Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The first applicant currently lives in Turkey and the second to fifth applicants live in Stavanger, Norway.

The first applicant, a mechanics and a professional driver, is of Kurdish ethnic origin coming from south-east Turkey. He was not a member of any political party but like many other members of his family sympathised with the PKK (Kurdistan Workers Party). During the violent conflicts between Turkish authorities and Kurdish people in 1992 and 1993 he lived in the City of Sirnak. The first applicant stated that he had assisted the PKK and that because of several occurrences he felt persecuted by Turkish authorities. Fearing for his life he found it necessary to flee in March 1993.

The second applicant, Mrs Naime Kaplan, married the first applicant in the early 1990s. She and the third applicant, their son Azat (born in 1993), continued to live with the first applicant’s parents in Sirnak. After the latter’s house was set on fire, she and the son spent a period as refugees in Iraq.

Over a period of more than a year and a half, the first applicant sojourned at several locations in Turkey. He had some contact with his wife and son and applied for visa to visit Denmark, where his older brother had obtained asylum (in 1988). Only the first applicant obtained a visa. In February 1995 he arrived in Denmark and applied for asylum. His wife and son went back to Sirnak, where she gave birth to the couple’s second son, Cemsit, in August 1995 (the fourth applicant).

The first applicant’s asylum application in Denmark was refused. He then stayed in several European countries and returned to Denmark where his second asylum application was refused in September 1998.

On 23 October 1998 he applied for asylum in Norway. The Directorate of Immigration rejected the application on 30 September 1999. His appeal to the Ministry of Justice was rejected by a decision of 21 January 2000, according to which he was under a duty to leave the country and measures were to be taken to implement this decision.

On 7 December 1999 the Sunnhordaland District Court (tingrett) convicted the first applicant on charges of aggravated assault and sentenced him to 90 days’ imprisonment, of which 60 days were suspended. He was found guilty of having inflicted with a kitchen knife a cut in the shoulder of another man which had been mended with three stiches. Even though the extent of the injury was not considerable, the offence was deemed very serious and could easily have had great consequences for the victim. In mitigation, the District Court had regard to its finding that, whilst it was uncertain who had started the row, the victim had gone further than the applicant and had provoked him by hitting his face with his palm and by uttering serious insults against his family. The victim had also withdrawn his criminal complaint against the applicant. The judgment was transmitted to the Directorate of Immigration for consideration of whether there was a ground for ordering his expulsion.

On 5 May 2000 the Ministry of Justice refused to revise its earlier rejection (of 21 January 2000) of the first applicant’s asylum application and asked the Stavanger Police to implement the decision. It contained no mention of the judgment of 7 December 1999, but on 5 May 2000 the Ministry also forwarded a copy to the Directorate of Immigration requesting it to assess whether there was a basis for expulsion. The applicant did not leave the country, and the authorities took no specific measures to deport him until he received a warning to this effect issued on 31 October 2006.

In 2003 the applicant was fined for driving too fast, and in 2005 and 2006 for driving without a license.

The second applicant arrived in Norway with the couple’s two sons and applied for asylum on 24 May 2003, which the Directorate of Immigration rejected on 30 December 2003. The Immigration Appeals Board upheld the rejection on 25 February 2005, stating that unless they left the country voluntarily, the expulsion was to be forcibly implemented, if possible in coordination with that of the first applicant.

On 4 August 2005 a daughter of the couple, Rojin, was born (the fifth applicant).

Pending amendments to the Immigration Regulations, the Directorate of Immigration decided on 19 September 2006 to stay the implementation of the decision of 25 February 2005 regarding the wife and the sons but in a separate decision, referring inter alia to his conviction of 1999, rejected the first applicant’s request to stay the implementation of the refusal of 5 may 2000 to grant him asylum.

Following the warning of 31 October 2006, the first applicant was on 1 November 2006 arrested and detained for two weeks with a view to deportation. On 2 November 2006 the Directorate of Immigration decided, under section 29 of the Immigration Act 1988, to order his expulsion and to prohibit his re-entry in Norway for an indefinite duration. This was because of his criminal conviction and of his long illegal stay and work in Norway. On appeal, the decision was upheld by the Immigration Appeals Board on 2 March 2007.

In the meantime, on 1 November 2006, the first applicant requested the Oslo City Court (tingrett) to issue an order that he be granted a residence- and work permit and an interlocutory injunction to stay his deportation pending the outcome of the judicial proceedings.

Following a request by the first applicant to the Immigration Appeals Board, the latter granted him on 8 November 2006 a stay of implementation of his expulsion until the City Court had decided on his request for an interim measure to stay his deportation.

On 5 July 2007 the Immigration Appeals Board rejected a request to revise its earlier rejection (of 25 February 2005) as there were not sufficient reasons to grant the wife and the children a residence permit on humanitarian grounds.

In an appeal of 18 December 2007 the applicants’ lawyer challenged the lawfulness of the decision of 5 July 2007 on the ground that Rojin had been diagnosed as suffering from child autism and had special needs.

In the light of this information the parties agreed before the City Court that the immigration authorities should consider the matter anew for all the family members.

After having decided on 3 January 2008 not to implement the expulsion with respect to the wife and the children, the Immigration Appeals Board on 28 February 2008 decided (with two votes to one) to alter its decision of 5 July 2007 and granted the second applicant, with the children, a residence- and work-permit under section 8(2) of the Immigration Act 1988 (according to which such a permit could be granted if warranted by weighty humanitarian considerations or particular links to the country, see paragraph 49 below). The majority attached decisive weight to the new information concerning the daughter’s health together with the length of the children’s residence in Norway (four years and nine months in the case of the sons). It also had regard to more recent practice of the Board. The permit was granted for a period of one year and could on certain conditions be renewed, constitute a ground for settlement permit and for family reunification. A prerequisite for the permit was that the wife continued to live in Norway.

On 7 April 2008 the Immigration Appeals Board carried out a new assessment of the first applicant’s immigration status. It did not alter its decision of 2 March 2007 upholding the Directorate’s decision of 2 November 2006 to order his expulsion, stating inter alia the following reasons.

In the Board’s view, the Directorate could in principle have responded more rapidly with regard to the question of expulsion in connection with the applicant’s conviction. The Directorate had had an occasion to bring this matter up as early as in May 2000, when the Ministry of Justice by a letter of 5 May 2000 forwarded a copy of the judgment with a request for assessment of the question of expulsion (see paragraph 12 above). By the fact that counsel for the applicant was sent a copy of the Ministry’s letter, the applicant had been made aware that the offence could constitute a ground for expulsion. The specific procedural rules concerning expulsion of convicted foreign nationals indicated in principle that a decision to expel should be made as soon as possible after conviction with no further right of appeal or after the serving of a sentence had been commenced (section 126 of the Immigration Regulations of 1990).

There was nevertheless nothing to prevent that the offence be taken into account at a later date together with any other factors militating in favour of expulsion in a global assessment. In the Board’s view, it could not be decisive for the applicant’s expulsion from the country pursuant to section 29 (c) of the Immigration Act that his 1999 conviction had not been raised until 2006. In this connection, it referred to the fact that at the date of the Directorate’s expulsion decision the applicant had resided unlawfully in Norway for over six years and had in addition worked without a work permit for large parts of this period. In addition, since his conviction in 1999, he had on three occasions been fined for violation of the Road Traffic Act (on the latter two occasions for driving without a driving license, see paragraph 13 above). Whilst these offences were regarded individually and on principle as being relatively minor, they ought to be viewed in connection with the applicant’s previous conviction for bodily harm, in addition to his failure to respond to the order to leave the country as well as his prolonged unlawful residence and employment throughout several years. These offences, when considered as a whole, indicated a lack of respect for Norwegian law and for Norwegian authorities’ decisions.

The Board further observed that intentional or negligent violations of the Immigration Act of 1988 of the nature involved in the instant case in principle constituted a criminal offence (section 47(1)(a) of the Immigration Act of 1988). It reiterated that the legislative bill to Parliament (Ot.prp.nr. 75 (2006-2007)) stated inter alia the following with regard to expulsion on the grounds of violations of the Immigration Act (page 289):

“Although such violations [i.e. gross violations of the Immigration Act] normally also may lead to criminal liability, in terms of prosecution costs, it would be advantageous if an expulsion order could be made without requiring a legally enforceable criminal judgment.”

On the other hand, the Board altered its decision of 2 March 2007 prohibiting the first applicant to return to Norway indefinitely and limited the prohibition to five years. A decisive consideration for this change was that his spouse and children had been granted a residence permit. The Board observed that as a starting point the first applicant’s expulsion would mean that the family would be split. However, the right of the other family members to reside in Norway did not imply any corresponding duty to do so. The whole family originated from Turkey, where the older children had been born and lived during their childhood. Their family life could in principle be secured either by the whole family moving to Turkey or through the visits of the wife and children of the husband in Turkey. His expulsion was of limited duration and at the expiry of the period it would be possible to apply for a residence permit on family reunification ground. Whether such a permit would be granted would depend on future circumstances. However, an expulsion for five years did not imply a permanent splitting of the family.

The Board had particular regard to the daughter’s situation, which was followed up and was to be the subject of measures in Norway, and to the scarcity and low quality of public assistance in Turkey to children suffering from handicaps and other types of illnesses affecting their functional capacities, where assistance to children suffering from autism and their parents was provided primarily by private institutions. Bearing in mind especially the daughter’s interests, the Board had understanding for the fact that the family as a whole did not prefer to return to Turkey.

In the light of the above, the City Court discontinued, by decisions of 23 April and 20 November 2008, the proceedings in so far as the spouse and the children were concerned. As regards the first applicant, the City Court found for the Immigration Appeals Board and rejected his request for an interlocutory injunction to stay his deportation, by a judgment and a decision of 23 April 2009.

On 10 July 2009 the Borgarting High Court (lagmannsrett) rejected the first applicant’s appeal against the City Court’s decision not to grant an interlocutory injunction, as did the Supreme Court on 1 September 2009.

On the other hand, the High Court, by a judgment of 1 March 2010, quashed the Immigration Appeals Board’s decision of 7 April 2008 as being unlawful.

The High Court had no doubt, nor was it disputed, that the objective conditions set out in section 29(1)(a) and (c) of the 1988 Immigration Act for ordering the first applicant’s deportation had been fulfilled; the only question was whether the measure would be proportionate as required by section 29(2). In this regard, the High Court observed that his conviction in 1999 for having caused physical injury to a third party with a knife was serious, even though there had been mitigating circumstances and the sentence (90 days of which 60 were suspended) had been relatively short. General considerations of crime prevention suggested that one ought to react to violence of this character.

However, the expulsion of a convicted person ought to be effected as soon as possible after the criminal judgment had become enforceable. The fact that more than six years had elapsed before concrete measures had been taken to expel him, which could hardly be due to anything else than a lack of coordination on the part of the immigration authorities, weakened the significance of the judgment.

On the other hand, the fact that the first applicant for a number of years had stayed and worked unlawfully in Norway was very serious and was not altered by the authorities’ passiveness. The Board had not incorrectly assessed his attachment to Norway and lack of legitimate expectations of being able to stay there. The fact that his spouse and children had been granted a residence permit would not hinder his expulsion, as this would not in the circumstances be a disproportionate measure vis-à-vis him. Another question was whether his four and half year daughter Rojin with her special care needs ought to be viewed as such extraordinary circumstances as could warrant his being able to stay in Norway.

On the evidence the High Court found that Rojin’s chronic and very serious degree of child autism and need for follow-up would affect the other family members strongly in the years to come and entail a burden on them far beyond the normal level. Her functional incapacity meant that she would always be dependent on her parents’ resources. Her mother was exhausted and had a marginal level of functioning. It was the father who had activated Rojin on a daily basis and she was particularly attached to him. Should he be deported it was likely that the disturbance to her development would be aggravated and would cause a further burden to the mother, to the brothers and to others who assumed responsibilities for her.

The High Court concluded that the first applicant’s expulsion would expose Rojin to an extraordinary burden that would not be justified by general considerations of crime prevention or immigration policy and would constitute a disproportionate measure. In this context the High Court had regard to the importance of the fact that the residence permit to the mother and the children had so far been limited to one year at a time.

The High Court upheld the City Court’s findings that the first applicant had not made it sufficiently probable that he upon return to Turkey would risk such persecution as could justify granting him a refugee status or would otherwise face a real danger of loss of life or exposure to inhuman treatment.

Finally, the High Court dismissed the claim for a residence- and work permit from the courts.

The State appealed to the Supreme Court (Høyesterett) challenging the High Court’s proportionality assessment under section 29(2) of the 1988 Immigration Act.

In its judgment of 26 November 2010 (Norsk Retstidende) (Norwegian Supreme Court Law Reports – “Rt.” p. 1430) the Supreme Court observed inter alia that considerable time had elapsed from the rejection of his asylum application in 2000 until the expulsion decision of 2006 and further to the present review of the case by the Supreme Court. Throughout this time, the first applicant had resided in Norway unlawfully, of which he had also been aware. The time factor could thus not be given particular weight in the assessment. Whilst his residence had naturally resulted in strengthening his attachment to Norway, it had equally aggravated his violations of the Immigration Act. This point of view was particularly valid in a case such as the present one, where the applicant had been aware throughout that he was required to leave the country.

Nor had the first applicant had any legitimate expectation of being allowed to remain in the country. Also, his criminal conviction meant that an instruction of 31 August 2006 issued by the Ministry of Labour and Social Inclusion to put certain cases in abeyance, notably cases concerning applications for asylum or residence, involving or relating to children, made by persons who had resided in Norway for more than three years, did not apply to the first applicant.

The Supreme Court found it established that the first applicant had committed serious violations of the Immigration Act 1988 which of their own clearly constituted a sufficient ground for expulsion. An additional ground were the offences he had committed under Article 229, cf. Article 232, of the Penal Code and, albeit of lesser importance, under the Road Traffic Act. The Immigration Appeals Board had in its decision of 7 April 2008 pointed out that immigration policy considerations then ought to militate strongly in favour of upholding the expulsion order. Also the background – his unlawful stays in other European countries with unsuccessful asylum applications, including once under a false name – was a factor that to some extent went in the same direction.

The Supreme Court further observed that the first applicant lacked a legal basis for residing in Norway and therefore ought to leave the country in any event. What the likely outcome could be of an application for residence permit in the current situation could not enter into the consideration of the case. The disputed decision entailed the consequence for him that he would be expelled from the country for a period of five years and he could not apply for a residence- or work permit during this period. Norway’s participation in the Schengen cooperation meant as a rule that an expulsion from Norway also implied a prohibition to enter the entire Schengen Area. In the case of a foreigner, whose unlawful residence had been so extensive and so long and who had been convicted of violence, it could not be said that an expulsion in such circumstances would constitute an extraordinary burden.

The interests pertaining to his wife and his two eldest children could hardly speak in favour of making a different assessment than that which applied to the first applicant. They had for many years lived on their own in Turkey. That the first applicant in the event of an expulsion could not come for visit for a period of five years was a normal consequence of expulsion and did not constitute an extraordinary burden. The family life could be maintained by his wife and children travelling to Turkey for shorter or longer periods.

The Supreme Court also noted that, whilst the High Court had relied on the consideration that Rojin was suffering from a chronic and serious degree of child autism, the first applicant had submitted a medical statement of 27 October 2010 from which it appeared that her current diagnosis was “unspecified far-reaching developmental disturbance”. The expulsion applied for a period of five years during which the first applicant would not have the opportunity to help his daughter upon visits in the country. As already mentioned, the family contact would instead be maintained through visits in Turkey. Nor in this respect could there be a question of any extraordinary burden.

The Supreme Court, having regard the Court’s case-law, notably Darren Omoregie and Others v. Norway (no. 265/07, §§ 57 and 66, 31 July 2008) and the criteria of “exceptional circumstances” and “insurmountable obstacles” relied on there, concluded that the first applicant’s expulsion would not give rise to a violation of Article 8. His expulsion would not constitute a disproportionate measure vis-à-vis the other family members.

On 16 July 2011 the first applicant was expelled to Turkey.

The second to fifth applicants were granted Norwegian citizenship on 24 January 2012.


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Gaël Coste, is a French national who was born in 1973 and lives in Marseille, France. He is represented before the Court by Ms A. Lończyk-Colin, a lawyer practising in Ruda Śląska.

In October 2009 the applicant’s daughter, A.S.C., was born out of his informal relationship with A.S., a Polish national. The family lived together in Paris.

In 2011 the couple split up and A.S. and A.S.C. moved to Poland with the applicant’s consent.

Since then, the applicant has maintained his contact with his daughter through frequent phone calls, regular meetings in Poland and several meetings in France. During these visits, the child was always accompanied by her mother, who would not allow the child to make unaccompanied visits to Poland or to travel to France without her.

The child does not speak French. Her mother occasionally teaches her French and reads to her in this language. The applicant communicates with his child in basic Polish or through the child’s mother. He pays child support and tuition for the child’s private school.

On 13 March 2013 the applicant applied for contact with his daughter. He did not ask for an interim order to be issued to secure his contact rights during the proceedings. He wished to take his daughter to France every year in the month of July, for the All Saints’ holiday, and for the Christmas or Easter holidays in alternate years.

On 11 June 2013 the Płock District Court ordered a report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, “the RODK”) to establish what kind of bond existed between the applicant and his child, the quality of the direct communication between the applicant and the child, and whether the child’s travel to France without the mother and contact between the applicant and the child without the presence of the mother or an interpreter would be contrary to the child’s best interests.

On 31 July 2013 ‒ following interviews with both parents and the child, which took place in the presence of a French interpreter ‒ the RODK produced an expert report. It was found that the child had a strong bond with both parents and that both of them were considerate, emotionally balanced and loving. It was also concluded that the quality of the linguistic communication between the applicant and his daughter was good and sufficient for the applicant to understand the needs of his child and for their mutual communication and that it was in the child’s best interests that contact arrangements be made. It was also recommended that before the applicant travelled with his daughter to France, they should have several unaccompanied meetings in Poland and that the child’s mother should accompany the child on a trip abroad.

On 26 March 2014 the Płock District Court (Sąd Rejonowy) dismissed the applicant’s application. The domestic court heard both parents and a witness. The domestic court also relied on the RODK report which was considered to be full and thorough, although it led the domestic court to draw partly different conclusions. In particular, it was held that the quality of the independent communication between the applicant and his child was not sufficient for carrying out long-term unaccompanied visits to France. Even though the lack of adequate linguistic exchange might not have significantly impeded the applicant’s play-time with his child as tested by the RODK, the lack of a common language between a father and a fouryear-old constitutes a serious obstacle to their contact in the longer term. In particular, the child would not be able to inform the applicant about her feelings or possible health disorders, and she would therefore not feel secure in the new environment. In this respect, the domestic court considered the RODK report to be inconsistent because, on the one hand, the experts had found that the quality of the communication between the father and the daughter was sufficient whilst, on the other, they recommended a transitional period during which the child would be accompanied by her mother on trips to France and the father could meet her without any linguistic assistance in Poland. In view of these considerations and the child’s young age, the domestic court held that ensuring her feeling of security ‒ which would in turn guarantee her adequate development and the proper course of the meetings ‒ was more important than her independent contact with her father. The domestic court had no doubt that the applicant had a right to unaccompanied contact with his daughter and that he had adequate parenting skills for such contact. But the language barrier between him and his child was an obstacle. The district court upheld the recommendation of the RODK experts that the child should be prepared for future independent contact by means of unaccompanied meetings in Poland and visits to France in her mother’s company. Eliminating such a transitional period would deprive the child of the possibility of a gradual adaptation to such a new and important event as unaccompanied travel with her father to France. The domestic court decided not to rule on any contact arrangements during the transitional period because the applicant had not requested it in his application.

The applicant appealed on the merits, including the grounds that a family court was duty-bound to rule on contact arrangements when the parties were in disagreement. The applicant also applied for an interim order for the duration of the appellate proceedings by virtue of which he would be authorised to have his daughter’s passport and to spend the month of August 2014 and the first weekend of every month with the child without the mother’s presence.

On 17 July 2014 the Płock Regional Court (Sąd Okręgowy) issued an interim order authorising the applicant to visit his daughter between 1 and 7 August and 23 and 30 August 2014 in her home in Poland from 10 a.m. to 6 p.m. without the presence of any third parties, and to take his daughter out for no longer than three hours (with the mother having a right to one phone call during this time). A copy of this decision has not been submitted. It appears that the applicant did not lodge an interlocutory appeal.

The applicant met his daughter in compliance with the above interim decision. He spoke with her mainly in French.

The applicant later modified his application for contact, wishing to spend his time with the child in Poland, the first weekend of every month ‒ from 5 p.m. on Friday until 7 p.m on Sunday ‒ in the period up until June 2015, and from 10 p.m. on 23 December until 7 p.m on 2 January, with the right to take her to his home. In the later phase, he wished to have extended contact rights as set out in his 2013 application.

On 24 September 2014 the Płock Regional Court amended the first-instance decision by authorising the applicant to visit his child the first weekend of every month, on Friday between 5 p.m. and 7 p.m., on Saturday from 10 a.m. to 7 p.m. and on Sunday from 10 a.m. to 6 p.m., and every day from 9 a.m. to 7 p.m in the period from 1 to 21 July. The meetings were to take place at the child’s home without the presence of the mother or any third parties. The applicant was also authorised to take the child out for a maximum of four hours, with the mother being entitled to one phone call. Additionally in July, the applicant was authorised to take the child out for a maximum of six hours and, every third day, to take the child to his place of residence in Poland and to travel alone with the child within a radius of 50 km for a maximum of eight hours, with the mother being entitled to two phone calls.

In the domestic court’s view, such a schedule would deepen the bond between the father and the child and would help them improve their communication without the risk of the child feeling insecure. It was observed that the schedule was a temporary solution of indeterminate duration until the child reached a certain level of maturity and learned to speak French, which would be necessary in order for her to make unaccompanied visits to France.

The applicant regularly travels to Poland to exercise his contact right in line with the above schedule.

He has recently submitted to the Court, however, that since 3 October 2014 A.S. had been interfering with the course of his visits by remaining present in the room designated for the applicant’s visits and not letting him take the child out. Out of sixteen recent visits, the applicant had been allowed to take his daughter out only eight times, including twice after police intervention. The time out had often been shorter than four hours and A.S. had telephoned her daughter more frequently than was authorised by the family court.

On 16 June 2015 the applicant applied for A.S.’s custody to be restricted on the grounds that she had been hindering his contact with the child.

In the course of these proceedings, A.S. made the following submissions to the family court.

The applicant is not being impeded from having contact with his daughter in line with the court’s decision of 24 September 2014. In particular, a room with toys is at his disposal in A.S.’s house and his visits are undisturbed by the child’s mother. The applicant is in principle allowed to take his child out for four hours, with the mother telephoning only once. Out of twenty-seven recent meetings between the applicant and his daughter, the child did not go out with the applicant on only ten occasions. On these occasions, either the child was ill or the weather was bad or the child did not want to go out. To substantiate this, A.S. presented a medical certificate confirming that the child had bronchitis in April 2015. She also submitted that on 6 June 2015 she had called the police after the applicant had used physical force to carry his crying and struggling daughter outside. That day the police had told the applicant to leave.

A.S. also informed the family court that the applicant provoked disputes and threatened her with child abduction. Moreover, the applicant filmed A.S. during each visit, following her inside the house. The applicant’s visits were becoming more and more unpleasant for the child because he never brought books or toys to play with and was unable to entertain the child due to the language barrier. He sometimes gets angry with his daughter and makes her cry. He has also used firm grips to stop her from leaving the room. On one occasion he had left bruises on the girl’s arms. If the child does not want to go out with the applicant, the latter calls the police. On one occasion, he did so when the child was in bed with fever. The child associates his visits with violence and police intervention.

On 13 July 2015 the Płock District Court issued an interim decision ordering the visits to the child to be supervised by a court bailiff who was to report to the family court once a month. The aim behind this decision was to verify A.S.’s parenting attitude and to enable the applicant to exercise his contact right. It was emphasised that the decision had a temporary character and was susceptible to change in the event of new circumstances and if the best interests of the child so required.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1939 and lives in County Antrim.

On 6 January 1996 the applicant’s son, Mr James McDonnell, was remanded in custody to Crumlin Road Prison in Belfast. Since that prison had to close, all prisoners were to be transferred on 30 March 1996 to HMP Maghaberry.

On the morning of 30 March and prior to his transfer, Mr McDonnell was informed that his father had died suddenly during the night. Upon hearing the news, the applicant asked to be moved to a single cell. At 10.50 a.m. he was transferred to HMP Maghaberry. His cell was not ready on arrival so he waited in the recreation area. When a prisoner officer informed him that he would share a cell, Mr McDonnell said that he would wreck it. A principal officer was informed.

At 12.15 p.m. Mr McDonnell was informed his cell was ready and he said that he would hit the first prisoner who came into it. The principal officer was informed.

At 2.10 p.m. another prisoner, with two prison officers, arrived to share the cell. Mr McDonnell said that he wanted to be left alone. He left the cell and announced that he was going to the Punishment and Segregation Unit (“PSU”). There was then a scuffle between several prison officers and Mr McDonnell, which resulted in his being wrestled to the ground and physically restrained. He was brought to a standing position and, while still restrained, was taken to the PSU at approximately 2.20 p.m. A body search was carried out at the PSU with his consent. He was also examined by a medical officer, who noted that he had suffered bruising and grazing and was experiencing discomfort in his chest. The medical officer left at approximately 2.30 p.m. Statements later taken from prison officers and prisoners diverged as regards, inter alia, the circumstances of the incident, the level of restraint used and whether Mr McDonnell had been beaten.

At 3.45 p.m. on the same day Mr McDonnell was found unconscious in his cell in the PSU having suffered a heart attack. A number of unsuccessful attempts were made to resuscitate him. He was declared dead at 4.15 p.m.

On 30 March 1996 the first autopsy was conducted by Professor Crane, the State Pathologist for Northern Ireland. Professor Crane noted that Mr McDonnell had suffered a fracture to the hyoid bone in the neck, consistent with being grasped by a hand, and that it appeared that Mr McDonnell had suffered a heart attack some 12-24 hours prior to his death. He found that:

“[the earlier heart attack] ... could ... have precipitated a fatal upset in the heart rhythm at any time ... [T]he possibility that the stress of the incident shortly before his death played some part in the fatal outcome cannot be completely excluded.”

Professor Crane’s report was sent to the Coroner in April 1997.

A further autopsy was carried out on 2 April 1996 by Professor Vanezis. Professor Vanezis reported that Mr McDonnell’s thyroid cartilage was also fractured and that there was bruising to the area. He could not exclude that stress suffered while being restrained had contributed to the cause of death.

An initial copy of the report was provided to the Coroner in March 1997. A copy was sent by the Coroner to Professor Crane for consideration in April 1997. Having considered Professor Crane’s autopsy, Professor Vanezis produced, on 26 June 1997, a supplemental report confirming his own previous findings.

The Northern Ireland Civil Liberties Council requested a report from Dr Kirschner of the International Forensic Programme, Chicago. Dr Kirschner considered the reports of Professors Crane and Vanezis as well as other material including statements from prisoners in the deceased’s cell block. Dr Kischner’s report of 7 September 1997 concluded:

“[I]t is my opinion within a reasonable degree of medical and scientific certainty that the injuries that James McDonnell suffered approximately one hour prior to his death were a direct and proximate cause of his death. It is furthermore my opinion that the cause of death should be recorded as: Myocardial Ischaemia due to Multiple Blunt Trauma Injuries and Near-Asphyxiation.”

He was of the view that Mr McDonnell’s death should be classed as a homicide.

A copy of Dr Kirschner’s report was provided to the Coroner, together with a final copy of the report of Dr Vanezis, on 17 May 1999. In view of its controversial nature, the Coroner sent Dr Kirschner’s report to Professor Crane and to the police for their consideration. The police referred the matter to the Director of Public Prosecutions (“DPP”) and the DPP requested a further report from Professor Crane. The latter recommended that a second opinion on Mr McDonnell’s cardiology history be requested from Professor Knight. The Coroner requested a report from Professor Knight in June 1999.

Professor Knight reviewed the above three reports as well as primary autopsy data. On 30 June 1999 he completed his report in which he agreed with the reports of Professor Crane and Vanezis. Professor Knight concluded that the immediate cause of death was a fatal heart attack, but he considered that the emotional and physical effects of the prior restraint could have been a contributory or precipitating factor. He considered the report of Dr Kirschner to be flawed in both fact and opinion.

A copy of Professor Knight’s report was provided to the Coroner in July 1999 and sent immediately to the police, the DPP, Professor Crane and the applicant’s solicitors.

Meanwhile, an investigation into Mr McDonnell’s death was commenced by the Royal Ulster Constabulary (“RUC”). Twenty-one statements were taken from prisoners in March and May 1996. Eighteen prison officers were interviewed and statements were taken from eight of them in March 1996. Following the first autopsy, the eight officers were again interviewed under caution about, inter alia, the injuries noted on the deceased’s body.

On January 1997 a file was presented to the DPP. On 16 May 1997 the DPP gave a “no prosecution” direction.

The DPP reviewed his decision in 1999 on receipt of the report of Professor Knight (see paragraphs 18 and 20 above), but on 4 August 1999 gave a further “no prosecution” direction.

Following an inquiry from the applicant’s solicitor in May 2002, the DPP informed her by letter of 5 August 2002 of his decisions of 1997 and 1999.

On 8 November 2000 the applicant issued civil proceedings against the Prison Service of Northern Ireland. It appears that the writ has never been served.

The Police Service Northern Ireland (“PSNI”) replaced the RUC in 2001. In 2004 the Serious Crime Review Team reviewed the original investigation and concluded that extensive research into the case had not uncovered any new evidential material or investigative opportunities.

In 2001 the applicant made a complaint to the Police Ombudsman about the investigation into her son’s death. In February 2002 investigators from the Ombudsman’s office met with Professor Vanezis to discuss certain prisoners’ statements. On 2 May 2003 Professor Vanezis provided a further report to the Ombudsman confirming his view that Mr McDonnell had died from a heart attack but that stress relating to the restraint had contributed to his death.

The subsequent conclusions of the Ombudsman were as follows:

“The Police Ombudsman has reviewed all the police documentation relating to the investigation into James McDonnell’s death. This includes the subsequent reviews undertaken by PSNI.

The investigation into the death of James McDonnell was thorough and complete. The family of Mr McDonnell were not kept up-to-date with the investigation. This was not uncommon in 1996. However, with the advent of the emphasis on Family Liaison in any investigation into a sudden death, it is hoped that different standards would be applied today.

Whilst the investigation was thorough and the DPP directed no prosecution against any of the prison officers involved in the restraint of James McDonnell prior to his death, some of the injuries suffered by James McDonnell have never been satisfactorily explained. This is particularly true of the injuries to Mr McDonnell’s throat. The police investigation was not able to properly deduce which of the prison guards, if any, may have inflicted the injuries, primarily the fracture of the hyoid bone. It is hoped that the inquest will allow the family of Mr McDonnell the opportunity to seek the answers to the questions that they have had since 1996.”

Meanwhile, following the decision of the DPP in 1997 not to bring any criminal prosecutions (see paragraph 22 above), the inquest was listed for a hearing on 2 February 1998. By letter dated 7 January 1998 the applicant’s solicitor sought an adjournment to await the outcome of pending judicial review proceedings concerning entitlement of family members of a deceased to legal aid at inquests (Sharon Lavery v. Secretary of State and Legal Aid Department). The Coroner adjourned the inquest until May 1999.

In October 1998 the Coroner wrote to the Court Service to inform them that inquests, including the inquest into the death of the applicant’s son, were delayed by reason of the pending judicial review proceedings.

On 16 March 1999 the High Court handed down its judgment in Sharon Lavery ([1999] NIQB; p. 6 and p. 1905), finding that there was no entitlement to legal aid at inquests.

As noted above (see paragraph 18), in May 1999 the Coroner was provided with a copy of the report of Dr Kirschner. He adjourned the inquest to obtain another report from Professor Knight, which was completed in June 1999 (see paragraph 20 above). In July, the inquest was re-scheduled for November 1999.

In the meantime, in September 1999, the Crown Solicitor’s Office advised that it would apply to maintain the anonymity of the prison officer witnesses. The hearing date of November 1999 was vacated because of that application but also to facilitate the attendance of Dr Kirschner.

In 2000 the inquest was further adjourned to allow the applicant to seek disclosure on the basis of a new Home Office Circular (issued in April 1999). The applicant also indicated to the Coroner that she intended to issue a judicial review challenge in relation to the pre-inquest disclosure by the PSNI. In August 2000 the applicant informed the Coroner that she no longer intended to issue judicial review proceedings and wished a hearing date to be set.

In December 2000 the applicant informed the Coroner that her expert, Dr Kirschner, would not be available until March 2001. The inquest was accordingly listed to commence on 5 March 2001.

In February 2001, with the applicant’s acquiescence, the inquest was again adjourned pending this Court’s judgment in Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001III (extracts)). Judgment in the case was delivered on 4 May 2001.

Following delivery of the judgment, no inquests were listed from September 2001 to February 2002 pending the amendment of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”).

Between January 2002 and March 2007 inquests which gave rise to Article 2 issues were adjourned pending judicial review actions concerning the scope of the inquest (Regina v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51; and R (Middleton) ν. West Somerset Coroner ([2004] 2 A.C. 182)) and the application of Article 2 to deaths which pre-dated the Human Rights Act 2000 (In re McKerr ([2004] UKHL 12; and Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14).

The latter judgments, delivered by the House of Lords on 11 March 2004 and 28 March 2007 respectively, confirmed that Article 2 did not apply to cases where the deaths in question pre-dated the Act.

In August 2007 the Coroner wrote to the applicant informing her that nineteen inquests had been adjourned pending the outcome of proceedings before the House of Lords and were now ready to proceed.

A preliminary hearing took place on 2 April 2008. On that date, an inquest hearing date was fixed for October 2008. The Coroner subsequently sought copies of the interviews and statements of prison officers taken by the police and of the statements taken from certain prisoners. He gave directions on any anonymity claims that might be made on behalf of any of the witnesses.

On 16 May 2008 the Crown Solicitor’s Office confirmed that it acted for eight prison officers who were seeking anonymity and screening. A further preliminary hearing was listed for 10 October 2008 to address the matter.

On 10 October 2008 the Coroner was informed that individual threat assessments would have to be conducted in respect of each officer seeking anonymity and screening and no timescale for the completion of this process was available.

A preliminary hearing took place on 6 November 2008 at which the Coroner issued a ruling on applications for anonymity and directed that any applications for anonymity be filed and served by 1 December 2008. The inquest was provisionally listed to commence on 3 February 2009.

In December 2008 the Coroner was advised that it would take up to three months for the threat assessments to be completed. It was therefore necessary to postpone the February 2009 inquest start date. The applicant’s solicitor was notified by letter dated 15 December 2008.

In May 2009 the Coroner received the threat assessments in respect of the prison officers seeking anonymity. He was, at that time, involved in another complex inquest.

In October 2009 the applicant instructed new legal representation. The Coroner sought confirmation from the newly-appointed solicitors that legal funding was in place. The solicitors responded that they were in discussions concerning legal funding and would provide an update in due course.

On 24 February 2010 the applicant’s new solicitors made detailed status enquiries of the Coroner’s Office and emphasised that to date the applicant had received no disclosure. On 22 March 2010 the Coroner replied that he had received some documents from the PSNI. On the same date, he again wrote to the PSNI requesting that full disclosure with any proposed redactions be provided for his consideration by 14 May 2010. New risk assessments for the prison officers seeking anonymity were also requested.

No disclosure was made by the deadline set. Reminders were issued on 10 June, 26 June, 21 July and 12 August 2010.

The updated risk assessments were received by the Coroner on 21 July 2010.

A preliminary hearing was listed on 8 September 2010 in order for the Chief Constable of the PSNI to explain the delay in providing disclosure. The hearing was rescheduled for 8 October 2010 owing to the unavailability of counsel.

At the hearing on 8 October 2010, the anonymity of prison officer witnesses and PSNI disclosure were debated. The Coroner ordered the PSNI to make disclosure by 19 November 2010 and scheduled a hearing for 3 December 2010. Disclosure was not made as ordered and that hearing date was vacated.

On 23 March 2011 disclosure was received by the applicants from the PSNI. All prison officer details were removed from the statements and no initials were retained, so that it was impossible to understand which officer was referred to at any given point in the statements. The applicant requested initials (“ciphers”). The Coroner requested the PSNI to provide the disclosure again, with ciphers. By letter dated 28 April 2011 the Coroner confirmed to the applicant that the statements would be provided with ciphers and allowed twenty-one days from receipt of those statements with ciphers for the applicant to make submissions on anonymity and screening.

On 18 May 2011, and in light of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009, the Supreme Court overruled the judgments of the House of Lords concerning the applicability of Article 2 to pre-Human Rights Act deaths (see paragraphs 38-39 above) and accepted that such inquests should be compliant with Article 2 (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20).

Following reminders by the applicant to the Coroner in April, July, August and September 2011, on 6 September 2011 the statements with ciphers were provided to the applicant.

The applicant subsequently instructed a forensic pathologist, Dr Carey, to address the disputed issue of causation. Dr Carey requested access to primary data concerning the autopsy (post-mortem photographs, histology slides and the pathologist contemporary notes) and in April 2011 the applicant requested the Coroner to provide the material. The Coroner wrote to Professor Crane on 28 April 2011 asking that he make the material available to Dr Carey. In July 2011 Professor Crane replied querying the authority for the disclosure of his notes. By letter dated 1 September 2011 to the Coroner, the applicant contested Professor Crane’s refusal to provide access. Professor Crane subsequently agreed to provide the histological slides, and they were furnished in October 2011. In November 2011 the Coroner received Professor Crane’s notes and copies were provided to the applicant.

The Coroner received a copy of Dr Carey’s report in late November 2011. A preliminary hearing was listed on 10 January 2012.

At the hearing in January 2012, a revised timetable for the anonymity applications was put in place and the inquest was listed to commence on 26 November 2012, the first available date taking into account the Coroner’s existing commitments and the need for a suitable courtroom bearing in mind the estimated length of the inquest and its circumstances. A provisional witness list and timetable were circulated in February 2012.

In May 2012 Professor Crane provided his response to the report of Dr Carey. Additional comments from cardiac pathologist Dr Sheppard were circulated to the other legal representatives. The applicant sought disclosure of all correspondence between Professor Crane and Dr Sheppard.

An issue arose in May 2012 in respect of the threat assessments for the prison officers. After protracted correspondence, the issue was resolved by July 2012 and the threat assessment process commenced. By October 2012 some of the assessments remained outstanding. The Coroner decided that the inquest could not proceed in November 2012 and adjourned it until February 2013.

In December 2012 the applicant sought further disclosure of any other incidents which resulted in harm to a prisoner in which the prison officer witnesses had been involved, as well as details of any disciplinary proceedings against them.

The four pathology experts were not available in February 2013 and the Coroner was also unavailable as a result of illness. The Senior Coroner took over the case and listed the inquest to commence on 17 April 2013.

The correspondence between Professor Crane and Dr Sheppard was disclosed in March 2013.

The inquest commenced before the Senior Coroner on 17 April 2013. At the start of the inquest, the Coroner made a decision to grant anonymity to the prisoner officer witnesses.

The inquest ended on 16 May 2013. The narrative of the jury’s verdict explained:

“The Northern Ireland Prison Service has explained the majority of the injuries sustained by Mr McDonnell. However, it has not explained the injuries to Mr McDonnell’s neck and lumbar region.

The Northern Ireland Prison Service failed to carry out best practice in regard to bereavement of a prisoner.”

The jury’s answers to the specific questions posed can be summarised as follows:

(i) Mr McDonnell was subject to a control and restraint procedure and a relocation procedure on 30 March 1996 as a result of his violent behaviour.

(ii) The use of the procedure was necessary but it was not carried out correctly.

(iii) The use of the procedure was not carried out only in so far as necessary.

(iv) The neck injuries recorded in Mr McDonnell’s post mortem appeared to have been sustained during the initial restraint when he was grabbed by the neck.

(v) The factors contributing to Mr McDonnell suffering a fatal heart attack were: the initial restraint; neck compression; the control and restraint procedure as carried out in this instance; underlying heart conditions; and emotional stress.

(vi) The Northern Ireland Prison Service has not explained how he sustained the injuries found in the post mortem.

(vii) There were defects in the procedures used that caused or contributed to the death of Mr McDonnell. There were: excessive force; prison officers not being trained in the application of aspects of Prison Guidelines, such as discretion on releasing control and restraint, and failures in the duty of care towards prisoners.

At the conclusion of the case the Senior Coroner referred the case to the DPP pursuant to section 35(3) of the Justice (Northern Ireland) Act 2002. The DPP was notified by letter dated 30 May 2013.

A decision by the DPP on whether to commence any criminal prosecutions is awaited.

The applicant commenced judicial review proceedings regarding the anonymity order made in respect of the prison officer witnesses at the inquest. She contended that this aspect of the inquest failed to comply with Article 2 of the Convention because it denied the inquest the requisite degree of transparency and accountability since the identities of those concerned were withheld from the next of kin and their conduct was not subject to public scrutiny. She did not seek the quashing of the jury’s verdict.

The judicial review hearing took place on 24 and 25 February and a decision was issued on 15 May 2014. The court rejected the applicant’s challenge. According to the latest information available to the Court, the applicant was considering whether to lodge an appeal against the decision.


CASE OF KOKA HYBRO KOMERC DOO BROYLER v. SERBIA

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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

On 26 June 2006 the Leskovac Commercial Court ordered AD Perper-Agrar, a socially-owned company based in Bošnjace (hereinafter “the debtor”) to pay the applicant specified amounts on account of damages. That judgment became final on 14 July 2006.

On 31 October 2006, upon the applicant’s request to that effect, the Leskovac Commercial Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

On 27 May 2011 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor.

The applicant duly submitted his claim.

On 3 February 2012 the applicant’s claim was formally recognised.

The insolvency proceedings are still ongoing.

On 22 April 2003, the debtor had been privatised and changed its name to AD Perper-Agrar.

On 5 May 2005 the privatisation contract had been annulled and on 8 September 2006 the debtor’s name was changed to Agrar Fruit.

According to the Serbian Ministry of Economy, the debtor is still a company predominantly comprised of socially-owned capital (see http://www.priv.rs/Ministarstvo-privrede/90/AGRAR-FRUIT--u-stecaju.shtml/companyid=1238, accessed on 6 December 2016).

In their additional observations of 19 April 2016 the Government informed the Court that the applicant had transferred its judgment claims to a third person on 28 October 2015.

On 9 November 2016, as a response to the Government’s additional observations, the applicant submitted that the contract regarding the transfer of the claims in question had been terminated by 11 December 2015.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court)

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and of the lack of any effective remedy in domestic law.


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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1965 and lives in Ljubljana. Following a request for a criminal investigation against the applicant lodged by M.K. on 25 March 1999 and amended on 9 July 1999, on 30 July 1999 the applicant was summoned as accused to appear before the investigating judge of the Ljubljana District Court. He was also notified of the charge of aggravated fraud under section 217 § 2 of the Criminal Code, and the underlying allegations submitted by M.K.

On 6 September 1999 the applicant was heard by the investigating judge. He denied the charge and submitted a number of documents in support of his position that the accusations were fabricated and unfounded, but was unwilling to answer any of the questions posed by M.K.’s legal counsel.

On 17 September 1999 the investigating judge of the Ljubljana District Court issued an order for an investigation of aggravated fraud against the applicant. In the course of that investigation, two witnesses were heard who confirmed M.K.’s version of events. The applicant was not present during these examinations, although the investigating judge ordered him to be notified thereof. Judicial records contain no evidence that the applicant received a summons.

After the investigation was concluded, on 10 November 1999, the Ljubljana District State Prosecutor’s Office took over the proceedings and on 4 February 2000 lodged an indictment for attempted aggravated fraud under Article 217 §§ 1 and 2 in conjunction with Article 22 of the Criminal Code. The indictment stated that the applicant had deceived M.K. into believing that he could assist her in preventing her husband from claiming ownership of her share of their joint property, namely the family house. The applicant had taken advantage of M.K.’s age and naivety and persuaded her to sign a fictitious loan agreement stating that he would lend her 50,000 German marks (DEM), equivalent to 4,691,500 Slovenian tolars (SIT), which was to be secured with a mortgage on her share of the family house, despite the fact that M.K. did not owe him anything, which he was well aware of. For this purpose, the applicant had M.K. sign an authority form authorising him to take all measures necessary for the execution of the loan agreement. On that basis, the applicant had the mortgage against M.K.’s property entered in the land register, prejudicing the value of her property in the amount of SIT 4,691,500. Moreover, M.K. paid the applicant SIT 225,000 in several instalments for the “favour” he had done her.

Having been served with the indictment, the applicant lodged an objection, reiterating that M.K.’s accusations of fraud were fabricated and arguing that he would not be able to enter a mortgage in his favour in the land register without M.K.’s cooperation. The objection was rejected by the pre-trial panel on 7 July 2000. The latter noted in its decision that the criminal offence should be reclassified as attempted fraud under Article 217 § 1 in conjunction with section 22 of the Criminal Code, as the value at issue did not reach the statutory threshold of significant pecuniary damage. Accordingly, the Ljubljana District Court no longer had jurisdiction over the case, which was to be referred to the Ljubljana Local Court. The applicant was served with the decision and appealed against it; however, his appeal was dismissed as unfounded.

Following the transfer of jurisdiction to the local court, the ensuing court proceedings were conducted under the rules of summary procedure.

The applicant having failed to collect the first two summonses to the hearing which was to take place on 22 January 2002, the hearing was rescheduled for 29 March 2002. A summons to this later hearing was served on the applicant on 4 February 2002 through the court courier service at both his home and his work address, and subsequently on 6 February 2002 by post, again at both his home and his work address. On 28 March 2002 the applicant sent a letter to the court in which he objected to the hearing, alleging that he had received four identical summonses which contained no explanation but only an indication of legal classification of the criminal offence in question. The applicant’s objection to the hearing was received by the local court on 29 March 2002.

On 29 March 2002 the Ljubljana Local Court held a hearing in the absence of the applicant, having found that he had not provided justification for his absence, although he had been duly summoned, that he had already been questioned during the investigation, and that his presence at the hearing was not necessary to establish the facts of the case. Thus, the legal requirements for trial in absentia had been met. The court examined M.K. and the two witnesses who had already been questioned during the investigation; their accounts corresponded to their previous statements. In her concluding remarks the district state prosecutor modified the indictment, reclassifying the offence to the actual criminal offence of fraud, rather than attempted fraud. She also added some details to the facts on which the indictment was based, in particular the allegation that the applicant had lied to M.K. that there would be expenses with regard to the entry of the mortgage in the land registry, for which she had paid him a total of SIT 225,000.

Having concluded the hearing, the court found the applicant guilty of the criminal offence as specified in the modified indictment, and sentenced him to seven months in prison. M.K. was invited to pursue her pecuniary claim in civil proceedings.

The applicant appealed to the Ljubljana Higher Court, arguing that the statement he had given during the investigation could not suffice for the trial purposes, as an indictment had not yet been lodged and thus could not be disputed. He pointed out that a statement given in the investigation could relate to one criminal offence, while the indictment could be lodged for a completely different criminal offence. He was therefore of the view that the provisions on trial in absentia should only be applied to cases where the defendant was questioned after the lodging of the indictment. Moreover, he disputed the credibility of the two witnesses and referred to the loan agreement and other documents he had submitted to the court during the investigation, claiming that M.K. was evading her contractual obligations and charging him with fraud for that reason. He also challenged the imposed prison sentence.

On 18 September 2002 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment. The higher court found that the applicant’s defence right had not been violated by the fact that he was not present at the hearing. It noted that the accused had the right to attend the summary proceedings, but that he was not obliged to do so. The court noted that the applicant had been heard during the investigation, had received the indictment and had been duly summoned to the hearing, where he would have had the opportunity to make a statement and examine witnesses against him. However, given that the facts of the case had been clear and fully established, the higher court took the view that the applicant’s presence at the hearing had not been necessary. In this connection, the court held that a hearing should only be discontinued if the description of the criminal offence in the indictment, albeit based on the same factual elements as before, was substantially changed. In such a case, the defendant ought to be informed thereof and summoned to attend a new hearing. However, this was not the case in the circumstances complained of by the applicant.

The applicant appealed on points of law, reiterating that he should not have been tried in absentia, as he had been questioned only before the indictment was lodged. Moreover, he had not been given the opportunity to cross-examine the witnesses against him.

On 13 November 2003 the Supreme Court delivered its judgment, in which it upheld the lower courts’ decisions. The Supreme Court found that the offence which prompted the investigation against the applicant was identical to the offence with which the applicant was later charged. Furthermore, the hearing before the court did not bring to light any new information that had not already been uncovered during the investigation. Referring to section 442 of the Criminal Procedure Act, which sets out the conditions for conducting a hearing in absentia, the Supreme Court noted that the defendant had the right to attend the hearing, but that this right could under certain circumstances be waived. It also noted that the applicant had been duly summoned and warned that the hearing could be held in his absence. As regards the examination of witnesses during the investigation, the Supreme Court noted that while there were no indications in the case file that the applicant had been notified of it, this procedural breach had been remedied by the hearing at which M.K. and the other two witnesses had been re-examined. The applicant had had the opportunity to attend the hearing, but had waived his right.

The applicant lodged a constitutional complaint, which was declared admissible on 29 May 2006.

On 9 November 2006 the Constitutional Court delivered a decision finding that the applicant’s constitutional rights had not been violated. The court noted that the applicant had been heard during the investigation and that the charges in the request for the investigation and the indictment which had been lodged after the investigation and served on him had concerned the same acts and the same alleged offence, regardless of some differences in the wording. They both charged the applicant with misleading M.K. into concluding a fictitious agreement with him with the intent of acquiring illicit pecuniary gain. Observing that the indictment had been modified at the hearing, the Constitutional Court held that although the offence had been reclassified as actual fraud, and no longer as attempted fraud, the charge had remained the same in terms of content as regards the applicant’s conduct and the circumstances in which the offence had been committed. Having regard to that, as well as the fact that the applicant had been duly summoned to the hearing and had failed to provide any valid reason for his absence, the Constitutional Court held that the local court had had no obligation to ensure the applicant’s presence at the hearing. Moreover, the Constitutional Court observed that the applicant had not even alleged that the criminal offence which was the subject of the investigation was different from the one examined at the court hearing. He had merely drawn attention to the fact that “a prosecutor may file an indictment for a completely different criminal offence after the investigation is completed”. It was also found that the applicant could have requested an adjournment of the hearing, but did not do so, and instead had failed to appear without specifying any valid reason. Finally, as regards the examination of the witnesses, the Constitutional Court reached the same conclusion as the Supreme Court had previously.