André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant, Mr Anatoliy Yakovlevich Loyko, is a Ukrainian national, who was born in 1948 and lives in Jelgava. He was represented before the Court by Ms R. Matjušina, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine.

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

Between 7 and 8 October 2004 the applicant and an acquaintance were consuming alcohol together when a fight broke out between them and the acquaintance died. The applicant, still under the influence of alcohol, asked the neighbours to call an ambulance or the police, who arrived at 4.23 a.m. on 8 October 2004. The applicant was placed under administrative arrest and admitted to a sobering-up facility at 5.10 a.m.

At noon on the same day the applicant was placed under arrest on suspicion of having committed the offence proscribed by section 125(3) of the Criminal Law (Krimināllikums) (see paragraph 34 below). The record of the arrest stated that the applicant had been sober and also contained his signature to confirm that he did not need a lawyer.

Between 12.25 and 12.55 p.m. the police questioned the applicant as a suspect. The record of the interview indicated that the applicant was suspected of the offence under section 125(3) of the Criminal Law for having inflicted severe injury causing death. It further contained the applicant’s signature to confirm that he had been informed of the right to ask for a lawyer. He also signed a note made in Russian stating that he wished to give evidence in Russian and that he did not need a lawyer. According to the applicant, this note was written in his handwriting. The applicant declared that the victim had started the fight and that he had acted in self-defence.

On 15 October 2004, between 10 and 10.50 a.m., the police visited the crime scene together with the applicant to verify his statements. Between noon and 12.10 p.m. the applicant was questioned. The record of the interview contained his signature to confirm that he had been informed of the right to have a lawyer present. It further stated that the applicant had wished to give evidence in the presence of a lawyer. The same day the applicant was provided with State-appointed lawyer I.C.

On 26 October 2004 the police questioned the applicant in the presence of I.C. The applicant gave further details concerning the incident. He confirmed that the victim had started the fight and that he had acted in self-defence.

On 27 October 2004 the applicant was charged with murder under section 116 of the Criminal Law. The same day he was questioned as an accused in the presence of I.C. The applicant stated that he was not guilty. He had hit the victim because the latter had attacked him.

On 7 December 2004 the applicant again declared, in the presence of I.C., that he was not guilty. He did not wish to add anything to his previous statements. The same day the applicant and I.C. familiarised themselves with the case file. The applicant stated that he had understood its content and did not wish to make any requests or remarks.

On 9 December 2004 the applicant was committed for trial.

On 25 January 2005 a hearing was held before the court in Jelgava. I.C. was present. The applicant testified that he had caused the victim’s death but it had not been his intention to kill him. The applicant expressed his remorse.

According to the transcript of the hearing, I.C. asked two questions, one to the applicant and the other to his former wife. In her closing statement, I.C. stated, inter alia, that the applicant had not started the fight. It had been the victim who had inflicted pain on him and this had prompted him to react. The applicant had been unable to understand the consequences of his actions because of the mental distress he had been caused. Following the incident he had actively sought assistance. The applicant had been the only witness to the incident and any doubts regarding the existence of facts relevant to the case had to be interpreted in his favour.

During the first-instance proceedings the applicant raised no complaints as regards his representation by I.C. He stated that no lawyer had been present during the first “investigation”.

On 26 January 2005 the first-instance court convicted the applicant of murder under section 116 of the Criminal Law and sentenced him to seven years’ imprisonment.

On 31 January 2005 I.C. lodged a one-page appeal against the sentence imposed by the first-instance court. Referring to the circumstances of the incident, she submitted that the applicant had not acted intentionally.

On 4 February 2005 the applicant lodged an appeal. He maintained that he had not intended to kill the victim. He raised no complaints as regards his representation by I.C. He stated that there had been several irregularities during the investigation, including the fact that he had not been provided with a lawyer.

On 8 February 2005 the court in Jelgava decided not to consider the applicant’s appeal on the grounds that he had not made any requests in it.

On 14 February 2005 the applicant lodged another appeal. He disagreed with the legal classification given to the facts. He had acted in self-defence and had not intended to kill the victim. He supported the appeal lodged by I.C. and requested that a more lenient judgment be rendered.

On 16 February 2005 another lawyer, I.D., undertook to represent the applicant in the criminal proceedings.

On 12 April 2005 an appeal hearing was held before the Zemgale Regional Court (Zemgales apgabaltiesa). I.D. was present. The applicant maintained that he had not intended to kill the victim. I.D. stated, inter alia, that the first-instance court had failed to consider all the mitigating circumstances, namely, the fact that the victim had started the fight and had been the first to hit the applicant. The incident had been brought about by the victim’

During the appeal proceedings the applicant raised no complaints as regards his representation by I.D. or I.C.

Following the appeal hearing, on 12 April 2005 the Regional Court dismissed the appeals by the applicant and his lawyer and upheld the lower court’s judgment.

On 27 April 2005 the applicant lodged an appeal on points of law against the aforementioned judgment. He disagreed with the legal classification given to the facts and argued that he had not intended to kill the victim. The applicant raised no complaints as regards his legal assistance or his representation by I.D. or I.C.

On 2 May 2005 the Regional Court decided not to consider the applicant’s appeal on the grounds that he had failed to substantiate it.

The same day the applicant supplemented his appeal on points of law. He disagreed with the legal classification given to the facts. He maintained that he had acted in self-defence and had not intended to kill the victim. He complained that initially he had been suspected of having inflicted severe injury resulting in death but subsequently had been charged with murder. When the offence had been reclassified I.C. had “sat and remained silent”.

By a final decision of 31 May 2005 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) refused to examine the applicant’s appeal on points of law.

On 27 July 2005 the applicant filed a complaint with the Latvian Bar Association regarding the quality of legal services provided by the first State-appointed lawyer during the preliminary investigation and the proceedings at first instance.

On 1 August 2005 the Bar Association replied that I.C. had acted in accordance with domestic law. It could be seen from the case material that she had defended the applicant’s interests.

On 30 October 2008 the applicant lodged a complaint with the Ombudsperson (Tiesībsargs). He stated that his right to a fair trial had been breached because he had not received legal assistance during the preliminary investigation.

On 13 January 2009 the Ombudsperson replied that the applicant’s right to a fair trial had not been breached. Following the preliminary investigation, I.C. had been requested to assist the applicant, followed later by I.D. According to the transcript of the hearings, both lawyers had defended the applicant.

Upon a further complaint by the applicant, on 14 January 2009 the Bar Association replied that I.C. had attended all the procedural activities to which she had been asked. She had lodged an appeal against the firstinstance judgment. The applicant had not complained about her services or requested another lawyer during the preliminary investigation or the first-instance proceedings.

The relevant provision of the former Code of Criminal Procedure (in force until 1 October 2005) provided as follows:

Article 98 – Mandatory defence

“The defendant must have defence counsel during the first-instance proceedings:

3) in cases involving persons (lietās par personām) who do not understand the language of the proceedings.

In the [aforementioned] cases of mandatory defence the defendant must also have defence counsel during the preliminary investigation...

In cases of mandatory defence, if the suspect [or] accused ... does not engage defence counsel and no one engages defence counsel on his or her behalf, an investigator, a prosecutor or a court shall ensure the participation of defence counsel in the proceedings.”

Under Article 99 the suspect and the accused had the right to refuse defence counsel on his or her own initiative.

Under section 125(3) of the Criminal Law infliction of severe injury which caused death by negligence was punishable by imprisonment for a term of three to fifteen years with or without police control for up to three years. Under section 116 of the Law murder was punishable by imprisonment for a term of five to fifteen years with or without police control for up to three years.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1955 and lives in Widełka.

The applicant has two children. Prior to his early retirement he had been employed and had paid his social security contributions to the State.

On 13 February 2002 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 21 December 2001. The certificate stated that the child (born in 1991) suffered from neurogenic bladder dysfunction and that she was in need of her parent’s constant care.

On 18 February 2002 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension.

The Social Security Board initially suspended the payment of the pension until the end of February 2002 due to the fact that the applicant was still working on the date of the decision.

On 28 February 2002 the applicant’s employment contract expired.

Consequently, on 1 March 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 943.88 Polish zlotys (PLN) (approx. EUR 232).

The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right.

On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 8 October 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant.

By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance.

The applicant appealed against the decision divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.

On 20 November 2003 the Rzeszów Regional Court dismissed the applicant’s appeal.

The applicant appealed against the first-instance judgment.

On 16 April 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care.

A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf.

On 17 September 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not indicated the grounds which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji).

Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension.

Throughout the whole period of receiving the EWK pension the applicant did not work.

According to the Government’s submissions, on 28 October 2002, the applicant started working at his previous employers’. He continued his employment there until 31 January 2005. As of 1 February 2005 he continued employment with another employer where he is still working on a permanent basis.

The Government also submitted that the applicant’s gross annual income amounted to approx. 95% of the average brut salary in Poland in 2003, 97% in 2004, 93% in 2005, 100% in 2006, 82% in 2007, 98% in 2008 and 104% in 2009.

The applicant submitted that on 28 October 2002 he had started work as an auxiliary employee with the lowest remuneration and that his salary was lower than before the granting of the EWK pension. He produced a copy of his employment contract dated 28 October 2002 from which it emerges that the contract had been concluded for three months and that the applicant had been paid PLN 1,000 (approx. EUR 250). He also produced two copies of his further employment contracts of 30 April 2003 and 31 October 2003 also concluded for three months each with remuneration amounting to PLN 1,000.

According to the information available on the official website of the Social Security Board the average remuneration in Poland was PLN 2,133 in 2002 and PLN 2,131 in 2003. It follows that the applicant’s salary in these years amounted to less than 50% of the average remuneration.

The Government also submitted that before being granted the EWK pension the applicant had been employed and his income had amounted to approx. 112% of the average brut salary in 1997, 140% in 1998, 102% in 1999, 109% in 2000 and 136% in 2001.

The Government further submitted that the applicant’s son had also worked as of 1 February 2007.


András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr Mehmet Bozkurt, is a Turkish national, who was born in 1975 and is currently serving a prison sentence.

On 25 January 2007 as the applicant, whilst in prison, was talking to his brother over the phone in Kurdish, the prison guards intervened, ending the conversation without any warning.

On 27 January 2007 the applicant filed a criminal complaint with the Erzurum Public Prosecutor and accused the prison authorities of abuse of their office.

Following an investigation, the Erzurum Public Prosecutor held that the applicant’s brother’s name was not included in the list of names of his relatives who did not speak Turkish. It was also noted that the applicant had only indicated the names of his mother and sister in that list. The prosecutor further recalled that pursuant to Rule 88 § 2 (p) of the Regulation on prison management and execution of sentences, in principle all telephone conversations had to be conducted in Turkish unless the convicted prisoner did not speak Turkish. Should the person with whom the prisoner wished to speak not understand Turkish, an inquiry would be carried out to verify that information. Accordingly, on 14 February 2007 the Erzurum Public Prosecutor decided that the prison authorities had acted in line with domestic legislation.

The applicant filed an objection with the Oltu Assize Court, seeking to have that decision quashed.

On 15 May 2007 the Oltu Assize Court upheld the decision of the Erzurum Public Prosecutor.

A full description of the domestic law and practice at the relevant time may be found in Nusret Kaya and Others v. Turkey (nos. 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08, §§ 22-25, ECHR 2014 (extracts)).

A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9-17, 27 May 2014.


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1956 and lives in Hatay.

On 20 February 1998 the applicant’s ten-year-old son, Erhan Cevrioğlu, was found dead, together with his friend G.B., who was around the same age, after falling into a water-filled hole on a construction site where they had apparently been playing. The cause of death was determined as drowning.

The hole on the construction site was covered by the Municipality of Antakya (“the Municipality”) in the aftermath of this tragic incident.

Shortly after the incident, criminal proceedings were instigated against the owner of the construction site, H.C. (also referred to as “the employer”) and three officials from the Antakya Municipality for causing death by negligence and failing to comply with the regulations and orders, pursuant to Article 455 of the Criminal Code in force at the material time (Law no. 765).

During the course of the criminal proceedings the Hatay Criminal Court of First Instance obtained three different expert reports with a view to determining liability for the death of the applicant’s son.

The first report, dated 16 April 1998, was drawn up by three civil engineers. The report noted at the outset that the hole in question, which measured 5 x 15 metres with a 2 metre depth, had been dug in the side yard of the construction for use as a shelter and no safety measures had been taken to enclose it. The hole was located 36 metres from the main avenue and 18 metres from the closest apartment building. The witnesses interviewed at the scene of the incident, including two construction workers, confirmed that no precautions had been taken to cover or otherwise enclose the hole. The two workers indicated that they had initially placed wooden planks on the south side of the hole but had later removed them after discovering that children were throwing them into the hole. They further stated that the construction workers were aware that the hole in question regularly filled up with rainwater and one of them said that they occasionally used the water that accumulated in the hole for construction work. The workers disagreed, however, as to when the hole had been dug: while one of them claimed that it had been there since June or July 1997, the other one said that it had been dug only two months prior to the incident.

On the basis of their observations and the witness statements, the committee of experts concluded that the deceased children had been partly at fault for the incident (25%), as the construction site where they had been playing was clearly not a play area. The experts noted that the Municipality also bore 25% responsibility for the two children’s deaths, as (i) they had failed to duly inspect whether the construction, for which it had issued a permit, had complied with the rules on work safety, and to ensure that the construction site had been properly closed off with wooden panels as a safety measure, and (ii) it was not clear on what legal ground it had allowed the digging and the use of the hole in question as a shelter, as such shelters had to be built beneath buildings and not in open spaces. According to the experts, the remaining responsibility (50%) lay with the owner, H.C., who had failed to put in place the necessary safety measures on the construction site, such as building a wooden fence around the hole, erecting warning signs or recruiting a security guard to control access to the construction site.

On 25 May 1998 a second report was prepared by three occupational safety experts. Reiterating the factual findings in the previous report of 16 April 1998, the experts identified four main causes of the accident in question: (i) absence of wooden panels around the construction site, which was located in a residential area in close proximity to other houses and public roads; (ii) absence of any railing around the hole; (iii) absence of signs prohibiting entry into the construction site or warning against the water-filled hole on the site; and (iv) lack of diligence of the deceased children. The experts indicated that responsibility for all of the causes identified, save for the last one, lay with the employer, in accordance with the relevant provisions of the Labour Code (Law no. 1475) and the Regulation on Workers’ Health and Occupational Safety in Construction Work (Yapı İşlerinde İşçi Sağlığı ve İş Güvenliği Tüzüğü) in force at the material time. They noted that, according to the information provided to the investigation authorities by the applicant, the hole in question had been open for the past eight to ten months, and a number of residents from the neighbourhood had warned H.C. to take the necessary safety measures against the hazards on the construction site, particularly vis-à-vis children. However, H.C. had disregarded all their warnings, saying that parents were responsible for attending to the safety of their children. They further noted that at the time of the incident the construction work had been suspended and the site had been unsupervised.

Relying on the information and evidence they had gathered, the experts concluded that H.C. had principal liability for the incident (75%) on account of his failure to take the necessary safety precautions in and around the construction site in compliance with the relevant laws and regulations. They stressed that the failure to install wooden panels around the construction site was one of the principal reasons for the accident. They further found that the remaining responsibility lay with the deceased children, as they should have been aware of the perils of entering a construction site and approaching a waterfilled hole, even at their young age. The experts considered, lastly, that while the Municipality had a general duty to inspect construction sites and impose penalties for breaches of the laws, they could not be held accountable for failing to conduct inspections, impose safety precautions or issue penalties unless it could be proven with conclusive evidence that the authorities had overlooked the deficiencies on the construction site despite having been aware of them, or had otherwise neglected their duties, which evidence was lacking in the instant case.

On 4 April 1999 a third expert report was issued by a committee of experts from the Istanbul Technical University. The report indicated that neither the construction site nor the hole in which the deceased children had drowned had been surrounded by panels or a wooden fence to prevent unauthorised access. Similarly, there had been no warning signs around the construction site or the hole. According to the expert report, H.C. had made the following statements in the aftermath of the incident before the investigative authorities and the trial court:

“... [After digging the hole on the construction site], I enclosed the hole with wooden planks. Children kept removing the planks. That is why the hole was not closed off. [At the time of the incident] the hole was filled with water following rainfall. On a previous occasion, we had pumped the rainwater out. I was in Ankara at the time [of the incident]. I have no fault here... . If I had not been out of town, I would have checked the hole and covered it.

In view of the size and depth of the hole, it was not possible to cover it. We had therefore put planks around it... There were no warning signs around the hole. I was in Ankara when the incident took place, and the construction had stopped while I was gone. The hole filled up with water whenever it rained... It must have filled up again when I was away, there was no opportunity to remove the water.”

Referring to the relevant provisions of the Labour Code, the Regulation on Workers’ Health and Occupational Safety in Construction Work and the Municipalities Act (Law no. 1580) in force at the material time (see “Relevant domestic law”, below, for further details), the experts from the Istanbul Technical University found that H.C. and the Municipality were 75% and 25% at fault respectively and that no liability could be attributed to the deceased children. They indicated that since the construction work had started, none of the safety measures required under the relevant legislation had been put in place. Moreover, no permission had been obtained for the digging of the hole or the “shelter” in question, which had claimed the two children’s lives; nor had any safety measures been taken around it to prevent accidents. The experts stressed that the dangers posed by the hole had been aggravated when it rained, as the muddy surface made it easier for people to slip and fall in. The responsibility for failure to take any safety measures around the hole or to prevent access to the construction site, despite the knowledge that the site attracted children, fell firstly on the contractor and then on the Municipality, which was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings; the Municipality authorities had clearly neglected that duty.

On 14 April 2000, relying on the third expert report, the Hatay Criminal Court of First Instance held that İ.H.S., who was the director of reconstruction at the Municipality (belediye imar müdürü), and the construction owner, H.C., were 25% and 75% responsible for the incident respectively. Accordingly, the court found the accused guilty as charged.

However, on 9 July 2001 the Court of Cassation quashed that judgment, finding that the case should have been examined under Law no. 4616, which provided, inter alia, for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999.

Accordingly, on 6 August 2001 the trial court decided, pursuant to section 1(4) of Law no. 4616, that the criminal proceedings should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within the next five years.

On 16 September 2002 the family members of both deceased children, including the applicant, initiated compensation proceedings before the Hatay Civil Court of First Instance against H.C., his construction company and the Antakya Municipality, arguing that they bore joint responsibility for their children’s deaths. The applicant and his family claimed 5,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 3,000,000,000 in respect of non-pecuniary damage, together with interest accrued from the date of the incident.

On 5 November 2004 an expert report was prepared by a mechanical engineer, who was also an expert on occupational safety, and an architect at the request of the Hatay Civil Court of First Instance. After setting out the circumstances in which the incident had occurred, much like in the previous reports submitted to the criminal court, and referring to the relevant provisions of the Labour Code and the Regulation on Workers’ Health and Occupational Safety in Construction Work, the experts concluded that H.C. bore 85% of the responsibility for the incident on account of his failure to take the necessary safety measures on the construction site, such as erecting wooden panels or other fencing around the site, taking special precautions in those parts of the site that presented a danger of falling, placing warning signs as necessary, informing the construction workers of possible hazards at the construction site and employing a guard to control access to the site. They indicated in particular that the unenclosed hole, which had been opened in June or July 1997, had presented a grave danger for the residents and the children in the neighbourhood, which risk increased when the hole filled with water and became slippery on the edges following rainfall. They also stressed that, according to the relevant Court of Cassation jurisprudence, the responsibility of the employer was not limited to putting the necessary safety measures in place to avert the existing and potential dangers on the construction site, but he or she was also required to supervise compliance with those measures.

Turning to the liability of the deceased children, the report held that while it was natural for the children to have been playing out on the street, they should not have entered the construction site and approached the water-filled hole, the dangers of which were obvious bearing in mind in particular that the ground had been slippery at the relevant time. It therefore found that the children bore the remainder of the liability for their own deaths on account of their failure to display the necessary care and diligence.

As for the alleged responsibility of the Municipality, the experts stated that the latter had had no involvement in the construction, apart from issuing the necessary permits. Moreover, the accident had occurred within the boundaries of the construction site, and not in a public space or other area under the direct responsibility of the Municipality. In such circumstances, the Municipality could not be held responsible for the deficiencies on the construction site; otherwise, the Municipality would have to be held liable for all accidents occurring in any construction. They accordingly concluded that the owner of the construction site bore sole responsibility for the site.

On 22 March 2005 the Hatay Civil Court of First Instance upheld the applicant’s case in part. The court stated that, after examining the findings of the Hatay Criminal Court of First Instance and the expert reports submitted to that court, it had requested a further expert report in order to clarify the conflicting aspects of the previous reports. On the basis of that final report, the court established that the responsibility of H.C. and his construction company for the incident was 85%. It thus concluded that H.C. and the construction company were to pay TRL 5,000,000,000 in respect of pecuniary damage to the applicant and his wife and TRL 3,000,000,000 in respect of non-pecuniary damage to the applicant, his wife and their three surviving children as requested, with interest accrued from the date of the incident. The court dismissed the case concerning the Municipality, as no fault could be attributed to it on the facts before it.

On 12 April 2006 the applicant, along with the other claimants, appealed against the decision of the first-instance court. They mainly argued that, despite the Municipality’s liability for the incident having been established in the criminal proceedings, the Hatay Civil Court of First Instance had ordered a new expert report against their wishes, and moreover had disregarded their objections concerning the findings in the said report. The Municipality was clearly responsible for the deaths of the two children for having tolerated the presence of a large and uncovered water-filled hole in the very centre of the city for months on end, yet its responsibility had been disregarded by the first-instance court.

On 18 June 2007 the Court of Cassation quashed the judgment with regard to the part concerning the Municipality. It noted that the firstinstance court should have dismissed the case against the Municipality at the outset for procedural reasons, without examining its substance, as the complaints concerning the Municipality’s responsibility to inspect the construction site fell within the jurisdiction of the administrative courts. The Court of Cassation upheld the rest of the judgment.

Accordingly, on 11 December 2007 the Hatay Civil Court of First Instance dismissed the case against the Municipality. The court also noted that its previous judgment concerning H.C. and his construction company had become final and that there was no need to render a new judgment in respect of that part of the case.

The applicant did not appeal against that judgment, which eventually became final on 16 February 2009.

On an unspecified date in 2009 the applicant, together with other family members, brought compensation proceedings before the Hatay Administrative Court against the Municipality for the death of their son and brother Erhan Cevrioğlu due to the alleged negligence on the part of the Municipality in the discharge of its inspection duties.

On 31 December 2009 the Hatay Administrative Court requested a copy of the case file pertaining to the compensation proceedings initiated by the applicant and others from the Hatay Civil Court of First Instance. Subsequently, on 29 January 2010 the Administrative Court requested the case file of the criminal proceedings against H.C. and the municipality officials from the Hatay Criminal Court of First Instance. On 23 March 2010 the Administrative Court also requested the applicant’s lawyer to submit the relevant criminal court decision along with the expert reports submitted to that court.

On 9 December 2010 the Hatay Criminal Court of First Instance informed the Administrative Court that the relevant criminal case file could not be found. However, on 14 February 2011 the applicant’s lawyer submitted the requested documents to the administrative court. In the meantime, the case file pertaining to the compensation proceedings was also made available by the Hatay Civil Court of First Instance.

On 11 March 2011, relying solely on the expert report submitted to the Hatay Civil Court of First Instance on 5 November 2004, and without undertaking any analysis of its own as to the responsibilities of the Municipality under the applicable legislation and whether it had fulfilled those responsibilities, the Hatay Administrative Court held that no fault was attributable to the Municipality on the facts of the instant case and thus dismissed the compensation claims of the applicant and his family. The Hatay Administrative Court emphasised in its judgment that the earlier ruling of the Hatay Civil Court of First Instance, which had apportioned liability for the incident between H.C. and his company and the deceased children, had also been upheld by the Court of Cassation.

On 15 November 2011 the Adana District Administrative Court upheld the judgment of the first-instance court, and on 26 April 2012 it rejected rectification requests lodged by the applicant and his family.

According to a declaration submitted to the Hatay Civil Court of First Instance on 23 October 2013 by the lawyer who had represented the applicant in the proceedings before that court, the applicant and his family had not received any compensation from H.C. and his company, nor had they commenced enforcement proceedings against the latter.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were prosecuted in Russia for various crimes. They were arrested and detained while the crimes were investigated and pending trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae, without addressing specific facts or considering alternative preventive measures.

The first applicant was born on 27 April 1961 and lived, prior to his arrest, in Poronaysk, Sakhalin Region. He was arrested on 27 February 2003 on suspicion of sexual assault and was placed in detention. He remained in custody while the crime was investigated and pending trial. On 9 February 2007 the Poronayskiy Town Court of the Sakhalin Region convicted him of sexual assault and sentenced him to six years and nine months’ imprisonment. On 6 June 2007 the Sakhalin Regional Court upheld his conviction on appeal.

The second applicant was born on 29 May 1971 and lived, prior to his conviction, in Samara. He was arrested on 13 March 2007 on suspicion of bribery. On 14 March 2007 he was released. On 29 March 2007 he was arrested again and placed in custody. He was released on 12 September 2007. On 20 May 2008 he was convicted of bribery and sentenced to one year and six months’ imprisonment.

The third applicant was born on 14 October 1979 and lived, prior to his arrest, in Ulybino, Novosibirsk Region. He was arrested on 15 August 2007 on suspicion of drug dealing. He remained in custody while the crime was investigated and pending trial. On 3 February 2011 the Novosibirsk Regional Court convicted him of drug dealing and abuse of power, and sentenced him to eight years and six months’ imprisonment. On 18 October 2011 the Supreme Court of Russia upheld his conviction on appeal.

The fourth applicant was born on 29 November 1986 and lived, prior to his conviction, in Turukhansk, Krasnoyarsk Region. On 23 April 2010 he was arrested on suspicion of murder. On 24 April 2010 a court remanded him in custody. His detention was subsequently extended. On 17 October 2012 he was convicted of aggravated murder and was sentenced to fifteen years’ imprisonment.


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

A list of the applicants is set out in the appendix.

s, may be summarised as follows.

The applicants, permanently residing in Hungary, are currently working or studying in other countries. In order to vote in the 2014 Hungarian legislative elections, they were expected to appear in person at the Hungarian embassy or consulate in their country of temporary residence, or else in their constituencies in Hungary. As a consequence, they could not exercise their voting rights or only with substantial material difficulties.

Other Hungarian citizens living abroad who do not have a permanent registered address in Hungary were statutorily allowed to vote by post, as provided by section 266 of Act no. XXXVI of 2013 on Electoral Procedure. However, this option was not available under the law to citizens with a permanent address in Hungary, such as the applicants.

Act no. CCIII of 2011 on the Election of Members of Parliament provides as follows:

“(1) Voters with residence in Hungary may vote for:

a) one candidate in any single-member constituency and

b) one party list.

(3) Voters without residence in Hungary may vote for one party list.”

Act no. XXXVI of 2013 on the Electoral Procedure provides as follows:

“Enrolment in the foreign representation electoral register may be requested by voters who are registered in the polling district electoral register and will be abroad on the day of the voting.”

“The National Election Office shall enrol in the register of postal voters all voters with no Hungarian address who are listed in the central electoral register following a request submitted no later than the fifteenth day before the day of voting. The National Election Office shall indicate in the central electoral register that the voter has been entered into the register of postal voters.”

“Voters who vote at a foreign representation shall do so by using the ballot paper of the single-member constituency corresponding to their Hungarian address and the ballot paper of national party lists. ...”

“Voters listed in the register of postal voters cast their vote by post.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1985 and lives in Brestanica.

The applicant served his prison sentence in the semi-open and closed sections of Ljubljana prison in the period between 21 July 2009 and 24 December 2009. On the latter date he was transferred to Celje prison, where he stayed until his conditional release on 31 May 2010. The transfer was made on the basis of a decision issued by the director-general of the General Administration at the request of the governor of Ljubljana prison. The decision cited overcrowding as the ground for the transfer.

The applicant’s complaints relate to the conditions of detention in Ljubljana prison only.

From 21 July 2009 to 25 October 2009 he was held in the semi-open section in cell 146 (third floor) measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility). From 25 October 2009 to 4 November 2009 and from 10 December 2009 to 24 December 2009 he was held in the semi-open section in cell 138 (third floor) measuring 18.6 square metres (including a separate 1.72 square metre sanitary facility). Due to drug problems he was temporarily held from 4 November 2009 to 10 December 2009 in the closed section in cell 7 (third floor) measuring 16.8 square metres (including a separate 1.72 square metre sanitary facility). All the cells contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close.

During his imprisonment the applicant had twelve consultations with a general practitioner and six dental appointments. He attended several interviews and group sessions with a pedagogue.

As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metre), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government alleged that this regime had been in place for several years.

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


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1950 and lives in Sopron.

From 1994 the applicant’s family operated a grocery with the personal involvement of the applicant. They sold, initially under the excise licence of the applicant’s mother, merchandise subject to excise tax, that is, alcohol and tobacco products. On average, the turnover of tobacco retail represented about one-third of the family’s business.

The applicant himself obtained a shop-keeping licence in 1999 (see also paragraph 15 below). In 2001 he qualified as a trader and shop manager. In 2005, he was registered in his own right as a trader of excise goods.

On 11 September 2012 Parliament enacted Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail. The Act was published on 24 September 2012. The Act was subsequently amended on several occasions, and the final version was enacted on 6 June 2013. It entered into force on 1 July 2013.

According to the Act, tobacco retail – previously exercised at about 42,000 retail points nationwide – was to become a State monopoly (exercised through a State-owned company, ND Nemzeti Dohány-kereskedelmi Nonprofit Zrt, “ND Zrt”), and tobacco retailers would become licensed through a concession tender, advertised on 15 December 2012, for up to five retail points per tenderer. In applying for the new concessions, tenderers were required to produce business plans reflecting, inter alia, the new governmental policy to limit to the utmost the access of minors to tobacco products, notably by prohibiting the entry of those less than 18 years of age into shops selling tobacco. Under the new licences, tobacco retail could take place only in shops with separate entrances, with dark shades in the shop windows preventing seeing through, and with only a limited selection of other goods on sale.

The final time-limit for applying was 22 February 2013. Entities previously engaged in tobacco retail had no privileges in the tender. The decision about the tenders was to be taken by ND Zrt.

In the tender, altogether some 6,800 licences were granted nationwide.

The applicant applied for a concession on 4 February 2013, for the would-be licence to be used in the family enterprise. The application was signed by the applicant, and witnessed by his wife and their son. The applicant then amended the application according to the upcoming new rules, on 20 February 2013. According to the Government, the application was very succinct and in no way developed; in particular, it contained no appropriate business plan, which was part of the criteria for the tenders. The applicant submitted that no information was ever made available about the assessment of the tender.

On 23 April 2013 the applicant was informed that he had not obtained a tobacco retail concession. The decision contained no reasons or any indication of the applicant’s score on the 120-point tender adjudication score-sheet, and it was not subject to any legal remedy.

The enterprise run by the applicant’s family was obliged to terminate the sale of tobacco products by the statutory deadline, that is, 14 July 2013. Tobacco wholesalers were under a legal obligation to re-buy any outstanding stocks from terminated retailers.

The remaining sales activities of the applicant’s family enterprise were no longer profitable, entailing the winding-up of the business.

Under the law, no compensation is available for former holders of tobacco retail licences who, by not having been awarded a concession, lost part of their livelihood. The applicant submitted that this was the case of his family; and that he had, after losing the retail licence, considerable difficulties in supporting his family including a minor son.

The applicant further submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand, in non-comparable situations – had been granted concessions, which difference in treatment could not be explained by any circumstance other than political adherence. In his view, this was corroborated by the fact that some successful tenderers had obtained more than one concession for multiple selling points.

On 14 January 2014 the Constitutional Court declared admissible a number of complaints relating to the same matter.

In decision no. 3194/2014 (VII.14.) it dismissed these motions on the merits (see below in paragraph 16), noting in particular that the legislature had aimed to eliminate underage smoking and therefore restricted the accessibility of tobacco retail, measures reflecting Hungary’s obligations under the WHO Framework Convention on Tobacco Control as well as the findings of the Global Youth Tobacco Survey.

Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail provides as follows:

“(1) Tobacco retail in Hungary is an activity falling under State monopoly, the exercise of which may be licensed through fix-term concession contracts concluded according to the provisions of this Act, as well as of Act no. XVI of 1991 on Concessions.”

“(1) If this Act does not provide otherwise, tobacco retail may only be pursued in tobacco shops.”

According to Act no. CIII of 1997 on Excise Tax and the Special Rules of Trading in Merchandise Subject to Excise Tax (“the Excise Tax Act”), as in force until 1 May 2004, trading in excise goods was possible in two manners: (a) subject to an excise licence, in which case the holder of such a licence could sell the products to non-end-consumers; (b) the sale of excise goods to end-consumers was also possible without a specific excise licence, if the owner of the business had an appropriate shop-keeping licence, covering also the sale of the excise goods in question. The relevant provisions of the Act provided as follows:

“(1) Non-excise-licensed free trade of excise goods ... is only allowed in possession of a shop-keeping licence, specified by the law on the operation of shops ... if

a) the shop-keeping licence is issued for a scope of retail, catering or accommodation activities in the framework of which the law allows the sale of excise goods, and

b) the non-excise-licensed dealer pursues his or her commercial activity ... in a shop.”

In its relevant part, Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) provides as follows:

“(1) In accordance with Article 24 § 2 (c) of the Fundamental Law, any person or organisation affected by a concrete case may submit a constitutional complaint to the Constitutional Court if due to the application of a legal regulation contrary to the Fundamental Law in the judicial proceedings:

a) their rights enshrined in the Fundamental Law were [allegedly] violated, and

b) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available.

(2) By way of derogation from paragraph (1), Constitutional Court proceedings may also be initiated – by exception – relying on Article 24 § 2 (c) of the Fundamental Law, if:

a) due to the entry into force or the application of a legal provision contrary to the Fundamental Law, the complainant’s rights were [allegedly] violated directly, without a judicial decision, and

b) there is no legal remedy capable of redressing the violation of rights, or the complainant has already exhausted the remedy.”

“The Constitutional Court admits constitutional complaints if a conflict with the Fundamental Law significantly affects the judicial decision [in question] or the case raises constitutional law issues of fundamental importance.”

“(1) The Constitutional Court decides on the admission of a constitutional complaint sitting as a panel ...

(2) The panel examines in its discretionary power the content-related requirements of the admissibility of a constitutional complaint ....”

The Constitutional Court analysed the motions mentioned in paragraph 13 above from two aspects: whether the impugned legislation infringed the complainants’ right to protection of their property and whether it breached their right to pursue an entrepreneurial activity.

As regards the property right, the Constitutional Court held in essence that the complainants’ business activities in tobacco retail – however long-standing it may have been – did not constitute per se acquired possessions or constitutionally protected legitimate expectations. Prior to 1 July 2013, they had not possessed specific licences for tobacco retail, this kind of licence having been instituted only by the impugned legislation as of that date. Therefore, the legislation did not deprive them of pre-existing, acquired possessions, nor did it annul their shop-keeping licences in general. Moreover, their licences to sell merchandise subject to excise tax (a licence different from the one instituted by the impugned legislation, issued by the Tax Authority as a pre-condition for engaging in tobacco retail) were non-transferable and revocable permits, which did not constitute possessions. The Constitutional Court emphasised that the legislation did not prevent the complainants from applying for tobacco retail concession under the new system and, if successfully licensed, from continuing their activities.

As regards the complaint concerning the right to pursue an entrepreneurial activity, the Constitutional Court agreed that the complainants’ activity fell within the scope of constitutional protection. Nevertheless, it underlined that this right did not give an unrestricted or inalienable entitlement to pursue an activity of one’s choice. In the Constitutional Court’s view, the impugned legislation did not prejudice the essence of the right to pursue an entrepreneurial activity, namely it did not permanently deprive the complainants of the possibility to continue their tobacco retail business, let alone to pursue entrepreneurial activities in general. It only subjected that activity to conditions, which they were not unable to meet. The Constitutional Court found that limitation to be in the public interest and to be sufficiently proportionate to the underlying public health considerations, all the more so since the goods merchandised by the complainants represented well-known health risks and the treatment of smoking-related diseases put a considerable burden on the State – which, in the Constitutional Court’s view, enjoyed a wide margin of appreciation in the regulation of the matter in question.

The standing case-law of the Supreme Court/Kúria concerning the lawmaker’s tort liability was recapitulated by the Budapest Court of Appeal in leading case no. EBD2014.P.1 as follows:

“[T]he Supreme Court held in leading case no. EBH1999.14 that rules of tort liability cannot be applied to legislation, that is, to the activity aimed at adopting general and abstract legal rules of behaviour. In leading case no. BH1993.312 it also considered that the damage potentially resulting from the entry into force of a law laying down a general rule of normative force does not create a relationship of civil law liability between the lawmaker and the alleged victim of the legislation. ... Furthermore, leading case no. BH1994.31 also reflects the jurisprudence according to which the lawmaker cannot be held liable for the adoption of normative rules, unless there are additional findings of fact (többlettényállás).”

In the leading case, such additional findings of fact were constituted by the underlying decision of the Constitutional Court holding that the law-making process in question had been dysfunctional in that the resultant legal provision was nothing less than an individual decision to the detriment of the complainant, couched in terms of a legislative act.


CASE OF PADURET v. THE REPUBLIC OF MOLDOVA AND RUSSIA

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Dmitry Dedov;Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Ksenija Turković

The applicant was born in 1983 and lives in Cocieri.

The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)).

On 22 August 2010 the applicant, who is an entrepreneur, was transporting merchandise to an agricultural market in the town of Dubasari in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). He was stopped by two persons presenting themselves as customs officers of the “MRT” who seized his van and the merchandise contained therein on account of his having allegedly failed to register the vehicle. On 7 October 2010 the “MRT” customs authority issued a decision obliging the applicant to pay a fine of some 1,320 euros (EUR) in return for being able to recover his van and merchandise. The applicant paid the fine.

In the meantime the applicant complained to the authorities of the Republic of Moldova about the seizure of his van and merchandise. On 9 September 2010 the Dubasari prosecutor’s office initiated a criminal investigation into the facts of the case and several suspects were declared wanted. However, the investigation was suspended in 2014.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Vladislav Andreyevich Gankin, was born in 1954 and lives in Volzhskiy, the Volgograd Region.

In May 2006 the applicant lodged a civil claim seeking to recover excess service fees paid. On 3 October 2007 the Volzhskiy Town Court of the Volgograd Region heard the case in the applicant’s presence and rejected his claim. The applicant appealed to the Volgograd Regional Court. The Government stated that on 9 November 2007 a judicial summons was sent to the applicant by mail. The applicant did not receive it.

On 29 November 2007 the Volgograd Regional Court upheld the judgment of the Town Court in the applicant’s absence, without addressing the issue of whether he had been notified.

The applicant, Ms Olga Ivanovna Shevchenok, was born in 1958 and lives in Tyumen.

In January 2007 the applicant brought a defamation action against a third party. On 6 March 2007 the Tsentralnyy District Court of Tyumen dismissed the applicant’s claim. The applicant was present and pleaded her case in person. On 18 March 2007 she lodged a statement of appeal, in which she indicated her post-office box number. The Government stated that on 12 April 2007 a judicial summons was sent to the applicant’s postoffice box. She claimed she had not received it.

On 2 May 2007 the Tyumen Regional Court examined and dismissed the applicant’s appeal in her absence, without examining the issue of whether she had been notified.

The applicant, Mr Aleksey Dmitriyevich Belkin, was born in 1952 and lives in Neya, the Kostroma Region.

In April 2009 he lodged a civil claim against traffic police, seeking to obtain a copy of a vehicle registration certificate. On 19 May 2009 the Neyskiy District Court of the Kostroma Region examined the case in the applicant’s presence and satisfied his claim in part. Both parties appealed against the judgment. The Government stated that on 10 August 2009 the Kostroma Regional Court had sent a judicial summons to the applicant by regular mail and had also called the telephone number listed in his statement of claim. He claimed he had not received the summons or the telephone call.

On 19 August 2009 the Kostroma Regional Court quashed the District Court’s judgment and dismissed the applicant’s claim in his absence, without examining the issue of whether he had been notified.

The applicant, Mr Mikhail Viktorovich Kiryushkin, was born in 1975 and lives in Yekaterinburg.

The applicant brought a civil action against his employer for wrongful dismissal. On 1 September 2011 the Kirovskiy District Court of Yekaterinburg heard the case in the applicant’s presence and refused his claim. On 15 September 2011 the applicant lodged an appeal with the Sverdlovsk Regional Court. The Government stated that on 12 October 2011 the Regional Court sent a judicial summons to the applicant by registered mail. Three postal notices were then sent to the applicant inviting him to pick up the letter from the post office: on 18 and 24 October and 7 November 2011. According to the applicant he received the postal notice only on 11 November 2011.

On 1 November 2011 the Sverdlovsk Regional Court rejected the applicant’s appeal claim in his absence and did not examine the issue of whether he had been notified.


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1979 and lives in Suceava. At the relevant time, he was a journalist for a local newspaper Monitorul de Suceava (hereafter “the newspaper”).

On 26 August 2003 the applicant published an article under the title “An inhabitant of Verneşti is wanted by police across the country, having been accused of breaking into the headquarters of the local branch of the Social Democratic Party” (“the PSD”).

The article, accompanied by a photograph of S.A., a suspect at the time, read as follows:

“S.A, aged 35, is accused of having stolen two television sets and approximately 17,000,000 Romanian lei (ROL) from the local headquarters of the PSD. As he has fled in order to avoid criminal investigation for the offence of aggravated theft, a general search has now been launched by the police (a fost dat în urmărire generală) and his photograph is now on the desk of the policemen of the judicial service [Biroul Judiciar] throughout the country.

An inhabitant of Verneşti is wanted by police officers throughout the country, as he is the main suspect in a case of breaking and entering at the headquarters of the PSD in Suceava. S.A., aged 35, is suspected of being one of the organisers of the burglary of the local headquarters of the governing party committed at the end of last year. The night before Christmas Eve 2002 was marked by bad luck for the PSD in Suceava, as thieves visited their headquarters. On the morning of 24 December some of the members of this party arrived at the headquarters located in the centre of Suceava ... [and] noticed that the headquarters had been ravaged. After checking inside, they realised there had been a burglary and that the thieves had stolen two televisions and approximately ROL 17,000,000. While searching for valuables, the thieves vandalised the offices, breaking all the doors, and yanking the televisions from the electric sockets. Following an investigation by the Suceava police, the main suspect was identified as S.A., who has been missing from his place of residence since that date. S.A. (see photo) fled in order to avoid criminal investigation for the offence of aggravated theft and so a general search has been instituted and his photograph has been sent to judicial service police officers throughout the country. In a case where someone tries to avoid ‘getting nicked’ [pârnaie] by fleeing, despite being sought by the police, a countywide search is launched. If the person is not found within ninety days, the police launch a national search. In a case where there is information that the person has left the country, an international arrest warrant is issued, and the arrest of the fugitive is only a matter of time.”

Following the publication of the article, the father of S.A. sent a letter to the newspaper, which read as follows:

“To the editor of Monitorul de Suceava,

The undersigned A.D. found out from your newspaper that there was a national and local search order for my son, A.S., for the offence of aggravated theft. Regarding the [content of the] article, I can tell you that [at the time] my son was neither in the country nor in Suceava county as he was in Italy. The employees of the Suceava County Police Inspectorate promptly informed me that there had been a mistake and that the general search for my son had been called off. The document confirming this information is available to the public from the Suceava judicial service.

My wish would be to have the article retracted.”

This letter was published in the newspaper on 29 August 2003.

On 15 September 2003 S.A. lodged with the Suceava District Court a criminal complaint against the applicant for the offence of defamation, as prescribed at the time by Article 206 of the Romanian Criminal Code. After explaining that at the time of the theft he was in Italy and thus it was impossible for him to have participated in the alleged offence, he mentioned that once his father had found out about the article, he had written to the newspaper, asking that it be retracted. The letter was published unedited, but nothing else was done since then.

S.A. considered that the article contained serious allegations which considerably affected his public image, causing him personal suffering.

He therefore requested that those responsible be convicted and ordered to pay him non-pecuniary damages in the amount of ROL 100,000,000.

In his defence the applicant submitted that the information concerning the general search for S.A., as well as the photograph of S.A., were given to him on 25 August 2003 by the Suceava judicial service and thus there had been no reason for him to doubt it. He contended that at the time of the publication, the general search order issued in respect of S.A. was valid.

He further argued that he did publish a retraction in the newspaper, namely the letter of S.A.’s father.

On 17 October 2003, the head of the Police Department of Suceava informed the first-instance court that:

“In response to your letter in which you enquire whether on 25 August 2003 a general search order was outstanding against S.A. ... I wish to inform you that on 31 December 2002 by Order no. 124000 of the General Inspectorate of the Romanian Police a general search order was issued in respect of this person as he was attempting to avoid criminal investigation while under suspicion of theft. The measure was revoked by Order no S/150522 of the General Inspectorate of the Romanian Police on 3 September 2003, after clarification of S.A.’s situation”.

On 19 November 2003 the court acquitted the applicant of the charge of defamation; however it ordered the applicant to pay, jointly with the newspaper, the sum of ROL 10,000,000 to S.A. The relevant excerpts from the judgment read as follows:

“Taking into account the fact that the applicant obtained information concerning the suspect from the judicial office within the General Police Inspectorate, he cannot be found to have deliberately (mens rea) defamed the plaintiff ...

Under the civil limb of the action, defamation concerns public communication of a distorted, negative image of a person, which is likely to cause him or her personal suffering and damage to reputation, leading to changes such as social embarrassment and injury to self-esteem. The first-instance court considers that publishing the article in the newspaper caused damage to the standing of the civil party ...

Moreover, it must be noted that although the civil party’s father notified the newspaper that the facts published about his son were false, the newspaper did not publish a retraction of the article written by the defendant.”

By a final judgment of 23 January 2004 the Suceava County Court rejected an appeal by the applicant and upheld the first-instance court’s judgment.

The court stated in its reasoning the following:

“Even though there is no mens rea as far as the offence of defamation provided for in Article 206 of the Criminal Code is concerned, given the source of information at the date of the publishing of the article, the defendant’s obligation to pay compensation to the civil party cannot be set aside. This is because following the discovery of the error he did not publish a retraction in order to try to rectify it. The article caused non-pecuniary damage to the civil party which can be repaired only in the manner established by the first-instance court”.


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1968 and is serving a prison sentence in Astrakhan.

In July 2004 the applicant was charged with murder of V. Counsel Sh. was appointed to represent him during investigation and trial.

On 10 December 2004 the Astrakhan Regional Court held a preliminary trial hearing. The applicant opted for a jury trial. In support of his request, Sh. stated as follows:

“[The applicant] has committed a particularly serious offence which might entail a lengthy custodial sentence. ... I support the [applicant’s] request.”

On 18 February 2005 the court completed the examination of evidence. Both prosecution and defence made their closing arguments. In his statement, Sh. called the applicant “a robber and a drunkard”. The presiding judge instructed the jury to disregard the counsel’s statement as referring to the applicant’s character.

On 18 February 2005 the jury delivered a guilty verdict.

On 21 February 2005 the applicant asked the court to replace counsel Sh. alleging that the defence carried out by him had not been effective. The court dismissed the applicant’s request.

On the same date the Regional Court found the applicant guilty of murder and sentenced him to fifteen years’ imprisonment.

On 1 March 2005 the applicant asked the Regional Court to appoint legal counsel to represent him before the appeal court. On 8 March 2005 the court refused to appoint a lawyer referring to the relevant legal provisions that did not provide for a right to have a state-appointed lawyer before the appeal court.

On 21 July 2005 the Supreme Court of the Russian Federation upheld the judgment of 21 February 2005 on appeal. According to the official documents, the applicant was not provided with legal assistance.

On 6 June 2007 the Presidium of the Supreme Court quashed the appeal judgment of 21 July 2005 by way of supervisory review. The court noted that the applicant had not been provided with legal assistance in the appeal proceedings and remitted the matter for fresh consideration to the appeal court. The applicant did not attend the hearing. He was represented by counsel O.

On an unspecified date the applicant was transferred to Moscow. Counsel R. was appointed to represent him. From 1 to 3 August 2007 R. studied the case-file. On 7 and 14 August 2004 he met with the applicant at the remand prison.

On an unspecified date the applicant submitted a revised statement of appeal.

On 16 August 2007 the Supreme Court held a new appeal hearing. According to the applicant, he participated in the hearing by means of a video link. R. was present in the courtroom. He did not submit a statement of appeal and made oral submissions to the court. Having examined the applicant’s appeal, the court upheld, in substance, his conviction. The court also dismissed as unsubstantiated the applicant’s complaint about the alleged ineffectiveness of the legal assistance provided by counsel Sh. In this connection, the court noted that the applicant had consented to be represented by Sh. both during the investigation and trial. The court also concluded, on the basis of the trial record, that Sh. had taken an active part in the trial. In his closing argument, Sh. had supported the applicant’s non-guilty plea and argued that the applicant had not been proved guilty. Lastly, the court took into account that, prior to the jury verdict, the applicant had not complained about the quality of the defence provided by Sh.

On 18 August 2008 the Supreme Court dismissed the applicant’s supervisory review complaint against the judgment of 16 August 2007.


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych

The applicant, Mr Anatoliy Alekseyevich Kravchenko, is a Ukrainian national, born in 1956 and living in Zhytomyr. He was represented before the Court by Mr S.O. Dubas, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova.

The applicant alleged, in particular, that he had been convicted in violation of Article 6 §§ 1 and 3 (c) of the Convention, on the basis of a confession extracted from him against his will and in the absence of a lawyer.

On 23 March 2011 the above complaints were communicated to the Government.

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

In 1982 the applicant was deprived of his legal capacity as he suffered from schizophrenia. He was also registered as “category 2” disabled (on a four-category scale) for that reason.

In 1984 the applicant was convicted for theft and attempted rape of a minor. He was, however, relieved of criminal liability by reason of his mental condition. The courts ordered his compulsory medical treatment in a psychiatric hospital. The applicant underwent such treatment on several occasions, most recently in August 2003.

On 23 March 2004, at approximately 4.30 p.m., a group of teenagers from the Zhytomyr orphanage, as well as their two teachers, saw the applicant aggressing a young girl in a nearby forest. The girl, who was partly undressed and covered in blood, was crying for help. The applicant tried to flee, but without success. A fight broke out, and he was apprehended and handed over to the police, who someone had called in the meantime.

On the same day the applicant waived his right to legal assistance and confessed to attempting to rape a minor (the girl in question, P., was eleven years old). His handwritten confession statement mentioned his past criminal convictions, but did not contain any reference to his mental condition or legal incapacity. The applicant also wrote that his confession had not been made under duress.

According to the applicant’s submissions to the Court, he was coerced into both signing the waiver and confessing. He further alleged that he had immediately informed the police that he was legally incapable on account of his schizophrenia, but that information had remained ignored.

Also on 23 March 2004 the police questioned the eyewitnesses, who gave a detailed account of the incident and the circumstances of the applicant’s apprehension.

On 24 March 2004 the applicant was formally detained as a suspect, having been caught in flagrante delicto. He signed a statement as confirmation that his procedural rights, including his right to a lawyer, had been explained to him. He again waived his right to legal assistance.

During his questioning on 24 March 2004 and a reconstruction of the crime on 25 March 2004, the applicant reiterated his initial confession, specifically stating that he had realised the victim’s age.

On 25 March 2004 an identity parade took place, at which the witnesses recognised the applicant as the attacker.

On 26 March 2004 the investigator appointed a lawyer for the applicant, having been notified by the Information Bureau of the Ministry of the Interior that he had a history of compulsory psychiatric treatment.

On the same day the Zhytomyr City Court (“the Zhytomyr Court”), in a hearing which the applicant and his lawyer attended, remanded the applicant in custody pending trial. He again repeated his confession statements, and agreed that the preventive measure chosen was appropriate.

On 31 March 2004 the applicant was charged with attempted rape of a minor. He was questioned as an accused in the presence of his lawyer. The applicant repeated his confession. He stated that he had been apprehended by a group of six to eight teenagers, who he had tried to fight off with a stick and who had hit him several times.

On 1 April 2004 the applicant underwent a forensic medical examination, which revealed three bruises on his face and two bruises on his back, possibly inflicted in the ten days leading up to the examination.

On 21 April 2004 the applicant complained to the Zhytomyr Regional Prosecutor’s Office (“the Zhytomyr Prosecutor”) that he had been coerced into incriminating himself through “physical and psychological pressure by the police”, without giving further details.

On 27 April 2004 the applicant underwent a psychiatric examination, which found him to be of limited criminal capacity (обмежено осудний). It was concluded that he required regular psychiatric monitoring, although there was no need for compulsory medical treatment for the time being.

In April 2004 (the exact date is illegible) the management of the applicant’s local neighbourhood housing department, drew up a written character reference, describing the applicant as a quiet person about whom there had been no complaints.

On 11 May 2004 the applicant’s employer, a company for whom the applicant worked as a technician at the time of the events, issued a similar character reference, describing him as a responsible employee complying entirely with his job requirements.

On 15 May 2004 the Zhytomyr Prosecutor, having examined the applicant’s allegation of ill-treatment, decided not to institute criminal proceedings against the police officers for lack of corpus delicti in their actions.

On 18 May 2004 the forensic medical examination of P. was completed. Her injuries – multiple facial bruises and post-asphyxia syndrome – were found to fit with the applicant’s description of events.

On the same day the victim’s neighbour, a sixteen-year-old girl, Sh., was questioned as a witness. She submitted that on 23 March 2004, at approximately 4 p.m., near to where the incident with P. had taken place, she had also been attacked by a man, whose description corresponded with the applicant’s appearance. Sh. had however managed to escape. She stated that she was unable to recognise her attacker.

On 19 May 2004 the Zhytomyr Prosecutor refused to institute criminal proceedings against the individuals for injuring the applicant while apprehending him. It was held that under the circumstances there had been nothing criminal in their actions.

On the same day the prosecutor refused to institute criminal proceedings against the applicant in respect of the attempted rape of Sh., having found that there was no case to be examined.

Later that day the applicant’s colleague, who had been working with him on 23 March 2004, was questioned. He submitted that the applicant had left at approximately 3.40 p.m. under the pretext that he needed to go to the toilet, and had not returned thereafter.

On 24 May 2004 the applicant was indicted, and the case was sent for trial in the Zhytomyr Court.

On 27 May 2004 the applicant complained to the Zhytomyr Court that, following his apprehension on 23 March 2004, he had been ill-treated by the police. He alleged that he had been suspended from a bar between two tables while handcuffed, punched in the face, and thrown onto the floor with his hands handcuffed. He also complained that four officers had kicked him all over, put a gas mask on him and blocked the nose vent, twisted his arms, and struck him with a truncheon on his legs and knees. The applicant submitted that he had signed his waiver of legal assistance, and had had his confession extracted under duress. He stated that his injuries had been documented in the report of his forensic medical examination.

On 16 June 2004 the applicant asked to be represented by a different lawyer. His request was granted.

On 21 June 2004 the Zhytomyr Prosecutor wrote to the trial court, it appears in response to a request for information, stating that there was no reason to review the decision of 15 May 2004 (in which it refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment – see paragraph 23 above).

On 16 September 2004 the applicant’s lawyer was replaced again, upon a request by him to that effect.

On 27 October 2004 the charge against the applicant was amended to include, in addition to attempted rape of a minor, grievous bodily harm.

On 17 November 2004 the Zhytomyr Court found the applicant guilty as charged, and sentenced him to twelve years’ imprisonment. It relied, among other things, on the confession statements he had made during the pre-trial investigation, even though he had retracted them during the judicial proceedings. The court noted that the bruises documented in the report of the applicant’s medical examination had been inflicted on him during his fight with the people who had apprehended him. The guilty verdict was also based on the statements of several eyewitnesses who had recognised him as P.’s attacker (she had been unable to recognise her attacker as she had been suffering from shock). Furthermore, the court relied on the statements of the applicant’s colleague confirming his absence from the workplace at the time of the incident. According to the applicant, he refused the services of a Ukrainian-Russian interpreter at the beginning of the trial, but later changed his mind. The later request he submitted for an interpreter had been unsuccessful.

The applicant, who had legal representation, appealed. He complained, in particular, that his confession had been extracted from him by torture and that he had been coerced into waiving his right to legal representation, which was unacceptable given his mental illness and ran contrary to criminal procedural law.

On 25 January 2005 the Zhytomyr Regional Court of Appeal upheld the applicant’s conviction, but reduced his sentence to eight years. It agreed with the first-instance court that there was no reason to consider that the applicant’s confession statements obtained during the pre-trial investigation had been made against his will. As regards the alleged restriction on his right to legal assistance, the appellate court noted that the applicant had himself waived that right and that the investigator had appointed a lawyer for him as soon as his mental illness had become known.

On 29 November 2005 the Supreme Court upheld the lower courts’ decisions and their reasoning. On 14 February 2006 the ruling was sent to the applicant.

Article 45 § 2 of the Code of Criminal Procedure (“the CCP”) provides that if criminal proceedings are brought against persons unable to exercise their right to defend themselves on account of a physical or mental disability, their legal representation is obligatory starting from the moment they are arrested, charges are brought against them, or their disability becomes known.

Under Article 46 § 1 of the CCP, a suspect, accused or defendant may dispense with invited or appointed counsel at any stage of the proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him or her from appointing the same or a different counsel at a later stage of the proceedings. However, a waiver of counsel in the cases covered by Article 45 should be based on reasoning found to be satisfactory by the inquiry officer, investigator or the court (Article 46 § 3). Should it be accepted, the suspect, accused or defendant has up to three days to replace counsel (Article 46 § 4). If he or she fails to do so within the set time-limit, and if his or her legal representation is mandatory under Article 45 of the Code, a legal representative must be appointed by the inquiry officer, investigator or judge, depending on the stage of the proceedings (Article 46 § 5).

According to paragraph 13 of Resolution of the Plenary Supreme Court of Ukraine no. 8 of 24 October 2003 on the application of legislation ensuring the right to defence in criminal proceedings, “persons who are unable to exercise their right to defend themselves because of a physical or mental disability” (Article 45 § 2 of the CCP) should be understood to be persons with considerable speech, sight, hearing or other defects, as well as persons who, even though recognised as having criminal capacity, have psychiatric conditions which would impede their ability to mount a defence against the charges brought against them. Such persons should be legally represented as soon as the aforementioned defects have been established.


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

The applicant was born in 1943 and lives in Rome.

The applicant was the owner of a plot of land in Randazzo (Catania). The land in issue was recorded in the land register as Folio no. 57, Parcels no. 24, 28, 31, 32, 35 and 360.

By an order issued on 5 August 1981, the regional administrative authorities approved a land development plan for the construction of a road on the applicant’s land.

On 24 February 1984 the Mayor of Randazzo issued a decree authorising the Randazzo Municipality to take possession, through an expedited procedure and on the basis of a public-interest declaration, of a portion of the applicant’s land in order to begin the construction of the road.

On 2 April 1984 the authorities took physical possession of the land.

By a writ served on 26 July 1991, the applicant brought an action for damages against the Randazzo Municipality before the Catania District Court. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation.

On an unspecified date the court ordered an expert valuation of the land. In his report the expert concluded that the occupied land covered a surface area of 2,235 square metres and confirmed that it could be classified as agricultural land. He further concluded that the market value of the land on the date the occupation became unlawful, which was identified as having occurred on 2 April 1990, amounted to 9,000,000 Italian Lire (ITL).

By a judgment delivered on 26 May 1999 and filed with the court registry on 8 June 1999, the Catania District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 2 April 1990. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicant had been deprived of his property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicant was entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation.

The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful in 1990 corresponded to ITL 9,000,000 (approximately EUR 4,600), to be adjusted for inflation, plus statutory interest. The court further awarded the applicant ITL 2,339,600 (approximately EUR 1,200) as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (24 February 1984) until the date of loss of ownership (13 July 1990), as well as ITL 5,150,000 (approximately EUR 2,700) as compensation for the decrease in the value of the adjoining land.

On 17 July 2000 the Municipality appealed against the judgment before the Catania Court of Appeal, primarily contesting the assessment of the property’s market value by the court-appointed expert and arguing that the District Court’s awards for damages ought to be reduced.

The applicant lodged a cross-appeal whereby he also challenged the court-appointed expert’s findings with regard to the calculation of the land’s market value and criticised the expert’s assessment methods which led, in his view, to an under-evaluation of the land.

By a judgment delivered on 30 July 2002 and filed with the court registry on 25 June 2003, the Court of Appeal reduced the amount to be awarded as compensation concerning the adjoining land that had not been subject to occupation but that had nonetheless been damaged to 4,950,000 ITL (approximately EUR 2,500). The court upheld the remainder of the Catania District Court’s judgment. It considered that the first instance court had awarded a sum equal to the property’s full market value. In the court’s view, the latter sum had been correctly determined by the court-appointed expert, who had taken into account the land’s actual characteristics and reached his conclusions by means of a standard methodology.

The judgment became final in September 2004.