Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1932 and lives in Siġġiewi.

The applicant is the owner of 14 Kirkop Square, Kirkop, a twostorey tenement with a surface area of around 175 sq.m. (hereinafter “the property”). In 1975, 1979, and 1987, following the death of their father, mother and uncle respectively, the applicant and her three brothers inherited an estate which included the property. By a deed of partition of 11 November 1998 the property was assigned to the applicant and she became its sole owner.

The property was requisitioned in 1955 by means of a requisition order. The premises were then allocated to the San Leonard Band Club in Kirkop (hereinafter “the band club”). The owners of the property never recognised the tenant or accepted any rent from the club. According to a judgment of 1 February 1958 of the Civil Court (First Hall) in its ordinary jurisdiction, the owners were entitled to do so because the tenement had not been leased as a dwelling, and thus greater risks were involved.

In the years that followed rent was paid to the owners by the competent authority (then the Director of Social Housing, today the Housing Authority). The annual rent payable amounted to 30 Maltese Lira (MTL – approximately 70 euros (EUR)), less than EUR 6 per month. According to an architect’s valuation from 2007 submitted by the applicant, the rental value of the tenement at the time was MTL 750 (approximately EUR 1,747) per month. The Government challenged this estimate, as the valuation had contained no explanation as to the basis for the calculations, or whether the property was considered residential or commercial, or vacant or occupied. They relied on a valuation in an architect’s report concerning a property (3 Kirkop Square) requisitioned in 1955 for the purposes of the band club – which stated that the rental value in 2015 was EUR 12,250 per year, which meant EUR 1,021 per month. The Government did not refer to the different address, arguing as though the valuation referred to the property at issue in the present case.

Over the years the band club carried out extensive structural alterations, without obtaining the consent of the owners or the relevant permits from the competent authorities. According to an architect’s report, there had been a total change and the alteration effected had effaced what had once been the traditional layout of important buildings in old Maltese towns. According to the applicant, this deprived her of the valuable quality and historical and architectural importance of the property, thus devaluing it. The Government argued that the applicant had not availed herself of any ordinary remedy in this regard and had thus failed to substantiate the loss in value. Moreover, in their view the property was in a good state of repair and the alterations had increased its value.

According to the applicant, the band club also repeatedly breached the tenancy agreement which it had signed, by manufacturing fireworks on the premises and conducting commercial activities (such as running a bar and letting the premises out as a wedding venue despite not having the requisite authorisation). The Government submitted that these were unsubstantiated allegations, which had not been proved before the domestic courts.

As from 2008, in the light of constitutional proceedings (see below), the band club started depositing the annual rent in court.

The applicant and her brothers also owned a property (18 St. John’s Alley, Kirkop) adjacent to the tenement above, which was requisitioned in 1986 and also assigned to the band club.

In 1987 the owners of the tenement instituted civil proceedings before the Civil Court (First Hall) in its ordinary jurisdiction against the Housing Secretary and the band club. They requested that the requisition order of 30 December 1986 be declared null and void as being contrary to the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage allegedly sustained.

In a judgment of 9 October 1991 the Civil Court (First Hall) in its ordinary jurisdiction rejected the plaintiffs’ claim. The owners appealed against that decision.

In a judgment of 30 December 1993 the Court of Appeal declared the requisition order null and void and ordered that the appellants be given possession of the premises within six months. It held that the requisition for the purposes of assigning the property to the band club could not be considered to be in the public interest. It sent the case back to the Civil Court (First Hall) in its ordinary jurisdiction for it to award the appellants compensation.

In a judgment of 31 May 2005 the Court of Appeal rejected a request for a new trial submitted by the band club.

In a judgment of 16 October 2006 the Civil Court (First Hall) in its ordinary jurisdiction found the Housing Secretary and the band club liable for the damage suffered by the owners in connection with the structural alterations to the property. This judgment was upheld by the Court of Appeal on 27 February 2009.

By a judgment of 6 May 2009 the Civil Court (First Hall) in its ordinary jurisdiction awarded the owners EUR 72,000 in damages, covering EUR 16,000 for missing objects, EUR 40,000 to rectify the structural changes made and EUR 16,000 for the loss of use of the property for twenty years. This judgment was upheld by the Court of Appeal on 2 October 2012.

In 2007 the applicant instituted constitutional redress proceedings in relation to the property requisitioned in 1955, asking the court to declare that, as a result of the requisition order and the continued occupation of the premises, she had suffered a breach of her rights under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She asked the court to award her compensation for the taking of possession of the property and for the violations suffered, and to order any other measure capable of preventing the continuation of the violation, including the release of the property.

The defendants, the Director of Social Accommodation, the Attorney General and the band club, argued that no such violations had occurred.

By a judgment of 11 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant’s claims. It considered that the requisition order had been issued for the property to be enjoyed by a private entity and therefore the measure had not been in the public interest. In this connection, it referred to a judgment of 30 December 1993 by the Court of Appeal concerning what it considered to be the same property (see above). Moreover, the measure had not been proportionate. The rent had been derisory, causing the applicant to suffer a disproportionate and excessive burden. She had therefore suffered a violation of Article 1 of Protocol No. 1. According to the court, the applicant had also suffered a violation of Article 14, as only her property had been requisitioned for the use of the band club. In determining the amount of compensation, the court did not take into account the fact that the applicant or her ancestors had received rent, given that the amount was derisory. Bearing in mind the values established by the applicant’s expert as to the rental value and sale value of the property, which was MTL 180,000 (approximately EUR 420,000) (pg.12 of the judgment), as well as the length of time the requisition was and remained in place, the court awarded the applicant EUR 60,000 in compensation (kumpens) for the requisition of the premises and the violations found, noting it was not awarding civil damages (danni ċivili) in this context. Three quarters of the amount was to be paid by the Director of Social Housing and one quarter by the band club. It further ordered the band club to vacate the premises within three months of the date of judgment and to return the premises to the applicant.

The band club appealed, arguing that it could not be held responsible for breaches of human rights and that, in any event, the measure had been in the public interest. It further contested the order to vacate the property. The Attorney General and the Director of Social Accommodation also appealed, in particular in relation to the findings of a lack of public interest, a violation of Article 14 and the redress awarded. The applicant crossappealed, arguing that the compensation awarded was too low and did not reflect the losses she had incurred over the years.

By a judgment of 25 May 2012 the Constitutional Court upheld the first-instance judgment in part. It reiterated the finding of a violation of the applicant’s rights under Article 1 of Protocol No. 1 only in so far as the requisition had been disproportionate. It found, however, that it had been in the public interest – the court considered that jurisprudence had shifted since the time of the judgment of 30 December 1993 of the Court of Appeal on which the first-instance court had based its assessment. In the present case the requisition had served a social and cultural purpose for the generality of citizens and could not be said to have served solely private interests.

It further found that there had been no violation of Article 14.

As to the redress, the Constitutional Court revoked the order for the club to vacate the premises. Considering that the violation of Article 1 of Protocol No. 1 was a consequence of the lack of a fair balance between the interests of the landlord and those of the tenant, and given that the validity of the lease was not at issue in the present case, it did not seem appropriate for it to evict the tenant; it sufficed that that unfair balance be redressed.

The Constitutional Court confirmed the amount of compensation awarded by the first-instance court, including the way in which it had to be shared. It considered that the band club had benefited from the situation and had never attempted to fix it, despite the fact that it had not been recognised as a tenant. In relation to the amount of compensation, it considered that the disproportionality of the measure had not persisted since the start of the requisition in 1955, but had started to be so only after the 1980s. Furthermore, the applicant had received the rent paid by the department and had only instituted constitutional proceedings in 2007 (while never contesting the validity of the requisition), thus it was legitimate and in line with local case-law to reduce her compensation. It also held that the property had been taken in the public interest and therefore the compensation needed not reflect market values. It followed that the compensation had to be reduced, however, given that the property was not to be vacated, it was appropriate to retain the amount awarded by the firstinstance court. Lastly, the court held that the claim for damages for the depreciation of the property as a result of structural works did not fall within the ambit of a constitutional complaint, and it was thus not its place to award such damages.

The Constitutional Court ordered the applicant to pay the costs of the cross-appeal and half the judicial costs of the proceedings before the two levels of jurisdiction.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1961 and lives in Rīga.

She worked as an accountant in a building management company (namu pārvalde) from 1989. From the beginning of 1997 she also fulfilled the duties of a cashier and she was fully responsible for any shortfall in the material assets (materiālās vērtības) entrusted to her.

On 9 December 1997 the applicant’s colleagues reported to the police that illicit cash withdrawals from the company’s cash registers had been made. Allegedly, the withdrawals had been made by the applicant and her colleague, B.E., by means of annulling the records of cash transactions and then taking the money received in respect of those transactions from the cash register.

Internal and external audits were carried out and it was discovered that certain data in the company’s cash registers had been manipulated. Specific amounts of cash and dates were noted in the audits, as well as the customer numbers in respect of which this manipulation had been executed. It was later established that the data had been manipulated in order to conceal illicit cash withdrawals. Further internal and external audits were carried out in 1999 and 2001.

On 15 January 1998 the applicant gave a written explanation (paskaidrojums) to a police inspector. The applicant testified that she had annulled three cash transactions and made three cash withdrawals in the amount of 1,228 Latvian lati (LVL – approximately 1,747 euros (EUR)). She had done so at the request of the deputy head of the company and had handed the cash over to him. As concerns the remainder of the missing cash, she stated that she had not taken it. Nor had she annulled any other cash transactions.

On 16 January 1998 the police inspector issued a decision to institute criminal proceedings (lēmums par krimināllietas ierosināšanu) in respect of “the misappropriation of funds in the amount of LVL 7,559 [approximately EUR 10,756] carried out by the applicant and B.E. by annulling records of cash transactions”. The applicant was not informed of this decision at that time. Instead, she was issued a summons to talks (pārrunas) and she was interviewed on 16 January 1998. A witness statement record (liecinieka nopratināšanas protokols) was drawn up. The applicant was informed of the rights and obligations of witnesses, as stipulated by Article 53 of the Criminal Procedure Code (Kriminālprocesa kodekss, see paragraph 24 below); she was also informed that if she refused to testify or gave false testimony she would incur criminal liability. The applicant repeated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head.

According to the applicant she appeared at the police station on 16 January 1998, accompanied by a lawyer whom she had authorised to represent her. Her request to be represented by the lawyer was refused – she was told that her status was that of a witness and that witnesses were not entitled to legal assistance. The Government contested the applicant’s submission, as there was no mention of this in the witness statement record; the Government stated that the applicant had signed the record and had made no remarks.

In the following years the applicant was interviewed as a witness five more times: on 21 January and 14 December 1999, 13 February 2002, and 6 January and 11 November 2004. Her rights and obligations as a witness – as well as the fact that she would render herself criminally liable if she refused to testify or gave false testimony – were explained to her (reference was made to Article 53 of the Criminal Procedure Code, see paragraph 24 below); no mention of any right to legal assistance was made. She reiterated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head of the company. She furthermore added that she had already repaid to the company approximately LVL 1,228 (approximately EUR 1,747).

A confrontation (konfrontācija) was also held between the applicant and B.E. on 27 January 1999 and with the deputy head of the company on 28 January 1999, who were also considered witnesses. Another confrontation between the applicant and the chief accountant was scheduled to take place on 24 May and 20 June 2002, but neither of them attended.

In 2000, 2001 and 2002 the police considered the case material to be sufficient for bringing charges against the applicant and referred the case to the prosecutor’s office. However, several prosecutors identified various shortcomings in the investigation and transferred the case back to the police for additional investigation.

The identified shortcomings included the following aspects.

First, the criminal case material was found to be insufficient to establish guilt and therefore no charges could be brought. Serious breaches of the Criminal Procedure Code and other regulations were found. The criminal case material had contained uncertified copies of documents, missing pages of explanations and incomplete procedural records. In addition, the audits had not been carried out in accordance with law. Another audit had to be commissioned and more witnesses had to be questioned.

Second, there had been discrepancies in the total amount of missing cash and it was impossible to establish that a crime had been committed or to bring charges against anyone. The audit had to be carried out by a certified auditor.

A conclusion was made that the pre-trial investigation had been deficient, chaotic and had been carried out aimlessly. Moreover, the role of the chief accountant and the deputy head of the company in the cash withdrawals had not been properly investigated.

The police carried out further investigative measures – they commissioned another audit, collected further evidence, and questioned more witnesses (including the head, the deputy head, and the chief accountant of the company, as well as some of its customers).

On 20 January 2005 the police referred the case to the prosecutor’s office for the fourth time. This time the case material was deemed sufficient for charges to be brought and, on 27 January 2005, the applicant was officially charged with nineteen episodes of misappropriation of funds. She thus became an accused person (apsūdzētā persona) in the criminal proceedings against her and was informed of her right to have a lawyer. A preventive measure – a prohibition on her changing her place of residence, which she had to acknowledge by giving her signature (paraksts par dzīves vietas nemainīšanu) – was imposed on her. On 26 May 2005 the charges were slightly amended in respect of the total amount of misappropriated funds.

On 27 January, 3 February, 26 May and 5 September 2005 the applicant was questioned as an accused person. On two occasions (on 27 January and on 26 May 2005) the applicant stated that a lawyer’s presence was not necessary. On another occasion (on 3 February 2005) she stated that she would continue giving testimony without the presence of a lawyer. No remarks were made regarding the absence of a lawyer during the questioning of 5 September 2005. The applicant was given access to the criminal case file in order that she could acquaint herself with its contents. She subsequently requested that further investigative measures be taken. Some requests for further investigative measures were granted and some were refused.

On 5 September 2005 the final bill of indictment was served on the applicant (uzrādīta galīgā apsūdzība) in the presence of a lawyer. The total amount of misappropriated funds was again slightly amended. On 21 October 2005 other preventive measures – a prohibition on leaving the country and the obligation to reside at a particular place of residence (uzturēšanās noteiktā dzīvesvietā) – were imposed on the applicant. On the same date the prosecutor’s office forwarded the case file to the Riga Regional Court (Rīgas apgabaltiesa).

On 23 October 2006 the first hearing was held. On 20 November 2006 the Riga Regional Court convicted the applicant of nineteen episodes of misappropriation of property that had been entrusted to her. The applicant did not admit her guilt. She agreed that she had annulled three cash transactions and made three cash withdrawals in the amount of LVL 1,228 (approximately EUR 1,747), but stated that she had done so at the request of the chief accountant and the deputy head of the company with a view to paying out salaries. As concerns other cash transactions, she had not annulled those. The court, relying on witness testimony and other case material (the results of three audits, the electronic cash register records, the relevant bills and receipts, the respective employment agreements etc.), convicted the applicant. The court did not rely on the applicant’s statements made during the pre-trial investigation.

The applicant was given a three-year suspended prison sentence, with three years’ probation (a more lenient sentence than the minimum provided by law). In setting the sentence the court took into account her state of health, the fact that she had partly compensated the company for the damage in question, and the fact that she had committed the crime nine years previously and that since then she had not committed any other crimes. The applicant lodged an appeal on 2 December 2006.

The first appellate hearing was scheduled for 15 August 2007. On 17 August 2007 the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) quashed the applicant’s conviction for lack of evidence in respect of five episodes of misappropriation of property. The applicant’s sentence was reduced to a two-year suspended prison sentence, with one year’s probation. In setting the sentence the court took into account the significantly lower number of episodes for which the applicant had been convicted, the fact that a particularly long period of time had elapsed since the commission of the crime, and the fact that there was no indication that she had committed any other crimes since then. The applicant lodged an appeal on points of law on 18 October 2007.

On 29 November 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law. The Senate indicated that the former Criminal Procedure Code (which had been in force in January 2005, when the charges had been brought against the applicant) had not excluded that a person could have the procedural status of a witness while a pre-trial investigation was in progress and could only be officially charged once there was sufficient evidence concerning that person’s guilt.


Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant, Mr Ivars Kibermanis, is a Latvian national who was born in 1960 and lives in Riga. He is represented before the Court by Mrs J. Kvjatkovska, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine, and subsequently by Mrs K. Līce.

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

On 22 October 2004 the State Police instituted criminal proceedings for fraud, in particular for attempts to obtain by fraud the immovable property of a victim, K., by using fake cession contracts and carrying out other fraudulent activities, which had taken place, inter alia, at the bailiffs’ office where the applicant worked.

On 21 December 2004 a judge of the Riga City Latgale District Court authorised a search of the applicant’s office, limiting the seizure to:

“... documents, contracts, letters, notices, and other documents concerning A.K., M.V., and E.M. for the period from 29 April 2004 until the material date”.

The search of the office was carried out on 22 December 2004, and the investigators seized two hard drives from the applicant’s and his assistant’s computers. The items were sealed and the search records do not reveal any complaints from the applicant with respect to the seizure. He nevertheless commented that the computers contained documents which under section 52 of the Bailiffs Law were not to be removed from the bailiffs’ office.

On 22 December 2004 the investigator ordered a technical expert report in order to find out whether the memory of the seized hard drives contained certain deleted documents: a cession contract dated 15 July 2004 and letters and other documents containing the names of four persons, A.K., E.M., and M.V. (all of whom at that time were suspects or accused in the same criminal proceedings), and I.K., the victim. On 27 December 2004 the hard drives were returned to the applicant.

On 23 December 2004 the applicant complained to the Office of the Prosecutor that the investigators had exceeded their powers by seizing the hard drives, since the judge’s search order had not authorised the seizure of anything but documents. He relied on Article 8 of the Convention, submitting that the search and seizure at his office had violated his right to respect for his private life and that of his clients in that the seized items had included two hard drives containing information relating to his private life and documents relating to his clients. Later he added the complaint that the seized objects had not been correctly sealed and were accessible to anyone.

On 29 December 2004 the applicant’s claim was dismissed. The prosecutor stated that the search had been conducted in accordance with section 52 § 4 of the Bailiffs Law, which in criminal proceedings concerning fraud authorised the seizure of documents from bailiffs’ offices, and that the search warrant must be interpreted as covering not only documents but also any other device containing the relevant documents. It added that the hard drives had not been seized, but only taken in order to extract from them the information the judge had authorised to be obtained.

The applicant submitted various similar complaints to higherranking prosecutors, claiming that during the search and seizure the investigating officer had been accompanied by an IT specialist who could have copied on the spot the necessary information from the hard drive, as the applicant had suggested. On 29 March 2005 a supervising prosecutor dismissed the complaint by contending that electronic documents which were stored in hard drives could be changed; therefore in the particular circumstances the seizure of the hard drives had been an appropriate decision, in that it would not have been possible to select the correct document without special knowledge. A similar conclusion was reached in the final decision of the Prosecutor General of 21 June 2005.

Meanwhile, on 3 May 2005 the applicant was charged with fraud. Subsequently the charges were amended, adding a charge of document forgery. In January 2006 the criminal case was sent to court in order for the adjudication to commence.

Following another complaint, on 3 February 2006 the Office of the Prosecutor General reiterated that the Prosecutor General had given a final decision on the complaints. Moreover, the applicant was reminded that the pre-trial criminal process had been terminated, therefore any future requests and submissions were to be addressed to the court.

On 23 March 2006 the applicant submitted to the investigating judge of the Riga City Latgale District Court a similar complaint to the one mentioned above about the allegedly unlawful seizure of the hard drives. The investigating judge noted that section 17 of the Criminal Procedure Law provided for a separation between the pre-trial criminal process and the trial, therefore the investigating judge could only have examined the complaints of alleged human-rights infringements during the pre-trial criminal process, that is before the criminal proceedings were referred to the Riga Regional Court for adjudication. Therefore, on 28 March 2006 the applicant’s complaint was dismissed owing to the fact that his criminal case had been sent to trial in January 2006 and the beginning of the adjudication had been set for 2 May 2006.

In September and November 2005 the applicant and his co-accused were asked to give voluntary voice samples to establish the authenticity of tapped telephone conversations between the two. They both refused and were subjected to compulsory voice sampling. On 24 November and 7 December 2005 the applicant was provided with copies of the material in the criminal case file.

On 5 December 2006 the Riga Regional Court convicted the applicant of fraud and sentenced him to five years’ imprisonment, which was suspended. The court relied on, inter alia, the telephone conversations between the applicant and the co-defendants which were tapped in 2004.

On various dates after the lower court’s judgment the applicant’s representative asked the Chairman of the Supreme Court and the appellate court to inform him whether the telephone tapping had been in accordance with the law, in particular whether it had been authorised by a judge.

On 1 June 2007 the Chairman of the Supreme Court refused to provide any information on grounds of State secrecy. On 31 August 2007 a judge sitting on the panel of the Criminal Cases Chamber of the Supreme Court (hereinafter “the appellate court”) told the applicant that she would herself ascertain whether the phone tapping of 2004 had been authorised by a judge.

On 15 May 2008 the appellate court quashed the lower court’s judgment in part and sentenced the applicant to six years’ imprisonment. The court referred to information received from the Bureau for the Prevention and Combatting of Corruption (KNAB) confirming that the phone tapping from 14 June to 14 November 2004 had been carried out after authorisation had been obtained from a judge of the Supreme Court.

Following an appeal on points of law by the applicant on 16 December 2008 the Senate of the Supreme Court quashed the appellate court’s judgment in part (on the counts of bribery and fraud) and sent it to the appellate court. The remainder of the judgment (in respect of document forgery) took effect.

On 9 September 2009 the appellate court delivered a judgment in the quashed part. The applicant submitted an appeal on points of law against the judgment in which he did not raise the Article 8 complaint later invoked before the Court.

In January and February 2009 the applicant asked the Chairman of the Supreme Court and the Office of the Prosecutor General respectively to provide information on whether there had been a judge’s authorisation for the recording of his telephone conversations. On 19 February 2009 the Office of the Prosecutor General confirmed that the tapping of the applicant’s telephone conversation was based on authorisation by a judge of the Supreme Court, as required by Article 7 (4) and Article 17 of the Law on Operational Activities.

The final judgment in the part which had been quashed was delivered on 2 March 2010, when the Senate of the Supreme Court terminated the criminal proceedings, finding that there had been an incorrect interpretation of the substantive norms of the Criminal Law.

Section 168 provides, inter alia, that a search may be conducted only on the basis of a judicial decision.

Pursuant to section 172, an investigator or prosecutor is strictly limited to seizing only documents which may have direct relevance to the [criminal] case in question.

Section 220 provides that complaints about the actions of the investigating authorities may be submitted to a prosecutor.

Section 222 provides that a complaint about the actions of a public prosecutor may be submitted to a higher prosecutor.

Section 40 provides that an investigating judge is the judge assigned by the chairperson of the district (city) court for a specific term in relation to each case and in accordance with the procedure specified by law, to supervise the observance of human rights in criminal proceedings. The powers of the investigating judge depend on the stage of the criminal proceedings.

Section 41 provides that during a pre-trial investigation and criminal prosecution an investigating judge has, inter alia, the duty of reviewing the conduct of the procedural activities. The same section provides that during the pre-trial investigation and criminal prosecution an investigating judge has the right to familiarise himself with all the material in the criminal case in respect of which the complaint has been received. He or she also has the right to request additional information about criminal proceedings where special investigative actions are being conducted, as well as to determine the terms for the performance of the special investigative actions. At this stage the investigating judge is authorised to apply a procedural sanction for the non-execution of duties or the non-observance of procedures during pre-trial criminal proceedings. He or she can propose that officials who are authorised to perform criminal proceedings are to be held liable for infringements of human rights committed in the carrying out of criminal procedural activities.

Section 41 (2) provides that from the moment the criminal case has been committed to trial, and before the adjudication of the case has commenced, the investigating judge has a duty to decide on the application of an accused in relation to the amending or revocation of security measures and the proposal of a public prosecutor in relation to the selection or amendment of a security measure.

The Office of the Prosecutor is a judicial institution which independently carries out supervision of the observance of law within the scope of its competence as determined by law. Its role is, inter alia, to supervise the work of investigative institutions and the investigatory operations of other institutions.

The relevant provisions are set out in the Court’s judgment in the case of Meimanis v. Latvia, no. 70597/11, §§ 26-30, 21 July 2015, in particular:

“Section 5 provides:

“If an individual believes that a body carrying out operational activities (operatīvās darbības subjekts) has infringed his lawful rights and freedoms, he or she is entitled to lodge a complaint with the prosecutor, who shall conduct an examination and issue a conclusion (atzinums) concerning the lawfulness of the contested actions of the official of the body carrying out operational activities (operatīvās darbības subjekta amatpersona), or the individual may bring an action before the court.

Section 35 provides:

“(1) The Prosecutor General and prosecutors specially authorised by him shall be responsible for monitoring (uzraudzība) the conformity of operational activities with the law. For the purposes of monitoring they shall be entitled to consult such documents, materials and information, at any stage of the operational activities, as are available to the investigating body (operatīvās darbības iestāde). Secret information and its sources shall be revealed only to the Prosecutor General, or to the prosecutors specially authorised by him with the permission of the head of the investigating body.

(2) In order to take a decision with respect to operational measures which require approval by a judge, the judge shall be entitled to consult those documents, materials and information available to the investigating body on which the necessity for the operational measure, according to the special method, is based. Secret information and its sources shall be revealed to the judge only with the permission of the head of the investigating body.””

On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106. It found that the regulatory framework included in section 35 of the Law on Operational Activities referred to a monitoring mechanism for operational activities that must be assessed in conjunction with the right of a person to protection of his or her infringed rights. By relying on sections 35 and 5 of the above legislative act (see paragraph 31 above), the Constitutional Court concluded that the Prosecutor General and specialised prosecutors reviewed operational activities and, on the basis of the results of such a review, provided an opinion on the lawfulness of operational activities. However, the effective regulatory framework also established judicial supervision, including subsequent scrutiny. Consequently, the Constitutional Court did not agree with the argument raised by the applicant in the constitutional proceedings that the effective regulatory framework failed to provide independent subsequent scrutiny in respect of operational measures. For a more detailed review see Meimanis, cited above, § 24.


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1938 and lives in Sibiu.

At 9.55 a.m. on 21 August 2005 the applicant took his son L.M. to the emergency unit of the Sibiu County Hospital, accompanied by their family doctor. L.M. was immediately examined by the doctor on duty, Mr C.C.R., who recorded an initial diagnosis on the observation sheet of “icteric syndrome” (jaundice). Following subsequent tests the diagnosis was changed to "hepatic cirrhosis with gastrointestinal haemorrhage” and the patient was treated with drugs.

Dr C.C.R. filled in forms to admit the patient to the gastroenterology unit, as provided for by the hospital’s code of practice for patients with gastrointestinal haemorrhage. However, owing to the fact that the gastroenterology unit was in a separate building and had no elevator, the patient remained in the emergency unit.

Despite the treatment he was given, the patient’s condition worsened and at around 1 p.m. he was examined by Dr A.M., a doctor who specialised in intensive care. She recommended that the treatment be continued and ordered blood transfusions. Owing to a lack of beds in the intensive care unit, the patient was not immediately transferred there.

At around 5.40 p.m., L.M. was transferred to the intensive care unit. Dr A.M., on duty that night in the unit, came to see L.M. two times. At some point during the night the blood transfusions were stopped.

After 6 a.m. the next morning L.M.’s condition began to worsen and he was given blood transfusions again.

At around 4.30 p.m., because the patient’s state continued to deteriorate, Dr F.A., the head of the gastroenterology unit, decided to perform an endoscopy of the stomach. The procedure did not succeed because of massive gastrointestinal bleeding.

At 5.50 p.m. on 22 August 2005 L.M. was declared dead owing to cardio-respiratory failure. According to the hospital observation sheet, the direct cause of death was upper gastrointestinal haemorrhage, ruptured oesophageal varices, decompensated hepatic cirrhosis and a haemorrhagic duodenal ulcer.

On 22 August 2005 the applicant and his wife lodged a criminal complaint against C.C.R. and A.M., accusing them of manslaughter. The applicant firstly complained that, despite repeated requests, Dr C.C.R. had refused to allow the patient to be transferred to another, better equipped, hospital. The applicant also complained of the failure to provide blood transfusions, which he said caused the death of his son, and of the generally poor treatment received by his son in the Sibiu County Hospital.

On 19 September 2005 the two doctors were questioned by the Sibiu County Police. Dr C.C.R. explained that the patient’s state of health did not allow him to be transferred to another hospital. He also submitted that a particular medicine, Lactulose, had been missing from the hospital’s pharmacy and that he had asked the applicant to buy it. Concerning the lack of blood for transfusions, the doctor said that that was not his fault and that the hospital had run out of blood that night. In conclusion, the doctor stated that the patient, who was suffering from hepatic cirrhosis, had received the necessary treatment. Dr A.M. said that the patient’s condition had had a poor prognosis, that she had provided the correct treatment and that a transfer to another hospital would not have been possible under the circumstances.

The applicant’s statement was taken on 26 January 2006. He reiterated his previous complaints. In addition, he criticised the delay in the administration of Lactulose to his son.

An autopsy report issued on 17 April 2006 said that L.M. had not died by violent means. The death was caused by upper gastrointestinal haemorrhage due to the rupture of varices in the oesophagus and a duodenal ulcer in a patient already suffering from hepatic cirrhosis. The report concluded that no issues had been found that could raise questions about the medical treatment received by the patient.

On 2 May 2006 the applicant complained to the Sibiu Prosecutor’s Office of excessive delays in the investigation. He also requested a forensic medical expert report to verify whether his son had received the necessary treatment. He included the results of various blood tests made by L.M. between 2000 and 2005, intending to prove that his son had not been ill in the years before his admission to the Sibiu County Hospital.

On 30 May 2006 the Prosecutor’s Office of the Sibiu County Court sent a request for a forensic report to the Sibiu County Forensic Service. On 18 August 2006 the Sibiu County Forensic Service replied that it could not deliver such a report because its chief doctor had already performed the autopsy in the same case. Therefore, on 25 August 2006 the request was sent to the Cluj Napoca Forensic Institute.

On 20 December 2006 the forensic report was added to the case file and on 4 January 2007 it was made available to the applicant. The report noted that hospital practice had not been adhered to as the patient should have been admitted to the gastroenterology section, given the diagnosis. Nevertheless, the conclusion was that the treatment received by L.M. was adequate and correct and there was no indication of medical error.

On 18 January 2007 the applicant submitted objections to the report and requested it to be reanalysed by the Mina Minovici National Forensic Institute in Bucharest. On 24 January 2007 the applicant’s objections to the forensic report were rejected by the prosecutor, who only allowed it to be referred to the Mina Minovici National Forensic Institute for approval.

On 4 April 2007, in a one-page letter, the Mina Minovici National Forensic Institute approved the report drafted by the Cluj Napoca Forensic Institute.

On 11 April 2007, in a briefly-worded decision based on the forensic medical report, the Prosecutor’s Office of the Sibiu County Court decided not to commence criminal proceedings against the two doctors as there had been no finding of medical errors. That decision was upheld on 13 June 2007 by the chief prosecutor of the same prosecutor’s office.

A complaint by the applicant against the two decisions was allowed by the Timişoara District Court on 16 April 2008. The court decided to send the case back to the prosecutor in order to commence criminal proceedings against the two doctors. The court observed that the prosecutors’ decisions had been based only on statements by the two doctors and on the forensic report and held that the investigators in the case needed to clarify whether the patient’s state of health had required his admission to the gastroenterology unit and whether treatment in that unit could have influenced the course of the victim’s illness. The court ordered that such questions should be answered by way of a more thorough investigation, taking statements from doctors specialising in gastroenterology, as well as from other employees of the hospital. In addition, the court requested the prosecutors to clarify, by way of witness statements and confrontations, what was the practice of the hospital in dealing with cases of gastrointestinal bleeding and whether the two doctors had observed that practice. The judgment became final on 10 October 2008 when an appeal on points of law by the two doctors was rejected by the Timiş County Court.

On 20 March 2009 the investigation resumed with the questioning of Dr P.P.J., a gastroenterologist employed at the Sibiu County Hospital, and on 23 March 2009 of Dr F.A., who had performed the endoscopy on L.M. On 25 March 2009, C.C.R. and A.M., the two doctors under investigation, were questioned for a second time.

On 27 March 2009 the Prosecutor’s Office of the Sibiu County Court again found no fault in the actions of the two doctors. That decision was communicated to the applicant on 26 May 2009. On 18 June 2009 a complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office. The applicant took his case against those decisions to court.

On 7 June 2010 the Timisoara District Court allowed the applicant’s complaint and ordered the reopening of criminal proceedings, considering that the questions raised in its judgment of 16 April 2008 had still not been answered. The court held that, bearing in mind the seriousness of the case, which involved the death of a man, the investigation should have been more detailed and the applicant’s allegations should have been more thoroughly checked. More specifically, the court noted that the applicant had maintained, among other things, that L.M. had been healthy and had never previously been admitted to hospital and that there had been delays in the administration of a particular drug and in giving blood transfusions. However, the medical reports had said that the deceased was suffering from an ulcer and cirrhosis. The court also reasoned that, even if it could be accepted that rapid changes could occur in such conditions, it was hard to believe that the victim had had no previous symptoms and had not been under the supervision of medical professionals prior to 22 August 2005. In view of the above, the court further requested that the prosecutors take statements from the family doctor and gather evidence about the victim’s state of health prior to his admission to the Sibiu County Emergency Hospital.

On 24 December 2010 the investigation resumed with a letter being sent to the Sibiu Police in which the prosecutor requested their assistance in obtaining a statement from the victim’s family doctor, as well as copies of any medical documents she might have concerning the victim’s state of health prior to his hospital admission on 21 August 2005. In January 2011 the family doctor, M.L.I., gave a statement to the police. She recalled that, during an examination in December 2004, L.M. had presented with signs of hepatic distress and that she had recommended various tests. The tests had come back showing results that were slightly above the norm, so she had advised him to see a gastroenterologist.

Dr F.A. was again questioned on 27 January 2011. Two doctors who had been on duty when L.M. was admitted were questioned in February 2011. They did not remember any relevant details about the case.

On 25 July 2011 the Prosecutor’s Office of the Sibiu County Court, considering it established that the applicant had been suffering from cirrhosis well before August 2005 and that nothing could have been done to save his life, decided not to press criminal charges against the two suspects on the grounds that they had not committed any criminal act. A complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office on 23 August 2011.

A complaint by the applicant against the prosecutors’ decisions of 25 July and 23 August 2011 was allowed by the Timisoara District Court on 21 December 2011. The court considered that all the facts had still not been clarified by the investigation and again ordered the reopening of criminal proceedings. Specific instructions were again given to the prosecutors. The court noted that, in order to observe the equality of arms and to guarantee a fair trial, the applicant should have been consulted on which witnesses to hear and given the opportunity to call doctors of his own choice as witnesses. The court further reiterated the instructions given in its previous judgments in the case, which it did not consider had been carried out by the prosecutor. Finally, the court ordered the prosecutor to conduct a speedier investigation, bearing in mind that a long time had passed since the lodging of the applicant’s complaint and that the inquiry had been totally ineffective up to that point.

The investigation was reopened on 21 February 2012. On 27 February 2012 a statement from the applicant was taken by the prosecutor. He stated that he did not know the names or addresses of the medical staff on duty at the time of the incident. He further requested a confrontation with the two doctors under investigation.

On 29 February 2012 the prosecutor asked the Sibiu County Emergency Hospital for a list of employees on duty on the two days of L.M.’s stay in hospital. On 21 March 2012 the hospital replied that it no longer had the duty sheets as that type of document was only kept for three years.

On 4 April 2012 two doctors specialising in gastroenterology, called as witnesses by the applicant, testified before the prosecutor that the diagnosis and treatment applied by Drs C.C.R. and A.M. had been correct in the circumstances. They noted that the only drug capable of removing blood from the stomach in order to prepare the patient for an endoscopy under the proper conditions was not available in Romania at that time.

A confrontation between C.C.R., A.M. and the applicant took place on 3 May 2012.

Between 11 and 20 April 2012 the prosecutor took statements from several employees of the Sibiu County Emergency Hospital. They all declared that they did not remember anything about the patient L.M.

By a decision issued on 8 June 2012 the Prosecutor’s Office of the Sibiu County Court ended its criminal investigation, finding no guilt in the actions of the two doctors. The prosecutor noted that according to the hospital’s practice, the patient should have been admitted to the gastroenterology unit but that this had not been possible because the unit did not have an elevator for wheeled beds. However, the prosecutor observed that all the medical reports drafted in the case had concluded that the patient’s diagnosis had been correct and that he had had the appropriate treatment. This conclusion was also confirmed by the two specialists called as witnesses by the applicant. The prosecutor stated that the endoscopy performed before the patient’s death had been rendered more difficult owing to the absence in the country of the drug needed to clear blood from the patient’s stomach. With regard to the applicant’s complaint concerning the doctors’ failure to administer blood transfusions, the prosecutor held that the patient’s death had been caused not only by anaemia but also by hepatic insufficiency.

The prosecutor’s decision was upheld on 16 July 2012 by the head prosecutor of the Prosecutor’s Office of the Sibiu County Court.

A complaint by the applicant against those two decisions was rejected with final effect on 19 November 2012 by the Timişoara District Court. The court, quoting widely from the prosecutor’s decision of 8 June 2012, held that the investigation had correctly led to the conclusion that there was no proof of fault by the two doctors.

On 19 October 2005 the applicant and his wife lodged a disciplinary complaint against Drs C.C.R. and A.M.

The disciplinary committee of the Sibiu County College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from the doctors who had treated him. It gave its decision on 27 February 2006, ruling that no medical errors had been made.

The applicant objected to the committee’s conclusions and his appeal was examined by the superior disciplinary committee of the National College of Doctors.

On the basis of the evidence presented to it, on 7 December 2006 the National College of Doctors terminated the disciplinary proceedings against Drs C.C.R. and A.M. Relying on the medical documents in the file and on the opinion of a university professor, the authority considered that it had been established that no medical errors had been made.

The applicant and his wife brought an action for the quashing of the decision adopted on 7 December 2006, pointing to the failure by the two doctors to provide appropriate treatment for their son.

On 5 June 2007 the Sibiu County Court dismissed the action as illfounded and upheld the decision of the National College of Doctors.

An appeal by the applicant against that judgment was allowed by the Braşov Court of Appeal on 26 February 2008. The case was sent to the Braşov County Court for rehearing because the lower court had not examined any evidence other than the documents in the file, which had been the sole basis for its decision.

On 13 February 2013 the Braşov County Court took note of the fact that the applicant and his wife no longer wished to pursue the proceedings and closed the case.


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

The applicant, Mr Zdzisław Woźny, is a Polish national who was born in 1949 and lives in Elbląg. He is represented before the Court by Ms M. Szereda, a lawyer practising in Łódź.

The application concerns national bonds issued by the State Treasury in 1936. The bonds were to have been redeemed by 1982. However, the State failed to undertake any steps to redeem them or to pay interest to the holders of those bonds.

On 14 November 2005 the applicant instituted civil proceedings for payment against the State Treasury, represented by the Ministry of Finance. He claimed 550,823.19 Polish zlotys (PLN) (approximately 137,700 euros (EUR)).

On 19 December 2006 the Warsaw Regional Court dismissed the applicant’s claim, finding that it had become time-barred and that, moreover, its value would in any event approach zero zlotys after the application of all due indexation methods.

The applicant appealed against that judgment.

On 6 August 2008 the Warsaw Court of Appeal quashed the firstinstance judgment and remitted the case to the Regional Court. It considered, inter alia, that finding the applicant’s claim time-barred had been contrary to the principles of community life (sprzeczna z zasadami współżycia społecznego). The Court of Appeal found that the Regional Court should have examined the applicant’s claim on the merits.

On 18 December 2008 the Warsaw Regional Court found part of the claim well founded, awarded the applicant PLN 216,647 (approximately EUR 54,160) and dismissed the remainder of the claim.

On 2 February 2009 the Ministry of Finance lodged an appeal against that judgment.

On 30 June 2009 the Warsaw Court of Appeal asked the Supreme Court for an explanation of a legal question concerning the applicability to the present case of the indexation clause contained in Article 3581§ 3 of the Civil Code. In particular, the Court of Appeal had doubts as to whether the indexation clause should be applied if a significant change in the value of a claim had resulted from legislative changes.

On 22 October 2009 the Supreme Court, in reply to the Court of Appeal’s request, ruled that the Court of Appeal had failed to meet the requirements which would have allowed it to turn to the Supreme Court for interpretation; instead, it stated that the Court of Appeal should decide independently on the present case.

On 15 January 2010 the Warsaw Court of Appeal amended the challenged judgment and dismissed the applicant’s claim. The court found, inter alia, that the national bonds had lost their real value because of the 1949 Decree (see paragraph 14) and the 1950 Act (see paragraph 18). Relying on the judgment of the Constitutional Court of 24 April 2007 (see paragraph 27), it ruled that the indexation of the value of the applicant’s claim by way of judicial decision was inadmissible because the change in the value of the claim had been caused by the lawmaker and had not been a result of external, unpredictable causes.

The applicant lodged a cassation appeal with the Supreme Court.

On 24 March 2011 the Supreme Court dismissed the applicant’s cassation appeal. The Supreme Court endorsed the reasoning of the judgment given by the Court of Appeal and confirmed that the applicant’s claim had indeed lost its economic value as a result of legislative changes enacted in 1949 and 1950.

Article 4 provides:

“The payment of dues resulting from pecuniary obligations arising from any title of a private or public nature before the entry into force of the present decree and not redeemed until that day may only be effected in the Polish currency.”

At the relevant time, Article 5, subsequently repealed, provided:

“(1) The change in the purchasing power of money during the time between the creation of an obligation and its payment date or performance does not constitute a basis for a change in the amount of the obligation or in the means of the execution of the contract or dissolution of the contract.

(2) Payment of an obligation, specified in Polish currency on the basis of this decree, shall be made in banknotes of the Polish National Bank according to their nominal value, which is equal to the nominal value of banknotes or other means of payment, which were expressed in zlotys and which were in circulation on the territory of Poland or a part thereof before the introduction of the National Polish Bank’s banknotes into circulation.

(3) For the establishment of the value of pecuniary obligations referred to in the present Decree and expressed in the Polish currency, it is irrelevant what means of payment was in circulation at the time of the creation of the obligation.”

Article 6 § 2 provides:

“The amount of obligations expressed in zlotys in gold is calculated at 1 zloty for 1 zloty in gold.” (Wysokość należności z zobowiązań pieniężnych wyrażonych w złotych w złocie liczy się jeden złoty za jednego złotego w złocie)

The Change of Monetary System Act of 28 October 1950 (o zmianie systemu pieniężnego) provided that all public and private obligations expressed in zlotys, irrespective of the time at which they came into existence, were to be recalculated with effect from 30 October 1950 according to the following ratio: 100 “old” Polish zlotys equals 3 Zloty.

Under section 9 of this Act, all amounts expressed in “old” zlotys and mentioned in legal provisions binding on the day of the entry into force of this Act were recalculated, by virtue of law, according to the following ratio: 100 “old” zlotys = 3 zloty.

The Polish Zloty Denomination Act of 7 July 1994 Act (ustawa o denominacji złotego) introduced a new payment unit: with effect from 1 January 1995 the new unit of PLN 1 was to be worth 10,000 “old” Polish zlotys.

Article 32 of the Constitution reads:

All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.

No one shall be discriminated against in political, social or economic life for any reason.

Article 64 of the Constitution reads, in so far as relevant, as follows:

Everyone shall have the right to ownership, other property rights and the right of succession.

Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession ...

Article 3581 § 3 of the Civil Code provides:

“In the case of an essential change of the purchasing power of money after an obligation falls due the court may, after considering the interest of the parties and in accordance with the principles of community life, change the amount or the mode of payment, even if these were fixed in a decision or a contract.”

On 24 April 2007 the Constitutional Court gave a judgment (SK 49/05) in which it held that section 12(1) of the Act of 28 July 1990 amending the Civil Code, in so far as it limited the possibility of judicial indexation referred to in Article 3581 § 3 of the Civil Code as regards pecuniary obligations which had come into existence before 30 October 1950 as a result of bonds emitted by the State Treasury, was inconsistent with Article 64 §§ 1 and 3 in conjunction with Article 32 § 1 of the Constitution.

In the part named “effects of the judgment” the Constitutional Court noted:

“Taking into consideration the effects of this judgment and the impossibility of claiming the full value of claims arising from national bonds issued before 1939, the matter of possibility and scope and, in particular, the amount of just satisfaction for persons holding such bonds should be resolved by the lawmaker. As stressed on many occasions in its case-law, the Constitutional Court should not replace the lawmaker.

The finding by the Constitutional Court that section 12(1) of the Act of 28 July 1990 amending the Civil Code was inconsistent with the Constitution ... will enable the holders of national bonds to access the indexation of their claims guaranteed by Article 3581 § 3 of the Civil Code. However, in practice, the expiry of limitation periods may effectively deprive claimants of a chance to achieve a positive outcome in the relevant proceedings.

If [the Parliament] does not enact new provisions before section 12 (1) of the Act of 28 July 1990 expires, holders of national bonds, who have been patiently waiting for the settlement of their claims, will be able to lodge [with civil courts] their claims for payment in an amount which will be calculated with the application of the indexation clause.

However, the present judgment of the Constitutional Court does not indicate to the courts the scope, direction or scale of the indexation.”

The provisions which had been found unconstitutional were subsequently repealed, which opened the way for applicants to lodge their claims before the courts and to demand that the value of their claims be increased by judicial order.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In applications nos. 8416/06 and 53941/07 the applicants also raised other complaints under the provisions of the Convention.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

On various dates the applicants brought civil actions against the Ministry of Finance of the Russian Federation, seeking to recover the monetary value of State promissory notes for purchases of Russianmade cars.

The first-instance courts found in the applicants’ favour. Those judgments were upheld on appeal and became final. They were subsequently quashed by supervisory review courts upon applications lodged by the Ministry of Finance on the grounds of incorrect application of substantive law (for more details, see the Appendix).

All the judgments in the applicants’ favour remained unenforced until the date of their quashing.


Preliminary objection dismissed (Article 35-3 - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Geoffrey Valenzia;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1939 and lives in Paola.

On an unspecified date the applicant was charged with multiple counts of theft (burglaries dating from 1976 to 1983) and/or receiving stolen goods.

By a judgment of 26 October 1992 the Court of Magistrates (as a court of criminal judicature) found the applicant guilty of a series of offences of receiving stolen goods, but acquitted him of the theft of those goods, holding that it was clear that he had had nothing to do with the thefts. The court found it curious that the applicant had given a detailed explanation as to the origin of each item, and yet a number of the victims of the thefts had identified the objects as belonging to them. During the investigation stage the applicant had admitted to the police that because of his fascination with antiques, he would purchase items even though he would have been aware that they had been stolen. During the proceedings, other than declaring that such statements were false, the applicant did not contest the statements or explain why he had made them in such detail and precision, and why he eventually showed the police where the items were kept. The police also confirmed that such statements had been made. Moreover, the court observed that, even though the applicant was a coin collector, the fact that he had been found in possession of tools for melting down metals such as silver and of a number of pieces of silver bullion did not favour his credibility. Furthermore, although not all the items stolen had been found in the applicant’s possession, in the court’s view it was curious that all the items found had been connected with specific, well-organised thefts, where it was clear that the robbers knew what they were looking for and were well aware of where they would place the merchandise. Indeed, the court had no doubt that the applicant had been aware of the illicit origins of the items in his possession. It sentenced him to five years’ imprisonment.

On 3 November 1992 the applicant appealed on various grounds and complained that he had not been able to prove the origins of all the items because the police had raided his house, seizing all the relevant documents and receipts, which had then gone missing in their custody.

By a judgment of 30 October 2001, the Criminal Court of Appeal modified the judgment in part. It affirmed the applicant’s innocence in respect of the theft charges, as there had not been a shred of evidence in that respect, and it reversed the part of the judgment concerning the majority of the remaining charges of receiving stolen goods (see below for detail). It disagreed with the first-instance court’s conclusion that the applicant could not but have been a receiver of stolen goods on the ground that since a number of people had recognised the items they could not all have been lying, and therefore it must have been the applicant who was wrong and was therefore responsible. The Criminal Court of Appeal observed that the applicant was a collector of and dealer in antiques, who appeared to purchase any item of interest without enquiring in detail into its legitimate origins. It appeared, from both the case file and the fact that certain items had been hidden, that the applicant was aware that some items had previously been stolen. However, the appeal court considered that the applicant should not suffer prejudice as a result of his inability to prove the origins of certain items, since this was a result of negligence on the part of the police, who had lost the relevant documentation (and some of the items). Moreover, no inferences could be drawn from the fact that he possessed certain tools, as it was normal for a coin collector to melt down coins which had become worthless. Examining the records of the proceedings, the court concluded that the crime of receiving stolen goods had only been proved in respect of objects of antiquarian value stolen from three specific venues, A., B., and C., (during two burglaries) and found in the applicant’s possession. His sentence was in consequence reduced to a two-year suspended sentence.

Pending the criminal proceedings against the applicant, a number of individuals alleging that they owned the items referred to in the list of charges against the applicant (also alleged victims of the relevant thefts) instituted civil proceedings to vindicate their ownership of the items. They requested that the items be returned to them and, where necessary, in the event that they could not be returned, that the applicant be held liable for damages. The relevant decisions on appeal were delivered subsequent to the Criminal Court of Appeal’s judgment finding the applicant innocent of the charges of receiving stolen goods in relation to a majority of the items.

Proceedings were instituted against the applicant on 4 May 1997 in relation to items stolen in 1983 from venue P. The items had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith.

By a judgment of 26 January 2001, having heard the parties’ addresses and having assessed the evidence, the Civil Court found that the claimants were the owners of the items at issue in the case (except for five items, the ownership of which had been claimed by other third parties). Costs were to be divided accordingly. The court found, however, without prejudice to any further action, that it would be premature to order the return of the said items.

The court observed that the applicant had declared that he did not know the claimant, but that she had recognised the applicant as a person who had gate-crashed a party she had once given at venue P. Moreover, G., a police officer, had testified that during the criminal investigations the applicant had admitted that “a number of items seized by the police had not been purchased honestly (bis-sewwa)”. Thus, contrary to the applicant’s testimony, it could be inferred that certain objects had not come into the applicant’s possession by proper means. Although the court was convinced that the applicant had been involved in the antiques trade for a number of years, he had not been able to put forward any evidence in relation to the items at issue or any detail as to his trade. By contrast, the claimants had identified as theirs the items which had previously been stolen. The court thus, having to choose between the two versions, opted for that of the claimants. The court considered that the fact that numerous people had been to the police station and identified various objects of which they claimed to be the owners and which had been seized from the applicant’s house was enough evidence to discredit the applicant’s testimony.

By a judgment of 16 April 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. From the evidence submitted it appeared that the claimants had suffered two burglaries at venue P. and that the police had seized some of the stolen items from the applicant, amongst many other items identified by various third parties as theirs. While the applicant was able to show that he had been a collector since his youth, he had not managed to prove ownership of the relevant items. As to their origin, he vaguely mentioned names of individuals, some of whom were deceased. He referred to receipts which were currently with the police and which could not be exhibited to the court. The applicant submitted declarations by individuals with whom he had traded. As to his trading, however, it appeared that the applicant had not hesitated to purchase items with dubious or suspicious, if not illicit, origins. Indeed, the applicant had been investigated and various items found in his possession had been seized. The origins of the items gave rise to more than a simple suspicion that they had not been acquired legitimately. According to police officer G., the applicant had even admitted this. During the criminal proceedings G. had been asked whether the applicant had admitted to the theft and the police officer had replied “yes”. G. further stated that the applicant had referred to the dishonest purchase of a sofa (“Dan mhux bis-sewwa”) and had only shown receipts in respect of certain items in connection with which the applicant had been charged, but not all of them. In that light, the court was not satisfied that the applicant had submitted sufficient proof to show that he was the owner of the said items. Moreover, the fact that numerous people, apart from the applicant, had claimed to be the owners of the items did not suffice to support the view that the applicant was the owner.

Proceedings were instituted against the applicant on 26 May 1994 in relation to items stolen in 1983 from venue BC, which had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners of the items and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith.

By a judgment of 29 January 2001 the Civil Court found in favour of the claimants. It held, however, without prejudice to any further action, that an order for the return of the said items would be premature.

The Civil Court noted that there was a certain disagreement in respect of the list of objects identified by the original claimant (the deceased ancestor of the current claimants), in that certain items had been added later. However, the claimant had produced a number of witnesses who had confirmed his declarations as to which items had been stolen. The applicant declared under oath that all the items referred to by the claimants, as well as all the other items seized, were owned by him, as he had bought them over the years. In his testimony he gave the names of people from whom he had purchased each item. He also submitted a receipt dated 1983, the year of the burglary, which indicated that he had bought a number of objects for the sum of 8,800 Maltese liri (MTL, approximately 20,500 euros (EUR)) from a certain S.A. Nevertheless, the court considered the claimants’ version to be more reliable, as it was corroborated by photos and other witnesses. Moreover, police officer G. had testified that the applicant had stated that various items seized from his house “had not been purchased honestly” and this could not but weaken the applicant’s testimony. Therefore the court had no other option but to find in favour of the claimants, at least in respect of those items that were not being claimed by other third persons.

By a judgment of 16 April 2004, the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. It considered that the Civil Court had properly assessed the evidence and delivered a reasoned judgment. In any case, the Court of Appeal considered that the applicant had not provided a reliable explanation in respect of the origin and purchase of the relevant items. Indeed, during the criminal proceedings G. had testified, inter alia, that “at no time had the applicant stated that he had stolen the items from here or there, but he had mentioned that he had bought certain items from T., and that he knew about their dubious origins (kienu ġejjin bil-ħazin)”. The Court of Appeal considered that had the Civil Court based its decision solely on that testimony and stopped there, the relevant burden of proof might not have been satisfied. However, all the evidence advanced indicated the probability that the relevant items belonged to the claimant’s heirs – they had been stolen from venue BC, and had been identified by the claimants, even though third parties had also claimed ownership of some of the items. Although the applicant had testified under oath that he had purchased the items legally, his testimony had not been consistent and had lacked veracity. In particular, he had given the impression that he was a trader in antiques and that he had traded with various lawyers, but when questioned in respect of each of them, it transpired that he had not bought any of the items relevant to the case. The other people mentioned by the applicant were deceased and could not testify. Neither could the applicant submit receipts for those purchases, giving as the reason for this that they had been seized by the police and were being held as evidence in the criminal proceedings against him. Even if that were so, the applicant had not provided proof. By contrast, the claimants had submitted photographs of the relevant items taken before they had been stolen.

Proceedings were instituted against the applicant on 4 September 1992 in relation to items stolen from venue B. (including items allegedly transformed into silver bullion), which had been found in his possession and seized by the police. All were items in relation to which the applicant had eventually been acquitted of theft but found guilty of receiving stolen goods. The claimants requested that the applicant be found responsible for the theft or receiving of the stolen goods and therefore liable for damages. They asked the court to quantify such damages and to order the applicant to pay them. The applicant argued that he had acquired the items in accordance with the law and in good faith.

By a judgment of 22 June 2001 the court found that the claimants were the owners of the relevant items, ordered the applicant to return the said items, and held the applicant liable for damages for holding the relevant items in bad faith.

The court noted the expert evidence, which found that there was sufficient proof that the items were owned by the claimants. Indeed, the applicant had not denied that the items could have been previously owned by the claimants. During the criminal investigations the applicant had admitted that he had previously purchased stolen items. The declarations used in the criminal proceedings were exhibited before the court and the applicant only contended that police officer G. had invented certain things. Having re-read the witness statements, the experts took the view that the applicant rarely acquired items lawfully and in good faith. He actually was perfectly well aware of their dubious origins, as he was told by the sellers that the items had been stolen. This could not be ignored, especially as the applicant never stated that he had sale receipts for the relevant items. The items were found in his possession, he did not remember from whom he had bought them and he had no receipts. In consequence, it could not be said that he had purchased them in good faith. The court held that the applicant’s statements used in the criminal proceedings were admissible evidence (Article 632 (1) of the Code of Organisation and Criminal Procedure (“the COCP” – see Relevant Domestic Law below)). Officer G. presented five statements made by the applicant during the investigation, and the applicant explained which parts of those statements he agreed with and which parts he contested. The court considered that in doing so the applicant was picking and choosing, and yet there existed contradictions. For example, in one statement the applicant said that he had purchased two chalices from a taxi driver, and he subsequently confirmed that statement. In another statement he repeated this in more detail and subsequently stated that he had never made such a statement. At a later date he repeated the story, but differently, saying that he had bought more items. The court noted that the taxi driver had not been called as a witness to corroborate the applicant’s version. While the applicant stated that he had purchased the items from various persons, only one of those persons had been called as a witness and the latter only testified to the effect that the applicant had an interest in antiques. Another witness confirmed that the applicant was also a moneylender. Indeed, the applicant submitted a number of documents in evidence of this, but did not submit any evidence in relation to the origins of the items at issue. The court therefore concluded from the totality of the evidence that the claimants had been burgled, that they had identified the stolen items, and that the applicant had not proved that he had acquired the items in good faith. The court found it of particular relevance that in one of the applicant’s statements, which he did not contradict, he had said “when I see an antique, whatever it may be ... I go blind. I want it for myself in order to be able to take pleasure in looking at it”. Thus, the court considered that any other comment would be superfluous. The court found in the applicant the very image of a receiver of stolen goods (ricettatur).

As to the claim for damages, the court accepted and shared the expert’s conclusions: as had emerged from the evidence, not all the stolen items were found in the applicant’s possession, but a quantity of silver bullion was found which the claimants argued was the product of melted-down silver statues which had been stolen from them. Indeed, it had been shown that the bullion seized from the applicant was home-made and not pure. Thus, although there was no proof that the applicant had stolen the items, there was sufficient proof to hold that the claimants were indeed the owners of the relevant items, that those items had been in the applicant’s possession in bad faith and that the applicant had previously melted down silver. Indeed, both the bullion and the tools for making it had been found in his possession. The applicant gave an explanation about the bullion, but it was not corroborated by any witness statement. The applicant gave no credible explanation for the clearly home-made bullion. It was therefore very probable that objects stolen from the claimants and acquired in bad faith had, together with other items, been melted down to hide their identity. The court further highlighted, of its own accord, the absence of corroboration as regards the bullion, and the presence of tools used to melt down silver. Thus, the claimants’ case had been made out on the balance of probabilities. The applicant was therefore liable for damages because he had been in possession of stolen goods and because of the damage he had caused by melting down such items. The amount of damages was fixed at MTL 64,870 (approximately EUR 151,100).

The applicant appealed, arguing, inter alia, that the legal expert whose conclusions had been endorsed by the court had relied on evidence (the applicant’s statements during the criminal investigation) which should not be given any weight in civil proceedings, and that the first-instance court had erred in finding him guilty in respect of items which were never found by the police, referring to the items that had allegedly been melted down.

By a judgment of 9 November 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment (in so far as relevant). It held, however, that the applicant could not be ordered to return items which were no longer in his possession. It further considered that Article 632 (1) of the COCP (see Relevant Domestic Law below) applied to the statements made by the applicant during the criminal investigation, even though they had not been signed by him. It sufficed that officer G. had witnessed those statements being made by the applicant for them to be admissible in evidence. It was for the first-instance court to assess them and reach its conclusions. Moreover, Article 6 of the Criminal Code (see Relevant Domestic Law below) did not imply that evidence used in criminal proceedings could not be used in analogous civil proceedings. Furthermore, the applicant had not objected to the use of that evidence before the firstinstance court. Having examined in detail the evidence produced, the Court of Appeal further considered that the first-instance court had not made an incorrect assessment and that it would therefore not interfere with its finding. It found it pertinent to point out that the fact that only eleven silver bars had been found in the applicant’s possession, despite the fact that the items melted down should have amounted to many more bars, was not a thesis favourable to the applicant. Indeed, the applicant could easily have disposed of the other bars resulting from the melted-down items before the police found the bars. He was, thus, responsible for the damage caused by the melting down of the items, in accordance with the estimates provided by the expert. Any difficulties in evaluating the original items were of the applicant’s own making, as it had been his choice to melt them down.

On 22 January 2008 the applicant instituted constitutional redress proceedings, complaining that the three judgments of the Court of Appeal (civil jurisdiction) referred to above and another still pending set of proceedings had violated, inter alia, his right to be presumed innocent.

By a judgment of 29 September 2009, the Civil Court (First Hall), in its constitutional jurisdiction, rejected claims lodged by the applicant. In the context of the applicant’s various complaints, it held that the civil proceedings against the applicant had not amounted to a repetition of the criminal proceedings, as the intention of the civil proceedings had not been to find whether the applicant was guilty of any charge, but solely to secure the return of the property to its owners and, where that was not possible, to determine the level of compensation due. Moreover, the different proceedings were not comparable in relation to the burden of proof required. Indeed, each of the proceedings was capable of resulting in different findings of responsibility, including findings which conflicted with each other. The court noted that in the civil proceedings the applicant had not been found guilty of any crime. The civil courts had assessed the evidence in relation to the complainants’ ownership rights to the property against the applicant’s explanation as to how the items had been found in his possession, within the relevant parameters of civil proceedings of that nature. Considering the applicant’s complaint under Article 6 § 2 of the Convention, it held that the provision could not be applicable, since the applicant was no longer accused of a criminal offence, and his complaints were directed against civil proceedings which, save for one, had also been concluded. At a later stage, in relation to Article 6 § 2, the court also considered that the conclusions reached by the civil courts were based on a proper assessment of evidence which did not violate the applicant’s presumption of innocence. Those conclusions were based on the principle of juxta allegata et probata (delivering a judgment on the basis of what has been alleged and proved), as expected in this type of proceedings. The court considered that the applicant’s case could not be compared to any of the cases cited by him under Article 6 § 2 concerning the request of acquitted applicants for compensation for detention, and therefore the principles enunciated therein did not apply.

By a judgment of 25 May 2010, the Constitutional Court rejected an appeal lodged by the applicant and upheld the first-instance judgment. It considered that there had been no breach of the applicant’s rights since criminal and civil proceedings were separate and distinct: one was brought by the State, had a specific set of rules and aimed at the imposition of a punishment, whereas the other was brought by an interested individual for the restitution of his or her property rights. During criminal proceedings various rules played in favour of the accused, who might be found innocent simply because there was not sufficient evidence. This should not deny any third party the possibility of access to court to obtain relevant redress on the basis of a different burden of proof. The applicant had been cleared of all charges except those of receiving certain goods stolen from certain properties. However, that did not mean that the items in question, found in the applicant’s possession, were his own. The civil proceedings instituted by individuals claiming certain items against the possessor were independent of the defendant’s good or bad faith. The Court of Appeal had in each case found for the claimants, after considering that the latter had proved that they were the owners of the stolen items and that the applicant had not proved his ownership. The cases had dealt solely with the establishment of the ownership of the items, and nothing more, and if the outcome was that the items were not his own, then he was bound to give them back to their rightful owners, regardless of how they came to be in his possession.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


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

The applicant, Mr Atalay Öztürk, is a Turkish national who was born in 1976 and is currently serving a prison sentence in Muğla prison. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in İzmir. 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.

On 14 November 2005 at 1.05 a.m. the applicant got involved in a bar brawl which resulted in the death of U.K. The applicant was also injured during the incident. Subsequently, he absconded for a short period of time.

On the same date, at 9.17 a.m., the applicant called the police and introduced himself as U.K.’s murderer. The transcript of the telephone conversation was reproduced in the incident report (ihbar kayıt tutanağı) made by the police superintendent. It revealed that the applicant had expressed his wish to surrender but had been concerned about the reaction of the deceased’s relatives.

Thereafter, at an unspecified time, the applicant surrendered to the police. He was subsequently hospitalised under police guard for the injuries he had sustained during the fight.

A medical report drawn up the same day indicated that the applicant had abrasions on his left eyebrow, which had probably been caused by a bullet. It was further noted that there was a bullet hole in his left wrist.

At 11.30 a.m. police officers arrived at the hospital and drafted a record of statement (ifade zaptı) quoting the written record of the applicant’s telephone conversation with the police. According to this document, when the applicant had called the police he had stated to the chief police officer that he had gone to the bar looking for a mobile phone that he had lost and he had seen the fight. Some people had attacked him and he had drawn his gun in self-defence. When they had tried to grab the gun from his hand, the gun had gone off accidentally during the struggle. The record of statement further revealed that subsequent to his phone call, police officers had met with the applicant in Izmir. He had then been brought to the hospital, where his left eyebrow had been sutured and his broken left arm had been encased in plaster. After being reminded of his rights, the applicant had had a telephone conversation with his lawyer and refused to make a statement to the police in the absence of his lawyer. He and his father had signed the record of statement.

Again on the same date, the Selçuk Investigating Judge issued a warrant for the applicant to be brought before the Selçuk Public Prosecutor following his recovery.

On 15 November 2005, the İzmir Investigating Judge questioned the applicant at the hospital in the presence of his lawyer. The applicant refused to make a statement, as he was still suffering from the injuries sustained in the incident. He stated that he would make defence submissions before the trial court. The judge ordered the provisional detention of the applicant in order to secure a statement from him following his discharge from the hospital.

On 28 November 2005, the applicant was brought before the Selçuk Public Prosecutor, when he denied the content of the record of statement. He alleged that his conversation with the police on the phone had been misunderstood and incorrectly transcribed. He added that he had not been carrying a gun at the material time. During this statement, the applicant benefited from the assistance of a lawyer.

On the same date, the Selçuk Investigating Judge questioned the applicant in the presence of his lawyer. The applicant submitted that there had been a struggle between him and the deceased, and that the deceased had been shot during the struggle while the applicant had been trying to take the gun from his hand. He maintained that the gun had been fired while he had been acting in self-defence. He further stated that he had not been carrying a gun at the time of the incident. After the questioning was over, the judge ordered the applicant’s pre-trial detention.

On 2 December 2005 the İzmir Forensic Institute issued an autopsy report, specifying that the deceased, U.K., had been shot in the head at long range. It concluded that the cause of his death had been a skull fracture, damage to the brain stem and haemorrhaging in the brain membrane resulting from the gunshot. The report also revealed that 103 mg/dl of ethyl alcohol had been found in his blood.

On 21 December 2005 the İzmir Public Prosecutor lodged an indictment with the assize court, charging the applicant with the intentional killing of U.K.

During the proceedings the assize court heard several witnesses who had been in the bar at the material time. S.O., the owner of the bar, testified that he had argued with the deceased for a while and that U.K. had drawn his gun several times during their quarrel. Thereafter the applicant had come to the bar and U.K. had begun quarrelling with the applicant and had lunged towards the applicant. S.O. had heard gunshots but had not seen the incident.

Another witness, V.S., stated in his initial statements to the public prosecutor and the magistrates’ court that the applicant had walked into the bar, sworn at him and the deceased and then started shooting at them. Subsequently, before the trial court V.S. testified there had been a quarrel between the applicant and the deceased. U.K. had shot towards the applicant and then the applicant had tried to take the gun from U.K. During the struggle, someone had hit V.S.’s head with a hard object and he had lost consciousness.

I.K. stated that the applicant had come to the bar looking for his mobile phone and a fight had broken out. U.K. had walked up to the applicant while his hand had been in his pocket. At that time, I.K. had left the bar but he had heard a gunshot from outside. He had returned, and seen the deceased lying on the ground and V.S. taking the gun from his hand.

A.D. testified that during the fight in the bar, U.K. had drawn his gun and fired into the air. The applicant had tried to grab it from U.K.’s hand.

On 6 July 2006 the İzmir Assize Court convicted the applicant of intentional homicide.

On 22 November 2007 the Court of Cassation quashed the firstinstance court’s judgment on procedural grounds.

On 8 April 2008 the assize court convicted the applicant of intentional homicide and sentenced him to twenty-five years and ten months’ imprisonment. In convicting the applicant, the court took into consideration the fact that throughout the proceedings the applicant had stated that he had not been carrying any weapon at the time of the events, and that he had been attacked with a gun and had acted in self-defence. It held that the applicant’s defence submissions were implausible, taking into account the content of the case file, the record of statement, the entirety of the case file and the preliminary submissions of V.S. The court found it established that the applicant had deliberately shot and killed U.K., having regard, among other things, to the distance between the applicant and the deceased, the number of shots fired and the circumstances of the incident.

On 23 July 2009 the Court of Cassation upheld the conviction.

The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).