Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant, Mr Pavlos Loizou, is a Cypriot national, who was born in 1961 and lives in Nicosia. He was represented before the Court by M. Sağiroğlu and F. Hansel, lawyers practising in Nicosia.

The Turkish Government (“the Government”) were represented by their Agent.

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

The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus. The general context of the property issues arising in this context is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001 IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010).

Before the military intervention in northern Cyprus in 1974 the applicant’s family lived in Kyrenia and owned property there. This included the family’s home (“plot 146”), which was registered in the name of the applicant’s mother, and two commercial properties, which were registered in the name of a limited company, Neocles Loizou Successors (“NLS”). The applicant’s parents were the sole shareholders in NLS. According to NLS’s articles of association, the two commercial properties were to be distributed between the applicant and his two brothers if their parents, the shareholders, so wished.

The first of the two commercial properties, plot 213, was a groundfloor dwelling which the applicant’s father planned to turn into a supermarket. The second, plot 233, was a supermarket which was in operation until the military intervention began.

When his mother died in 1990, the applicant’s father decided to transfer all three properties (that is to say, the dwelling house and the two commercial properties) to the applicant and his brothers.

On 6 August 1999 the NLS company, which had in the meantime ceased to be operational, was struck off the relevant register of companies.

On 28 January 2003 the applicant, his father and his two brothers lodged an application with the Court, alleging violations of Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 arising from their inability to access their three properties (application no. 4758/03). On 14 December 2010 a Single Judge of the Court declared their application inadmissible because it had been lodged before the domestic remedy available via the IPC had been exhausted and therefore had to be rejected for nonexhaustion of domestic remedies.

On 3 December 2010 the applicant’s brothers transferred their shares in the properties to the applicant, making him the sole owner of all of them.

The transfer of the ownership of the properties in question is substantiated by certificates showing the history of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus.

On 23 September 2011 the applicant filed an application, supported by an affidavit, with the IPC under Law no. 67/2005 (see paragraphs 32-33 below) claiming compensation for all three properties in the amount of 4,700,000 pounds sterling (GBP) and GBP 7,100,000 for the loss of their use. In support of his claim the applicant provided certificates issued by the Land Registry and Surveys Department of the Republic of Cyprus attesting that he was the owner of the properties in question. In the affidavit, the applicant stated that his father had owned the properties in 1974 and that there was no mortgage, restriction or other liability on the properties.

The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraphs 32-35 below).

In a letter dated 22 December 2011 the applicant contended that the “TRNC” Attorney General had failed to provide an opinion concerning his claim within the thirty-day time-limit set out in the relevant provisions on the functioning of the IPC. He argued that the IPC should adopt a default decision on the basis of his claim.

At a meeting before the IPC on 10 April 2012 the “TRNC” Attorney General’s representative stated that he had still not received a report concerning the properties that were being claimed by the applicant and he was therefore not in a position to provide an opinion.

Further meetings before the IPC scheduled for 12 June and 16 October 2012 were adjourned for the same reason.

Meanwhile, the applicant instructed a law firm to represent him in the proceedings before the IPC.

On 7 October 2013 the “TRNC” Attorney General submitted his opinion concerning the applicant’s claim. The opinion relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department which stated that − according to their information − plots 213 and 233 had been owned by the NLS company in 1974, and plot 146 by Elli Kika Loizou (the applicant’s mother). In the opinion the view was also expressed that the applicant’s claim was excessive.

At a directions hearing on 6 November 2013 the applicant’s representative undertook to provide photographs of the properties and asked the “TRNC” Attorney General to provide the relevant land registry search documents for the properties in question. The “TRNC” Attorney General’s representative asked the applicant to provide birth certificates for him and his parents, certificates from the head of the local community (mukhtar) attesting that the persons who owned the properties in 1974 were the applicant’s parents, and documents concerning the history of ownership of the properties after 1974 and attesting that there were no liabilities attaching to them.

The applicant’s representative produced the requested documents on 24 December 2013.

At a preliminary hearing before the IPC on 20 November 2014, the “TRNC” Attorney General’s representative and the Housing Undersecretary informed the applicant and the IPC that no offer would be made in respect of the family house (plot 146) unless the claims made in respect of the two commercial properties (plots 213 and 233) were withdrawn. The applicant’s representatives stated that they were trying to find a solution with the “TRNC” authorities concerning issues relating to companies and mortgages. They therefore asked for a month’s adjournment in order to monitor developments on the matter and stated that if a solution was not reached they would withdraw the request relating to the two commercial properties.

At a meeting before the IPC on 8 January 2015 the applicant’s representative explained that they were working on the amendments of the relevant law with the “TRNC” authorities and asked for a further adjournment of the examination of the case.

A further meeting before the IPC was held on 19 February 2015 at which the applicant was also present. His representative asked for an adjournment, explaining that some additional documents needed to be provided and that there was no progress with the amendment of the relevant law. He also stated that the applicant would withdraw the claim with regard to the commercial properties.

On 20 February 2015 the applicant’s representatives forwarded further necessary documents to the IPC.

On 23 February 2015 the applicant’s representatives submitted a letter to the IPC stating that, without prejudice, they were withdrawing the applicant’s claim in respect of the two commercial properties (plots nos. 213 and 233). They explained that before 1974 the two properties had been registered as the property of a company whose shareholders were the applicant’s parents. Thereafter, the company had terminated its activities and its properties had been transferred to the shareholders’ children (the applicant and his brothers). Later, the company had been liquidated and now no longer existed as a legal entity. The applicant’s representatives also submitted that as the transfer of properties had occurred after 1974 and as the relationship between the applicant and the company was not defined as one of legal succession within the meaning of Law no. 67/2005, the legislation did not provide the applicant with the possibility of submitting a claim for compensation for that property before the IPC. They considered that this was the reason why the “TRNC’s” representative had refused to make an offer for the compensation claim unless the two commercial properties were withdrawn. Lastly, they argued that their decision to withdraw the claim was in line with the “TRNC” High Administrative Court’s practice in similar cases (see paragraphs 37-38 below), which showed that the IPC could not be considered as a remedy in relation to a claim concerning the two commercial properties.

At a meeting before the IPC on 16 April 2015, at which the applicant was also present, his representatives asked for an adjournment of the proceedings in order to consider a settlement offer in the amount of GBP 190,000 made by the “TRNC” authorities.

On 17 April 2015 the applicant’s representatives informed the IPC that he would accept the offer.

On the same day a meeting was held before the IPC at which the “TRNC” representatives noted that the applicant had withdrawn the claim in respect of the two commercial properties (plots nos. 213 and 233) and reiterated their offer to pay GBP 190,000 in respect of the applicant’s claim concerning the family house (plot 146), which the applicant’s representatives accepted. On the basis of the parties’ settlement, the IPC adopted a decision ordering the “TRNC” authorities to pay the aforementioned amount to the applicant in respect of his claim concerning the family house.

On 24 March 2016 compensation in the amount of GBP 190,000 was paid to the applicant.

Article 159 § 1 (b) and (c), in so far as relevant, provide as follows:

“(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and (c) ... shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.”

Article 159 § 4 reads as follows:

“In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in sub-paragraphs (b) and (c) of § 1 above [concerning, inter alia, all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.”

The relevant provisions of Law no. 67/2005 (the English version available at http://www.tamk.gov.ct.tr), which came into effect on 22 December 2005, read as follows:

“2. In this Law, unless the context otherwise requires,

“Applicant” means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus.

“Immovable property” means immovable property within the scope of subparagraph (b) of paragraph 1 of Article 159 of the Constitution.”

“3. The purpose of this Law is to regulate the necessary procedure and conditions to be complied with by persons in order to prove their rights regarding claims in respect to movable and immovable properties within the scope of this Law, as well as, the principles relating to restitution, exchange of properties and compensation payable in respect thereof, having regard to the principle of and the provisions regarding protection of bizonality, which is the main principle of 1977-1979 High level Agreements and of all the plans prepared by the United Nations on solving the Cyprus Problem and without prejudice to any property rights or the right to use property under the Turkish Republic of Northern Cyprus legislation or to any right of the Turkish Cypriot People which shall be provided by the comprehensive settlement of the Cyprus Problem.”

“4. (1) All natural or legal persons claiming right to movable and immovable properties that are within the scope of this Law may bring a claim until December 21, 2017 by way of an application in person or through a representative, to the Immovable Property Commission constituted under section 11 of this Law, requesting restitution, exchange or compensation for such property. Applications made to the Commission shall be subject to the Rules made under the Civil Procedure Law and the Rules made under this Law, notwithstanding any other provision to the contrary in any law or legislative instrument, only a fee of 100 TL (one hundred Turkish Liras) shall be paid for each application.”

“6. In proceedings before the Commission the burden of proof shall rest with the applicant who must satisfy the Commission beyond any reasonable doubt as to the following in order for a decision to be taken in his favour:

(1) That, the movable or immovable property in respect of which rights are claimed is the one claimed in the application.

(2) That, in case of immovable property in respect of which the applicant claims rights, the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered.

“8. The Commission, after having heard the arguments of the parties and witnesses, and having examined the documents submitted, shall, within the scope of the purposes of this Law, taking into consideration the below-mentioned matters, decide as to restitution of the immovable property to the person whose right in respect to the property has been established, or to offer exchange of the property to the said person, or decide as to payment of compensation. In cases where the applicant claims compensation for loss of use and/or non-pecuniary damages in addition to restitution, exchange or compensation in return for immovable property, the Commission shall also decide on these issues.

“9. Parties have the right to apply to the High Administrative Court against the decisions of the Commission. If the applicant is not satisfied with the judgment of the High Administrative Court, he may apply to the European Court of Human Rights.”

“11. (1) For the implementation of this Law, an Immovable Property Commission composed of a President, a Vice-President, and minimum 5, maximum 7 Members, whose qualifications are specified below, shall be established. At least 2 members of the Commission to be appointed shall not be nationals of the Turkish Republic of Northern Cyprus, United Kingdom, Greece, Greek Cypriot Administration or Republic of Turkey. The decisions regarding the appointment of the members shall be published in the Official Gazette.

(A) The President, Vice-President and the Members of the Commission shall be appointed by the Supreme Council of Judicature from among persons nominated by the President of the Republic. The President of the Republic shall nominate a number of candidates twice the number of members to be appointed.

(B) The President, Vice-President and Members of the Commission may be appointed from among lawyers or from among persons with experience in public administration and evaluation of property.

Any persons directly or indirectly deriving any benefit from immovable properties on which rights are claimed by those who had to move from the north of Cyprus in 1974, abandoning their properties, cannot be appointed as members of the Commission.

(2) The Commission shall convene by minimum two-third majority of the total number of members and shall take decisions by absolute majority of the members attending the meeting, including the President.

(3) The term of office of a member not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Commission. The term of office of the President of the Commission not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Republic. In other cases, the conditions for the termination of the term of office of a member of the Commission shall be the same as those applied to a Supreme Court Judge.

(4) A secretariat shall be established in order to carry out the clerical and administrative work of the Commission. ...

(5) All employees of the Commission, including the President, Vice-President and Members, shall be employed as long as their services are required and subject to conditions determined by the Council of Ministers, notwithstanding any provision to the contrary in any other law relating to employment of service, duration of service, age limit, duration of contract, renewal of contract and condition of non-retirement.

(6) The President, Vice-President and Members of the Commission shall not hold any other office during their term of office.

“12. The President, Vice-President and Members of the Commission established in accordance with the provisions of this Law shall be appointed for a period of 5 years. At the end of this period the President, Vice-President and Members may be re-appointed in the same manner. The President, Vice-President and Members of the Commission shall carry out their duties objectively and independently during their term of office which may only be terminated before the end of term subject to the provisions of section 11, above. No person or authority can give any order or instruction to the President, Vice-President and Members of the Commission.

If the function of the Commission is completed before the period envisaged in the Law the terms of office of the Commission members shall be automatically terminated.”

“13. The Commission shall have the following duties and powers:

(1) To examine and reach a decision on applications made under this Law.

(2) To determine the amount and method of payment of compensation.

(3) To take necessary measures and decisions in order to conclude the proceedings concerning the amount of compensation to be paid to the applicants following the application of this Law.

(4) The Commission, in carrying out its duties and exercising its powers mentioned above, may, if it deems necessary, collect written or oral testimony or hear witnesses.

(5) The Commission may require written and oral testimony of any witness for the purpose of resolving any problems that may arise in the application of this Law, either under oath or by way of a declaration. Such evidence under oath, or by declaration shall be identical to that required for testimony before a Court of law.

(6) To summon any person residing in the Turkish Republic of Northern Cyprus to attend any meeting of the Commission in order to give testimony or produce any document in his possession and to be questioned as a witness.

(7) To compel any person to give evidence or to produce a document, when such person refuses to do so, following a request by the Commission, whether under oath or by way of declaration, if the person concerned does not offer any satisfactory excuse to the Commission for such refusal.

However, witnesses may not be compelled to answer any incriminating question and no legal proceedings may be commenced for refusal to do so.

(8) The Commission may decide that expenses shall be paid to any persons summoned to give evidence in virtue of the application of this Law.”

“14. The decisions of the Commission have binding effect and are of an executory nature similar to judgments of the judiciary. Such decisions shall be implemented without delay upon service on the authorities concerned.”

“16. The processes to be carried out in accordance with the provisions of this Law, summons to be issued to witnesses, the procedure for attendance before the Commission and that relating to the hearing shall be subject to the provisions of the Civil Procedure Law.”

Further relevant provisions of Law no. 67/2005 are provided in Demopoulos and Others v. Turkey (cited above, §§ 35-37).

Section 22 of Law no. 67/2005 provides that Rules for the better implementation of the provisions of that Law may be prepared by the IPC, approved by the “TRNC” Council of Ministers and published in the Official Gazette.

In 2006 the IPC adopted its Rules (the English version available at http://www.tamk.gov.ct.tr) regulating details of the procedure before it.

The relevant case-law of the “TRNC” Constitutional Court is summarised in Demopoulos and Others (cited above, §§ 38-39).

According to the available English translation of the judgment of the “TRNC” High Administrative Court in Eleni Meleagrou v. the Immovable Property Commission (C.13/2011, HAC 124/2009) of 27 June 2011, that court was called upon to examine the complaint of a plaintiff whose restitution claim had been rejected by the IPC on the grounds that her status as shareholder in a company that owned certain property in 1974, was not covered by section 6(2) of Law no. 67/2005. The plaintiff argued that, since she owned the immovable property as a company shareholder, the IPC should have ruled in her favour.

The relevant part of the “TRNC” High Administrative Court’s judgment reads:

“... [T]he person who could apply to the IPC under Law no. 67/2005 is defined under sections 2 and 6(2) of the Law.

The relevant part of section 2, which was drawn out as an interpretation section, is as follows:

‘‘Applicant’ means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus.’

Section 6(2) of the Law is as follows:

‘6(2) That, in case of immovable property in respect of which the applicant claims rights, that the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered.’

As it can be seen from the definitions cited above, a person who could apply to the IPC for the remedies that are foreseen in the law is an individual in whose name the subject matter property was registered and/or the legal heir of the property owner in whose name the property was registered on the date of 20/7/1974. Viewing the undisputed facts and evidence before us, it can be seen that the owner of the immovable subject matter made up of 14 plots is AkinitaMeleagrous Ltd. The plaintiff has put forward that AkinitaMeleagrous is a family business, she is a shareholder of this company, the aforementioned properties were registered in her name due to this capacity, and these matters should have been taken into account by giving a ruling in favour of restitution.

The registered owner of the aforementioned properties on 20/7/1974, AkinitaMeleagrous Ltd., is a company with a legal personality. The aforementioned company continues its legal entity despite having stopped its activities because it has not been struck off the register.

The fact that the company transferred the properties it owned to other persons, even if these persons were its shareholders, does not affect the legal status in sections 2 and 6(2) of the law. For this reason it is not possible to give a legal value to the claims of the plaintiff that are outlined above.

When considering section 6(2) of Law no 67/2005 as cited above, the finding and ruling of the IPC that the plaintiff does not have a right to apply is not flawed.

As a result, the case is dismissed and cancelled. ...”


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

The applicant was born in 1982 and lives in the Altay region.

At the material time the applicant was serving a sentence for robbery in correctional colony no. LIU-8 in the Altay region.

On 22 June, 12 July and 20 December 2004 he attempted suicide by opening his veins.

On 12 July 2004 a prison psychiatrist diagnosed the applicant as suffering from a slight mental retardation, psychopathy and claustrophobia with elements of self-aggression. An entry was made in his medical records that solitary confinement was contraindicated for mental health reasons. The correctional colony authorities were informed accordingly. The applicant was prescribed treatment. Since that time he had been examined by the prison psychiatrist at regular intervals. The prison psychiatrist’s diagnosis and recommendations were confirmed by the psychiatric unit of prison hospital no. 12 where the applicant was treated from 2 to 26 April 2005.

On 3 May 2005 the governor of the correctional colony ordered the applicant’s placement in a punishment cell for thirteen days as a punishment for the disorderly state of his bed and bedside table.

On 5 May 2005 the applicant was examined by the prison doctor on duty who found that his state of health permitted his placement in a punishment cell, provided that he was not held in solitary confinement.

The applicant was then placed in punishment cell no. 32 designed to accommodate two inmates. He was left alone in the cell, but the door was kept open.

On the same day the applicant went on a hunger strike in protest against his placement in solitary confinement.

At 8 p.m. on 8 May 2005 the applicant was visited by the prison doctor on duty who examined him and found that his health was satisfactory. He reiterated the recommendation that given the applicant’s mental condition solitary confinement was contraindicated.

After the doctor left, the door of the applicant’s cell was shut. About an hour later the applicant had a panic attack and attempted to open his veins with his teeth. The doctor was called back. He noted numerous lacerated wounds on the applicant’s forearms and made bandages.

By letters of 15 June, 8 August and 1 November 2005 the applicant asked the prosecutor’s office of the Altay Region to initiate criminal proceedings against the warders on duty.

On 15 December 2005 a deputy prosecutor of Barnaul refused to open criminal proceedings. He referred to statements by a warder, Mr Sh., that the applicant had himself asked him to shut the door. Moreover, the applicant’s health had not been seriously damaged as a result of the incident.

It follows from the letter of 16 December 2005 from the prosecutor of Barnaul that the prosecutor’s office had found that the applicant had been lawfully placed in a punishment cell. At the same time, the warders had disrespected the doctor’s recommendation by leaving the applicant alone in a closed cell. The governor of correctional colony no. LIU-8 had been warned against “permitting similar incidents to occur in future”.

Following to further complaints by the applicant, in which he stated in particular that he had never asked the warders to close the door, the prosecutor of Barnaul conducted an additional inquiry. He questioned the applicant and Mr Sh. He also questioned warders Mr K. and Mr S. who testified that the door to the applicant’s cell had been temporarily closed to prevent his communication with other inmates who were at that time receiving clean bedding in the storage room opposite to the applicant’s cell.

On 27 January 2006 the prosecutor of Baranaul refused to open criminal proceedings against the warders. He found that the warders had acted in compliance with the internal regulations and had had no intention of provoking the applicant to self-injury.

The applicant challenged the prosecutor’s decisions of 15 December 2005 and 27 January 2006 before the Tsentralniy District Court of Barnaul.

On 27 September 2006 the Tsentralniy District Court upheld the prosecutor’s decisions, finding that the inquiry had been thorough and the refusals to open criminal proceedings had been lawful and justified.

The applicant appealed. He submitted, in particular, that the warders had known that he suffered from claustrophobia and had closed the door to take vengeance on him for going on a hunger strike.

On 2 November 2006 the Altay Regional Court upheld the decision of 27 September 2006 on appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in 1957 and lives in Diyarbakır.

On 10 December 1985 he began working as a biology teacher at a private tutoring centre (dershane) in Diyarbakır. Between December 1985 and July 1999 he worked there on a contractual basis. The renewal of his contracts was subject to the approval of the Director of the National Education Department attached to the Diyarbakır Governor’s Office.

On 13 July 1999 the Governor’s Office decided not to renew the applicant’s contract, on the strength of a security investigation conducted into him.

On 21 July 1999 he was informed by the head of the tutoring centre that his contract was being terminated.

On 1 September 1999 the applicant lodged a claim with the Diyarbakır Administrative Court, challenging the termination of his contract. In his application, he stated, inter alia, that he had not been informed of the reasons for his dismissal and that the administrative authorities had failed to respect the established case-law of the Supreme Administrative Court, according to which security investigations could not be used as the sole basis of an administrative decision, as their content was confidential. The applicant submitted that he had been working at the private tutoring centre since its establishment in 1985 and that his right to work was breached on account of this unlawful administrative decision. The applicant claimed that he was deprived of his livelihood as he did not have any other work and that the administrative authorities’ decisions had irreversible consequences for his life.

On 30 December 1999 the Diyarbakır Administrative Court annulled the Governor’s Office’s decision. In its judgment, the court noted that the Governor’s Office had decided to terminate the applicant’s contract on the basis of a security investigation conducted by the office of the Regional Governor of the state-of-emergency (Olağanüstü Hal Bölge Valiliği). The court further noted that the administrative authorities had been requested to provide information on the reasons for the termination of his contract. In a document sent to the court by the Governor’s Office, it was stated that the applicant had been involved in a number of ideological activities before 1980; that the Karşıyaka police had instituted proceedings against him for having committed an offence against the “national legal personality of the State”; that he had been sentenced to ten months’ imprisonment; and that he had been the representative of the Diyarbakır branch of Eğit-Sen (a trade union) in 1991. The court considered that the applicant had worked in State schools for a number of years and had been known to the administrative authorities when he began working at the private tutoring centre. It therefore concluded that the decision to terminate his contract, which had been taken on the basis of intelligence information known to the authorities from the outset, had been unlawful.

On 20 March 2000 the Diyarbakır Governor’s Office appealed against the judgment of 30 December 1999. In the appeal, it was noted that the applicant had been involved in illegal activities and therefore did not possess the right qualities to be a teacher. It was also stated that the administrative authorities, taking into consideration the particularities of the country and the region concerned, as well as the nature and the sensitivity of the post, had found that there was no public interest in keeping him employed in his post.

On 17 September 2001 the Supreme Administrative Court quashed the first-instance court’s judgment. It noted that the Regional Governor of the state-of-emergency had conducted a security investigation into the applicant. That investigation had revealed that he had been involved in several ideological activities before 1980; that a criminal investigation had been initiated against him for having committed an offence against the “national legal personality of the State”; and that he had been sentenced to ten months’ imprisonment. These were the reasons for which he had been dismissed from his post. The Supreme Administrative Court held that the decision dismissing the applicant following the security investigation had been lawful, since he had been sentenced to imprisonment for having committed a crime against the State and there was information to suggest that he had been involved in ideological activities for illegal organisations. The Supreme Administrative Court also had regard to the particularities of the region where he had worked.

On an unspecified date the applicant’s representative applied to the Supreme Administrative Court, requesting rectification of its decision of 17 September 2001. In his request, he maintained that the applicant had been charged with being a member of an organisation whose aim was to establish the domination of a particular social class and for disseminating propaganda, under Articles 141 and 142 of the Criminal Code (Law no. 765) respectively, and had been sentenced to ten months’ imprisonment for his activities before 1980. He further contended that the Articles in question had been repealed in 1991, and that on 22 August of the same year the trial court had decided to overturn the applicant’s criminal conviction and erase his criminal record. He argued that dismissing the applicant on the basis of his erased criminal record and the findings of a security investigation which were not publicly accessible had been unlawful and in breach of his right to a fair trial under the Convention.

On 8 May 2002 the Supreme Administrative Court dismissed his request holding that his submissions could not be the basis of a rectification of decision.

On 31 December 2002 the Diyarbakır Administrative Court dismissed the applicant’s case, taking into account the Supreme Administrative Court’s decision and referring to the reasoning in the latter’s judgment.

The applicant appealed. In his appeal, his representative repeated the submissions put forward in his request for rectification of the Supreme Administrative Court’s decision.

On 20 January 2004 the Supreme Administrative Court dismissed the applicant’s appeal and upheld the judgment of 31 December 2002, holding that the latter was in accordance with the law.


CASE OF BABAYEV AND HASANOV v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicants’ dates of birth and places of residence are given in the Appendix.

At the material time the first applicant was a member of the youth committee of an opposition party, the Popular Front Party of Azerbaijan (Azərbaycan Xalq Cəbhəsi Partiyası – “the PFPA”), and the second applicant was a chairman of a youth organisation called Azad Genclik.

Both applicants participated in a number of unauthorised peaceful demonstrations organised by the opposition. In the course of many of those demonstrations, they were arrested and convicted. In particular, the first applicant was arrested during the demonstrations on 15 May, 19 June and 31 July 2010.

The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 11 March 2011 and 20 October and 17 November 2012.

The second applicant attended the demonstrations of 11 March 2011 and 20 October 2012. The first applicant attended the demonstrations of 20 October and 17 November 2012.

According to the first applicant, he also intended to participate in the demonstration of 11 March 2011. Moreover, he was actively promoting public participation in that assembly on online social networks.

It appears that the organisers of the demonstration of 11 March 2011 gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the assembly was disseminated through Facebook or the press.

Prior to the demonstrations of 20 October and 17 November 2012, on 15 October and 12 November 2012 respectively the organisers had given notice to the BCEA.

The BCEA refused to authorise the demonstration of 20 October 2012 at the site indicated by the organisers and proposed another location on the outskirts of Baku the grounds of a driving school situated in the 20th habitable area of the Sabail District.

The BCEA also refused to authorise the demonstration of 17 November 2012. It noted in general terms that that assembly would not be in accordance with the Law on Freedom of Assembly. The BCEA further noted that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself would be impractical.

The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly.

On 4 March 2011 the first applicant was arrested and brought to police station no. 22 of the Nasimi district police office.

According to the official records, he was arrested because at around 11.20 a.m., in front of the National Bank in Baku, he had disobeyed a lawful order of the police to stop speaking loudly on a mobile phone and to stop using foul language. He also swore at the police officers and tried to run away when being arrested.

The applicant contested the official version of his arrest. He stated that he had been arrested in an Internet café by three persons in plain clothes who had failed to present themselves or give reasons for the arrest. They had taken his belongings from the Internet café, including his mobile phone. He had been pushed into an unmarked car. There one of the persons who had arrested him had presented himself as a police officer and shown a police badge. The other two had presented themselves as agents of the Ministry of National Security, without showing any supporting document. He had been told that the arrest had been in connection with the demonstration of 11 March and another protest planned to be held on 12 March 2011.

At the police station an administrative-offence report (inzibati xəta haqqında protokol) was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”) (failure to comply with a lawful order of a police officer).

According to the applicant, he was never served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after his arrest or while he was in police custody.

On the day of his arrest the applicant was brought before the Nasimi District Court, which on the same day adopted a decision on the merits.

According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. A State-funded lawyer (Mr O.A.) was appointed to assist him.

According to the transcript of the first-instance court’s hearing, Mr O.A. did not make any oral or written submissions.

In his statement before the court the applicant contested the police officers’ version of events and argued that he had been arrested unlawfully. The court disregarded that statement as non-reliable.

Only the police officers who, according to the official records, had arrested the applicant and the police officer who issued the administrativeoffence report in respect of him were questioned as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicant’s arrest (see paragraph 17 above).

The court found that the applicant had committed the administrative offence attributed to him (see paragraph 17 above). It convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ administrative detention.

According to the applicant, until 6 March 2011 his whereabouts were unknown to his family and friends.

Only on 7 March 2011 was a lawyer hired by his family able to meet the applicant and to learn the details of his arrest, detention and the court proceedings against him.

On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the events surrounding his arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 11 March 2011. The applicant also complained that the hearing before the first-instance court had not been fair.

In addition, he applied to the appellate court to have examined his mobile-phone call records in respect of the date and time of the alleged administrative offence.

The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing.

On 19 March 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court had been correct.

The appellate court did not address the applicant’s above-mentioned request to have his mobile-phone call records examined.

As mentioned above, the demonstration of 11 March 2011 was attended by the second applicant, the demonstration of 20 October 2012 by both applicants, and the demonstration of 17 November 2012 by the first applicant.

All three demonstrations were dispersed as soon as the protesters began to gather. Both applicants were arrested during the dispersal operations and after each arrest were taken to police station no. 9 of the Sabail district police office.

According to the applicants, during the dispersal of the demonstrations of 20 October and 17 November 2012 they were arrested by individuals in plain clothes.

On the day of each of the applicants’ respective arrests, administrative-offence reports were issued in respect of them. In each case the applicants were charged with an administrative offence under Article 310.1 of the CAO. Following their arrest on 20 October 2012 the applicants were additionally charged under Article 298 (violation of rules on holding public assemblies) of the CAO.

According to the applicants, they were never served with a copy of the administrative-offence reports or with other documents from their case files. They were also not given access to a lawyer after their arrests or while they were in police custody.

The applicants were brought before the Sabail District Court on the day of each arrest (specifically, the first applicant on 20 October and 17 November 2012, and the second applicant on 11 March 2011 and 20 October 2012).

According to the applicants, the respective hearings before the firstinstance court were very brief. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearings to the public.

According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing.

A State-funded lawyer was appointed to defend the applicants at each hearing.

According to the transcript of the hearing of 11 March 2011, in his oral submissions the State-funded lawyer for the second applicant (Mr V.M.) briefly asked the court to consider the young age of the applicant and his sincere regret for having committed the administrative offence.

None of the material submitted to the Court contains any record showing that at the hearings of 20 October and 17 November 2012 respectively the State-funded lawyer for the second applicant (Mr K.B.) or the State-funded lawyer for the first applicant (Mr Z.A.) made any oral or written submissions on behalf of the applicants.

According to a statement (“ərizə”) signed by the first applicant, he refused the assistance of the State-funded lawyer at the hearing of 20 October 2012 and decided to defend himself in person.

The only witnesses questioned during the hearing of 11 March 2011 concerning the second applicant were police officers who, according to official records, had arrested him. They testified that together with some other people the applicant had attempted to hold an unlawful demonstration and continued to protest despite the order to disperse. During the hearings of 20 October 2012 and 17 November 2012 the court did not question any witnesses.

In each case the Sabail District Court found that the applicants had failed to stop participating in an unauthorised demonstration. The court convicted the applicants under Article 310.1 of the CAO. In the proceedings related to his participation in the demonstration of 20 October 2012 the second applicant was also convicted under Article 298 of the CAO. The applicants were sentenced to various periods of administrative detention (see Appendix).

On unspecified dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights, because the protest in which they had participated had been peaceful. The applicants also complained that their arrests had been unlawful, and that the hearings before the first-instance court had not been fair. They asked the Baku Court of Appeal to quash the first-instance court’s decisions in their respective cases.

The first applicant was assisted by a lawyer of his own choosing in each case before the Baku Court of Appeal. The second applicant was assisted by a lawyer of his own choosing during the appellate-court proceedings related to his participation in the demonstration of 20 October 2012, but he was not represented by a lawyer during the appellate-court proceedings related to his participation in the demonstration of 11 March 2011.

On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court (see Appendix).


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicant was born in 1981 and lives in Lüneburg.

The applicant is an anti-nuclear and environmental activist. She has repeatedly used her climbing skills to draw public attention to her protest.

On 6 November 2008 around 11 a.m. the applicant and three further persons belonging to the Robin Wood organisation, an environmental protection group, climbed on the arch of a railway bridge. The group fixed banners expressing protest against the transport, by train, of radioactive waste from La Hague, France, to the interim storage facility in Gorleben, scheduled from 7 to 9 November 2008. The members of the group refused to have themselves roped down by the police, who had dissolved their assembly. They were finally roped down by Federal Police’s mountain rescue team. The police then arrested only the applicant at 2.40 p.m. while the other three participants remained at liberty. They further seized the banners and the climbing equipment.

On 6 November 2008 at 5.30 p.m. the Lüneburg District Court, having heard the applicant and the Lüneburg police, ordered the applicant’s detention for preventive purposes under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act (Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, see paragraph 42 below). That detention was to last until the arrival of the “castor” containers in Dannenberg train station and until 10 November 2008, 0.00 p.m. at the most.

The District Court found that the applicant, who had been represented by counsel throughout the proceedings before the domestic courts, and three further persons had let themselves down on a rope on a railway bridge. They had unrolled banners protesting against the castor transport. A commuter train had to be stopped because its passage would have put the protesters at risk.

The District Court considered that the applicant’s detention was indispensable in order to prevent the imminent commission of a regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. There was a risk that the applicant would block the forthcoming transport of the castor containers scheduled from 7 to 9 November 2011 by a climbing action. Thereby, she would commit regulatory offences under the Railway Construction and Operation Act (Eisenbahn-Bau- und Betriebsordnung) and the Assembly Act (Versammlungsgesetz) which would be dangerous to the public. That risk was also imminent in the applicant’s case as she was known for expressing political protest, including protest against the transport of castor containers, by climbing actions and for being ready to breach the law in that context.

On 7 November 2008 at 9.15 p.m. the Lüneburg Regional Court, having heard the applicant in person at 2.10 p.m., dismissed the applicant’s appeal against the District Court’s decision.

On 9 November 2008 at 5.25 p.m. the Lüneburg District Court quashed the order of 6 November 2008 for the applicant’s detention for preventive purposes and ordered the applicant’s immediate release.

The District Court found that, having regard to the applicant’s deteriorating state of health, there was no longer a risk that the applicant would commit a criminal or regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act, in the context of the transport of castor containers to Gorleben. Moreover, her continued detention was no longer proportionate in these circumstances. The District Court noted that medical doctor C., who had visited the applicant in detention on the latter’s request, had confirmed that the applicant suffered from serious rheumatism which necessitated her to move continuously and was in a poor mental condition. Her detention in Braunschweig Police Station, with little possibility to move, had already led to her joints having stiffened. The doctor had explained that she was not in a position to assess the applicant’s fitness for detention, but that it appeared excluded that the applicant would be capable of carrying out a climbing action in the days to come.

The applicant was released on the same day at 6.32 p.m.

Following her arrest on 6 November 2008 at 2.40 p.m. the applicant, having been found by a doctor of the Federal Police not to suffer from any health problems, was brought before the Lüneburg District Court which ordered her detention at 5.30 p.m. Following the District Court’s decision, the applicant was accompanied home by the police officers from 5.45 p.m. to 6.45 p.m. in order to enable her to take her own clothes and medication. She was detained in a cell in the Lüneburg Police Station from 7 p.m. onwards until 7 November 2008 at approximately 1.40 p.m., when she was brought to the Lüneburg Regional Court. The applicant’s small cell, equipped with a mattress and a chair, was lighted at least via a ventilation slot and by electric light.

Between the end of the hearing of the applicant by the Lüneburg Regional Court on 7 November 2008 at around 3 p.m. and its decision at 9.15 p.m. on that day, the applicant essentially stayed in the office area of the Lüneburg Police Station. She went outside for a walk on the banks of the Ilmenau river with the police officers three times during that period.

Following the Regional Court’s decision, the police decided to transfer the applicant to the Braunschweig Police Station which was considered being better equipped for police custody. When the applicant complained about breathing problems during the journey, the police called an ambulance. When both the ambulance crew and a police doctor had found that the applicant did not suffer from health problems, the transfer was continued in the ambulance.

The applicant was detained in the Braunschweig Police Station from 8 November 2008, 2.10 a.m. until her release on 9 November 2008 at 6.32 p.m. Her cell was equipped with a bed, an empty desk, a chair and an open cupboard and had a barred window with frosted glass. In the corridor of the detention wing, which she had to pass to go to the toilet, photographs of shackled persons were exposed. These included a picture of a person subject to ankle and hand cuffs, with both cuffs being tied together by a chain in the person’s back lying on a mattress on the ground.

During the applicant’s detention in the Braunschweig Police Station, the light in her cell remained switched on throughout the applicant’s first night in that cell. The applicant had climbed on the cupboard in her cell and passed the night thereon, failing to comply with the police’s order to descend. The applicant was taken out for a walk on the premises of the Braunschweig Police Station, which did not dispose of a closed courtyard, on 8 November 2008 from 2.20 p.m. until 3.02 p.m., being loosely shackled to a female police officer. On 9 November 2008 the applicant was allowed to stay outside on those premises from 12.22 p.m. until 12.35 p.m., without being shackled; she climbed on a tree on that occasion. The applicant was supplied with writing material on 8 November 2008. She was further allowed to receive three visits from a friend and two from her doctor C. She was also allowed to telephone her lawyer and her partner several times.

On 15 July 2009 the Lüneburg District Court dismissed the applicant’s action of 8 November 2008 under section 19 § 2 of the Lower Saxony Public Security and Order Act (see paragraph 43 below) against the Lüneburg police for a finding that both the order for her detention and the conditions of its execution had been unlawful.

As regards the lawfulness of the applicant’s detention the District Court, endorsing the findings of fact made by the Regional Court in its decision of 7 November 2008 (see paragraph 12 above) as well as its reasoning, confirmed that the detention had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act.

As regards the execution of the detention order against the applicant, the District Court considered that the manner in which the detention had been enforced had been lawful and had complied, in particular, with the provisions of the Police Custody Regulations (Polizeigewahrsamsordnung, see paragraph 45-49 below).

The District Court noted that the detention order was executed in the detention wing of the Lüneburg Police Station until 7 November 2008 and subsequently in the detention wing of the Braunschweig Police Station.

As to the applicant’s complaint that her detention cells did not have windows, but only ventilation slots, the District Court considered that the equipment of the detention cells had complied with no. 15 of the Police Custody Regulations (see paragraph 49 below) and that there had been enough light. The recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) were irrelevant here. The photographs of shackled persons exposed in the detention wing of the Braunschweig Police Station may have been tasteless, but did not render the applicant’s detention unlawful as a result of intimidation.

Moreover, there had not been a breach of the right to sufficient night’s rest provided by no. 12 of the Police Custody Regulations (see paragraph 48 below). In Lüneburg, some noise made by a ventilator may have made it more difficult for the applicant to fall asleep, but the police was not obliged to be considerate of individual sensitivities. The fact that the light had remained switched on all night in Braunschweig had been a consequence of the applicant’s own behaviour. She had insisted spending the night on the cell’s cupboard the height of which was 1.90 metres. The light had therefore been necessary for her own protection. It had not been possible for the police to guarantee that, in case the applicant had fallen down from the cupboard, they would notice it immediately otherwise. According to the District Court, the applicant could ask herself whether she would have preferred having been shackled for her protection instead.

Furthermore, the court noted that on 8 November 2008 the applicant had been outside on the premises of the Braunschweig Police Station from 2.20 p.m. until 3.02 p.m. She had to be shackled as, being an excellent climber, there had been a risk that she would climb on trees or buildings and abscond. The applicant had not, therefore, been “taken for a walk like an animal” on the parking. On 9 November 2008 the applicant had been outside from 12.22 p.m. until 12.35 p.m. She had not been shackled and had been allowed to climb on a tree. She had not objected to returning to the detention wing afterwards.

The District Court further considered that the applicant had failed to substantiate that her state of health in detention had deteriorated in a manner so as to render her detention disproportionate already prior to the District Court’s decision of 9 November 2008 ordering her release. There had not been a written and impartial medical report proving the applicant’s allegation in that respect. The doctor who had visited the applicant in detention and had persuaded the then competent District Court judge to order her release had probably been a sympathiser.

On 28 October 2009 the Lüneburg Regional Court dismissed the applicant’s appeal against the District Court’s decision of 15 July 2009.

As to the legality of the applicant’s detention, the Regional Court, endorsing the findings in its decision of 7 November 2008, confirmed that the applicant’s detention as such had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act.

The Regional Court further confirmed that the conditions of the applicant’s detention, albeit onerous for the applicant, had complied with the applicable legal provisions and had not been so unacceptable as to render the execution of her detention unlawful.

As regards the applicant’s detention during the first night in the detention cell in the Lüneburg Police Station, the Regional Court found that the cell had been uncomfortable, but had complied with no. 15.1 of the Police Custody Regulations in the version then in force (see paragraph 49 below). In that police station there were no detention cells suitable for a deprivation of liberty lasting several days. Despite this, the police had convincingly explained that transporting the applicant to and back from Braunschweig for the hearing before the Regional Court the following day would have restricted her even more in her liberty of movement. Furthermore, she had not complained to the police about the noise at night emanating from a ventilator.

Moreover, the Lüneburg police had taken care of the applicant’s well-being after her hearing before the Regional Court (on 7 November 2008 from 2.10 p.m. until 2.50 p.m.) while they waited for the Regional Court’s decision until approximately 9 p.m. with the applicant in an office in the Lüneburg Police Station in that they had taken her outside three times.

As regards the applicant’s subsequent detention in the Braunschweig Police Station, the Regional Court noted that the applicant arrived at that station on 8 November 2008 at 2.10 a.m. after the crew of the ambulance called by the police and a police doctor had confirmed her fitness for detention despite the breathing difficulties she had informed the police of. The Regional Court further confirmed the District Court’s finding that the pictures of shackled persons in the corridor of the detention wing – which included a photograph of a person subject to ankle and hand cuffs – may have been tasteless. However, it had neither been shown that the pictures had been put up to intimidate prisoners nor that the applicant had been intimidated in a considerable manner by them. Moreover, the court considered that it had been lawful for the police to leave the light switched on during the night. It noted that the applicant had climbed on a cupboard measuring 1.90 metres and had failed to descend on the police’s request. By choosing not to descend her by force and by leaving the light on instead the police had respected as much as possible the applicant’s right to liberty.

As regards the applicant’s right to stays outside during her detention in Braunschweig, the Regional Court, endorsing the findings of the District Court in this respect, found that the right provided by no. 10 of the Police Custody Regulations (see paragraph 46 below) to be allowed to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted had not been breached. Shackling the applicant to a female police officer on 8 November 2008 had been necessary in order to prevent the applicant from absconding. The applicant, an excellent climber, had previously shown that she was not ready to comply with the police’s orders and there had not been a closed courtyard as in prison. On 9 November 2008 the applicant had not been shackled during her time outside and had been allowed to climb on a tree. She had also been able to move within her cell in order to alleviate ailments resulting from her rheumatism.

As regards the applicant’s right to receive visits in detention, the Regional Court observed that under no. 11 of the Police Custody Regulations (see paragraph 47 below), such visits were permitted in so far as they did not endanger the purpose of the detention and were authorised by the police. The said provision had to be read in conjunction with section 20 § 4 of the Lower Saxony Public Security and Order Act (see paragraph 44 below). The Regional Court noted that the Braunschweig Police had received some 200 telephone calls of sympathisers of the applicant, some of whom had insulted the police, which had considerably disturbed the execution of the applicant’s detention. It had not been unlawful in these circumstances for the police not to permit visits by persons who had presented themselves at the police station without having lodged a request for a visit. In any event, the applicant had been visited by three persons while in detention, in addition to the two visits by her doctor, C., who had prescribed her necessary medication and had brought a couple of magazines. Her right to receive visits had not been unlawfully restricted in these circumstances.

The Regional Court’s decision was served on the applicant’s counsel on 6 November 2009.

By submissions dated 1 December 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Lüneburg District Court of 6 November 2008, confirmed on appeal by the Lüneburg Regional Court on 7 November 2008, and against the decision of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009. She argued, in particular, that her right to liberty, the principle of proportionality and her right to freedom of assembly and of expression had been violated by her long illegal detention in unreasonable conditions in order to prevent insignificant regulatory offences. Her complaint was registered under file no. 2 BvR 2794/09.

In a letter dated 18 August 2010 addressed to the applicant in person, the Federal Constitutional Court informed the applicant that her constitutional complaint of 1 December 2009 against the decisions of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, in so far as the decisions concerned the conditions of her detention, had been registered under file no. 2 BvR 1779/10.

On 24 August 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the abovementioned four decisions in so far as these decisions concerned the lawfulness of the applicant’s detention, without giving reasons (file no. 2 BvR 2794/09). The Federal Constitutional Court’s decision was served on the applicant’s counsel on 21 September 2010. In her letter to the Federal Constitutional Court dated 3 October 2010 the applicant’s counsel, referring to the two file numbers assigned to the applicant’s constitutional complaint, the letter of 18 August 2010 and the decision of 24 August 2010, asked for a progress report; she was informed that it was not possible to indicate when a decision on the complaint under file no. 2 BvR 1779/10 would be taken.

On 30 May 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decision of the Lüneburg District Court dated 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, without giving reasons (file no. 2 BvR 1779/10). The decision was served on the applicant’s counsel on 18 June 2012.


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)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1974. He is a lawyer who lives and practises in Plovdiv.

The facts of the case may be summarised as follows.

At the beginning of 2005, in the course of criminal proceedings against N.R. and another individual on charges of aggravated theft, punishable by imprisonment of up to fifteen years, the Plovdiv District Court (“the District Court”) decided that in the interests of justice two lawyers should be appointed defence counsel for the two accused, who could not afford to pay for a lawyer but wished to be legally represented.

The District Court sent a request to the Plovdiv Bar asking them to nominate two lawyers as defence counsel to represent the accused. The letter stated, inter alia, that the counsel’s remuneration would be determined in accordance with the Ordinance of the National Bar Council on Lawyers’ Minimum Remuneration 2004 (“the Remuneration Ordinance”).

In a letter of 31 May 2005, sent to the applicant and the District Court, the Plovdiv Bar nominated the applicant to represent N.R. The letter contained the following text:

“In accordance with section 44 of the Bar Act, you must act as defence counsel ... and appear at the hearing in the court proceedings. Failure to comply may result in disciplinary action under the Bar Act and civil liability vis-à-vis the parties [to the criminal proceedings].

In its decision to appoint [you as] defence counsel, the [criminal] court ... must set [your] remuneration in an amount not lower than the minimum provided for in the Remuneration Ordinance. Otherwise you must refuse to provide legal representation because you are at risk of a disciplinary [sanction] for breach of section 132 (6) of the Bar Act and the instructions of the National Bar Council ...”

The Plovdiv District Court held a hearing in the criminal case against N.R. on 10 June 2005. At the beginning of the hearing, at around 3.30 p.m., the court appointed the applicant as N.R’s counsel and invited him to state his position in respect of whether there was an obstacle to proceeding with the hearing or not.

The applicant replied that he would represent N.R. if the court undertook to comply with section 44(2) of the Bar Act, which in turn referred to the Remuneration Ordinance, and thereby determined his remuneration at or above the minimum 550 Bulgarian levs (BGN; the equivalent of approximately 280 euros (EUR)) provided for in law.

The presiding judge refused to determine the minimum remuneration at that point in time. He warned the applicant that he would fine him if he refused to act as counsel for the defendant.

Following this exchange, the applicant refused to represent the defendant and left the courtroom.

The court fined the applicant BGN 500 (approximately EUR 260). The decision imposing the fine referred to Article 269 § 7 of the Code of Criminal Procedure 1974 (see paragraph 33 below) and stated as follows:

“In the court’s view, the lawyers already appointed to serve as defence counsel should not have asked about their remuneration [at this stage of the proceedings]. The court would be in a position to estimate that amount only after the collection of all evidence and following the final oral pleadings. By raising the question of setting their remuneration at a minimum of BGN 550 before the examination of the case started, the [two lawyers] showed manifest disrespect for the court and were in breach of the Code of Criminal Procedure. Despite a warning, they did not comment, they refused to act as legal representatives nominated by the Plovdiv Bar upon this court’s request ... and left the courtroom. Seeing that in the present case the defendants must be legally represented ... the hearing will have to be adjourned owing to the unjustified absence of their defence counsel.

Therefore, [the applicant and the other lawyer] shall be fined BGN 500 each.”

Then the prosecutor requested a one-hour break so that new counsel could be found for the accused. He submitted that, in view of the principle of speediness of criminal proceedings and the fact that all witnesses and experts were there in the courtroom, the hearing should not be adjourned to a later date. The court granted the request and decided to proceed with the case at 4.40 p.m. on the same day.

The hearing was resumed as scheduled. The prosecutor asked the court to appoint another lawyer who was present in the courtroom as counsel for the accused and to give him time to get acquainted with the case file. The court granted the request.

At 4.55 p.m. the new lawyer stated that he had acquainted himself with the case and agreed to be appointed defence counsel. The court did so and proceeded with the case. The proceedings ended with a plea bargain agreement between the prosecutor and the defendants. The court set the replacement defence counsel’s remuneration at BGN 30 (about EUR 15).

On an unspecified date the applicant appealed against the fine imposed on him (see paragraph 14 above). He claimed that he had not been appointed by the District Court in accordance with the law. In particular, the court had been bound by law, specifically the Bar Act, to determine his remuneration in the actual decision to appoint him counsel (see paragraph 30 below); the court had also had to determine the amount according to the Remuneration Ordinance. By refusing to comply with those legal requirements, the court had breached the law. Therefore, the applicant’s refusal to act as counsel had been justified; he should not have been held responsible for the adjournment of the hearing and he had not acted disrespectfully. Consequently, he submitted, the fine had been unlawful.

On 11 July 2005 the Plovdiv Regional Court dismissed the applicant’s appeal against the fine in a final decision. It acknowledged that pursuant to section 44(2) of the Bar Act the remuneration to be paid to a court-appointed defence counsel had to be indicated in the order for his or her appointment and that it ought not be lower than the minimum provided for in the Remuneration Ordinance. However, the court found that it was only possible to determine the exact amount of remuneration to be paid at the end of the proceedings. The reason for this was that the Remuneration Ordinance provided for a lower amount in case of termination of the criminal proceedings by way of a plea bargain (see paragraph 28 below). The court could not predict the outcome of the proceedings at their outset. Therefore, the applicant’s insistence on a prior determination of his fee was contrary to section 44 of the Bar Act. The applicant had thus caused an unjustified adjournment and had rightly been fined under Article 269 § 7 of the Code of Criminal Procedure. The court finally held that the amount of the fine was proportionate to the gravity of the offence.


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Andrej Lamovec, is a Slovenian national, who was born in 1970 and lives in Ljubljana. He was represented before the Court by Mrs V. Holec, a lawyer practising in Ljubljana.

The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.

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

The applicant was a stockbroker working as the head of trading in a brokerage firm. In January 2003 the Securities Market Agency (hereinafter “the Agency”), an independent authority vested with supervisory powers in the field of securities market operations, requested from the applicant a number of records of securities transactions he had made in previous years.

After examining these documents and the records of the stockexchange trading system, on 3 December 2003 the Agency adopted a decision to initiate proceedings for revocation of the applicant’s stockbroker’s trading licence (hereinafter “the initial decision”), on the ground that in the period between 4 December 2000 and 20 December 2001 he had carried out twenty-one fictitious securities transactions and thereby breached the Ljubljana Stock Exchange Rules and the Securities Market Act. In its decision, the Agency specified the controversial transactions, explaining in detail the circumstances which in its opinion implied their fictitious character.

These transactions all involved cross-trading, the brokerage firm acting as both the seller and buyer of securities for its clients’ or its own accounts. In certain cases the applicant carried out multiple clients’ orders to sell securities, which were followed almost simultaneously by these same clients’ orders to buy an equal amount of the same type of securities. Moreover, in some cases the brokerage firm itself had bought securities from clients and subsequently sold them back to them. Other types of crosstrade transactions involved alternate sale and purchase of securities of the same type between a client and the brokerage firm, where the two first sold and bought from each other a certain amount of securities of equivalent type, only to subsequently – approximately a minute later – sell/buy them back from each other under almost the same conditions.

According to the Agency the orders were executed by means of a special “cross-user” function key which ensured that the transactions were, as intended, carried out simultaneously between two specific parties submitting matched offers, and no third party could intervene in the prearranged transaction. Given that the sales and subsequent purchases were carried out at very short intervals, that the securities were bought and sold at almost the same prices and that the transactions did not result in any change in the economic ownership of the relevant securities, the Agency took the view that they were prearranged and that the applicant, the very person who had carried them out, must have been aware of their content.

Furthermore, the Agency’s decision included a detailed list of sixtyfive documents, among them copies of the trading records relating to the controversial transactions, which had given rise to its suspicion that the applicant had repeatedly breached the law, as well as the dates on which the alleged violations had occurred. Finally, the applicant was notified that he could make a statement on the reasons for initiating proceedings and submit evidence in support of his statement within thirty days of receiving the decision.

In his reply to the Agency’s initial decision on 13 January 2004, the applicant contested the version of events presented by the Agency, as well as the application and interpretation of the substantive and procedural law. As regards his objection to the facts, the applicant, while not contesting that he had in fact carried out the transactions in question or that these sales and purchases had been carried out between the same clients or between clients exchanging roles as buyers and sellers, argued that he had not been acquainted with the details of the transactions in question. The orders had allegedly been placed with another department, whereas the trading department had only carried them out. The applicant maintained that in the four-day period from 14 to 19 December 2000, during which four of the controversial transactions had been made, the trading department had carried out 559 securities transactions. Thus, the applicant alleged that he had not known, nor had he been required to check, whether each of these transactions was made in a correct manner. In support of his submissions, the applicant provided copies of the records of relevant transactions and balance of securities in the accounts of the relevant clients.

Moreover, the applicant claimed that the documents identified in the Agency’s initial decision did not justify the conclusion that he had actually used the “cross-user” function key to carry out the controversial transactions. In so far as the Agency disagreed with his view, the applicant suggested that an expert in securities trading be appointed to examine this issue. He also suggested that that expert submit his report at an oral hearing, enabling the applicant to ask him or her relevant questions, or in written form, in which case the applicant would submit written comments.

The applicant also joined to his reply an initiative for a review of the constitutionality of certain provisions of the Securities Market Act applicable to his case, explaining that he would be lodging this initiative with the Constitutional Court. In the initiative he challenged, inter alia, a number of provisions regulating proceedings before the Agency and judicial review proceedings, including the provision stipulating that the Agency’s decisions were, in principle, rendered without holding a hearing. The applicant requested that the initiative be considered a constitutive part of his reply.

On 14 January 2004 the applicant lodged his initiative for the review of constitutionality of certain provisions of the Securities Market Act with the Constitutional Court.

On 21 January 2004 the Agency refused the applicant’s request for an oral hearing and the appointment of an expert, without giving any reasons.

On 11 February 2004 the Agency, sitting in a panel composed of eight members of its Council of Experts, rendered a decision revoking the applicant’s trading licence (hereinafter “the final decision”) on the ground that he had carried out twenty-one fictitious securities transactions and thereby had repeatedly breached the law and stock-exchange trading rules. As regards, firstly, the applicant’s request for an oral hearing and the appointment of an expert, the Agency held that the information on fictitious transactions through the use of the “cross-user” function key had been obtained from the records of the stock-exchange trading system, which had been presented to the applicant. According to the Agency, the tabular extracts from the trading system records, where all controversial transactions featured the “cross-user” status, clearly manifested that the “cross-user” function key had been used in these sales and purchases.

In this connection, the Agency considered that the manner in which the transactions had been carried out was sufficiently established by the documentary evidence already included in its decision to initiate proceedings for revocation of the applicant’s trading licence, as well as by the records of transactions and other documents submitted by the applicant. According to the Agency, there was no controversy regarding the facts which would have necessitated an oral hearing or the appointment of an expert.

The applicant sought leave for judicial review before the Supreme Court, challenging the Agency’s final decision, as well as its decision rejecting his procedural requests for the appointment of an expert and for an oral hearing. In his request, the applicant essentially repeated the pleas made in his reply to the initial decision, and added a number of new complaints. Complaining that his earlier requests to this effect had been refused by the Agency without cause, the applicant requested that an expert be appointed and that an oral hearing be held, although a hearing in these proceedings was excluded by law. Nevertheless, the applicant argued that the statutory exclusion of oral submissions was unconstitutional, and proposed that this issue be raised before the Constitutional Court and that the judicial review proceedings be suspended pending the decision of the Constitutional Court. Moreover, the applicant maintained that the documents relied upon by the Agency did not prove that he had actually carried out the transactions at issue by using the “cross-user” function key, and that the Agency must have based its conclusion to this effect on other documents which had not been referred to in its decisions.

On 13 October 2004 the Constitutional Court rendered a decision on the review of constitutionality of certain provisions of the Securities Market Act, in which it joined several applications regarding the same matter. Some of the challenged provisions of the Act were found to be unconstitutional; however, none of those pertained to procedural matters, including the provisions on holding of oral hearings.

On 14 February 2006 the Supreme Court dismissed the applicant’s action for judicial review without holding an oral hearing. Having found that the controversial transactions had all involved cross-trading between what were essentially the same clients, the Supreme Court held that the Agency’s conclusions as to the facts were correct. Moreover, considering that the purchases and sales had followed each other at very short intervals, the Supreme Court agreed with the Agency that the applicant must have been aware of the irregularity of the transactions in question. The court pointed out that the applicant had failed to adduce any arguments capable of rebutting the Agency’s conclusions. Also, the court dismissed the applicant’s complaint against the Agency’s decision not to appoint an expert and/or hold an oral hearing, reiterating that the Agency had sufficiently established the facts of the case. Finally, regarding the alleged failure of the Agency to indicate all evidence on which its conclusion as to the use of the “cross-user” function key had been made, the Supreme Court held that, as the applicant had not previously challenged the initial decision, it was only possible to examine his complaints regarding the final decision of the Agency.

The applicant lodged a constitutional complaint against the judgment of the Supreme Court, challenging the refusal of the Agency and the Supreme Court to hold an oral hearing and appoint an expert. He also claimed that the Agency had failed to indicate all evidence used in the proceedings, and that the Supreme Court erroneously rejected his complaint in that regard without addressing its merits.

On 6 December 2007 the Constitutional Court dismissed the applicant’s constitutional complaint, finding, first of all, that the Agency had indicated all the documents used as evidence in the proceedings to revoke his trading licence, first in its initial decision and then in its final decision. Accordingly, the court was of the view that the Agency’s conclusions as to the applicant’s use of the “cross-user” function key were clearly based on the documentary evidence and thus did not require a complex assessment of opposing and contradictory evidence. Moreover, the applicant had been provided with sufficient opportunity to comment on the evidence which was the basis for the revocation of his licence. Therefore, although the Constitutional Court agreed with the applicant that the Supreme Court had erred in concluding that he should have challenged the Agency’s initial decision to initiate the proceedings at an earlier time, it considered that remitting the case back to the Supreme Court for further examination could not lead to a different conclusion with regard to the documentary evidence used in the proceedings before the Agency.

As regards the applicant’s complaint that the Agency had refused to appoint an expert, the Constitutional Court reiterated that the Agency had given an adequate explanation of the use of the “cross-user” function key and the records of the stock-exchange trading system. Therefore, in the Constitutional Court’s opinion, the Supreme Court had not been required to make a specific pronouncement on this question.

Finally, as regards the applicant’s complaint that the Agency had also refused to hold an oral hearing, the Constitutional Court held that he had not put forward this complaint in his application for judicial review before the Supreme Court, thereby failing to use that remedy in substance. As regards the lack of an oral hearing in the judicial review proceedings, the Constitutional Court emphasised that a hearing in those proceedings was excluded by law. Nevertheless, the Constitutional Court took the view that the applicant’s right to be heard was not affected either, as he had had the opportunity to present his submissions in written form.

At the time of the events at issue the securities market operations and the powers of the Agency in respect thereof were regulated by the Securities Market Act. The Act designated the Agency as an independent legal entity, led by a Council of Experts which was composed of the president and eight members appointed by the Government. The members of the Council were required to hold a university degree and enjoy the reputation of renowned experts in the field of finance or commercial law.

Proceedings in individual matters before the Agency were conducted pursuant to the General Administrative Procedure Act, unless otherwise provided by the Securities Market Act. The parties to the proceedings were invited to make their statements in writing. An oral hearing was held only exceptionally, the Act providing as follows:

“(1) The Agency shall adopt decisions without a hearing.

(2) Notwithstanding the first paragraph, the president of the senate may convene a hearing if he or she considers that this is necessary in order to explain or establish relevant facts.

(3) The president of the senate may, without a hearing, hear parties to the action and other persons if he or she considers that this is necessary in order to explain or establish relevant facts.”

Oral hearings in judicial review proceedings were specifically ruled out by Article 331 of the Act.

Moreover, with regard to the reasons for revoking an individual’s trading licence, the Act provided as follows:

“(1) The Agency shall withdraw a licence to provide services ...

if a stockbroker acts in severe contravention of the rules pertaining to the organised market (Article 247).

(2) The following shall be deemed a severe violation of the provisions referred to in items 6 and/or 7 of the first paragraph of this Article ...

recurring violations of the said provisions.”

“In providing services with regard to the securities on the organised securities market, brokerage firms shall be obliged to comply with the trading rules and other general acts of the stock exchange and with the requirements of the responsible bodies of the stock exchange.”


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

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1963 and lives in Garðabær. At the material time, the applicant was a journalist and a freelance writer for the web-based media site Pressan.

The Federation of Icelandic Fishing Vessel Owners (hereafter “the LIU”) represented fishing vessel owners in Iceland and safeguarded their common economic, financial, legal, technical and social interests.

The applicant claimed that a private website, B, was publishing anonymous blogs, constantly lobbying for the LIU and discrediting persons who spoke against it.

On 21 July 2010 a newspaper, DV, published an article regarding rumours that the LIU was providing financial support to website B. It was alleged that this support amounted to 1,500,000 Icelandic Krónur (ISK) each month. In the article, no mention was made of the LIU’s chief executive office (hereafter “A”).

On the same day the applicant published an article on Pressan under the headline “LIU pays 20 million for offensive material” and referred to the article in DV. A sent a short statement to Pressan submitting that the LIU had not supported website B. The statement was published on Pressan on 23 July 2010.

On 24 July 2010 the applicant published an article on Pressan where he responded to A’s statement. The article stated that A had to do better than just denying that direct payments had been made to website B and that the LIU, directed by A, was accountable for the offensive material published anonymously on website B. Furthermore, the applicant called into question whether or not the respectable representatives of the LIU’s member companies had agreed to the organisation’s funds being paid through intermediaries to gossips such as the owners of website B.

On 26 July 2011 the applicant published a third article on the matter on Pressan. The article stated that the LIU supposedly supported website B with ISK 20 million annually through companies owned by [Mr Y], who was also the owner of website B. Furthermore, the article stated that the applicant knew that not all LIU board members were aware of the organisation’s support for the offensive material on website B since the payments were well-disguised in the organisation’s financial records.

Moreover, it stated that the applicant had been told that it was possible that none of the LIU’s board members knew about the organisation’s millions being used to support anonymous slander on website B and that A alone had decided to use the funds in this way. The applicant added that he had not received confirmation of the last statement. A picture of A appeared beside the text of the article.

On 28 December 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the following statements be declared null and void:

“A. The LIU, directed by [A], is left accountable for the offensive material that is published anonymously on the gossip [website B]

B. Then there is the question of whether respectable representatives of the LIU’s member companies would accept that the organisation’s funds are being paid through intermediaries to gossips such as the owners of [website B]

C. The LIU supposedly supports [website B] with almost ISK 20 million annually through companies owned by [Mr Y]

D. I know that some of the LIU’s board members are not aware of the support for the offensive material on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way.”

By judgment of 29 November 2012 the District Court found that only one of the statements, namely that under item D above, had been defamatory and ordered the applicant to pay A ISK 300,000 (approximately 2,500 euros (EUR)) in nonpecuniary damages under the Tort Liability Act, plus interest, and ISK 450,000 (approximately 3,750 EUR) for A’s costs before the District Court. It declared the statement null and void.

The judgment contained the following reasons:

“... [A] is the chief executive officer of the Federation of Icelandic Fishing Vessel Owners or LIU, as the Federation is called in everyday speech, and he has held the job for almost 12 years. Part of his job is, inter alia, to participate in public debate on maritime affairs and to express the views and policies of the LIU.

In recent years there has been extensive debate on the advantages and flaws of the current fisheries management system. There are different views on this system in society, and it is of great concern, as the fishing industry is one of the fundamental and most important industries of this country. [A] has, because of his occupation, appeared publicly on behalf of the LIU and advocated the organisation’s views. The defendant, who writes on a regular basis about various social matters, has discussed the fisheries management system though his writings and criticised certain aspects of it.

According to Article 73(1) of the Constitution no. 33/1944 everyone has the right to freedom of opinion and belief. Article 73(2) of the Constitution states that everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression. Article 73(3) of the Constitution states that freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions. Article 10 of the European Convention on Human Rights and Fundamental Freedoms contains an equivalent provision, cf. Act no 62/1994 on the European Convention on Human Rights and Fundamental Freedoms.

Therefore, the present case concerns balancing the fundamental provisions on freedom of expression and the right to respect for private life.

In the court’s view the following statement applies directly to [A]: “I know that some of the LIU board members are not aware of the financial support for the offensive writings on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no members of the LIU board know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds this way”. [The applicant] does not maintain that this does not apply directly to [A], his plea for acquittal is based on the fact that the statement does not imply that [A] has committed a criminal offence; furthermore he claims that this is not something he maintains, since he pointed out [in the article] that he was not able to confirm that statement.

The evaluation of whether or not the statement includes an accusation of a criminal act or is defamatory will not be based on how [the applicant] understands it but on how readers are expected to perceive and interpret it. The claim that the payments to [website B] have been disguised in the organisation’s financial statements seems to imply that [A], who is responsible for the LIU’s financial accounts as the CEO of the organisation, condones accounting deception to hide the alleged support to [website B]. [The applicant] cannot prove the statement so it is considered not to be proved.

The court considers that the second part of the statement, “I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way”, can be understood as an insinuation of fraud by abuse of position [umboðssvik] and negligence at work as it implies that [A] allocated LIU funds against the board’s will and without authorisation. [The applicant] has not shown that the statement is true, for this he carries the burden of proof.

The aforementioned statement is considered to be defamatory for [A] and likely to damage his reputation and honour. In accordance with the aforementioned, and with reference to Article 241(1) of the Penal Code no. 19/1940, the statement is declared null and void.”

The applicant sought leave to appeal to the Supreme Court, which was refused on 25 February 2013.