Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award

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

The applicant was born in 1975 and lives in Velikiye Luki, Pskov Region.

On an unspecified date the regional police department for combating organised crime opened a criminal investigation into the activities of an organised group involved in a series of residential burglaries and car thefts in Pskov Region. The applicant was suspected of acting as a coordinator and go-between for the group. In the course of the investigation of the group’s activities, on 25 June 2007 the Pskov Regional Court authorised the tapping of the applicant’s telephone, a search of his home and the interception of his communications for a period of six months.

On 10 August 2007 the police intercepted the applicant’s mobile phone communications with T. which they conducted while they were stealing a Lada car in the settlement of Dedovichi, Pskov Region. The car belonged to the President of the Dedovichi District Court. An official investigation into the car theft was opened on 13 August 2007. On 8 December 2007 the investigation was suspended, as the perpetrator(s) could not be found.

On 27 March 2008 the police intercepted another mobile phone communication between the applicant and T. which they conducted while they were stealing a Lada car in the town of Opochka, Pskov Region. Police officers were at the scene. They observed T. driving a Volkswagen car and the applicant driving the stolen Lada car. Then they followed the applicant to a garage in Velikiye Luki.

In the morning of 28 March 2008 the police arrested the applicant while he was taking the stolen Lada car out of the garage.

The applicant was charged with a car theft (theft causing serious financial detriment). On 30 March 2008 he was brought before the Opochka District Court, Pskov Region, where investigator B., arguing that the applicant might (1) abscond, (2) continue criminal activities, or (3) put pressure on witnesses, other parties to the proceedings, destroy evidence or otherwise interfere with the administration of justice, asked for the applicant’s remand in custody during the investigation. The court, however, dismissed the investigator’s motion. In particular, the court noted as follows:

“Investigator B. submitted that he had no factual information substantiating the fact that [the applicant] might abscond, that he put or might put any pressure on the witnesses by way of threatening them or [that he might] otherwise interfere with the establishment of the truth in the case.

There is no evidence that would allow the court to conclude that another car or the car plates discovered in the [applicant’s] garage had anything to do with the criminal activities involving car thefts. The court was not provided with any information about the nature of the equipment found [in the garage] or confirmation that it had been used to modify the registration numbers on the vehicle’s parts or to perform other work on the vehicles.”

After the court hearing, the applicant was taken back to the Opochka police station, where he signed an undertaking not to leave his place of residence during the investigation. However, he was not released. It appears that on the same date, the Dedovichi Department of the Interior reopened the criminal investigation of the car theft of 10 August 2007 (see paragraph 7 above). At 5:40 p.m. police officers from the Dedovichi police station showed up at the Opochka police station and rearrested the applicant on suspicion of involvement in the car theft of 10 August 2007. He was taken to the Dedovichi police station at 8:15 p.m. and booked in.

On 31 March 2008 investigator I. from the Dedovichi Department of the Interior indicted the applicant on a charge of car theft (theft causing serious financial detriment committed in concert with one or more persons) concerning the theft of the Lada that took place on 10 August 2007.

On 1 April 2008 investigator I. applied to the Dedovich District Court, Pskov Region seeking the applicant’s remand in custody during the investigation. Referring to the gravity of the charges, the investigator argued that the applicant might continue criminal activities, abscond, put pressure on witnesses, destroy evidence and interfere with the establishment of the facts of the case.

On the same date the Dedovichi District Court examined the investigator’s application. According to the applicant, he argued before the District Court that the application, being a repeated attempt to remand him in custody, was contrary to the rules of criminal procedure. The District Court authorised the applicant’s detention during the investigation. Referring to the car theft which took place on 10 August 2007, the court noted as follows:

“It is evident from the materials submitted to the court that [the applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. He does not have a criminal record. He has a permanent place of residence, is in employment and has a family.

It is evident from the materials submitted to the court that [the applicant] has been involved in car theft for a long time. It is so noted in the information provided by [the regional department for combating organised crime], the investigator’s decision of 28 March 2008 to open a criminal investigation against the applicant and the report on the search of the [applicant’s] garage of 28 March 2008.

These facts confirm the investigator’s argument that [the applicant] might continue his criminal activity, [and] interfere with the administration of justice by the destruction or concealment of stolen property.

The [applicant’s and his lawyer’s] arguments that [the applicant] has a permanent place of residence, [is in] employment and [has] a family, [and] that he undertakes not to abscond, cannot be regarded as sufficient to dismiss the investigator’s application to remand [the applicant] in custody.

Having regard to the above, the court accepts the investigator’s and prosecutor’s arguments that the applicant should be remanded in custody. The court considers that the use of a less strict measure of restraint is not possible.”

The applicant appealed against the court order of 1 April 2008. He reiterated that the decision to remand him in custody had not been compatible with the rules of criminal procedure and indicated, inter alia, that the judge of the Dedovichi District Court had not been impartial or independent, given that the applicant had been charged with the theft of a car belonging to the President of the court in question.

On 23 April 2008 the Pskov Regional Court upheld the order of 1 April 2011 on appeal, noting that the applicant’s doubts as to the impartiality and independence of the judge who had delivered the decision in question were unfounded.

On 23 May 2008 the Dedovichi District Court further extended the applicant’s detention until 24 July 2008, relying on the following reasoning:

“[The applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. If released, he might put pressure on witnesses and other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case. There are grounds to believe that [the applicant], if released, might abscond or continue his criminal activity.”

On 11 June 2008 the Regional Court upheld the order of 23 May 2008 on appeal.

On 15 July 2008 the Dedovichi District Court further extended the applicant’s detention until 30 August 2008. The court repeated verbatim the reasoning of its previous order of 23 May 2008. On 6 August 2008 the Regional Court upheld the decision of 15 July 2008 on appeal.

On 30 June 2008 the applicant was indicted on a charge of a car theft committed by an organised group and on 21 July 2008 the pending criminal cases against the applicant concerning the car thefts of 10 August 2007 and 27 March 2008 were joined and transferred to the Pskov Regional Department of the Interior for investigation.

Following the transfer of the applicant’s case to the Pskov Regional Department of the Interior, the question of the applicant’s pre-trial detention fell to be examined by the Velikiye Luki Town Court, Pskov Region.

On 21 August 2008 the Town Court extended the applicant’s detention until 17 November 2008. The court reasoned as follows:

“The circumstances underlying the [applicant’s] remand in custody have not ceased to exist. He is charged with serious offences. ... Regard being had to the circumstances of the crimes [the applicant] is charged with, there are grounds to believe that, if at large, [the applicant] may put pressure on witnesses or other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case, abscond, [or] continue his criminal activity.”

On 10 September 2008 the Regional Court upheld the decision of 21 August 2008 on appeal.

On 29 September 2008 investigator B. from the regional department of the interior indicted the applicant on two charges of car theft committed by an organised group, forgery of car plate numbers and vehicle identification numbers and handling stolen property.

On 7 November 2008 the Town Court extended the applicant’s detention until 30 December 2008. The court reasoned as follows:

“[The applicant] is charged with four premeditated crimes, two of which are classified as serious. There are grounds to believe that, if at large, [the applicant] might interfere with administration of justice, put pressure on victims and witnesses, abscond, [or] continue criminal activities. These [grounds] are supported by the materials provided by the regional department for combating organised crime ... and other materials submitted by the investigator.”

On 26 November 2008 the Regional Court upheld the decision of 7 November 2008 on appeal.

On 29 December 2008 the Town Court fixed the hearing of the case against the applicant and four other defendants for 12 January 2009. Referring to the gravity of the charges against the applicant and three of the other defendants and the risk that they might continue their criminal activity or interfere with the administration of justice, the court ordered that they remain in custody pending trial. The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review.

On 3 June 2009 the Town Court reclassified the charges against the applicant and found him guilty of the theft of two cars committed by a group of persons and causing significant financial detriments to the car owners and forgery of car licence plates and sentenced him to three and a half years’ imprisonment.

On 26 August 2009 the Regional Court quashed the applicant’s conviction on appeal and remitted the matter for fresh consideration. The court found that the trial court had failed to correctly establish the facts of the case. It further noted, without specifying the grounds or the time frame that the applicant should remain in custody pending retrial.

On 21 September 2009 the Town Court scheduled the retrial for 29 September 2009 and authorised the applicant’s release on an undertaking not to leave his place of residence. The court took into account the fact that the applicant had no previous convictions, that he had a permanent job and a place of residence, and that he had a family and a minor child.

On 31 August 2010 the Town Court found the applicant guilty of the theft of two cars and sentenced him to one year and five months’ imprisonment. The court applied the prescription rule and discontinued the criminal proceedings against the applicant in part concerning the charge of forgery of car licence plates. The applicant was relieved from serving the sentence in view of the time he had already spent in detention.

On 10 November 2010 the Regional Court upheld the applicant’s conviction on appeal.


CASE OF PETER ARMSTRONG v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1955 and is currently detained at HM Prison Long Lartin, Evesham.

On 3 August 2007, the applicant stabbed a man at his home in Liverpool. The man died of his injuries. When the police arrived at the house, they found the applicant sitting in a chair, and he told them, “He’s my best friend and I’ve stabbed him”. The applicant was arrested and taken to the police station. When interviewed, he claimed that the victim had entered the house and attacked him, and that he was acting in self-defence.

The applicant was charged with murder and his trial began in the Crown Court at Liverpool before a judge and a jury. The applicant’s defence to the charge was one of self-defence.

On the first day of trial, a member of the jury informed the court that he was a retired police officer. He had been retired for many years and had not served in any of the units involved in the case. He did not recognise the names of any of the police officers in the case. The judge brought the matter to the attention of counsel and invited observations. The applicant’s counsel explained that he had not had the opportunity to speak to the applicant about the matter and continued:

“...[B]ut can I say without having exercised that right that the advice which I will [be] giving him is that there is no objection on the face of it even for a serving police officer remaining on the jury in a case of this sort provided that the officer in question, or in this case the retired officer in question, has no knowledge of the case and the parties to the case or any of the police officers who may be concerned with it.”

He went on to refer to “obvious exceptions”, including where the police officer juror had some connection with the case or where there was a “significant challenge to police evidence as a necessary part of the conduct of the defence”, adding:

“That does not apply in this case, the police evidence is, I will not say it is completely agreed but there is no significant challenge to the police evidence which would have any realistic impact on the jury’s verdict in this case.”

A short adjournment took place to allow the applicant’s counsel to investigate whether the retired officer had any connection or contact with the case. Following the adjournment, defence counsel confirmed that he had no representations to make.

On the second day of the trial, another member of the jury informed the court that he was a serving police officer and that he recognised a man sitting at the back of the court as a police officer.

Prosecuting counsel confirmed that the man in question was the officer in charge of the case, but explained that they did not intend to call him as a witness. They had made inquiries with the man, who had clarified that when he was an inspector at St Helen’s, a town near Liverpool, around four years earlier the police officer juror had been serving there as a constable. The man had not been the juror’s line manager. He suggested that inquiries ought to be made into the juror’s knowledge of the man, but suggested that it would be sufficient if the man were to remain outside the courtroom, as the rest of the jury did not know who he was and none of the jurors knew why he was there.

Defence counsel said that he wanted to know how much the juror knew about the man and about other officers involved in the case. The judge sought confirmation of the precise information required by the defence and proposed to prepare a list of questions for the juror on that basis, which he would share with counsel before they were put to the juror. Defence counsel indicated that his “provisional reaction” was that provided the answers to the questions were satisfactory there would be no problem.

The judge rose and returned to read his proposed questions to counsel and to the applicant. The questions were:

- What is the extent of your knowledge of the police officer with the beard who you say you recognized sitting in court yesterday?

- What were the circumstances in which you came to know him?

- When and where prior to yesterday was your last contact with him?

- What is your present rank?

- Where are you currently based?

- Please look at the list of police officers who will give evidence. Have you any knowledge of them? If so, what is the extent of this knowledge?

Defence counsel made no comment on the proposed questions. They were duly put to the police officer juror. Following a short adjournment, the judge set out the result of the investigation:

“I say it in open court so there is no doubt about it. I understand that the juror in question knew the man with the beard, as I shall call him, at St Helen’s when the man with the beard was his inspector. This was a few years ago. He was able to give his name ... He has not, however, seen him since that inspector left St Helen’s, which he thinks was perhaps as long ago as four years. He makes clear that the inspector was his inspector for a few months but he did not see him socially or out of hours. The juror is currently a serving Police Constable at St Helen’s and he indicates he knows no-one on the list [of police officer witnesses]. Any observations?”

Defence counsel responded as follows:

“No, my Lord. I am quite happy that the juror may continue to serve. I understand that he does not wish other jurors to be told that he is a police officer and that is understandable, his occupation is irrelevant to his jury serving and his participation in these proceedings.”

On 22 January 2008 the applicant was convicted of murder. On 24 January 2008 he was sentenced to life imprisonment with a tariff of thirteen years.

The applicant sought leave to appeal to the Court of Appeal on the ground that the presence of the serving police officer on his jury created a real possibility of actual or apparent bias which rendered his conviction unsafe.

On 28 November 2008 permission to appeal was refused on the papers. The judge considered that no fair-minded and informed observer with full knowledge of the relevant facts as disclosed in the discussions between counsel and the trial judge would conclude that there was a real possibility that the jury were biased. He further observed that the police evidence was not in dispute and that the applicant’s trial counsel, who was pre-eminently placed to assess the situation, had made no objection to either juror sitting on the jury after full inquiry had been concluded.

The applicant renewed his application for leave to appeal before the full court. He argued that bias in his case arose from the following factors: that police witnesses and other witnesses closely connected to the police were cross-examined; that the juror was an officer in the same police force as the police witnesses and the officer in charge of the case, although was not based at the same police station; and that the juror had served under the officer in charge of the case some four years earlier.

On 8 June 2009, following an oral hearing, the Court of Appeal refused permission to appeal. It noted the factors relied on by the applicant as suggesting bias, but considered that, against those factors, were the fact that the juror had no particular knowledge of the facts of the case; that he knew none of the police witnesses who were due to be called; and that he had had no contact with the officer in charge of the case for some four years. The court rejected the suggestion that the juror had worked out that the man at the back of the court was the officer in charge of the case, or indeed that he had any connection with the case. It concluded:

“1.20 It is apparent that the mere fact that a juror is a serving policeman is not sufficient to give rise to a real risk of bias. There must be some other factor connecting him to the case in order to give rise to that risk. This was not a case in which the police evidence was in any sense hotly contested, despite the fact that some of the witnesses were cross-examined. In the circumstances, in our view, the suggestion that there was some additional connection between this juror and the office in charge of the case could be little more than speculation.”


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić

The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”).

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

On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action (privatna krivična tužba) filed on 10 March 2003, found the applicant guilty of criminal defamation (kleveta) and sentenced her to six months’ imprisonment, suspended for a period of two years (uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically.

The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter’s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant’s and article’s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge.

On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court’s decision on 19 July 2006.

On 16 August 2006 the applicant filed a request for the reopening of these proceedings.

Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant’s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court’s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 15 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor’s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004.

On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court’s judgment of 25 March 2011. The applicant was served with the Appeals Court’s decision on 21 December 2011.

On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending.

On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article.

On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all.

In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB’s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below).

On 16 April 2009 the District Court in Novi Sad rejected the applicant’s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court’s decision on 30 April 2009.

The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded.

On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316B; and Filipović v. Serbia, no. 27935/05, 20 November 2007). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below.

On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below).

On 9 December 2009 the Municipal Court rejected the applicant’s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal.

On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings.

On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant’s complaint concerning her medical situation.

The applicant was apparently informed of this decision in the Constitutional Court’s letter of 21 December 2011, and received it by 23 April 2012 at the latest.

On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007.

On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant’s pension were to be transferred to the creditor’s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below).

The said deductions to the applicant’s monthly income began as of 8 August 2009.

In May 2012 the applicant’s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live.

By 30 June 2013 the applicant had paid a total of RSD 496,471.10, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years (see paragraphs 44-50 below).

The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery.

The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it.

On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper’s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,120 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal.

The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The first applicant was born in 1979, while the second and third applicants were born in 1984 and 1983, respectively. They all habitually reside in Pružina.

Since 2007 the applicants have been facing multiple charges mainly concerning alleged violent offences, against a background of organised crime. In the context of their prosecution on these charges, they were arrested, remanded, released, and re-arrested and re-remanded several times.

A part of the present application directly relates to three of their unsuccessful requests for release from detention following their arrest on 1 April 2010 on a charge of perjury. These requests and the underlying procedures are described in chronological order in sections B. to D. below.

The applicants’ term of detention following the arrest of 1 April 2010 ended with their release on 1 April 2011, subsequent to which, on the same day, they were again arrested and later remanded in detention pending trial on a charge of extortion. The remainder of the application directly concerns their interlocutory appeal against the remand order following that arrest and, together with the underlying procedure, it is described below in section E.

On 2 May 2010 the first applicant made a submission requesting release. It was received at the Považská Bystrica District Court on 11 May 2010 and the applicant amended it by means of a further submission, which reached the District Court on 19 May 2010.

On 21 May 2010 the District Court heard the first applicant. In the course of the questioning he challenged the judge in charge of the case on grounds of bias, alleging that there had been an arbitrary interference with the organisation of the workload at the District Court, as a result of which the case had not been assigned to the lawful judge.

At the conclusion of the questioning on the same day, that is to say on 21 May 2010, the District Court dismissed the challenge. Immediately afterwards the first applicant used his right to state on the record that he wished to appeal against the decision on his challenge and he submitted his grounds for appeal on 24 May 2010. That appeal was dismissed by the Trenčín Regional Court on 10 June 2010, the decision being served on the first applicant on 21 June 2010.

The first applicant’s request for release was then dismissed by the District Court on 25 June 2010 and, following his interlocutory appeal, by the Regional Court on 20 July 2010, the latter decision being served on the applicant on 26 July 2010.

On 27 September 2010 the first applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court, arguing that the examination of his request for release had not been speedy, that its dismissal had been arbitrary, and that it had not been determined by the lawful judge.

On 4 October 2011 the Constitutional Court declared the complaint inadmissible. As for the length of the proceedings in the first applicant’s request for release, the Constitutional Court recapitulated the course of those proceedings and found that the complaint was manifestly ill-founded as regards both the part of the proceedings that took place before the District Court and the part that took place before the Regional Court. The remaining complaints were partly out of time and partly manifestly ill-founded.

The Constitutional Court’s decision was served on the first applicant on 23 November 2011.

On 10 May 2010 the second applicant and the third applicant also requested release and offered to pledge under Article 80 of the Code of Criminal Procedure that, if released, they would live in accordance with the law. Their request was filed with the Považská Bystrica District Office of the Public Prosecution Service (“the PPS”) which was responsible for dealing with it in the first instance.

Finding no reasons for acceding to it, on 17 May 2010 the PPS transmitted the request to the District Court for a judicial determination. The case file was received at the District Court on 21 May 2010. Having established that the case file was incomplete, the District Court asked the PPS for a complete version of it on 27 May 2010, which was submitted to the District Court on 2 June 2010. Meanwhile, on 27 May 2010, the applicants waived their right to be heard in person by the District Court.

The request was dismissed by the District Court on 3 June 2010 and, following the applicants’ interlocutory appeal of 16 June 2010, by the Regional Court on 15 July 2010.

The former decision was served on the applicants and two of their three lawyers on 9 June 2010. On 8 July 2010, by means of telephone inquiry in response to the impossibly of having it served on the third lawyer, the District Court established that the third lawyer had stopped representing the applicants, explaining the failure to inform the court accordingly by the fact that he had been on holiday.

The latter decision was served on the applicants and on the lawyer of one of them on 2 August 2010. It was served on the other applicant’s lawyer on 9 August 2010.

On 30 September 2010 the second applicant and the third applicant lodged a constitutional complaint, directing it against the District Court and the Regional Court, and alleging a violation of their rights under Article 5 §§ 3 and 4 of the Convention (and their constitutional equivalents) to a speedy review of the lawfulness of their detention by an impartial tribunal established by law and to release pending trial.

On 9 November 2011 the Constitutional Court declared the complaint inadmissible.

As for the length of the proceedings in the applicants’ request for release, the Constitutional Court recapitulated the course of those proceedings and observed that some delays had been caused by the failure of the authorities to submit a complete case file to the District Court and by the abovementioned failure of one of the applicants’ representatives to inform the court of the termination of his mandate, which had resulted in repeated and eventually futile attempts to serve the written copy of the District Court’s decision on him.

The Constitutional Court concluded that neither before the District Court nor the Regional Court had the length of proceedings been incompatible with the speediness requirement of Article 5 § 4 of the Convention.

The remaining complaints were inadmissible partly because they were a res iudicata by virtue of a previous decision of the Constitutional Court and partly because they were manifestly ill-founded.

The Constitutional Court’s decision was served on the second applicant and the third applicant on 19 December 2011.

On 22 December 2010 the applicants lodged a fresh request for release. In response, the District Court informed them in a letter of 3 January 2011 that – without the submission of new relevant information – under the applicable statute a new request for release could be lodged at the earliest thirty days after the final determination of the previous request. As the applicants’ request of 22 December 2010 contained no such new information in relation to their previous request – which had only been dismissed with final effect on 16 December 2010 – it could not be entertained.

The first applicant amended his request by means of a further submission received at the District Court on 20 January 2011 while the second applicant and the third applicant did so by a submission received on 31 January 2011.

The request was dismissed by the District Court on 7 February 2011 and, following the applicants’ interlocutory appeal, by the Regional Court on 23 February 2011, the latter decision being served on the applicants on 2 March 2011.

On 31 March 2011 the applicants lodged a constitutional complaint, alleging inter alia a violation of their rights under Article 5 §§ 3 and 4 of the Convention.

On 14 June 2011 the Constitutional Court declared the complaint inadmissible. It recapitulated the course of those proceedings and observed that – since the applicants’ request contained no new relevant information in relation to their previous request – the courts were prevented by law from examining it. The periods under consideration had therefore not commenced on 22 December 2010, as claimed by the applicants, but only on 20 and 31 January 2011, when they had amended the original request. From that perspective, the length of the impugned proceedings was acceptable.

The Constitutional Court’s decision was served on the applicants on 18 August 2011.

Following their arrest on 1 April 2011 (see paragraph 8 above), the applicants were remanded in detention pending trial on a charge of extortion by the District Court’s order of 4 April 2011.

On 14 April 2011 the applicants challenged the detention order by means of an interlocutory appeal, which the Regional Court dismissed on 21 April 2011, its decision being served on the applicants on 19 May 2011.

On 15 June 2011 the applicants challenged these decisions before the Constitutional Court, alleging inter alia a violation of their rights under Article 5 §§ 1 and 4 of the Convention, including the right to a speedy review of the lawfulness of their detention upon their interlocutory appeal against the detention order of 4 April 2011.

On 13 December 2011 the Constitutional Court declared the complaint inadmissible as manifestly ill-founded.

The decision was served on the applicants on 16 January 2012.

Meanwhile, on 27 September 2011, the applicants were indicted to stand trial on the charge in question and, on 15 November 2011, they were released from detention.

The proceedings on the merits appear to be still pending.


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1966. She is currently detained in Forest Prison.

On 28 February 2007 the applicant called the emergency services to say that she had killed her five children and had tried to commit suicide. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of five children with their throats slit.

In an order of 17 June 2008 the Indictments Division (Chambre des mises en accusation) of the Brussels Court of Appeal committed the applicant to stand trial for the following offence:

“in Nivelles, on 28 February 2007,

having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] with premeditation.”

The following details were mentioned in the indictment of 16 October 2008.

On the applicant’s admission to the intensive-care unit on the day of the incident, the doctor treating her had noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr S., who lived in the same house as the applicant, her husband and their five children and supported them financially.

The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother.

The investigating judge also ordered a psychiatric assessment. A panel of three psychiatrists examined the applicant and drew up a lengthy report dated 30 October 2007, in which they concluded:

“We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether.

The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.”

The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008.

During the trial Dr V., the applicant’s psychiatrist, mentioned two letters which the applicant had sent him a few days before the events but which had not previously been included in the file. The President of the Assize Court accordingly instructed the three psychiatrists who had already been involved at the investigation stage to draw up an additional report in the light of the new evidence.

On 14 December 2008 the three psychiatrists submitted their unanimous report, concluding as follows:

“The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic features are grounds for hospital admission or observation where necessary. ... These documents thus demonstrate beyond doubt that [the applicant] no longer felt able to control her actions ... she developed a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is completely lacking. ... Conclusion: at the time of the events, the accused was suffering from a severe mental disturbance making her incapable of controlling her actions, and is currently suffering from a severe mental disturbance warranting long-term treatment.”

At the end of the oral proceedings, the jury was called to answer the following five questions put to it by the President of the Assize Court:

“1st question (principal question as to guilt)

Is the accused Geneviève Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?

2nd question (subsidiary to the 1st question, to be answered by the jury only if it has answered the 1st question in the affirmative)

Is it established that the intentional homicide referred to in the first question was premeditated?

3rd question (principal alternative as to the commission of an act classified as a serious crime, to be answered by the jury only if it has answered the 1st question in the negative)

Is it established that the accused Geneviève Lhermitte, present before this court, committed the act classified as a serious crime of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?

4th question (subsidiary to the 3rd question, to be answered by the jury only if it has answered the 3rd question in the affirmative)

Is it established that the act classified as a serious crime referred to in the 3rd question was premeditated?

5th question (principal question as to social protection, concerning the accused’s current mental state, to be answered by the jury only if it has answered the 1st question in the affirmative or the 3rd question in the affirmative)

Is it established that the accused Geneviève Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?”

The jury answered “yes” to the first two questions and “no” to the last question.

In a judgment of 19 December 2008 the Assize Court, composed of three judges and the jury, endorsed the guilty verdict reached by the jury and sentenced the applicant to life imprisonment. The judgment included reasons for the sentence. The court took into account the particularly heinous nature of the offences, holding:

“The accused’s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom. Her mental fragility, depression and character no doubt made it more difficult to handle this desire and, through dialogue, to seek possible improvements within the limits of her specific circumstances, taking into consideration all those close to her.

However, neither those factors, nor even a wish to escape from what she considered a dead-end situation through suicide, nor a lack of appropriate help, can provide a sufficient explanation for the acts of extreme violence which she resolved to commit, and carried out in cold blood.

In the specific circumstances relating both to the accused’s character and to her living environment, the genuine difficulties experienced by her do not constitute mitigating factors, having regard to the extremely serious nature of the offences committed.”

As an ancillary penalty, the applicant was stripped of all titles, ranks and functions she held and was permanently deprived of certain rights in accordance with Articles 19 and 31 of the Criminal Code as in force at the material time. Lastly, the judgment was to be printed and publicly displayed in the municipality where the offence had been committed, in accordance with Article 18 of the Criminal Code.

On 8 January 2009 the applicant appealed on points of law, raising the same complaints as those submitted before the Court.

On 6 May 2009 the Court of Cassation dismissed the applicant’s appeal. With regard to the jury’s guilty verdict, it observed that the Assize Court had had to rule on a plurality of serious crimes (concours matériel de crimes) within the meaning of Article 62 of the Criminal Code and not a single act constituting several different offences (délit collectif) within the meaning of Article 65, which required a unity of intent, and that the parties had agreed to the wording of the questions put to the jury. The Court of Cassation pointed out that Article 6 of the Convention did not require the court to be made up solely of professional judges, lawyers or experts and that the applicant had not adduced any specific evidence to justify her fear that the jury might not be impartial. Furthermore, the wording of the jury’s guilty verdict in the form of a simple “yes/no” answer was prescribed by Article 348 of the Code of Criminal Procedure. With regard to the applicant’s criminal responsibility, the Court of Cassation held that the Assize Court’s judgment had indicated why the conditions for the application of the Social Protection Act were not satisfied:

“In noting the accused’s cold-blooded manner and her determination to carry out her crimes, the [Assize Court] judgment indicates the reason why the Assize Court did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events.”

As regards the reasons for the sentence, the Court of Cassation held that there was no statutory provision prohibiting the Assize Court precluded any mitigation of the perpetrator’s guilt; nor was there any statutory provision establishing that a decree of divorce in civil proceedings constituted res judicata in respect of criminal proceedings. Furthermore, the conclusions of the Assize Court judgment to which the applicant had objected had not punished her for refusing to admit her own guilt but had indicated the reasons why the Assize Court had not accepted that there were any mitigating circumstances.

In addition, regarding the ancillary penalties, the Court of Cassation pointed out that deprivation of functions and permanent withdrawal of certain civic rights were mandatory ancillary penalties (Articles 19 and 31 of the Criminal Code) for anyone sentenced to life imprisonment and therefore did not require any reasons. It further held that public display of a criminal conviction did not attain the minimum level of severity required by Article 3 of the Convention. Lastly, the fact that no appeal lay against the jury’s verdict (Article 350 of the Code of Criminal Procedure) resulted from a provision which the Assize Court had not applied in the judgment itself and which was therefore extraneous to the judgment.


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

The applicant was born in 1967 and lives in Kazan.

On 4 June 2002 he was convicted of disorderly acts and given a suspended two-year custodial sentence conditional on two years’ probation. On 14 November 2003 the court replaced the suspended sentence with an unconditional one because the applicant had failed to report to the probation authorities. On 16 December 2003 the Supreme Court of the Tatarstan Republic upheld that decision on appeal. The applicant subsequently served the full two years of the custodial sentence.

On 13 July 2016 the Presidium of the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2003 and the appeal decision of 16 December 2003, noting that the offence of disorderly acts had been decriminalised on 11 December 2003 and that the original sentence had been unenforceable. It held however that the applicant was not eligible for compensation for the unlawful detention because he had been initially found guilty and because the “right to the rehabilitation” did not cover the situations of ex post facto decriminalisation.


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Libya)

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1982 and is currently in Sweden.

On 29 July 2010 he applied for asylum in Sweden, stating that he had entered the country three days earlier. He stated that the smuggler who had organised his journey had taken his passport and he provided a mobile telephone number for a contact person, N.

On 6 August 2010, the Migration Board (Migrationsverket) held a first interview with the applicant during which he stated that he was from Libya. His mother and siblings remained there and he was in contact with them and would ask them to send him his passport and other identification documents. He further claimed that he had no relatives in Sweden but he provided the mobile telephone numbers of two contact persons in Sweden, N. and H.

An in-depth interview was held with the applicant on 20 August 2010, where his public counsel and an interpreter were present. The Migration Board’s official informed the applicant of the importance of giving all his reasons for asylum as this might be his only chance to present them. She further assured him that all information provided was treated confidentially. The applicant handed in his identity card and claimed that the authorities had confiscated his passport and other identity documents. He then stated essentially the following.

He had left Libya in April 2010 and had travelled to Tunisia, where he had remained until his uncle had helped him to reach Sweden in July 2010, with the assistance of smugglers and a fake French passport. In Libya he had been a soldier, working as a guard at a military base in Tripoli where he had met some persons who had paid him to transport illegal weapons for powerful clans from southern Libya, with connections to the authorities. He had been working for them for more than a year when, in November 2009, he had been stopped at a road check and interrogated. He had then been taken to an unknown location where he had been kept for about three weeks and subjected to interrogation and torture. He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison where his uncle had visited him and arranged for a lawyer for him. During the torture, his arm had been seriously injured and become infected and, about two months after his transfer to the military prison, he had been taken to a civil hospital by two guards for treatment. After the doctor had treated him, one of his guards had gone to fetch coffee for him and the other had taken him outside for a cigarette. He had then managed to escape. If he were returned to Libya, he would risk at least ten years’ imprisonment for the criminal offences. He would further risk being killed by the clans since he had revealed their names under torture. He showed some scars on his arm, back and head.

The Migration Board’s officer asked whether the applicant had other grounds for requesting asylum, to which the applicant replied no. He had lived well in Libya until he was arrested and had even planned to marry a woman in May 2010.

In September 2010, the applicant’s public counsel submitted certain clarifications to the Migration Board but essentially maintained what had been stated during the interview.

On 21 February 2011 the applicant visited the Migration Board together with N. He stated that he wished to add to his grounds for asylum that he was homosexual and had a relationship with N., whom he had known since his first week in Sweden. Their relationship had developed over time and he had moved in with N. in December 2010. N. was transsexual and had a permanent residence permit in Sweden.

In view of this new information, the Migration Board held a supplementary interview with the applicant on 1 November 2011. During this interview, the applicant stated that he had been “normal” before and that it was N. he had become interested in. Their relationship had developed from friendship but it had been difficult because of the very negative attitudes from other Arabs in the city where they lived in Sweden. No one in Libya knew about his sexual orientation and he had never had a homosexual relationship in Libya. N. was in the process of changing gender from man to woman. They had spoken with his mother and sister over internet with a camera but N. had presented himself as a woman. They had married in September 2011. If he had to return to Libya to apply for family reunion from there, it would become known that he was married to a man and he would risk persecution and ill-treatment.

As concerned his original grounds for asylum, and in view of the changes in Libya during 2011, the applicant noted that the situation in Libya was very insecure. He thought that the clans would no longer be particularly interested in him since they had other interests now and were less powerful than before. If he was careful, there would no longer be much of a threat against him in Libya.

On 16 December 2011 the Migration Board rejected the application. It first noted that the applicant had failed to submit his passport despite having claimed on several occasions that he had a passport and would submit it. However, although he had not proved his identity, the Board accepted that he was probably from Libya. As concerned the situation in Libya following the overthrow of Gadhafi, the Board noted that it was serious but did not reach the level of internal armed conflict. Thus, an individual assessment had to be made in the applicant’s case. In this respect, the Board found that the applicant had given contradictory statements and that his story lacked credibility. To begin with, he had given diverging information about his passport at the interviews, first claiming that the smuggler had taken it, then that he could obtain it from his family, later that the Libyan authorities had confiscated it and, most recently, that he would submit the passport. It further observed that the name on the certificate relating to impediments to marriage, which the applicant had submitted in support of his marriage, was different from the name that he had given to the Migration Board. Since no passport had been submitted, it was not clear that the certificate concerned the applicant. In the same connection, the Board noted that the applicant had given contradictory statements about when he had met N. and their relationship. At the first interview, on 29 July 2010, he had given N.’s telephone number as a contact number, while in February 2011, he had stated that he had become acquainted with N. during his first week in Sweden and, at the interview in November 2011, he had claimed that he had met N. about three to four months after his arrival in Sweden. Moreover, at the in-depth interview, he had stated that he had no other grounds for his asylum application than those related to the weapon transport and that he had planned to marry in Libya. Against this background, the Board also questioned the nature of the applicant’s and N.’s relationship, as relied on before the Board only on 21 February 2011. Thus, the Board concluded that the applicant’s story, both in relation to events in Libya and his relationship with N., lacked credibility and was not sufficient to justify granting him a residence permit in Sweden.

Furthermore, the Board noted that substantive changes had occurred in Libya after the applicant had left the country and considered that he had failed to substantiate that, on the basis of the criminal accusations against him, he would risk persecution by the authorities upon return or that the authorities would not be able to protect him against harassment by the clans. As concerned the applicant’s relationship to N., the Board referred to the main rule in the Aliens Act that an alien, who seeks a residence permit in Sweden on account of family ties or a serious relationship, must have applied for and been granted such a permit before entering the country. Whilst noting that an exemption from this rule can be made if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there, the Board considered that it would not be unreasonable to require the applicant to file such an application from Libya in accordance with the main rule. As there were no other grounds on which to grant the applicant leave to remain in Sweden, his application was rejected.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that the spelling of his name differed in the various documents because the transcriptions from Arabic had been made by different persons. He had his passport but had been afraid to hand it over to the Migration Board for fear of being returned to Libya. His relationship with N. was serious; they were married and lived together. It would also become known in Libya that he was homosexual if he were to apply for a residence permit from there, which would expose him to a real risk of persecution and ill-treatment. Moreover, he would not be able to apply for a residence permit from Libya since Sweden had a consulate only in Benghazi. He submitted a copy of his passport, from which it appeared that he had been granted a Schengen visa by the Maltese Embassy in Tripoli in May 2010 and that he had entered Sweden on 15 June 2010. He also submitted a copy of a military card, copies of photographs of scars and two warrants for his arrest.

During the oral hearing before the Migration Court, the applicant claimed that there was a threat against him from the Libyan authorities since he had worked for the military during the Gadhafi regime. Moreover, he added that it was not known in Libya that he was married to a man but he was certain that other Libyans in Sweden would spread that information to Libya, if he were to be sent there. In his view, it would also become known that he was homosexual if he had to apply for family reunion and be interviewed at the Swedish Consulate in Libya. He also presented his passport in original.

On 13 September 2012 the Migration Court rejected the appeal. It first found that the general situation in Libya was not severe enough to grant the applicant asylum without there being individual reasons for asylum. Turning to the applicant’s individual reasons, the court noted that, since he had now submitted his passport, certain other documents provided could be linked to him. However, on examining these documents, the court found that the military card was for training and did not show that the applicant had later been employed by the military. The two warrants for arrest were of a simple character and easy to fabricate. Moreover, one of them did not contain any date and the applicant had not given any acceptable explanation of how he had obtained them. Turning to the photographs of the scars, the court considered that the fact that the applicant had had wounds which had left scars did not make probable that he would be ill-treated in the future. Thus, the court concluded that the documents did not show that the applicant was in need of international protection. Furthermore, the court found that the applicant was not credible, stressing that he had submitted his passport only at the oral hearing before the court and that he had deliberately given false statements before the Migration Board concerning his passport, how he had travelled to Sweden and the date of his arrival. He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in Sweden and the alleged threats against him in Libya. Thus, the court did not believe the applicant’s asylum story.

However, the court did not question that the applicant was homosexual but considered that he had failed to substantiate that there was a threat against him in Libya on account of this. In this connection, the court noted that, according to the applicant’s own statements, it was not known in Libya that he was homosexual. Moreover, it took the view that it was unlikely that Libyans in Sweden who knew about the applicant’s sexual orientation would be more willing to spread this information simply because the applicant was to return to Libya. The court also noted that the applicant had kept his passport in order to be able to return to Libya. In sum, it concluded that the applicant had failed to show that he would risk persecution or ill-treatment upon return to Libya. In so far as concerned his relationship with N., the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments for the applicant to apply for a residence permit from abroad. The fact that the Swedish Consulate was located in Benghazi did not alter this conclusion.

One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant’s sexual orientation might leak from an embassy.

The applicant made a further appeal to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 10 October 2012, refused leave to appeal.

The applicant then requested the Migration Board to reconsider his case, submitting that a Libyan in Sweden, who knew about his marriage, had travelled to Libya and, by chance, had met his brother and told him that he was married to another man. His uncle had later called him and threatened to kill him if he returned to Libya since he had shamed the family. He further claimed that friends of his in Libya had told him that 12 homosexuals had been killed in Libya recently and that others had fled the country since they were being persecuted by unknown groups in Libya. He was convinced that he would face a real risk of being ill-treated or killed if returned and that it would not be possible for him to apply for family reunion from there without his sexual orientation becoming known.

On 10 December 2012 the Migration Board rejected the request for reconsideration. It found that there was no reason to depart from the main rule that an application for family reunion had to be lodged from abroad. The applicant’s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order and thus there was no ground to reconsider the applicant’s case.


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

Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The applicant was born in 1955 and lives in Kaunas.

In February 1993 the Kaunas Region Municipality (Kauno rajono savivaldybė) assigned a plot of land measuring 0.15 hectares in the settlement of Noreikiškės to the applicant for the construction of a house (hereinafter “the land”). In May 1995 she signed a land purchase agreement with the municipality and bought the land for 29.70 “single-use investment vouchers” (investiciniai čekiai). The purchase agreement indicated that the nominal value of the land was 2,976 Lithuanian litai (LTL approximately 862 euros (EUR)). The applicant subsequently obtained a building permit and built a storehouse on the land.

On 10 May 2002 the Constitutional Court found that Government regulations which allowed land in Noreikiškės to be sold to private individuals were contrary to the Constitution of the Republic of Lithuania and the Restitution Law (see Padalevičius v. Lithuania, no. 12278/03, § 18, 7 July 2009).

In December 2003 the Kaunas County Administration (hereinafter “the KCA”) brought a claim before the Kaunas District Court (Kauno rajono apylinkės teismas) seeking the annulment of the administrative decisions and the purchase agreements on the basis of which plots of land had been sold to the applicant and to several other individuals. The KCA argued that the land in question had to be returned in natura to its former owners and thus had been sold to the applicant and other individuals unlawfully.

On 4 June 2004 the Kaunas District Court allowed the KCA’s claim. The court annulled the administrative decision of 1993 assigning the land to the applicant and the land purchase agreement of 1995, and ordered the Kaunas Region Municipality to return 29.70 “single-use investment vouchers” to the applicant.

On 7 February 2005 the Kaunas Regional Court partially quashed the first-instance judgment. It found that the lower court had correctly annulled the administrative decision and purchase agreement, and upheld the judgment in that part. However, it noted that the “single-use investment vouchers” could no longer be used as a means of payment. Thus, in accordance with the Civil Code, the applicant should have received the monetary equivalent of what she had paid in 1995. The court remitted that part of the case for re-examination in order to assess the monetary equivalent. On 3 October 2005 the Supreme Court upheld the Regional Court’s judgment.

The remitted part of the case was subsequently re-examined by the Kaunas Regional Court sitting as the court of first instance. During those proceedings, the applicant argued that the unlawful allocation and sale of the land had resulted from the State authorities’ negligence. The applicant claimed that she, as a bona fide purchaser, was therefore entitled to receive compensation for the full market value as it was at the time of expropriation, in accordance with Article 6.147 § 2 of the Civil Code (see paragraph 16 below).

On 6 March 2008 the Kaunas Regional Court dismissed the applicant’s request for compensation equating to the full market value of the land. The court found that the authorities could not be held solely responsible for the unlawful sale because the applicant had also had a duty to verify whether she had been buying the land lawfully. Thus, the court held that, for the purposes of Article 6.147 § 2 of the Civil Code, the applicant could not be considered a bona fide purchaser and was not entitled to compensation for the full market value. The court awarded her the nominal value of the land in 1995, which it assessed to be LTL 29.70 (EUR 8.60). The court also noted that if the applicant considered that she had suffered pecuniary damage, she had the right to institute separate proceedings against the State for damages.

On 19 August 2008 the Court of Appeal partially amended the Regional Court’s judgment. It reiterated that the applicant could not be considered a bona fide purchaser merely because she had bought the land from the State – she had also had a duty to verify the lawfulness of the sale. However, the Court of Appeal found that the lower court had incorrectly assessed the nominal value of the land in 1995. Referring to the text of the purchase agreement (see paragraph 6 above), the court awarded the applicant LTL 2,976 (EUR 862).

On 27 January 2009 the Supreme Court upheld the judgment of the Court of Appeal; however, it partially amended the reasoning. The Supreme Court stated that the nominal value of the land had been indicated in the purchase agreement, so it had not been necessary to apply Article 6.147 of the Civil Code and assess the monetary equivalent. As a result, the applicant’s good faith had been irrelevant in determining the amount of compensation and should not have been examined. Nonetheless, the Supreme Court considered that that error had not affected the lawfulness of the Court of Appeal’s judgment.


CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA

Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

I. THE CIRCUMSTANCES OF THE CASE

The applicants belong to the Eastern-Rite Catholic (Greek Catholic or Uniate) Church.

A. The historical background to the case

The legal framework governing the Greek Catholic parishes

Until 1948 the Greek Catholic parishes owned various properties, including churches and adjacent land, parish houses and cemeteries.

The Uniate Church was dissolved by Legislative Decree no. 358/1948. By virtue of the same Legislative Decree, properties belonging to that Church were transferred to the State, except for parish property. An inter-departmental committee with responsibility for determining the ultimate allocation of those properties never completed its task. Parish property was transferred to the Orthodox Church under Decree no. 177/1948, which provided that if the majority of one Church’s adherents became members of a different Church, the former’s property would be transferred to the ownership of the latter.

After the fall of the communist regime in December 1989, Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was officially recognised by Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United with Rome (the Greek Catholic Church). Article 3 of that Legislative Decree provided that the legal status of property that had belonged to the Uniate parishes was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the adherents of the communities in possession of these properties” (see paragraph 38 below).

Article 3 of Legislative Decree no. 126/1990 was supplemented by Government Order no. 64/2004 of 13 August 2004 and Law no. 182/2005. The Decree, as amended, specified that in the event of disagreement between the members of the clergy representing the two denominations on the joint committee, the party with an interest entitling it to bring judicial proceedings could do so under ordinary law (see paragraph 40 below).

The legal situation of the applicants and of their church

The applicant parish, diocese and archpriesthood were dissolved on the basis of Legislative Decree no. 358/1948. In 1967 the church and the adjoining courtyard, which had belonged to the applicant parish, were entered in the land register as having been transferred to the ownership of the Lupeni I Romanian Orthodox Church.

The applicant parish was legally re-established on 12 August 1996. It comes under the authority of the Lugoj Greek Catholic Diocese (the second applicant) and the Lupeni Greek Catholic Archpriesthood (the third applicant). The applicants took steps to have the church and adjoining courtyard returned to them.

B. The attempts by the Romanian Orthodox Church and the Greek Catholic Church to reach a friendly settlement

Meetings of the joint committee

The Orthodox Church and the Greek Catholic Church convened meetings of a joint committee, composed of senior representatives of the two denominations, with a view to determining the fate of the church buildings that had belonged to the Greek Catholic Church. Between 1998 and 2003 the joint committee met on seven occasions. The Greek Catholic party submitted a list of the churches claimed by it, including that of the applicant parish. It also proposed a friendly settlement, recommending that in those municipalities where there were two church buildings, one of them be restored, and that in municipalities where there existed only one church building but the two denominations were present, religious services be organised on an alternate basis. The Orthodox side refused this proposal.

During the meetings, the representatives of the two denominations noted that the dispute would be protracted and called for dialogue at local level and the construction of new church buildings for both denominations. At the final meeting the Orthodox side refused to return the properties and referred to the wishes of the majority of the adherents.

The applicant parish convened a meeting at local level with the Orthodox parish which held the property in issue, scheduling it for 9 November 2004. The Orthodox side did not attend, and nor did it attend a further meeting scheduled by the applicant party for 10 June 2006.

Meeting of the interested parties under the auspices of the Ministry of Culture and Religious Affairs

In the meantime, on 5 April 2002, at the initiative of the Ministry of Culture and Religious Affairs (“the Ministry”), a meeting took place at the Bucharest headquarters of the State Secretariat for Religious Affairs under the title “Fraternal Dialogue”. At that meeting, the representatives of the Orthodox Church had emphasised the importance of constructing new churches in order to resolve the problem. The Government’s plans to launch a church-building programme had been welcomed. The Ministry had asked the Greek Catholic side to provide it with a more detailed list of the places of worship claimed by that denomination.

According to the applicant parish, the Greek Catholic side had duly handed over the requested documents to the Ministry, but the latter took no further action.

C. The judicial proceedings brought by the applicants

Previously, on 23 May 2001, the second applicant, namely the Lugoj Greek Catholic Diocese, citing also the other two applicants, had brought proceedings before the domestic courts against the Arad Orthodox Archdiocese and the Lupeni Orthodox Parish. It requested that the expropriation of the church building and cemetery in Lupeni, carried out on the basis of Decree no. 358/1948, be set aside, and that the church be returned to the applicant parish.

By a judgment of 10 October 2001, the Hunedoara County Court (“the county court”) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no. 126/1990, that is, by means of the joint committee.

An appeal against that judgment by the second applicant was dismissed by a judgment of the Alba Iulia Court of Appeal (“the appeal court”) on 25 March 2003, which held that the action was premature. On an appeal on points of law (recurs) by the applicant parish and the second applicant, the High Court of Cassation and Justice, in a final judgment of 24 November 2004, sent the case back to the same appeal court for a fresh examination of the merits.

On 12 May 2006, in application of the legislative amendments which gave the courts jurisdiction to rule on the merits of the cases (see paragraph 11 above), the appeal court upheld the second applicant’s appeal and sent the case back to the county court.

On 27 July 2006, when the case was restored to the county court’s list, the action was amended in order to add the applicant parish and the third applicant as claimants in the proceedings. On 8 November 2006 the claimants supplemented their action with a claim for recovery of possession of the church building in question, on the basis of ordinary law.

The county court asked the Greek Catholic and Orthodox parties to organise a meeting in order to decide the fate of the church in question, and to inform it of the outcome of the negotiations by 25 April 2007.

On 20 April 2007 a meeting was held between the representatives of the applicants, the Orthodox Church and the Lupeni Mayor. The Orthodox Church refused to return the church, arguing that the majority of believers in the municipality were Orthodox. The applicant parish replied that the ownership of property was not related to the number of practising adherents in a congregation. The minutes of the meeting were transmitted to the county court, which continued its examination of the case.

By a judgment of 27 February 2008, the county court dismissed the applicants’ action on the ground that the Lupeni Orthodox parish had become the legally recognised owner of the property in question by virtue of Decree no. 358/1948. The applicants lodged an appeal. By a judgment of 26 September 2008, the appeal court set aside the judgment of 27 February 2008 on formal grounds and remitted the case to the county court.

By a judgment of 13 February 2009, the county court found in favour of the applicants and ordered that the church be returned to the applicant parish. In comparing the title deeds of the parties to the dispute in respect of the property in question, the county court noted that the Greek Catholic party had been entered in the land register as owner of the property from 1940, and that in 1967 the Orthodox Church had entered its ownership right in the land register by virtue of Decree no. 358/1948. It held that the repealing of Decree no. 358/1948 had had the effect in the present case of terminating the Orthodox party’s right of ownership over the disputed property. It added that the applicant parish did not have a place of worship and that it was obliged to rely on the Roman Catholic Church, which rented the parish its premises for religious services.

The Orthodox parish lodged an appeal against that judgment.

By a judgment of 11 June 2010, the appeal court allowed the appeal and dismissed the applicants’ action. It described how the proceedings had developed and noted that the case had been instituted by the second applicant in 2001 and joined by the two other applicants in July 2006, after it was restored to the county court’s list. On the basis of the evidence in the case file, it noted, firstly, that the church building being claimed and the two Lupeni parish houses had been constructed between 1906 and 1920 by members of the Eastern-rite Orthodox and Greek Catholic churches and that, after its construction, the church building had been used alternately for services by both denominations. It noted that in 1948 the members of the Greek Catholic Church had been obliged to “move” to the Orthodox Church and that the church building had become the property of the Orthodox Church, which had maintained it and carried out improvements.

The court of appeal questioned three witnesses, including two Orthodox believers who stated that they no longer intended to return to the Greek Catholic Church to which they had belonged prior to 1948. The third witness stated that she was one of the few Greek Catholics in Lupeni. The appeal court noted that the statements by these witnesses supported the statistical data, which showed that there were more Orthodox than Greek Catholic adherents in Lupeni.

It further held that the county court had carried out its comparison of the title deeds without taking into consideration the wishes of the majority of those currently in possession of the building, a criterion that, as the appeal court noted, had been laid down in Article 3 § 1 of Legislative Decree no. 126/1990. In so far as there were more Orthodox adherents than Greek Catholic adherents in Lupeni – taking account also of those who had converted and no longer wished to return to the Greek Catholic Church – their wishes had to be taken into consideration in ruling on the case. It found that “having regard to the social and historical realities, ignoring the wishes and proportional strength of Orthodox adherents, who are in the majority, in relation to the less numerous Greek Catholic worshippers, would be to contravene the stability and certainty of legal relations”.

Lastly, the court of appeal noted that the fact that Decree no. 358/1948 had been repealed did not automatically mean that the Orthodox Church’s title to the building was set aside, and that this Decree had represented the law in force at the time that the ownership right was transferred. In consequence, it considered that, even if it had been granted unlawfully, the Orthodox Church’s title had been valid from the date on which the transfer had been made, with the result that the action to recover possession was ill-founded.

The applicants lodged an appeal on points of law before the High Court of Cassation and Justice, alleging that the appellate court had incorrectly applied the legal provisions governing actions for recovery of possession. They emphasised that the right of ownership could not be linked to a religion’s majority status, since ownership was, in their submission, a legal concept that was independent of the numerical strength and wishes of the parties.

In a final judgment of 15 June 2011, the High Court of Cassation and Justice dismissed the applicants’ appeal by a majority and upheld the appeal judgment. It held as follows:

“With regard to a request for restoration of a place of worship which had belonged to the Romanian Church United to Rome (the Greek Catholic Church), the appellate court correctly established the special legal framework for ruling on those claims.

Pursuant to Legislative Decree no. 126/1990 ... a distinction is made between two situations: (a) that in which the property is within the ownership of the State ... (b) that in which the places of worship and the parishes have been taken over by the Romanian Orthodox Church and in respect of which [the question of] restitution will be decided by a joint committee made up of representatives of the clergy of the two denominations, a committee which will take account of the wishes of the adherents of the communities in possession of these properties.

In the light of those provisions, the appellate court, examining an action for recovery of possession of a place of worship, correctly applied the criterion of the wishes of the adherents (Orthodox in the majority) of the community in possession of the property, while simultaneously emphasising the unlawfulness of the reasoning provided by the first-instance court, which had merely compared the title deeds and ignored the special law...

The fact of supplementing Article 3 [of Legislative Decree no. 126/1990] with a paragraph stating “If the committee does not meet within the period established in its mandate, or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the party which has an interest is entitled to bring judicial proceedings under ordinary law” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law.

A court which is required to examine such an action cannot ignore the special regulations in this area, which indicate the criterion to be taken into account in resolving such claims, namely the wishes of the adherents of the community in possession of the property.

In other words, by virtue of its full jurisdiction and in order not to compromise access to justice, a court may be called upon to decide an action on the merits, even though the prior procedure did not culminate in a decision by the joint clerical committee; at the same time, however, it may not go beyond the limits imposed by the special statutory framework.

The priority to be given to the criterion of the adherents’ wishes was decided by the legislature, which wished in this way to regulate an area which concerns the buildings assigned to a particular use (places of worship), [and so] the court was not authorised to criticise the law.

Moreover, in ruling on the alleged unconstitutionality of Article 3 of Decree no. 126/1990 and the criterion of the adherents’ wishes, the Constitutional Court has stated that the text did not infringe the Romanian State’s principle of democracy, nor that of the freedom of religious denominations (CC decision no. 23/1993, CC decision no. 49/1995).

Democracy “also implies the application of the principle of majority rule, as set out in the final part of Article 3 – the wishes of the adherents of the community in possession of these properties – which introduces a social criterion, that of the choice of the majority of the worshippers”.

Equally, it has been established that “the freedom of religious denominations implies not only their autonomy with regard to the State, but also freedom of religious belief”; where “in the same parish there are Orthodox and Greek Catholic worshippers, the application of the social criterion – namely [the wishes] of the majority of parishioners – in deciding on the allocation of places of worship and parish houses is compatible with the democratic principle of determining the religious use of the said property, given that this is the wish of the majority of those who benefit from such use, because “were it otherwise, this would mean that the Orthodox adherents, who are in the majority, would be unjustifiably prevented from practising their religion unless they transferred to the Greek Catholic Church”.

In addition, the procedures for regulating social relations and restoring the assets (averi) of the religious communities are a matter of legislative policy (and not of judge-made law, which would attempt to settle such issues by judicial means, to the exclusion of the special law); it cannot be claimed that by introducing the criterion of the wishes of the faithful the [special] law failed to achieve its compensatory purpose.

The appellate court considers that – in a State subject to the rule of law – the fact that the State unlawfully dispossessed the Greek Catholic Church of its places of worship in 1948 cannot be remedied by committing the opposite error, that is, in failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure. However, returning the properties which belonged to the Greek Catholic Church without respecting the criteria imposed by Article 3 § 1 of Legislative Decree no. 126/1990 would infringe the stability and security of judicial relations. A right cannot be reconstructed in abstracto, in disregard of social and historical realities, and mitigation for past damage must not create disproportionate new problems...

In order to bring an action under ordinary law for recovery of possession without being subject to the special law, the applicants must be able to claim that there existed a “possession” or a right of ownership to their property.

However, through Decree no. 358/1948, the Greek Catholic Church was outlawed and its assets were transferred to the State; the building in dispute [was] registered as belonging to the Lupeni I Romanian Orthodox Church.

The fact that, through Legislative Decree no. 9/1989, the Romanian Church United to Rome (Greek Catholic) was officially recognised following the repeal of Decree no. 358/1948 does not mean that its title to property was restored, in so far as the right of ownership is subject to a procedure (namely the provisions of Legislative Decree no. 126/1990 and its subsequent amendments), as the hope of obtaining title to property is not to be equated with a possession...

Contrary to the arguments of the parties having lodged the appeal on points of law [recurentilor], the solution adopted does not infringe the freedom to practice a religion, since, as they submitted in their own observations, “the practice of religion is a private matter”, which consists primarily in a “strong and personal spiritual investment”. At the same time, the legislature provided for the scenario where the places of worship could not be returned; thus, Article 4 of Legislative Decree no. 126/1990 provides that “in those municipalities where the number of places of worship is insufficient in relation to the number of believers, the State shall provide support for the construction of new churches; for that purpose, it shall make available to those denominations the necessary land if the denomination does not possess it, and shall contribute to raising the necessary funds”.

Thus, the State, as the authority with power to control life in society, will guarantee that the necessary conditions for the manifestation of religious beliefs are met without ... the exercise of this right being limited by the number of adherents (a substantive limitation). The State’s task here is to fulfil a positive obligation, so as to contribute to the effective exercise of the right to freedom of conscience and religion...”

In a separate opinion, one of the judges sitting on the case noted that the legislature’s reference to ordinary law could not be reduced to a purely procedural dimension, but was to be interpreted as the application of a rule of substantive law. Referring to the rules governing the preparation of statutes, the judge indicated that, if the legislature had wished to ascribe a specific meaning to this reference to “ordinary law”, it ought to have done so explicitly. He also cited Article 31 § 3 of Law no. 489/2006 on religious freedom and the legal status of religious denominations, according to which property differences between denominations were to be resolved by friendly settlement and, where that proved impossible, on the basis of ordinary law. After indicating that an action for recovery of possession implied a comparison of the relevant titles to the property, the judge concluded that the Orthodox Church did not have title to the place of worship in question.

D. Other information about the case

According to a memorandum provided by the National Institute of Statistics, in 2002 there were 501 Greek Catholic adherents and 24,815 Orthodox adherents in Lupeni. The applicant parish is currently holding religious services at scheduled times in premises rented by it from the Roman Catholic Church in Lupeni.