspector of the State security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts.

It is also immaterial whether payments were made or not, since this is only one of the conditions for establishing that collaboration took place, bearing in mind that section 4(4) of the [Lustration] Act, when stipulating what is considered collaboration, states that [not only] material gain [but also] other benefits or career advancement [may suffice].”

In his appeal of 25 November 2010 to the Supreme Court, the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the State authorities had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by the expert assistant, and annexed an additional written statement by I.B. He also objected to the Administrative Court’s finding on the Commission’s powers, and complained that the Administrative Court had therefore failed to fully establish the facts, and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant’s appeal, whereupon the applicant provided a response to the Commission’s reply.

By a judgment of 2 March 2011 the Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Administrative Court. The Supreme Court stated, inter alia, that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant’s remaining complaints, and concluded that they were of no relevance and could not produce a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court dismissed the applicant’s arguments, finding that no formal procedures existed at the time when these documents were produced.

Judge V.S. – who would later be appointed a judge of the Constitutional Court to fill the vacancy caused by the applicant’s dismissal (see paragraph 57 below) – sat in the panel and, according to the applicant, also acted as a rapporteur (известител) in the case.

The relevant part of the Supreme Court’s judgment reads as follows:

... From the evidence taken during the proceedings, primarily the reports in the personal record established in respect of the appellant, it can be indisputably concluded that he, on the basis of a written document, consciously, secretly, continuously and in an organised manner collaborated with the [former secret police]. Relying on the statements of the secret collaborator – the appellant – the [secret police] gathered information that was processed, stored and used by the [secret police] ... In such a way, the human rights of those people [who were then followed by the State security service] were violated on political or ideological grounds.

Bearing in mind the definition of collaboration contained in the [Lustration] Act, the Administrative Court correctly concluded that the appellant had at the material time the status of a secret collaborator or informant.

The arguments adduced in the appeal regarding discrepancies between the data obtained from the State Archive and those relied on by the Commission, whereby the appellant disputes the authenticity of the evidence, are ill-founded.

In the Supreme Court’s opinion, the facts established by the first-instance court are correct and complete, as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts, the Supreme Court also checked the original documentation and finds these complaints ill-founded, since the appellant did not submit any evidence that could call into question the facts as established by the first-instance court.

The Supreme Court finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had, as a minor during high-school days, on the independence of the Macedonian people.

Specifically, the appellant was as a high-school student initially registered by the [secret police] for hostile activities and Macedonian nationalism. However, he continued to collaborate with the service and was approached about being registered in the network of collaborators. In 1965 the appellant was officially registered as a collaborator, when he had already reached the age of eighteen. From the documents available it is apparent that the applicant collaborated with the State security services as an adult.

The appellant’s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration, could not lead to factual findings different from those already established by the first-instance court.

According to the expert assistant’s statement at the public hearing before the Administrative Court, the consent of the collaborator was in no way needed, given the secrecy of the procedure. The proposal for deregistration is in the name of Trendafil Ivanovski, with an identical file number to that under which he had been registered as collaborator. These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant. According to the Supreme Court, these data could not be disregarded just because the pseudonyms do not match.

The complaints that the reports composed by the [secret police], based on the information provided by the appellant, could not be regarded as [reliable evidence], are ill-founded. The Supreme Court finds that the procedure for receiving information was not strictly formalised. The reports were, as clarified by the expert assistant, usually given verbally. From the above, it is apparent that to be considered as genuine, it was not necessary that the content of the record, or of the report composed by an authorised person of the [secret police], be supported by a written statement by the collaborator.

The appellant denies the authenticity of his signature on the payment receipts.

The Supreme Court finds that, in a situation in which no rules (правилник) for payment existed, given that, as stated by the expert assistant, the payments were usually made in cash, it would suffice to have the name of the collaborator mentioned as a recipient [of the money], to conclude that material gain was obtained.

As the first-instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant’s action.”

The applicant was served with the Supreme Court’s judgment on 9 March 2011.

On 11 March 2011, the Commission concluded that its decision of 29 September 2010 had become final.

On 11 April 2011, relying on the Lustration Act and the Commission’s conclusion of 11 March 2011, the Parliament acknowledged that the applicant had not fulfilled the additional requirement, and accordingly dismissed him from the office of judge of the Constitutional Court, despite the experts’ debates about the constitutionality of such an action. On the same day, the Parliament’s decision was published in the Official Gazette.

On 14 April 2011, during its last session before early elections, the Parliament appointed Judge V.S. (see paragraph 52 above) as a judge of the Constitutional Court to the position vacated by the applicant’s dismissal.

The proceedings were closely followed by the international community present in the respondent State, and were referred to in various reports, most notably the European Commission’s Progress Report of 9 November 2010, which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 below). The United States Department of State Human Rights reports of 2010 and 2011 also made references to the applicant’s case and the tensions between the Government and the Constitutional Court.

Meanwhile, on 8 March 2011 the Commission filed a criminal complaint with the Skopje Public Prosecution Office against the applicant alleging that by submitting a false declaration of non-collaboration with the State security services he had committed the criminal offence of submitting false evidence defined in Article 366a of the Criminal Code (see paragraphs 79 and 97 below).

On 29 April 2011 the public prosecutor dismissed the criminal complaint, finding no elements of the offence in question. In her reasoning, the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy, as only the official records of the State security services were used as relevant for the outcome of the proceedings. The applicant’s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings.


CASE OF GRAMMOSENIS AND OTHERS v. GREECE

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

Kristina Pardalos;Pauliine Koskelo;Robert Spano

The applicants were placed in pre-trial detention at Thessaloniki General Police Headquarters on Monasteriou St in Thessaloniki. They were detained for periods ranging from one to eight months.

The applicants mentioned below left the General Police Headquarters on the following dates: the first applicant on 16 August 2012, the sixth applicant on 20 August 2012, the thirteenth applicant on 14 August 2012 and the nineteenth applicant on 17 June 2012. It is not clear from the material in the Court’s possession whether they were released or transferred to prisons.

The eleventh applicant was detained at Thessaloniki General Police Headquarters from 7 May 2012 to 18 September 2012, except for the period between 5 July 2012 and 1 August 2012, when he was detained at the Thessaloniki Aliens Division. The fourteenth applicant was detained at Thessaloniki General Police Headquarters from 16 July 2012 to 3 September 2012, apart from 17 August 2012 to 27 August 2012, when he was held at Menemeni police station. The sixteenth applicant was detained at Thessaloniki General Police Headquarters from 18 April 2012 to 24 September 2012, except for the period between 27 April 2012 and 11 July 2012, when he was detained at the Thessaloniki Aliens Division. The seventeenth applicant was detained at Thessaloniki General Police Headquarters from 25 April 2012 to 14 August 2012, except for 11 June 2012 to 1 August 2012, when he was detained at the Thessaloniki Aliens Division. The eighteenth applicant was detained at Thessaloniki General Police Headquarters from 16 July 2012 to 25 December 2012, except for 16 August 2012 to 16 October 2012, when he was held at Menemeni police station.

The applicants alleged that Thessaloniki General Police Headquarters had been entirely inappropriate for long periods of detention, as in their case. The cells had been insufficiently lit and ventilated, which, in addition to overcrowding, had led to their cells smelling badly.

Detainees had been confined to their cells owing to the lack of an exercise yard. Recreational activities had not been offered and cells had not been equipped with televisions. Detainees had had to ask permission from the guards to use the restroom, which had been situated outside the cells and had been shared by seventy people.

There had not been sufficient separation between detainees who were drug users or smokers and other detainees. Additionally, the cells had never been disinfected nor the mattresses cleaned. Detainees had not been allowed to bring their own sheets and towels, but had been obliged to use dirty ones provided by the prison authorities.

As regards nutrition, meals had been of an insufficient quality and quantity and had never included meat. Detainees had not been provided with water but had had to buy it themselves.

On 30 August 2012 the applicants and other detainees had lodged a complaint with the public prosecutor about the conditions of their detention at Thessaloniki Police Headquarters but had not received a reply.

The eleventh, fourteenth, sixteenth, seventeenth and eighteenth applicants submitted in their written observations of 13 September 2013 that the conditions of their detention at the Thessaloniki Aliens Division and Menemeni police station had essentially been the same as those at the police headquarters, in particular as regards the lack of outdoor activities, the quality of the food and the filthiness of the premises.

The Government submitted that Thessaloniki General Police Headquarters had had nineteen cells with a total capacity of seventy-three people. Fifteen cells with capacity for fifty-five inmates had accommodated male detainees, one cell for six people had accommodated females while three cells with capacity for twelve people had been set aside for minors.

Most of the cells had windows, which had been partially covered by walls and rails but which had still admitted natural light and fresh air. The sanitary facilities had been no different from the ones used by the Police Headquarters staff and had been cleaned by a cleaning company every day, along with the rest of the premises. Sheets and blankets had been regularly sent to the Thessaloniki General Detention Facility (Diavata Prison) for cleaning. If detainees had suffered from a contagious disease, their sheets and blankets had been destroyed following their departure.

Detainees were allowed access to newspapers, magazines and four payphones. Additionally, they were allowed visits from their lawyers at any time and from friends and family four times per week.

Detainees were served food from the restaurant situated in the building, which was the same as that used by police officers.

The Thessaloniki Aliens Division, where the eleventh, sixteenth and seventeenth applicants had been detained for several months, had ten cells measuring 58.85 square metres each, which included two toilets and showers. The eleventh, sixteenth and seventeenth applicants had been detained in cell no. 3 along with a number of other detainees whose number had varied from nine to fifteen. The cells had been sufficiently well-lit and ventilated and had been regularly cleaned. Meals had been provided by a catering company. Detainees had access to newspapers and televisions and were allowed visits from their family and friends three times per week.

As regards Menemeni police station, where the fourteenth and eighteenth applicants had been detained for a certain period of time, the Government submitted that it was housed in a building constructed in 2008. The fourteenth and eighteenth applicants had been detained in a cell of 26 square metres accommodating five detainees. The cells had been sufficiently well-lit and ventilated and a cleaning company had maintained the cleanliness of the premises. Detainees had received 5.87 euros per day to order food from restaurants.

The Government further contended that the applicants’ allegations of a lack of separation between drug users and other detainees should be rejected as the applicants had not alleged that they themselves had been detained in the same cells as drug users.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant, Mr A.D., is a Portuguese national who was born in 1966 and lives in Porto. On 10 August 2017 the Court decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr H.V. de Carvalho, a lawyer practising in Porto.

The applicant’s daughter, C.H., was born on 25 March 2014. C.H.’s mother, L.G., was not living with the applicant.

On an unknown date in May 2014 the applicant took L.G. and C.H. to a temporary accommodation centre (Centro de Acolhimento temporário – CAT) in Campo Lindo because he could not afford to house them.

On an unspecified date L.G. left the centre.

On 18 June 2014 an oral hearing took place before the Porto Family Court (domestic proceedings no. 1/1.3TBCDV-A). During the hearing, the applicant declared that he would agree to having C.H. placed in the care of an institution, since he was unable to provide the necessary conditions in which to raise her. L.G. also agreed with the measure of institutional care and expressed her consent to C.H. staying in the care of the applicant at a later stage because she did not have the means to take care of her. Following those statements, the judge of the Porto Family Court decided to apply a provisional measure, consisting of placing C.H. in institutional care.

At the conclusion of the hearing, the applicant, L.G. and two representatives of the CAT signed an agreement on the raising and protection (acordo de promoção e proteção) of C.H. Under the agreement, C.H. was to be placed in the temporary care of the CAT of Campo Lindo for six months and her parents could visit her in accordance with the rules set by the centre. The agreement was signed by the judge.

On 20 January 2016 the applicant was sent for psychiatric and psychological assessments. The relevant expert reports, dated 16 March 2016 and 18 April 2016, were received by the Family Court of Porto on 22 March 2016 and 20 April 2016. The report of 16 March 2016 of the psychiatric expert concluded that the applicant had the capacity to exercise a parental role. The report of 18 April 2016 of the psychological expert reached the opposite conclusion on the ground that by concentring excessively in his own needs, the applicant lacked the capacity to understand the needs of his daughter.

On 27 May 2016 the psychiatric expert sent to the court a clarification note. Referring to a warrant issued by the German authorities which indicated, inter alia, that the applicant had been convicted to a term of three years and five months’ imprisonment for sexual assault and bodily harm, the expert assumed that the applicant had a personality “with psychopathic features”, which undermined his capacity to exercise a parental role.

On 13 July 2016, the CAT sent the court a social report concerning the situation of C.H. in the centre. The report’s conclusion was that C.H. should be referred for adoption, given that her mother had stopped visiting her two years previously and the applicant had not taken any concrete action aimed at assuming his responsibilities towards her.

On 11 October 2016, the Multidisciplinary Advisory Team (Equipa Multidisciplinar de Assessoria ao Tribunal – EMAT) of Aveiro sent the court a report about an interview that had taken place with a brother of the applicant. According to this report, the brother of the applicant had stated that he did not know about the birth of C.H. and that he did not have the means to take her into his care. He had also mentioned that he had had no news of another brother for many years and that he did not recommend that C.H. be placed in the care of her father, without specifying the reason.

In October 2016 the CAT decided to reduce the applicant’s authorised visits from two to one a week, owing to his lack of initiative in determining how he could play a role (encontrar um projeto de vida) in his daughter’s future.

On 25 October 2016 a lawyer appointed to represent the applicant applied to the Family Court, stating that he had not been contacted by the applicant. He explained that on 13 September 2016 he had sent the applicant a registered letter which had been returned. On 13 October 2016 he had sent two more letters, one registered and the other one not registered, to which he was still waiting for an answer.

On 6 December 2016 the Family Court of Porto held an adversarial hearing (debate judicial). The applicant as well as three witnesses, namely an officer of the EMAT, a social worker from the Campo Lindo CAT and the director of the Campo Lindo CAT were heard by the court.

By a judgment of 6 December 2016, the Porto Family Court ordered that C.H. be taken into care with a view to adoption, revoked the applicant’s parental responsibility and forbade all contacts between him and C.H., pursuant to Articles 1978 and 1978-A of the Civil Code. Relying on the witnesses’ statements and on the conclusion of a psychiatric report dated 27 May 2016, the court considered the following as relevant established facts:

L.G. stopped visiting C.H. in September 2014 ...

L.G. has not tried to receive, in any way, news concerning C.H. ...

No other family member has ever tried to visit C.H.

The father [applicant] was always present for the visits, twice per week, except for the period of one month in October 2015 in which he did not visit C.H.

[The father] lives away from his family (vive afastado da família).

Except during the hearing, the father has never expressed the will to care for C.H.

Although he has mentioned some family members and friends that could care for C.H., [the father] has never introduced any of them.

He has only indicated his willingness to find someone to take care of his child when confronted by [staff of the centre].

Since last October [October 2016] the father’s visits occur once per week, by a decision of the accommodation centre based on the fact that he has not defined his role in his daughter’s upbringing (não se assumir como projecto de vida para a filha).

The child does not ask about her father when she is not with him.

She calls him “father” and the visits are not problematic.

The visits are playful and C.H. identifies her father as someone to play with.

C.H. does not show any signs of sadness when her father does not visit or when he leaves.

At the present date, the father intends to define his role in his daughter’s upbringing, requesting 6 more months to organise it, namely in economic terms, in order to execute that project.

The father has ‘a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role’.

The court further considered that, in accordance with Article 1978 § 2 of the Civil Code, the best interests of the child should prevail over the parents’ interests as well as her integration in her biological family. However, as far as the mother, L.G., was concerned, it found that the conditions of paragraph 1 (e) of Article 1978 of the Civil Code had been fulfilled, since she had not contacted C.H., nor tried to do so, for a period of over two years.

Concerning the applicant, the court, relying on the established facts, considered that:

- he had not undertaken any concrete measures to find an alternative to the institutional care;

- he had never taken the initiative of defining his role (encontrar um projeto de vida) in C.H.’s upbringing;

- C.H. did not have an emotional bond with her father, considering him as someone with whom to play, and never asked about him; and

- the father’s attitude during the proceedings had consisted of repeatedly requesting time to find a solution for his daughter’s upbringing but he never came out with one.

The Porto Family Court also emphasised that there was no option for a member of the extended family to take C.H. into their care. It considered that there were no perspectives of any change in C.H.’s situation within a short period of time and that six months in the life of a three-year-old child was a long time.

Lastly, the Porto Family Court relied on the conclusion of the psychiatric expert report of 27 May 2016, in which it had been stated that the father’s personality was characterised by features that undermined the exercise of a parental role.

The domestic court thus concluded that the conditions of paragraph 1 (d) of Article 1978 of the Civil Code had been fulfilled with regard to the applicant.

On 16 December 2016 the applicant appealed against the first-instance decision to the Porto Court of Appeal. He argued that the Porto Family Court should not have concluded that there was no emotional tie between himself and C.H., because it was in contradiction with other established facts and with the witnesses’ statements. The applicant further argued that the court should not have found it established that he had made no efforts to create the necessary conditions in which to raise C.H. because the witnesses’ statements had indicated the opposite; the applicant claimed that he had made numerous efforts to change his living conditions. In addition, the applicant contested established fact no. 23, that he had “a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role”. He claimed that the court’s reasoning was not clear with regard to the reasons supporting that established fact. According to the applicant’s allegations, a first report dated 20 January 2016 had considered that “the applicant did not have any psychiatric illness” and that he “was aware of the specific needs of children in different development stages and that he had the mental and emotional abilities to undertake the role of a father figure”. In the applicant’s view, the Family Porto Court had not provided reasons for its decision to give more weight to the report of 27 May 2016 than to the one of 20 January 2016.

Lastly, the applicant argued that the requirements to make a decision on placing his child for adoption, in particular those of Article 1978 § 1 (d), were not applicable to him. In his view, the only element he lacked in order to raise C.H. was a better financial situation.

On 4 January 2017 the Porto Family Court found the appeal admissible and ordered that the case file be sent to the Porto Court of Appeal. In its decision, it maintained the suspension of contacts between the applicant and C.H.

On 24 January 2017 the Porto Court of Appeal dismissed the applicant’s appeal and upheld the Family Court’s judgment. After examining the evidence produced at first instance, it confirmed the facts that had been considered established.

The Porto Court of Appeal found that it resulted from the witnesses’ statements that C.H. did not regard the applicant as her father, but as someone with whom to play. Regarding the applicant’s efforts to improve his financial situation and to define his role in his daughter’s upbringing, the Appeal Court laid emphasis on the fact that he had not found any solution, regardless of the effort he had dedicated to doing so.

Concerning the psychiatric expert reports, the Court of Appeal referred to the fact that the report of 27 May 2016 had been requested with the intention of receiving clarifications, in the light of a warrant issued by the German authorities which had been submitted to the proceedings on 4 December 2015. The warrant indicated that the applicant had been convicted for sexual assault and bodily harm (agressão sexual em concurso com lesão corporal dolosa) and sentenced to three years and five months’ imprisonment. He had also lost the possibility of holding public office in Germany or being elected until 12 March 2017 and had been banned from employing, supervising, instructing and training young persons.

The court concluded that the two psychiatric reports were not contradictory, as both mentioned that the applicant did not have a psychiatric illness; the report of 27 May 2016 only added to that of 20 January 2016 that the applicant had a “personality with psychopathic features”.

The Appeal Court considered that measures capable of integrating a child in his or her biological family should prevail. If the biological family could not fulfil its duties to take care of the child, then adoption should be considered. In this connection, the Appeal Court focused its reasoning on the family situation.

Regarding L.G., the Court of Appeal noted that she had been a victim of sexual abuse and physical violence during her life and that she had attempted suicide several times. It also noted that she was in a fragile financial situation.

Looking at the applicant’s past, the court noted that his life had been characterised by instability, without any known emotional ties. It also noted that he was unemployed, was a beneficiary of the minimum income allowance (Rendimento Social de Inserção) and was living in a rented room.

Furthermore, the court found that the applicant did not have the competence, maturity or lifestyle necessary to create a favourable environment in which to raise a child. The court expressed understanding of the applicant’s affection for C.H. and his disappointment with the current situation, but emphasised that the child’s developmental needs should prevail.

On an unknown date the applicant sought leave to appeal to the Supreme Court of Justice. He submitted a request to lodge an ordinary appeal under Article 671 of the Code of Civil Procedure or, alternatively, an exceptional appeal (recurso de revista excecional) under Article 672 of the Code of Civil Procedure.

On 14 March 2017 the Porto Court of Appeal declared the appeal inadmissible on the grounds that decisions adopted on grounds of “suitability or appropriateness” (conveniência ou oportunidade) were not amenable to appeal before the Supreme Court of Justice.

On an unknown date the applicant challenged that decision before the Supreme Court of Justice.

On 11 May 2017 the Supreme Court of Justice declared the appeal inadmissible on the grounds that the Appeal Court had fully upheld the first-instance decision (dupla conforme). It further considered that the applicant had not submitted clear arguments that would justify an exceptional appeal.

Following a request from the applicant made in a letter of 30 July 2017, on 10 August 2017 the Court granted an interim measure pursuant to Rule 39 of the Rules of Court, indicating to the Government that the adoption of the applicant’s child should be stayed and his contacts with his child reinstated until the end of the proceedings before the Court.

On 23 August 2017 the Government contested the Court’s decision concerning the applicant’

Following a request for information, on 12 September 2017 the Government submitted relevant case-file documents in order to contest the interim measure that had been applied.

The relevant provisions of the Civil Code, as in force at the relevant time, read as follows:

Placement with a view to adoption

“1. In the context of promotion and protection proceedings, the court may place a child into care with a view to future adoption if the emotional ties characteristic of a parent-child relationship do not exist or have been seriously undermined, subject to any of the following circumstances:

d) if the parents, by a wilful act or omission, even if for a manifest inability due to reasons of mental illness, seriously endanger the safety, health, upbringing, education or development of the child;

e) if the parents of a child taken into care by a person, an institution or a family have revealed a manifest lack of interest for their child in such a way that the quality and continuity of those ties are compromised for a period of at least three months preceding the request for placement in care.

The court shall take into consideration primarily the rights and interests of the child when assessing the above-mentioned circumstances.

A child is considered to be in danger if any of the circumstances indicated in the legislation on the protection and promotion of the rights of children prevail.”

Effects of judicial placement ... in an institution with a view to adoption

“Once placement ... in an institution has been ordered with a view to adoption, parental responsibility is withdrawn from the parents.”