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

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

On 9 March 1966 the Municipality of Ohrid appropriated from several individuals the right of use of nationalised building land (одземање од понатамошно користење на градежно национализирано земјиште) located in an area E. The land in question included a plot owned by the applicant’s legal predecessor, measuring 764 sq. m.

By a final decision of 1 November 2001, the applicant was declared heir of the right to claim restitution of the land. On 10 October 2002 he requested its restitution.

On 1 September 2003 the Ohrid Restitution Commission, operating within the Ministry of Finance (Министерство за финансии на Република Македонија - Комисија за Денационализација со седиште во Охрид – “the Restitution Commission”), accepted the applicant’s request and ordered the restitution of the land (“the restitution decision”). On the basis of documentary evidence of 30 May 2002 obtained from the Ministry of Transport and Communications (Министерство за Транспорт и Врски), the Restitution Commission found that no structures of public interest, but rather “beach service facilities and a leisure centre” (сервис објекти за плажа и центар за забава), were planned to be constructed on the plot in question. An expert had carried out an on-site inspection and had established that the land in question had been undeveloped building land and was part of the Ohrid lakeshore strip (крајбрежен појас на Охридското езеро). On 4 and 9 June 2003 the State Archives and the Ohrid Court of First Instance informed the Restitution Commission that they had no information as to whether any compensation had been paid to the applicant’s predecessor for the appropriated land. By a letter of 26 August 2003 the Municipality of Ohrid confirmed that neither the applicant nor his predecessor had sought compensation for the appropriated land.

A copy of the decision was served on the Solicitor General (Јавен Правобранител) but it appears that no appeal was lodged against the decision. Accordingly, it became final on 29 October 2003.

On 9 April 2004 the land was restored to the applicant’s possession (предавање во владение). The minutes drawn by the Restitution Commission stated that, although properly summoned, the Solicitor General did not attend the Commission’s meeting.

On an unspecified date, A., an association that ran a campsite near the plot in question (“the association”), submitted documentation to the Solicitor General that the plot in question was developed building land and was in use by the campsite. It submitted minutes of a meeting between the association and municipal representatives of 26 April 1978 which showed that the plot in question had been transferred to the association’s possession. As stipulated in the minutes, the plot in question had been given to the association for its use even earlier, on 9 March 1966. The association also submitted a decision from 1981 in which the Municipality was ordered to pay compensation to the applicant’s predecessor for the plot.

On an unspecified date in 2004 the Solicitor General requested that the Appeal Commission of the Government, acting as a second-instance body (Комисија на Влада на Република Македонија за решавање во управна постапка во втор степен од областа на денационализацијата – the Appeal Commission), either annul (поништи), declare null and void (огласи за ништовно) or quash through a supervisory-review procedure (укине по право на надзор) the restitution decision of 1 September 2003. The Solicitor General argued that the association had submitted documentary evidence that contradicted the facts established by the Restitution Commission in that the land had been in use by the association and that compensation had been paid to the applicant’s predecessor. That evidence had not previously been submitted to the Restitution Commission.

In his reply of 24 September 2004, the applicant submitted that the Solicitor General could not rely on errors of fact as grounds for supervisory review of the final restitution order. He further denied that any compensation had been paid to his predecessor or him.

On 16 March 2005 the Ministry of Finance carried out an on-site inspection and drew up a report according to which the land “was vacant space between Lake Ohrid and the Ohrid-St Naum road” and “it was not used for the servicing of any surrounding structures” (не е во функција на околни објекти). It determined that the land was intended for the construction of “beach service facilities and a leisure centre”, which could not be considered as being of public interest. Accordingly, possession of it could be restored (може да биде предмет на реално враќање).

On 11 June 2007 the Appeal Commission accepted the Solicitor General’s request and declared the restitution order null and void finding that, pursuant to section 267(1)(3) of the Administrative Procedure Act (see paragraph 48 below), it could not be enforced. Relying on section 8 of the Restitution Act, the Appeal Commission stated that:

“From all admitted evidence in the proceedings it can be established that the undeveloped building land was appropriated from the [applicant’s] predecessor, that compensation was paid to the latter, and that the land in question is developed building land with playing fields and other leisure and recreational facilities, which are an integral part of camp E.

The [Appeal Commission] established that in the present case the final restitution order was based on a wrong application of the law, which was preceded by erroneous and incomplete establishment of the facts.”

On 14 August 2007 the applicant lodged an administrative action, arguing that the Restitution Commission, in its decision of 1 September 2003, had established the facts correctly. In this connection he referred to the Ministry of Finance’s report of 16 March 2005 (see paragraph 14 above) and another on-site report of 13 July 2007 drawn up for the purpose of an “action for disturbance of possession” in which it had been confirmed that the land had been vacant – a fact that had been established by Bitola Court of Appeal in an earlier civil dispute between him and the association (see paragraph 33 below).

On 4 September 2009 the Administrative Court (Управен Суд) – which had meanwhile become competent to decide on administrative actions – dismissed the applicant’s action and held that the annulment order of the Appeal Commission had been lawful. It referred to section 267 of the General Administrative Proceedings Act, sections 8(1) and 10 of the Restitution Act, sections 1 and 2 of the Protection of Lakes Ohrid, Prespa and Dojran Act, as well as sections 2, 69(4) and 70 of the Waters Act (see paragraphs 39, 40, and 42-44 below) and relied on the fact that the land in question was part of the shoreline. The relevant part of the judgment reads as follows:

“In the court’s opinion, in deciding the present case, the [Appeal Commission] acted correctly when it declared null and void the final restitution order, in accordance with section 267(1)(3) of the Administrative Proceedings Act, under which a decision whose enforcement is not possible shall be declared null and void. In relation to this, the court emphasises that this provision does not concern only the factual, but also the legal impossibility of enforcement ...

... In view of the above-cited statutory provisions, it is undisputed that Lake Ohrid and its shore are ... of general interest (добро од општ интерес), which is relevant, in the court’s view, for the restitution proceedings, within the meaning of the Restitution Act. ...”

On 25 February 2010 the Supreme Court (Врховен суд на Република Македонија) declared inadmissible an appeal against the Administrative Court’s judgment lodged by the applicant. The Supreme Court held that the impugned judgment had predated 25 September 2009, the day when it had become competent to decide administrative actions in the second instance.

On 31 May 2010 the Administrative Court rejected the applicant’s request for reopening of the proceedings on the basis of newly discovered facts. That decision was confirmed on appeal by the Supreme Court in a decision of 23 June 2010.

On 19 July 2010 the applicant applied to the public prosecutor (Јавен Обвинител на Република Македонија) seeking that protection of legality proceedings (Барање за заштита на законитост) be instituted regarding the judgment of the Administrative Court of 4 September 2009, as well as regarding the rejection of his request for the reopening of the proceedings. It appears that the public prosecutor accepted the applicant’s application and lodged an application for the protection of legality with the Supreme Court, which the latter rejected as inadmissible on the grounds that the remedy in question was no longer available due to change in legislation.

Following the final decision to declare the restitution decision null and void, on 13 April 2011 the Restitution Commission dismissed the applicant’s request.

On 16 June 2011, the applicant lodged an administrative action with the Administrative Court, challenging that decision.

On 1 February 2012, the Administrative Court quashed the decision. It found that the facts of the case relating to whether the plot was developed building land or not, as well as the issue of whether the applicant had received compensation, had not been sufficiently well-established.

On 25 May 2012 the Restitution Commission, after having made a fresh on-site inspection, upheld the applicant’s restitution request.

On 7 June 2012 the Solicitor General, acting on behalf of the State, challenged the latter decision with an administrative action, arguing that the Restitution Commission had failed to obtain information as to whether the land was of public interest owing to its situation on the Ohrid lakeshore.

On 10 July 2013 the Administrative Court dismissed the Solicitor General’s action and upheld the decision of the Restitution Commission.

On 25 July 2013 the Solicitor General lodged an appeal against the latter judgment with the Higher Administrative Court (Виш Управен Суд). The reasons stated in the appeal were, inter alia, that the Administrative Court had not given appropriate reasons as to whether the land had been of public interest.

The applicant died on 23 August 2013.

On 26 June 2014 the Higher Administrative Court quashed the judgment and remitted the proceedings. Relying on sections 6, 131 and 132 of the Waters Act, it found that the land in question was part of the Ohrid lakeshore strip and therefore was of public interest.

On 30 July 2014 D.S., the applicant’s daughter, asked the Restitution Commission to stay the proceedings. She submitted evidence that inheritance proceedings regarding the legacy of the applicant had been opened. The inheritance proceedings were later stayed due to civil proceedings in which she challenged the alleged existence of a will made by the applicant in favour of G.T., her brother.

On 22 September 2014 the Restitution Commission decided to stay the proceedings pending the outcome of the civil and the inheritance proceedings.

It appears that the civil and the inheritance proceedings are still pending.

In a separate set of proceedings concerning the same plot of land on 17 September 2009 the Bitola Court of Appeal overturned the lower court’s decision and finally upheld the applicant’s action for protection from disturbance of possession (смеќавање на владение) against the association which ran the camp regarding the same plot of land. It ordered the association to refrain from further disturbances.

According to a document from the Land Registry dated 3 September 2010, the historical records of the plot of land show that the association was granted use of the plot as of 9 March 1966. The State had at the time remained the owner of the plot, which continued to be the case until the day the document was issued.

On 30 August and 4 November 2010, and 30 March and 10 August 2011 the applicant made additional submissions to the Court, including evidence, which were added to the case file. This evidence refers to other neighbouring plots of land which, according to the applicant, had been returned to the possession of their respective owners. According to him, it had never been argued by the State that these neighbouring plots had been of public interest. In support he submitted several decisions from several different sets of restitution proceedings. It cannot be ascertained whether any of those proceedings ended finally in the respective plaintiffs’ favour.


KOMISJA ZAKŁADOWA NSZZ SOLIDARNOŚĆ at FRITO LAY POLAND Ltd v. POLAND

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant, Komisja Zakładowa NSZZ “Solidarność” at Frito Lay Poland Ltd in Grodzisk Mazowiecki is an enterprise-level unit of the “Solidarność” Trade Union.

It was represented before the Court by Mr A. Bodnar, a lawyer with the Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw.

On 18 October 2004 the National Labour Inspectorate found evidence of various violations of the workers’ rights related to the working time, unpaid overtime and breaches of the health and safety regulations at Frito Lay Poland Ltd in Grodzisk Mazowiecki (“the company”).

At the end of 2004 eight women employed in Frito Lay Poland Ltd were dismissed. Shortly after their dismissal, they complained to the President of the Board of the applicant trade union in the company, Mr S.Z. Three of the women claimed that they had been sexually harassed by their superior. The remaining five alleged that that they had been dismissed for their knowledge of the sexual harassment. Mr S.Z. requested the management of the company that the dismissed employees be reinstated but to no avail.

On 12 January 2005 the Mazowiecki Region Branch of the “Solidarność” Trade Union filed a criminal complaint with the prosecutor’s office. It alleged that W.O., a manager of the company had sexually harassed the employees. It also alleged that the rights of the employees had been violated.

On 13 April 2005 the District Prosecutor filed a bill of indictment with the Grodzisk Mazowiecki District Court. He accused W.O. of the sexual harassment of the employees. Another manager, G.M. was accused of wilful breach of the employees’ rights. No information has been provided as to the outcome of those proceedings.

Every three months the applicant trade union had to inform the management of the company about the number of its members. On 5 October 2005 it declared to the management of the company that it had 171 members as of 30 September 2005. Having regard to the number of unionised employees and pursuant to the provisions of the Trade Unions Act, Mr S.Z., the president of the board of the applicant trade union, was relieved from his normal duties and carried out his trade union activity.

On 9 December 2005 daily newspaper “Super Express” published an article about Mr S.Z. entitled: “How to receive a salary and do nothing”. The article stated that the number of unionised employees in the company had been inflated and that Mr S.Z. had therefore no right to be seconded to his trade union activity.

On the same day the management of the company requested the members of the board of the applicant trade union to indicate the number of its members as of 30 September 2005. This request was refused.

On 12 December 2005 the employees were requested by the company director to proceed to a designated room in order to fill out a questionnaire about membership in the trade union. The employees had to present their identity document and to sign a list in order to receive a questionnaire. Then, they had to indicate in an anonymous questionnaire whether, or not they were members of the trade union as of 30 September 2005. The room had no arrangements ensuring the confidentiality of the process. The whole process was supervised by a notary and her assistant who drew a relevant record.

378 employees of the total number of 418 took part in the survey. Six employees confirmed to be members of the trade union at the relevant time; while the trade union had declared 171 members.

Three employees declared subsequently to the trade union that they had given a negative reply for fear of reprisal.

On 14 December 2005 the Frito Lay Poland Ltd dismissed Mr S.Z. The reason for it was that Mr S.Z. had misled the company about the number of unionised employees which, in turn, allowed him to be relieved from his normal duties. Mr S.Z. instituted court proceedings for reinstatement.

On 28 December 2005 the Helsinki Foundation for Human Rights, a non-governmental organisation filed a criminal complaint against members of the management of the company. It submitted that the management of the company had acted illegally by requiring the employees to disclose their membership in the trade union. This action had amounted to the hindering of the trade union activity prescribed in section 35 of the Trade Unions Act and discriminated against the unionised employees. The Foundation submitted that if the employer had doubts about the number of unionised employees it should have initiated a relevant procedure before the civil court. It also asserted that the actions of the management had had intimidating effect on the current and future members of the trade union.

It appears that Mr S.Z. also filed a criminal complaint.

On 13 January 2006 the company distributed a form among the employees which was to be returned within five days. The form stated that “If therefore for any reason the board of the “Solidarność” trade union at the company still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today”.

The investigation was initially conducted by the Grodzisk Mazowiecki District Prosecutor’s Office but in January 2006 it was transferred to the Warsaw-Ochota District Prosecutor’s Office.

The prosecutor heard evidence from Mr S.Z. He stated that the company had been involved in a long conflict with the trade union. In October 2005 Mr S.Z. had informed the higher instances of the trade union about the alleged sexual abuse of a number of the employees. In his view, in reaction to that the company had decided to take measure aimed at undermining his credibility.

The prosecutor also heard evidence from four other members of the board of the applicant trade union. They stated that the trade union had been established in December 1998. In 2000, having regard to the increased number of unionised staff, the president of the board of the trade union was seconded to carry out his trade union activity. According to them, the survey of 12 December 2005 did not ensure confidentiality for the employees. Three members of the board of the trade union did not disclose their membership in the trade union for fear of dismissal. One member of the board of the trade union stated that the members of the board had requested the employees not to disclose the fact of their membership.

The prosecutor further undertook to verify the number of unionised employees at Frito Lay Poland Ltd. She requested the regional branch of the “Solidarność” Trade Union to provide information about the registration of the applicant trade union. A request was also addressed to the treasurer of the applicant trade union to inform the prosecutor of the number of trade union members based on the dues paid.

On 21 July 2006 the Warsaw-Ochota District Prosecutor discontinued the investigation.

The prosecutor assessed the evidence and found that no criminal offence of hindering trade union activity, prescribed in section 35 § 1 (2) of the Trade Unions Act, had been committed. She noted that under this provision the hindering of the trade union activity should have been of a significant character. However, the carrying out by the employer of an anonymous survey among the employees could not have been qualified as such. The evidence obtained in the case did not indicate that the action of the employer had significantly affected the activity of the trade union. The survey was carried out with a view to verifying the number of unionised employees. Such an action of the employer was not prohibited, while the trade union had an obligation to inform the employer every three months of the number of unionised members. However, if the employer had doubts about the number of unionised employees and then organised a voluntary and anonymous survey in the presence of a notary, it could not be said that the action of the employer had a significant influence on the trade union activity. The prosecutor lastly noted that the survey did not disclose the identity of unionised employees.

The applicant trade union filed an appeal. It argued that the employer had no right to verify the number of trade union members and should have instituted proceedings before the civil court instead. The employer’s actions led to the dismissal of Mr S.Z. and reduction of the membership of the trade union. The trade union further alleged that the prosecutor had failed to hear a number of important witnesses, in particular the company director, the notary and his assistant and, at least, some employees.

On 19 June 2007 the Warsaw District Court upheld the prosecutor’s decision. It noted that the prosecutor had correctly assessed the evidence in the case. The court agreed, in particular, that the hindering of trade union activity should have been of a significant character and that the carrying out of the anonymous survey could not have been considered as the hindering of trade union activity.

On 28 February 2006 the “Solidarność” Trade Union brought a complaint before the Committee on Freedom of Association of the International Labour Organisation concerning the situation in the Frito Lay Poland Ltd, alleging interference into trade union internal affairs and antiunion dismissal. The IUF (the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association) supported this complaint. The complaint also concerned a situation in another private company which is not relevant to the present case.

The complainant indicated that Mr S.Z., the leader of the “Solidarność” trade union at the Frito Lay Poland Ltd had been actively involved in a conflict concerning allegations of sexual harassment. The case of female employees who had been dismissed or forced to resign gathered a lot of attention from the media and from the international trade unions. The claimant described the survey organised by the company on 12 December 2005. It stated that the employees had been required to fill out a questionnaire concerning their trade union membership in circumstances that allowed easy identification of employees. Forms with a question “Were you a member of the enterprise-level trade union organisation on 30 September 2005?” were filled out in the presence of two persons and no arrangement had been made to ensure confidentiality. Two lawyers had been hired by the employer to supervise the procedure and this fact created an additional pressure. The complainant considered that due to lack of confidentiality, the majority of the trade union members had responded in the negative. It also described the circumstances leading to the dismissal of Mr S.Z.

The complainant further submitted that on 13 January 2006, a readyto-fill form had been distributed among the employees. The form contained the following statements “I declare that I do not consider myself a member of the trade union” and “If therefore for any reason the enterprise trade union of the “Solidarność” trade union still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today”. The form was to be signed and returned to the management within five days.

The complainant alleged that the acts of the employer to verify trade union membership had been clearly aimed at intimidating workers and contrary to the legislation in force. It noted that the Trade Unions Act provided for a possibility to apply to a court to verify the number of trade union members at a particular enterprise in the course of non-contentious proceedings. It alleged that as a consequence of the employer’s action, the number of unionised employees had dropped from about 170 to 60 in the space of two weeks. In conclusion, the complainant alleged that the actions undertaken by the management of Frito Lay Poland Ltd remained unpunished by the Polish Government or any public institution. The claimant asserted that the above cases of anti-union climate in the enterprise, hostile attitude towards attempts of workers to organise, anti-union discrimination and problems related to the reinstatement of dismissed trade unionists constituted a serious threat to the rights guaranteed by the Convention no. 98.

The ILO Committee on Freedom of Association examined the complaint as case no. 2474. In its first consideration of the case (334th Report, March 2007), the Committee held, in so far as relevant:

“1147. The Committee notes that this case concerns alleged violations of freedom of association by the management of two private companies (... and Frito Lay Poland Ltd), namely: acts of interference in trade union affairs and anti-union dismissals.

As regards the situation at Frito Lay Poland Ltd, the Committee notes that the complainant alleges that Mr S[...] Z[...], the leader of the enterprise trade union was accused by the employer of intentionally misinforming the company’s management as regards the number of trade union members and was dismissed without the approval of the union committee. The complainant further alleges that the gathering of individual data on trade union membership, on the results of which the employer had later based the decision to dismiss Mr Z[...], was conducted in a manner violating confidentiality (...) and had a deterring effect on trade union members. Furthermore, on 13 January 2006, a ready-to-fill form letter was distributed among the employees of the enterprise attesting to their non-membership in the union, to be signed and returned to the enterprise management. According to the complainant, such intimidating acts lead to the dropping of trade union membership from 170 to 60 members in the space of two weeks.

The Committee notes that here too, the Government does not challenge the substance of the allegations but indicates that only the Labour Court can make appropriate decisions with regard to the legality of the termination of the employment contract of Mr Z[...]. The Committee also notes the comments of the Lewiatan Polish Confederation of Private Employers, which include the position of the management of Frito Lay Poland Ltd that they did not violate national legislation, that the procedure of verification of trade union membership was voluntary and anonymous and was a result of reasonable doubts over Mr Z[...]’s claims with regard to the number of trade union members. It further notes the concerns of the Polish Confederation of Private Employers that the current legislation provides no means for verifying trade union membership.

The Committee notes the Government’s further indication that the National Labour Inspectorate assured the Minister of Labour that it would continue monitoring the application by Frito Lay Poland Ltd of the relevant labour regulations. In view of the opening by the District Prosecutor in Grodzisk Mazowiecki of judicial proceedings in the case of the respect of trade union rights at Frito Lay Poland Ltd, the Minister of Labour also called upon the Minister of Justice to give it priority. ...

While taking due note of the Government’s statement that ... the case of Mr Z[...] and the alleged violations of trade union rights at Frito Lay Poland Ltd are also under investigation, the Committee must also observe that these cases have been pending since ... December 2005 ... . The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. ...

The Committee observes that the Government has reacted to the concerns raised in respect of the enterprises ... and Frito Lay Poland Ltd by referring the issue to ... the Voivodship Social Dialogue Commission, as regards the latter.”

The Committee on Freedom of Association raised the issue of verification of trade union representativeness:

“1157. ..., the Committee observes the concerns raised by the Confederation of Private Employers in respect of the lack of legal provisions for verifying trade union representativeness and requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.”

The Committee on Freedom of Association submitted, in so far as relevant, the following recommendations to the ILO Governing Body:

“1158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(b) The Committee urges the Government to reiterate and intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of antiunion discrimination and interference. The Committee firmly expects that the situation of the respect of trade union rights in Poland will indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard.

(c) The Committee requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.”.

The ILO Governing Body approved these recommendations in March 2007.

Since its initial assessment of the case, the Committee on Freedom of Association has reviewed the situation periodically. In its Report No. 349 of March 2008, it noted, in so far as relevant, that:

“251. With regard to the alleged violation of trade union rights at Frito Lay Poland Ltd, the Committee notes that: the District Prosecutor concluded to the absence of any violation and closed the investigation on 21 July 2006; this decision was challenged by the NSZZ “Solidarnosc” and that on 19 June 2007, the District Court for the Capital City of Warsaw dismissed the complaint and upheld the decision of the District Prosecutor. The Committee requests the Government to provide copies of both decisions.

The Committee ... requests the Government to continue providing information on concrete measures taken to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee further requests the Government to provide information on any progress reached with regard to the development of an impartial and independent method for verifying trade union representativeness, in consultation with the social partners.”

In its subsequent Report No. 353 of March 2009, the Committee on Freedom of Association took note of the decisions of the District Prosecutor’s and the Warsaw District Court, transmitted by the Government, which had both concluded that there was an absence of any violation of trade union rights at Frito Lay Ltd. The Committee regretted that no information had been provided with regard to its other outstanding recommendations. It observed that similar matters were being raised by the Committee of Experts on the Application of Conventions and Recommendations and referred the follow-up of those legislative aspects to it.

Pursuant to section 251 § 2 of the Trade Unions Act of 23 May 1991 an enterprise-level trade union should inform the employer about an overall number of its members every three months. Section 31 regulates the right of members of the board of an enterprise-level trade union to be relieved from their normal duties in order to carry out trade union activity. The number of members of a board who could benefit from this right depends on the number of members of a trade union in an enterprise.

The Trade Unions Act provides in section 35 § 1(2) as follows:

“Whoever in connection with the office held or the function exercised hinders the trade union activity carried out in accordance with the provisions of the law shall be liable to a fine or a restriction of liberty.”


No 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)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1965 and lives in Daugavpils.

On 5 October 2004 at about 5 p.m. the applicant, who was under the influence of alcohol, was involved in a fight outside a grocery store in the presence of several witnesses. He stabbed another individual with a knife, as a result of which the latter died. The same day the police opened a murder investigation into the death.

At 9 p.m. on the same day the applicant – who in August 2004 had been released from prison, having served a sentence for an earlier conviction for inflicting physical injuries – was placed under arrest on suspicion of murder. The record of his arrest contained a written statement from him confirming that he did not need a lawyer.

On 6, 7 and 13 October 2004 the police questioned the applicant as a suspect. The interview records contained his signatures confirming that he had been informed of his right to instruct a lawyer to attend his interview, and that he did not need one.

During his first interview the applicant denied any involvement in the fight or the murder.

During his second interview he stated that on 5 October 2004, having consumed alcohol, he had been riding a bicycle when O. had suddenly run into him from an alley. They had started arguing and O. had hit the applicant, who had responded with several punches. Afterwards, two other young men had joined in the fight, and the applicant had been kicked to the ground. At some point the applicant had noticed that a woman was restraining O. and not letting him approach the applicant. Another unknown young man, who had not taken part in the fight, had restrained the applicant. The applicant had thought that the young man was going to attack him, and had therefore picked up his knife from the ground and stabbed him.

On 4 November 2004 the applicant was formally accused of murder under section 116 of the Criminal Law (Krimināllikums) for having stabbed the victim with the intent to kill him “because of a personal conflict”.

On 5 November 2004 the applicant was provided with a State-appointed lawyer, S., to assist him during the preliminary investigation. On the same day he was questioned as an accused person in the presence of S. He partially admitted his guilt. In essence, he reiterated the statements made in his earlier interviews. He stated that he had used the knife against the victim because he had known that the victim wanted to hit him, although he could not say whether the victim had already hit him at that point or, if not, when the victim was going to attack him.

On 30 November 2004 the judge extended the applicant’s detention until 5 February 2005. The judge noted that S. had submitted that keeping the applicant in detention was not justified, as he did not present any danger and had no reason to evade justice, since he had a job and a permanent place of residence.

On 22 December 2004 the public prosecutor charged the applicant with murder under section 116 of the Criminal Law. S. was present. On the same day the applicant was questioned in the presence of S. and confirmed his earlier testimony of 5 November 2004 (see paragraph 10 above).

On 24 December 2004, between 10 a.m. and 1 p.m., the applicant familiarised himself with the case file in the presence of S. He wrote in the relevant record that he had no remarks or requests, and also asked to be provided with a lawyer for his trial.

On 3 January 2005 the public prosecutor transferred the case to the Daugavpils Court (Daugavpils tiesa) for trial.

On 10 and 13 January 2005 the applicant complained to the Daugavpils Court that he had not been assisted by a lawyer when he had familiarised himself with the case file.

On 18 February 2005 S. was assigned to the applicant’s case to assist him in the proceedings before the Daugavpils Court. On the same day S. familiarised himself with the case file.

On 23 March 2005 the applicant complained to the Daugavpils Court that S. had convinced him to partially admit his guilt, although he had not wished to do so. Furthermore, S. had not been present when he had familiarised himself with the case file. He did not wish to be assisted by S.

On 7 April 2005 a first-instance hearing was held. The court examined the applicant’s complaint regarding S., who stated that his client’s own interests and those relating to his defence diverged. S. invited the court to uphold the applicant’s application for him to be released from his duties. After the court decided to release S. from his duties, the applicant stated that he needed to be assisted by a lawyer. The proceedings were adjourned.

On 27 May 2005 a senior lawyer of the Daugavpils Bar refused the court’s request to provide the applicant with another State-appointed lawyer, stating that S. had carried out his duties diligently, and Article 98 of the Code of Criminal Procedure (Kriminālprocesa kodekss) did not give an accused the right to freely choose a lawyer. The applicant had the right to appoint a lawyer of his own choice (and pay for his or her services), and the right to waive his right to legal assistance.

On 6 June 2005 the applicant asked the Daugavpils Court to provide him with a State-appointed lawyer.

On 9 June 2005 the Latvian Bar Association informed the applicant that, in the event that an accused raised an unjustified challenge in respect of his or her lawyer, he or she had a right to request another lawyer, at his own expense.

On 16 June 2005 the applicant was provided with a State-appointed lawyer, D., to assist him in the proceedings before the Daugavpils Court. On the same day D. familiarised himself with the case file.

On 17 June 2005 a hearing was held before the Daugavpils Court. The applicant asked the court to ensure the attendance of several witnesses. D. maintained that application. The next hearing was fixed for 1 September 2005.

On 20 June 2005 the applicant wrote a letter to D. and asked why he had agreed to represent him, given their “unpleasant” first meeting during which D. had indicated his intention to refuse to act as the applicant’s counsel. The applicant also asked D. to guarantee that he would persuade the trial court to order three new measures in order to obtain evidence. According to the applicant, the following measures would prove his innocence in relation to the murder charge: searches of other unspecified witnesses, polygraph testing, and another psychiatric examination. The applicant stated that if D. did not wish to defend him, then he had the opportunity to withdraw from the case, which would provide a satisfying solution for them both. However, if D. acted in the same way as his previous defence lawyer, the applicant would ask the trial court to discharge D. from his duties.

On 1 September 2005 the applicant submitted several written applications to the Daugavpils Court. He asked for the criminal case to be remitted to the prosecutor’s office in order to rectify the bill of indictment by changing his motive for the alleged offence. The court dismissed the application, as it had not yet started its adjudication or assessment of the evidence. The court further dismissed the applicant’s second application to end his pre-trial detention. As regards a third application to examine evidence concerning the scene of the crime and search other unspecified witnesses, the court decided to postpone examination of those requests until the end of its adjudication. In that regard, it noted that all defence witnesses had been summoned to the hearing. The court then dismissed the applicant’s application for another forensic medical examination on the grounds that one had already been carried out in November 2004. All the applications were dealt with at a hearing and the applicant was present when the relevant decisions were announced.

During the hearing, D. reserved his comments as regards the applicant’s application to call other unspecified witnesses and have a new indictment, on the grounds that those were matters to be examined at the end of court’s adjudication. He supported the applicant’s application for additional psychiatric examination and the attendance of all the defence and prosecution witnesses summoned to the trial. With regard to the applicant’s other application, D. stated that it was at the court’s discretion.

In his subsequent written application (“a refusal” (отвод)), the applicant relied on Article 99 of the Code of Criminal Procedure and asked the court to release D. from his duties. In that application, the applicant referred to his letter to D. dated 20 June 2005 (see paragraph 24 above), to which the applicant had expected a favourable response, but to which D. had not responded. The written application stated that the applicant was refusing the services of D. on the grounds that all applications made to the court on 1 September 2005 had been drafted by the applicant, and D. had not shown any interest in asking the court to order the examination of witness statements about the scene of the crime, new psychiatric expert evidence, or the correction of the motive in the bill of indictment. D. had merely supported the above applications.

At the end of the written application the applicant asked the Daugavpils Court to provide him with another State-appointed lawyer who would carry out his function in compliance with Article 97 of the Code of Criminal Procedure.

In reply to the applicant’s application, D. presented the applicant’s letter of 20 June 2005 to the court and invited it to establish whether the applicant needed a lawyer at all. In reply to a question put by the court, the applicant could not name a lawyer to be provided for him.

On the same day the Daugavpils Court decided to uphold the applicant’s application to release D. from his duties and rejected his application for appointment of another legal aid lawyer. It noted that the applicant had declined the services of D. because the latter could not guarantee that he would be acquitted, and the applicant had been of the opinion that D. had not adequately defended him. Daugavpils Court dismissed the applicant’s application on the grounds that he had twice been provided with a lawyer and had twice refused their services. Under Article 96 of the Code of Criminal Procedure, a lawyer was appointed by a court and not chosen by an accused himself. In accordance with Article 99, an accused had the right to waive his or her right to legal assistance, but no right to request replacement of a lawyer. According to the Daugavpils Court, the applicant’s refusal of D.’s services had been unjustified, and meant that he did not wish to have a legal aid lawyer at all. The court stated that the applicant was seeking to delay the proceedings.

From 1 September 2005 onwards the applicant did not have legal assistance in the first-instance proceedings.

During the hearing of 1 September 2005, when invited by the court to put questions to witnesses, he refused to do so, stating each time that he would either ask questions when represented by a lawyer or not ask questions at all. At the applicant’s request, the Daugavpils Court adjourned the hearing to summon other absent witnesses.

During the hearing of 24 October 2005 the applicant, referring to section 71 of the Criminal Procedure Law (Kriminālprocesa likums) (see paragraph 53 below), asked the court to ensure that his defence rights were respected. His earlier applications to replace the two State-appointed lawyers could not be construed as a waiver of his right to legal assistance; he had refused the assistance because of a “disagreement” and a “failure to provide legal assistance”. The applicant asked the court to provide him with a list of lawyers and a means of communicating with them, or, in the alternative, to ensure that he was assisted by one of the two lawyers he named. The court explained that the applicant’s application for a lawyer had been decided on 1 September 2005. It adjourned the hearing in order to summon absent witnesses.

During the next hearing on 17 November 2005 the applicant alleged that at least thirty people had been present when the alleged crime had taken place, but only eight of them had been called as witnesses. He therefore asked the court to identify the other witnesses. In reply to a question put by the court, the applicant confessed that he had stabbed the victim, but stated that he had not intended to kill him. At the applicant’s request, the Daugavpils Court adjourned the hearing, giving him time to give evidence and to submit a list of defence witnesses.

On 21 November 2005 Judge Z. of the Daugavpils Court sent the applicant a list of lawyers practising in Daugavpils whom the applicant could contact in order to obtain a legal consultation. He noted that the case file contained no evidence pertaining to the applicant’s status as a person of low income, and that the applicant would be provided with a State-appointed lawyer at appeal stage if the case were to reach it.

At a hearing on 12 January 2006 the Daugavpils Court examined several applications lodged by the applicant. As regards another application for appointment of a lawyer, the court held that the matter had previously been decided and could not be re-examined. During the same hearing the Daugavpils Court verified that the applicant had duly received the document setting out the charges against him. The court upheld the applicant’s application for an adjournment, and adjourned the hearing to give him time to prepare for the arguments in court.

On 31 January 2006 the prosecutor amended the charges against the applicant by changing the motive of the crime to, “acting with no reason, being guided by hooligan tendencies”.

On 6 February 2006 the Daugavpils Court found the applicant guilty of murder. The court noted that the applicant had partly admitted his guilt during the preliminary investigation in saying that he had stabbed the victim, but claiming that he had not intended to murder him. The court went on to refer to the evidence of seven witnesses who had been in the immediate vicinity of the incident. The court did not have any doubts as regards the applicant’s intent. He had stabbed the victim in the chest and had himself testified that he had aimed to stab the victim in the left part of his chest. All the witnesses, except one, had confirmed that the applicant had stabbed the victim after the fight had ended. The applicant had had no need to defend himself, because the victim had been unarmed and had not posed any threat to him. On the contrary, the victim had not taken part in the fight at all, but had wanted to stop it. The court dismissed as unreliable the evidence of an eyewitness who had been transported to a hearing and detained with the applicant.

In addition, the court relied on documentary evidence, such as the conclusions of the forensic psychiatric examination. The applicant was sentenced to twelve years’ imprisonment.

As regards the applicant’s right to legal aid assistance, the court observed that he had twice refused the services of State-appointed lawyers. The Code of Criminal Procedure, as in force on 1 September 2005, did not provide for the right of an accused to decline the services of a lawyer. The court further dismissed the applicant’s allegation that the State-appointed lawyers had not provided him with adequate legal assistance. At that point, the court had not yet started to hear the evidence. In addition, the applicant had wanted the lawyers to guarantee that he would be acquitted, and had referred to their performance in cases where they had assisted other individuals. The court also noted that witnesses had twice been called to testify, once following an application by the applicant, who had then refused to put any questions to them, arguing that he had not been granted a lawyer.

On 26 February 2006 the applicant lodged an appeal, which he supplemented on 26 March 2006. He submitted that his defence rights had been violated and asked the Latgale Regional Court (Latgales apgabaltiesa) to call all the witnesses, without providing any reason for that application. He stated that he needed a lawyer at an appeal hearing, and asked for an opportunity to meet him or her prior to the appeal hearing to agree on a defence strategy.

On 11 May 2006 the applicant was provided with a State-appointed lawyer, M.

At a hearing on 17 May 2006 the applicant was assisted by M. He and M. asked the court to adjourn the hearing, stating that more time was needed in order to prepare a defence. The hearing was adjourned until 8 November 2006.

On 8 November 2006 the applicant was represented by a State-appointed lawyer, V. At a hearing held on the same day the court read out witness statements and the applicant did not raise any objections to the statements in substance. When invited to ask questions, the applicant asked the court to call all the witnesses who had testified before the first-instance court again, in addition to some other witnesses. His application was on the grounds that he had twice refused legal assistance as a result of the different opinions of his lawyers about the conduct of his defence. The court dismissed that application, because the applicant had not made it in his appeal.

On 8 November 2006 the Regional Court dismissed the applicant’s appeal and upheld the first-instance judgment. The appellate court noted that there were no discrepancies in the witness testimonies and they were concordant with the applicant’s testimonies. It also noted that it was the applicant who had started the fight and demonstrated a readiness to use a knife against an unarmed victim, therefore no question of self-defence arose.

As to the fairness of the proceedings, the Regional Court found that the first-instance court had afforded the applicant an opportunity to choose a lawyer and exercise his defence rights. Referring to the reasoning of the first-instance court, the Regional Court agreed that his refusal to accept the services of the two lawyers had been unjustified. Having examined the content of the applicant’s submissions, applications and complaints in the criminal proceedings, it did not find that any of the conditions of section 83 of the Criminal Procedure Law had been fulfilled. The appellate court concluded that the applicant had been able to defend himself. The first-instance court had called the witnesses twice, however the applicant had refused to put any questions to them, citing unfounded excuses.

On 13 December 2006 the applicant lodged an appeal on points of law against the aforementioned decision with the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He made a complaint regarding the quality of the legal services provided by the State-appointed lawyers and the decision of the first-instance court to deprive him of legal assistance.

In addition, the applicant alleged that his guilt could have been “mitigated” if he had been given a psychiatric assessment and polygraph testing, and if additional defence witnesses had been questioned. He also complained in a general manner that neither of the lower courts had granted him permission to put questions to the witnesses.

On 16 January 2007 the Senate of the Supreme Court refused to consider the applicant’s appeal.


FAZLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

A list of the applicants is set out in the appendix. They are all citizens of Bosnia and Herzegovina and were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court.

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 22 below). It became operational on 1 January 2008.

Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs, 42.5% Serbs, 5.5% Croats; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final).

In 1992 seven applicants lived with their families in Kozarac (all but Ms Refika Ališković and Mr Edin Ramulić) and the remaining applicants in Rakovčani, in the Prijedor area. Following the takeover of Prijedor, tension developed between the new Serb authorities and Kozarac, which contained a large concentration of Bosniacs: of the 4,000 inhabitants of Kozarac town, 90% were Bosniacs. Kozarac was attacked by Serb forces on 24 May 1992. The attack began with heavy shelling, followed by the advance of tanks and infantry. The purported reason for the attack was the death of a Serb soldier. As a result of the shelling, over 800 inhabitants were killed. After the local Bosniac population had attempted to put up a resistance, a large number of people surrendered on 26 May 1992. The military-aged men were taken to Omarska and Keraterm camps and the rest of the population to Trnopolje camp. People who initially fled into the nearby mountains were sought out there or surrendered either to be killed or to be taken to camps. Eventually, the few Serb inhabitants of Kozarac returned and Serbs displaced from other areas moved into Kozarac (see the ICTY judgment in the Stakić case, IT-97-24-T, §§ 139-52, 31 July 2003; the ICTY judgment in the Brđanin case, IT-99-36-T, §§ 402-404, 1 September 2004; the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 529-41). Mr Nedžad Fazlić (Ms Fatima Selimović’s ex-husband and the father of Ms Lejla Fazlić and Ms Dženana Fazlić), Mr Edin Mahmuljin (Ms Ismeta Mahmuljin’s and Mr Muharem Mahmuljin’s son) and Mr Emir Hodžić (Ms Mersija Hodžić’s son and Ms Emira Biščević’s brother) were most likely killed either during the takeover of Kozarac or shortly thereafter in the nearby mountains.

Around 20–21 July 1992 Room 3 at Keraterm camp, which had up to that time held people from Kozarac, was emptied. Approximately 200 new detainees from different villages, including Rakovčani, were crammed into that room. For the first few days, the detainees were denied food and were subjected to beatings and abuse. Around 24-26 July 1992 virtually all of the detainees in the room were killed (see the ICTY judgment in the Stakić case, §§ 203-207, and the ICTY judgment in the Stanišić and Župljanin case, §§ 588-89, both cited above). Mr Esad Ališković (the husband of Ms Refika Ališković) was among them (as stated in the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1579-80). It would appear that Mr Enes Ramulić (Mr Edin Ramulić’s brother) survived that incident (ibid, §§ 1831-32). According to some accounts, on 4 August 1992 he was transferred to Omarska camp from where he was taken together with more than 120 other people to Hrastova glavica and killed the next day (that incident was noted in, for example, the ICTY judgment in the Stakić case, cited above, §§ 211-12).

The ICTY has so far convicted 16 persons in connection with crimes committed in the Prijedor area in 1992, including killings committed during or immediately after the takeover of Kozarac, killing of almost 200 persons in Room 3 at Trnopolje camp around 24-26 July 1992 and killing of at least 120 persons at Hrastova glavica on 5 August 1992. Among those 16 people, there were 11 direct perpetrators (Messrs Duško Tadić, Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić, Zoran Žigić, Duško Sikirica, Damir Došen, Dragan Kolundžija, Predrag Banović, and Darko Mrđa) and five organisers (Ms Biljana Plavšić and Messrs Milomir Stakić, Radoslav Brđanin, Mićo Stanišić and Stojan Župljanin). The ICTY imposed prison sentences of different length (between 3 and 40 years; 256 years in total).

Cases against Mr Radovan Karadžić and Mr Ratko Mladić, the war-time civilian and military leaders, respectively, of the Republika Srpska, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Prijedor area and other parts of the Republika Srpska.

As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the ICTY referred the case against Željko Mejakić, Momčilo Gruban, Duško Knežević and Dušan Fuštar to the State Court. At the arraignment of 28 July 2006, the accused pleaded not guilty. However, on 27 March 2008, Mr Fuštar changed his plea to guilty. He was then sentenced to 9 years’ imprisonment for persecution as a crime against humanity committed in Keraterm camp in 1992.

As regards the three other accused, on 30 May 2008 a Trial Chamber of the State Court found them guilty of participation in the commission of killings, beatings, rapes and various other crimes in Omarska and Keraterm camps as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor, and sentenced them to 11 (Mr Gruban), 21 (Mr Mejakić) and 31 (Mr Knežević) years’ imprisonment. On 16 February 2009 an Appeals Chamber of the State Court reduced the sentence of Mr Gruban to 7 years and upheld the remainder of the first-instance judgment.

In 2012 the State Prosecutor assigned a special prosecutor in charge of crimes committed as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor in 1992 with the aim of stepping up the prosecution of such crimes. Shortly thereafter, in early 2013, indictments were issued against Dragomir Soldat, Zoran Babić and Velemir Đurić for one such crime. On 27 March 2014 a Trial Chamber of the State Court sentenced each of them to 21 years’ imprisonment. This judgment is not final yet. Investigation into several other crimes committed in the Prijedor area in 1992 is currently ongoing (cases nos. KT-RZ 125/05; KT RZ 126/05 against Dragan Kondić, Goran Lajić, Dragomir Šaponja and Nedeljko Timarac; KT-RZ 143/07; KT-RZ 170/07; and KT-RZ 164/05).

On different dates between 1996 and 2002, the applicants sought and obtained declarations of presumed death with respect to their missing relatives.

While many exhumations have been conducted in the Prijedor area, the applicants’ missing relatives have not yet been identified. It should be noted, however, that the biggest mass grave in Bosnia and Herzegovina has recently been discovered in Tomašica. Reportedly, it contains the remains of hundreds of victims from the Prijedor area. Identification is now ongoing.

In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention.

On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded.

Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012).

On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Refika Ališković, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 23 above).

Despite the fact that the verification process outlined in paragraph 26 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH”, nos. 2/98, 39/04, 73/05; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).

Pursuant to section 21(4) of the War Veterans and their Families Act 2004 (OG FBH no. 33/04), which entered into force in June 2004, relatives of missing combatants were required to seek such declarations by June 2006 if they wished to keep the social benefits provided by that Act. By the same token, pursuant to the 2006 amendment to section 69 of the Social Care Act 1999 (OG FBH no. 39/06), which entered into force in September 2006, relatives of missing civilians were required to do so by September 2008. It should be noted that there is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live.


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr V.J., is an Angolan national who was born in 1989. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Tampere.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant is a 25-year-old single male from Angola. He originates from Kakongo city in Cabinda province. His whole family belonged to the FLEC-FAC party (Frente de Libertação do Estado de Cabinda - Forças Armadas de Cabinda), supporting and fighting for the independence of Cabinda. His parents were killed by the Angolan security forces when he was three years old. The applicant, together with his brother and sister, went to live with his uncle and the uncle’s wife after the incident. The applicant’s uncle had an important role in the FLEC-FAC, being the representative of the party and coordinating its activities in their neighbourhood. The uncle was held for approximately two years in Yabi prison when the applicant was still at school. The applicant was also a member of the party but his activities within the party were minor, mostly limited to distributing leaflets.

The applicant described his problems with the authorities as first starting when he was around 14 years old (in 2003). He was selling tinned food at the market when he ended up having a disagreement with a buyer who subsequently reported him to the police, alleging that he was conspiring to kill an important army colonel. The applicant was apparently held for a long time (around 2 years) in detention without a trial, but eventually his uncle managed to buy his release. The conditions in detention were extremely poor and he also claimed to have been beaten and stripped naked.

The events that led to his flight from Angola happened in late 2008. When returning home after his working day at the market, the applicant found that his uncle, brother and sister had been killed in the house. His uncle’s wife and his own common-law wife, who was also living in the same house at the time, had disappeared. The applicant has not had any information about them since. He heard that some people from his village had managed to escape to the Democratic Republic of Congo and suspected that perhaps his spouse and his uncle’s wife were among those people. Subsequently, the applicant was taken by FAA (Angolan Armed Forces) soldiers to an unknown location where some 15 other persons were held. The applicant was questioned about the whereabouts of his uncle’s documents concerning FLEC-FAC and ill-treated by the soldiers. He was beaten on the head with the butt of a rifle, his feet were beaten and burned, he was shot in the leg and the surface of his chest was cut with a knife. Approximately five or six days later he managed to escape, together with another FLEC-FAC activist who had also been held captive. The applicant walked back to his village and went to see the local priest, who helped him to flee Angola. He stayed for a while with a friend of the priest and in a church in Luanda. Eventually the priest organised his escape through a smuggler. The applicant flew to Moscow and travelled by car to Finland, where he arrived on 17 April 2009.

On 10 July 2009 a general physician examined the applicant. The applicant had already been hospitalised in May and June 2009 for epileptic fits which were at first diagnosed as psychogenic or caused by injuries to the head. The general physician reported scarring in several places on the applicant’s body and diagnosed him as suffering from posttraumatic stress disorder. He referred the applicant to the Centre for Torture Survivors in Finland (Kidutettujen kuntoutuskeskus, Centret för rehabilitering av tortyroffer) for further examination and treatment. The applicant was examined on two occasions, on 3 December 2009 and 13 January 2010 respectively, by the physiotherapist of the Centre for Torture Survivors who reported that the applicant had altogether six visible scars on his body. Two 1 to 3 cm long scars were found on his forehead and half of his front teeth were missing. Other scars were detected on his chest, leg and feet, all matching his description of the torture he had suffered. The applicant complained also of chest pain and difficulties in breathing from time to time, which he claimed had been caused by being kicked in the chest. He was also very sensitive to touch in general, which the physician concluded to be most likely a psychological symptom of ill-treatment. The applicant had therapy sessions with both the psychiatrist and the psychologist of the Centre for Torture Survivors from 27 November 2009 until at least December 2012. In their various medical reports the psychiatrist and the psychologist concluded that the applicant’s psychological condition was consistent with him having experienced severe and multiple trauma, compatible with his claim of having been tortured and having experienced the killing of his family. The psychiatrist diagnosed the applicant with severe depression and post-traumatic stress disorder and reported him as suffering also from slight memory problems. His symptoms of posttraumatic stress disorder and his memory problems eased during treatment and the applicant managed to begin studies in Finland. From 27 to 29 August 2011 the applicant was again hospitalised due to severe epileptic fits occurring despite medication. He was referred to a neurologist for follow-up.

As from the end of October 2012 the applicant was reported to be suicidal and was shortly admitted to intensive mental care.

On 17 April 2009 the applicant sought asylum immediately on arrival in Finland.

On 27 May 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected his application and decided to send him back to Angola. In its decision the Immigration Service referred extensively and in detail to the applicant’s asylum interview and found several discrepancies in his story. It noted that on some occasions the applicant gave exact dates and on other occasions he could not place the events at a specific moment in time. The Immigration Service found the applicant’s story of his escape, in a wounded state, from the FAA soldiers to be unlikely and not credible. The Immigration Service concluded that as there were such credibility issues, the applicant’s scars could have been caused by other means than torture, as he claimed. It also doubted whether the applicant was from Cabinda province.

The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed and he be granted asylum, or alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He also requested that an oral hearing be held. The applicant also submitted to the court several new medical certificates, noting that it was common that such trauma as torture and epilepsy affect negatively a person’s memory and ability to recount events consistently.

On 19 August 2011 the Administrative Court rejected the applicant’s appeal and refused his request for an oral hearing as unnecessary. It noted, however, that the discrepancies in the applicant’s story were minor and did not give reason to doubt that he originated from Cabinda. On the other hand, the Administrative Court did not consider it likely that the applicant would have been arrested and tortured after the rest of the family had been killed. The applicant’s previous arrest when he was 14 years old seemed to be unconnected with later events. The Administrative Court considered, furthermore, that it was not likely that Angolan officials would be interested in the applicant now that his uncle was dead. Although the human rights situation in Cabinda was not very satisfactory, it concluded that the applicant could be returned there without a real risk of ill-treatment.

On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds of appeal already presented before the Administrative Court.

On 12 October 2012 the Supreme Administrative Court refused the applicant leave to appeal. The applicant was notified of the decision on 30 October 2012.

On 21 December 2012 the applicant lodged a new asylum application, referring to the same grounds as in his first application. He also submitted new medical certificates, arguing that his current state of health prevented his removal or that removal to Angola would amount to inhuman treatment as no medical treatment would be available for him there. He also submitted certificates of his studies in Finland and relied on them as grounds for a residence permit.

On 15 January 2013 the Immigration Service rejected the application after having examined it in a fast-track procedure and decided to expel him to Angola. It also imposed a two-year-ban on entry into Finland and the Schengen-area. The Immigration Service considered that the applicant’s situation had not changed since the previous application and that there were no grounds for a residence permit or grounds preventing the applicant’s removal to Angola. It noted that the situation in the Cabinda area had calmed down, even though some attacks were still reported between the Angolan army and some rebel groups of the FLEC-FAC. However, the applicant could relocate internally to other parts of Angola if he wished. As for his health, the Immigration Service noted that mental health care was available in Angola, although a shortage of medical staff in general was reported. Post-traumatic stress disorder could be treated in one private clinic in Luanda. The treatment of epilepsy was not mentioned.

The applicant appealed to the Administrative Court, requesting again that a stay on removal be granted.

On 7 February 2013 the Administrative Court notified the applicant that the request for interim measures had been refused. The applicant’s appeal before the Administrative Court remained pending before that court.

On 19 September 2013 the Administrative Court rejected the applicant’s appeal.

By letter dated 21 October 2013 the applicant appealed to the Supreme Administrative Court, requesting that the Administrative Court’s decision be quashed and he be granted asylum or, alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He claimed that his vulnerability continued to increase and that he was clearly in need of protection.

On 17 April 2014 the Supreme Administrative Court refused the applicant leave to appeal.

According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.

Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.

Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.

According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure.

Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection.

According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area.

Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.

The Home Office’s Country of Origin Information Report on Angola of September 2010 provides the following information:

“The United States State Department 2009 Country Report on Human Rights Practices on Angola observed that “the Memorandum of Understanding for Peace and Reconciliation for Cabinda Province, signed in 2006, largely brought an end to the insurgency in the province, although sporadic attacks by dissident factions of the Front for the Liberation of the Enclave of Cabinda (FLEC) and counterinsurgency operations by the Armed Forces of Angola (FAA) continued during the year.

The intensity of the armed conflict in Cabinda has declined as a result of large-scale counterinsurgency operations in 2002-2003, and the government publicly claims that the Cabinda conflict came to a close in 2006, when a peace agreement was signed with a faction of the rebel Liberation Front for the Independence of the Enclave of Cabinda (FLEC). But the campaign for independence remains unresolved, and sporadic guerrilla attacks have been ongoing.”

According to the U.S. Department of State’s Country Report on Human Rights Practices for 2013 in Angola of January 2013:

“The three most important human rights abuses were cruel, excessive, and degrading punishment, including reported cases of torture and beatings as well as unlawful killings by police and other security personnel; limits on freedoms of assembly, association, speech, and press; and official corruption and impunity.”

Concerning the availability of medical drugs for mental health, the Home Office’s Country of Origin Information Report on Angola of September 2010 states the following:

“...the following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, phenobarbital, phenytoin sodium, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium. Prices keep on fluctuating depending on the availability of drugs.”


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);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 was born in 1978 and lives in Kaliningrad.

On unspecified date the applicant bought a house in Kaliningrad. A third person, M., was her authorised representative for the conclusion of the purchase contract.

On 18 August 2003 her ownership of the house was registered in the Consolidated State Register of Real Estate Titles and Transactions (Единый государственный реестр прав на недвижимое имущество и сделок с ним, “the Land Register”) and it remains there to date.

On an unspecified date M. was charged with fraud against the Savings Bank of Russia (Сбербанк) (hereafter – “the Bank”) and a private person.

On 20 April 2005 a judge of the Lomonosovskiy District Court of Arkhangelsk issued an interlocutory injunction prohibiting the applicant from selling the house.

On 15 March 2006 the Oktyabrskiy District Court of Arkhangelsk found M. guilty of fraud. The court found, inter alia, that M. was also the de facto owner of the house as she had paid for it and resided in it since 2003. The court ordered the seizure and sale of the house in order to pay M.’s debt to the victims of the crime.

On 9 June 2006 the Arkhangelsk Regional Court partly quashed M.’s conviction on appeal, notably as regards the District Court’s finding that she was the real owner of the house. It considered that this finding was not based on any legal provision and failed to take into account the purchase contract concerning the house. The Regional Court thus remitted that specific issue for fresh consideration in civil proceedings.

On an unspecified date the Bank sued M. for additional damages and sought reimbursement by means of the sale of the house. The applicant was also summoned to the proceedings as a defendant.

On 17 September 2007 the Tsentralnyy District Court of Kaliningrad rejected the Bank’s civil claims and declared that the house was the applicant’s property. It held that the applicant had always demonstrated her intention to be the owner of the disputed house, notably by systematically paying all charges and taxes relating to the house, and that her mother was living in it. As regards the Bank’s request for annulment of the powers of attorney given by the applicant to M. for the purchase of the house and of the purchase contract itself, the District Court found that this claim was time-barred and consequently rejected it.

On unspecified date the Bank lodged an appeal against that judgment, notably arguing that the purchase contract should be declared null and void because the applicant had never intended to become the real owner of the house but was merely helping M. to cover up for her crimes.

On 19 December 2007 the Kaliningrad Regional Court upheld on appeal the judgment of 17 September 2007, which became final.

On 16 April 2008 the applicant applied to the Tsentralnyy District Court of Kaliningrad for the revocation of the interlocutory decision of 20 April 2005 by the Lomonosovskiy District Court of Arkhangelsk to seize the house.

On 28 April 2008 the Tsentralnyy District Court of Kaliningrad rejected the application on the grounds that it lacked jurisdiction to decide on a measure imposed by another court in the framework of criminal proceedings.

On 4 May 2008 the Bank lodged an application for supervisory review.

On 18 August 2008 the Presidium of the Kaliningrad Regional Court quashed the judgment of 17 September 2007, as upheld on 19 December 2007, and ordered the seizure of the house from the applicant in order to pay M.’s debt to the Bank. The Presidium relied on the finding made by the Oktyabrskiy District Court in its judgment of 15 March 2006 that although the applicant was registered as the official owner of the house, it had been bought with funds belonging to M.

On 16 October 2008 and 10 March 2009 the applicant and M. challenged the judgment of the Presidium of the Kaliningrad Regional Court by way of supervisory review applications, which were rejected by the Supreme Court and the Deputy President of the Supreme Court, respectively.

On 8 June 2009 the bailiff decided to seize the house in accordance with the judgment of the Presidium of the Kaliningrad Regional Court.

On 2 April 2010 at the bailiff’s request the Tsentralnyy District Court stayed the enforcement proceedings pending examination of the applicant’s case by the Court.