TRADE UNION IN THE FACTORY "4TH NOVEMBER" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant is the trade union in the “4th November” factory in Bitola. It is represented before the Court by Mr F. Medarski, a lawyer practising in Skopje.

The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

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

On 4 November 2008 the applicant union announced that its members would go on strike because of the lack of success of negotiations that had been pending with the employer for some time regarding payment of leave allowance (регрес за годишен одмор) for 2006, the signing of the employer’s collective agreement, and increases in pay. As stated in the announcement, the strike was to begin at 8 a.m. on 6 November 2008 at the workplace and would continue until the applicant union’s demands were met. As stated in the decision to strike, the applicant union undertook to negotiate with the employer before and during the strike, in order to ensure that the workers’ demands were acceded to in a friendly manner. It was also stated that if an agreement was reached between the applicant union and the employer it would be regarded as a collective agreement of the employer.

On 13 November 2008 the applicant union and the employer reached an agreement for a 20% pay rise and the payment of a one-off bonus for production workers. According to the agreement, the strike action was suspended (активностите на штрајкот се запираат) and the negotiations were to continue after termination of the “campaign” (apparently a production stage in the factory).

In the light of legislative amendments in December 2008 introducing gross salaries, on 5 February 2009 the applicant union asked for the pay rise stipulated in the agreement to be incorporated in the workers’ gross salaries. The same request was made regarding travel and food allowances (трошоци по основ на исхрана и превоз).

As established in the subsequent civil proceedings (see below), the employer responded on 9 March 2009, saying that it had fulfilled the wage-related obligations set out in the agreement of 13 November 2008, and that the negotiations on the collective agreement would continue. It also offered an additional 10% pay rise for production workers.

The applicant union and the employer then exchanged letters in which they stated their positions regarding the contentious issues. In a letter of 12 March 2009 the employer set out two proposals concerning pay increases, and indicated that the negotiations regarding the collective agreement would continue.

By a letter dated 13 March 2009 the applicant union made a final request (a 30% salary increase for production workers and incorporation of the food allowance in the gross salary) and asked the employer to state its position by midday, under the threat of resorting to other statutory measures.

In another letter dispatched that day by registered mail (which the employer received on 16 March 2009) the applicant union informed the employer:

“... since you refuse to settle the wage dispute, we hereby inform you that the strike action will resume at 7.30 a.m. on 17 March 2009 in the factory. We emphasise that we are ready to negotiate both now and during the strike in order to find a solution (that is acceptable for both parties) ...”

By a letter dated 16 March 2009 the employer formulated four proposals regarding a pay rise for production and/or all workers and travel and food allowances, and requested that the applicant union reply by 18 March 2009. The employer stated that its proposals corresponded to its financial capacity at the time. By a letter dated 17 March 2009 the applicant union refused the employer’s offer but expressed its willingness to continue negotiating. In reply, the employer informed the applicant union that by going on strike on 17 March 2009 it had violated the provisional agreement of 13 November 2008.

On an unspecified date the employer brought a civil action against the applicant union, asking the courts to declare the strike announced on 16 March 2009 unlawful.

In a judgment of 28 April 2009 the Bitola Court of First Instance (“the first-instance court”) allowed the employer’s action and declared the strike announced on 16 March 2009 unlawful. The court held that the strike had not been announced within the time-limits specified in the Collective Agreement for the Agricultural and Food Sector (“the sector collective agreement”), which was binding on the applicant union. Since the applicant union, by submissions of 5 February and 13 March 2009, had made new requests that had not been included in the agreement of 13 November 2008, the court found that the applicant union had gone on strike in contravention of section 236(3) of the Labour Act (“the Act”, see paragraph 21 below) according to which a strike could not begin before any out-of-court settlement proceedings had been brought to an end.

On 28 May 2009 the Bitola Court of Appeal allowed an appeal by the applicant union and set aside the lower court’s judgment. It instructed the first-instance court to establish whether the employer had signed the sector collective agreement, which in the court’s opinion was the determining factor as to the applicability of that collective agreement to the dispute between the parties. The lower court was also instructed to establish whether at the material time the negotiations were still pending, and if so whether, in the light of its subsequent requests, the applicant union had been obliged to announce the strike of 16 March 2009.

On 25 June 2009 the first-instance court dismissed the employer’s action. Relying on section 236 of the Act, it held that the applicant union had gone on strike on the basis of its decision of 4 November 2008 (see paragraph 4 above), which had not been set aside (вон сила). With that decision, the applicant union had informed the employer about the reasons for the strike and the place and time of the strike. The agreement reached between the parties on 13 November 2008 had been provisional and had concerned only part of the applicant union’s demands (concerning a pay rise for production workers). The employer had started implementing the agreement of 13 November 2008 up to the point when the legislative amendments introducing gross salaries entered into force in December 2008. In view of the applicant union’s requests post-dating the agreement, the court concluded that negotiations between the parties had been pending and that the applicant union had not been required to announce the strike of 16 March 2009. The court also found that the strike could not be regarded as a new strike, but was rather a continuation of the strike announced on 4 November 2008. That negotiations were ongoing was supported by the fact that after the parties had reached the agreement of 13 November 2008 both strikers and non-strikers were regularly at work and production had continued (редовно оделе на работа, редовно се одвивал работниот процес). The court also established that the employer was at the time neither a member of the Union of Employers (Здружение на работодавачи) nor a signatory to the sector collective agreement (the latter accordingly was not binding on the employer at the time). In such circumstances, the court ruled that the strike had been in compliance with the Act, pursuant to which the right to strike could not be restricted because of the requirement for mediation.

On an appeal by the employer, on 7 September 2009 the Bitola Court of Appeal overturned the first-instance court’s judgment and declared the strike announced on 16 March 2009 unlawful. The court held that:

“The court considers that after the agreement (of 13 November 2008) had been concluded and the [employer] had satisfied part of [the applicant’s] requests, negotiations were still pending, which is not disputed between the parties. In view of the above-cited provision (section 236 of the Act), the requirement for mediation cannot restrict the right to strike if such a requirement is specified by this law or before the end of any out-of-court settlement proceedings agreed upon by the parties.

This court considers that the strike of 17 March 2009 is unlawful because mediation and negotiations ... are still pending. (The applicant union) submitted new requests that had not been specified in the agreement [of 13 November 2008] ... [The applicant union], without giving any reply, refused the new proposals made [by the employer] and continued the strike, despite the employer’s willingness to fulfil the requests that were not part of the agreement. Instead of considering the four proposals made by the employer and providing an explanation for refusing each of them, [the applicant union] unilaterally informed the employer on 16 March 2009 that the strike would continue. This means that while the negotiations were pending it went unilaterally into a new strike, in contravention of section 236(3) of the Labour Act.

In view of the foregoing, the court allows [the employer’s] appeal ... and prohibits (забрани) the [the applicant union’s] strike announced on 16 March 2009 as contrary to the Labour Act, all the more so since the negotiating team of [the applicant union] suggested to [the employer], with the notification of 17 March 2009, that negotiations should continue.”

On 18 December 2009 the employer claimed compensation for pecuniary loss allegedly sustained as a result of the strike by the applicant union which had lasted from 17 March to 17 October 2009. The applicant union denied that the employer had sustained any damage, alleging that workers who had gone on strike had been replaced. In such circumstances, there had been no adverse effects and “the campaign had ended successfully”.

In the observations on the admissibility and merits of the application, the Government informed that on 26 November 2010 the first-instance court allowed the employer’s claim and ordered the applicant union, under section 242(2) of the Act (see paragraph 21 below), to pay 7,341.326 Macedonian denars (MKD) with interest in respect of “pecuniary damage caused by the unlawful strike held between 17 March and 17 October 2009.” The court relied on an expert report, according to which there had been “two campaigns for the production of raw sugar” during the strike, and the employer had sustained damage in view of increased energy costs. In the absence of an appeal by the applicant union, this judgment became final on 31 December 2010.

The applicant union submitted a list of twenty-five employees who were members of the applicant union and who had been dismissed from work owing to their participation in the strike. In this connection, it submitted court judgments in which the dismissal of an employee had been confirmed at the first and second levels of jurisdiction. By judgments of 29 February and 30 May 2012 the Supreme Court overturned the dismissal of two of the employees named in that list (Рев.бр.898/2010 and Рев.бр.83/2011). The parties did not submit any further information in this respect.

The relevant provision of the Constitution reads as follows:

The rights of employees and their status are regulated by law and collective agreements.

The right to strike is guaranteed. The law may restrict the conditions for the exercise of the right to strike in the armed forces, the police and administrative bodies.”

The relevant provisions of the Labour Act read as follows:

(1) The employer and the employee can decide that an individual or collective labour dispute is settled by a conciliation council (мировен совет) composed of three members, of which one member is appointed by the employer and one by the employee and they jointly appoint the remaining member ...

(1) A collective agreement may specify that collective labour disputes are settled by arbitration.

(2) The collective agreement specifies the composition, procedure and other relevant issues for the arbitration process.

(3) If the employer and the employee agree that a dispute is to be settled by arbitration, the judgment of the arbitration is final and binding for both parties.

(4) The judgment of the arbitration is not subject to judicial review.

A collective agreement can be general for the whole State, specific for a particular (economic) sector, or individual, for a particular employer.

(1) At the State level there are:

1) business general collective agreements and

2) public-sector general collective agreements.

(1) A general collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently.

(2) A sector collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently.

(1) A collective agreement is binding on all persons who have entered into it and on all who, at the relevant time, were or have subsequently become members of the unions which had entered into the collective agreement.

(2) A collective agreement is also binding on all persons who have entered into it and on all who have subsequently become members of the unions which had signed up to it ...

Rights and obligations during strikes

Section 236

(1) A trade union and its federations may announce and go on strike in order to protect the economic and social rights of their members, in accordance with the law.

(2) The employer or the employers’ federation shall be notified in writing about the strike ...

(3) The strike cannot begin before negotiations (постапка за помирување) have ended, as provided for by law. The requirement for negotiations cannot restrict the right to strike if such a requirement is specified by law or before [the end of] any out-of-court settlement proceedings agreed upon by the parties ...

(5) Any notice announcing a strike must contain information about the reasons for the strike and the place and the time of the strike.

(6) The strike must be organised in a manner that will not impair or disturb the work routine of workers not participating in the strike and [in a manner] that will not restrict access to the workplace by workers and persons in authority.”

(1) The employer and the association of employers may ask the competent court to declare unlawful a strike that has been organised contrary to the statutory provisions.

(2) The employer can seek compensation for damage sustained by a strike organised contrary to the law.

The Government submitted copy of the general business collective agreement of 23 June 2006 (together with an accord extending its validity until 14 June 2009, Official Journal no.78/2008). The relevant provisions of the 2006 general business collective agreement (Official Journal no. 41/2006) were as follows:

Disputes that cannot be settled through negotiations can be settled by means of mediation or arbitration.

Mediation is a process in which an independent third person appointed by the parties to the dispute assists them in settling the dispute.

Arbitration is dispute resolution by a third person who is appointed by the parties to the dispute and who resolves the dispute by making a decision.

Individual and collective disputes can be settled out of court or by a special conciliation council.

An out-of-court settlement is set in motion by a proposal from any party to the dispute, which is to be submitted up to five days after the dispute; in the proposal the appellant must describe the nature of the dispute.

The other party is required to reply within three days of receiving the proposal.

Each party to the dispute appoints one member of the conciliation council. They jointly appoint the third member of the conciliation council from among the candidates on the list of mediators ...

Parties are required to complete the out-of-court settlement proceedings within fifteen days of the submission of the proposal for an out-of-court settlement ...

In a collective labour dispute any party to the dispute can seek settlement by means of arbitration up to eight days after the beginning of the dispute or after termination of the out-of-court settlement proceedings.

One or more arbiters can be included in the arbitration.

Parties to the disputes jointly appoint the arbiter(s) from the list of arbiters ...

The decision of the arbiter is final and binding on the parties concerned.

Arbitration proceedings are to be completed within fifteen days.”

The Government also provided a copy of the 2009 general business collective agreement (Official Journal no. 88/2009), which contained identical rules on out-of-court settlement of labour disputes to those in the 2006 collective agreement.

On the basis of an application by the Federation of Trade Unions (Сојуз на синдикати), on 10 May 2006 the Constitutional Court rejected as unconstitutional the part of section 236(3) of the Act which provides that a strike cannot begin before negotiations have ended, as provided for by law and “a decision of the Minister for Labour (и акт на Министерот надлежен за работите од областа на трудот)”. Relying on international materials and the constitutional provisions cited above (see paragraphs 20, 25 and 26), the Constitutional Court stated that:

“The court considers that the disputed provision introduced, in principle, a requirement of prior exhaustion of out-of-court settlement proceedings before resorting to a strike, as a means of protection of economic and social rights ...

According to the court ... strikes and mediation in labour-related matters are closely linked, given the fact that friendly settlement of labour disputes (мирно решавање на работните спорови) can have, in certain cases, a preventive effect in that they avoid strikes being held, and if a strike has already begun it is a means to achieve an out-of-court settlement of a particular dispute. The court therefore considers that it is ... decisive that both issues (strike and mediation) concern labour issues, which, as provided for in Article 32 § 5 of the Constitution, are to be regulated by law and collective agreements. They cannot be regulated by a decision of the Minister ...”

Article 6 of the European Social Charter reads as follows:

With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:

to promote joint consultation between workers and employers;

to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise:

the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”

Article 8 of the International Covenant on Economic, Social and Cultural Rights reads as follows:

The States Parties to the present Covenant undertake to ensure ...

(d) the right to strike, provided that it is exercised in conformity with the laws of the particular country.”

Relevant provisions of this report read as follows:

Paragraph 4 - Collective action

Procedural requirements pertaining to collective action

The trade union which has called the strike must notify the employer against whom it is directed, specifying the reasons for the strike, the place where it is to be held, and the date and time of the strike’s commencement.

A strike cannot take place before the completion of the conciliation/mediation procedures.

The Committee asks whether there are any other procedural requirements that must be fulfilled before a lawful strike can take place, such as ballot requirements.

Conclusion

Pending receipt of the information requested the Committee defers its conclusion.”

“Concerning procedural requirements that must be fulfilled before a lawful strike can take place, the Committee notes that no other requirements than the ones mentioned in the previous conclusion are to be fulfilled.

Conclusion

Pending receipt of the information requested, the Committee concludes that the situation in “the former Yugoslav Republic of Macedonia” is in conformity with Article 6 § 4 of the Charter.”


Violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

Following their respective marriages, the applicants had to take their husbands’ surnames pursuant to the Civil Code. On various dates, they initiated proceedings before the first instance courts seeking permission to use only their maiden names. Their requests were rejected on the ground that according to Article 187 of the Civil Code, married women had to bear their husbands’ name throughout their marriage and were not permitted to use their maiden name alone. The details of the applications appear in the attached table.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

The applicant was born in 1966. Currently, he is detained at Szeged Prison.

It appears that on an unspecified date in 2002 criminal proceedings were initiated against the applicant and his accomplices.

As the investigation against the applicant and nine other defendants proceeded, the applicant was interrogated on numerous occasions as a suspect in connection with various violent crimes committed in many different villages. The investigation resulted in a case file of 25 large boxes. According to the material collected, the applicant and his co-defendants had committed a series of burglaries against lonely elderly people in various parts of the country. They had tied up the victims and beaten them or threatened them until they disclosed where their valuables were hidden and then left them tied up alone in their houses. Some of the victims had died soon after the assaults.

The bill of indictment submitted on 26 June 2003 was 48 pages long, concerned ten defendants, and proposed the hearing of 72 witnesses and two forensic medical experts. The applicant was indicted on 3 counts of homicide, 19 counts of robbery, 19 counts of infringement of personal liberty, 4 counts of assault causing grievous bodily harm, 7 counts of trespass and 3 counts of theft or attempted theft.

After 34 hearings held from 4 February 2004 onwards, on 12 May 2005 the Jász-Nagykun-Szolnok County Regional Court convicted the applicant of murder, robbery and several other offences, in a 135-page-long judgment. The applicant was, as a multiple recidivist, sentenced to life imprisonment without eligibility for parole, that is, whole life sentence (tényleges életfogytiglan).

On appeal, the Debrecen Court of Appeal held a preparatory meeting on 21 November 2005 and a hearing on 21 January 2006. It quashed the first-instance judgment on 25 January 2006 and remitted the case to the Regional Court.

In the resumed proceedings before the Regional Court, an amended bill of indictment was preferred on 31 August 2006 and 27 hearings were held between 25 October 2006 and 19 November 2008. Several forensic medical and graphology experts were appointed in order to verify the defence of a co-defendant to the effect that he could not have taken part in the commission of one of the crimes he was charged with since he had undergone an operation on his knee – under a false name – and was not able to walk. Although this issue was irrelevant for the applicant, it appeared to be crucial for the determination of the charges against his co-defendant.

On 19 November 2008 the Regional Court again convicted the applicant. The applicant submitted that the judge hearing his case this time used to be the trainee of the judge who had tried his case in the first proceedings before the Regional Court.

The Regional Court’s judgment was 161 pages long and covered 33 cases of crimes committed by the ten defendants. The applicant, as well as the above-mentioned co-defendant, was again sentenced to life imprisonment without eligibility for parole.

On appeal, the Debrecen Court of Appeal held hearings on 29 June, 28 September, and 14 and 16 December 2009. In its judgment of 16 December 2009 the Court of Appeal re-characterised the offences of which the applicant had been convicted but upheld his sentence of life imprisonment without eligibility for parole. In order to reflect differences between the attitude of the applicant during the trial and that of the above-mentioned co-defendant (who contributed to the establishment of the facts and expressed remorse) and to make their punishments respectively proportionate, the co-defendant’s sentence was mitigated: he was no longer excluded from eligibility for parole.

On 28 September 2010 the Supreme Court upheld this sentence.

The applicant submitted that his cell at Szeged Prison, the dimensions of which are five by two metres, accommodates another inmate and the toilet is adjacent to his bed and table.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1973 and is currently detained in Rawicz Prison.

On 13 November 2006 the applicant was arrested and charged with sexual abuse of twenty minor girls.

On 15 November 2006 the Wrocław-Śródmieście District Court (Sąd Rejonowy) decided to detain him on remand. The court relied on a reasonable suspicion that the applicant had committed the aforementioned offences. It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on him and to the risk that he would attempt to obstruct the proceedings. The applicant’s appeal, lodged against the detention order, was dismissed by the second-instance court.

The applicant’s detention was subsequently extended by the Wrocław-Śródmieście District Court on 12 February, 8 May and 21 August 2007, by the Wrocław Court of Appeal (Sąd Apelacyjny) on 13 November 2007 and on 12 February 2008, by the Kalisz District Court on 9 May and 13 August 2008, as well as by the Łódź Court of Appeal on 5 November 2008, 18 February, 20 May and on 14 October 2009.

The courts justified their decisions by the particularly high risk of the applicant’s absconding abroad or otherwise obstructing the course of the proceedings and by the severity of the anticipated penalty. They also had regard to the nature of the offences with which he had been charged and considered that, given the applicant’s personality, a release on bail would not sufficiently secure the proper course of the proceedings.

Meanwhile, on 5 May 2008 a bill of indictment against the applicant and another person was lodged with the Kalisz District Court (Sąd Rejonowy). The prosecutor requested the court to hear 127 witnesses.

The trial started on 17 November 2008. Subsequently, the trial court held seven hearings in 2008, forty-six hearings in 2009 and four hearings in 2010.

On 19 January 2010 the Kalisz District Court convicted the applicant of sexual abuse of twenty minor girls. The court determined that the applicant had committed those offences in various ways. He had sexual intercourse with some of the victims and he sexually abused the others in different ways. He was also found guilty of aiding sexual abuse and of serving alcohol to minors. The first-instance court sentenced the applicant to a cumulative penalty of eight years and six months’ imprisonment.

On the same day, the Kalisz District Court extended the applicant’s detention. His detention was later prolonged by the same court’s decision of 27 April 2010. The applicant’s appeals against these two decisions were dismissed on 10 February 2010 and 26 May 2010, respectively, by the Kalisz Regional Court (Sąd Okręgowy). On 29 July and 27 October 2010 the same court granted further extensions of the applicant’s detention.

The courts relied on the likelihood that a severe sentence would be imposed on the applicant, given that he had been sentenced at firstinstance to eight years and six months’ imprisonment. They considered that there was therefore a risk that the applicant might obstruct the proceedings by absconding. In establishing the existence of this risk they referred to the applicant’s knowledge of foreign languages and to the fact that he had previously travelled abroad. They also stressed the particularly drastic nature of the offences in question.

The applicant and the prosecutor lodged appeals against the firstinstance judgment.

On 2 December 2010 the Kalisz Regional Court altered the judgment in part and increased the applicant’s cumulative sentence to ten years’ imprisonment.

The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). He later withdrew his cassation appeal.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1955. He is currently being detained in Krasnoyarsk.

On 10 December 2010 the applicant was arrested on suspicion of incitement to murder. On the same day the Tsentralniy District Court of Krasnoyarsk authorised his pre-trial detention.

Subsequently the applicant’s detention was extended on a number of occasions in the course of the investigation and trial in view of the gravity of the charges against him and the risks of his absconding, seeking to influence witnesses and reoffending.

On 5 May 2012 the District Court found the applicant guilty of the charges and sentenced him to five years’ imprisonment in a correctional colony. On 4 September 2012 the Krasnoyarsk Regional Court upheld the conviction, but decreased the sentence by two months.

During the admission process at remand prison no. IZ-24/1 in Krasnoyarsk the applicant told the medical staff that he had hypertension. The diagnosis was confirmed by a prison doctor, who prescribed him hypotensive medication and regular monitoring of his blood pressure.

In April 2011 the applicant was admitted to Prison Tuberculosis Hospital no. 1 in Krasnoyarsk (“the prison hospital”) for two weeks of inpatient treatment for his hypertension. A chest X-ray showed that he had a mild case of pneumonia and he was also diagnosed with another chronic condition. In the hospital the applicant received the full range of treatments for his conditions.

In June 2011 the applicant had a hypertensive crisis. Several weeks later his lawyer complained to the prison authorities of inadequate medical care.

A medical examination in August 2012 showed that the applicant had recovered from pneumonia and that there were positive developments with his hypertension.

In 2012 and 2013 the applicant was moved between various detention facilities and had routine medical checkups.

In April 2013 he was sent to a minimum security settlement colony. The applicant and other inmates performed repairs to a nearby children’s health camp. The applicant complained only of fatigue and headache to medical staff during that period.

According to the applicant, in May 2013 he started experiencing pain in the chest, pelvic area and testicles. His ability to walk was hindered by severe pain. He took painkillers sent by his relatives. The detention authorities ignored his complaints and on several occasions confiscated the painkillers.

In written submissions, Mr Kh., Ms K. and Ms B., detainees who worked with the applicant in the children’s camp from May 2013, confirmed the above statements. They submitted that the applicant had been seriously ill, had been barely able to walk and had often complained about severe pain. No proper medical examination or treatment had been arranged despite the applicant’s requests for inpatient treatment. Inmates had injected the applicant with painkillers supplied by his relatives.

On 2 September 2013 the applicant asked the head of the detention facility to authorise a medical examination and treatment outside the facility owing to a serious spine and leg condition that had worried him since May 2013. He stated that over the previous three months he had received pain relief medication provided by his relatives, but that his condition had not got better.

Following the applicant’s complaint, he was sent to a civilian clinic in Krasnoyarsk for a magnetic resonance imaging scan (MRI). An examination carried out on 22 January 2014, two days after his admission, revealed a prostate tumour and affection of the bone. A consultation by an oncologist was prescribed.

On the next day the applicant complained about the quality of his treatment to the Federal Service for the Execution of Services in Krasnoyarsk. The complaint was forwarded to the applicant’s ward but was dismissed as ill-founded on 10 February 2014.

On 14 February 2014 the applicant was taken to the Regional Cancer Hospital in Krasnoyarsk, where he was diagnosed with prostate cancer with metastasis to the pelvic bone. According to his medical records, he suffered mild to intense pain.

Six days later a medical panel certified the applicant as having a second-degree disability.

Between 21 March and 3 April 2014 the applicant was examined and treated in the prison hospital. While tests performed in the hospital did not disclose any cancer, hospital officials acted on the diagnosis of 22 January 2014 and prescribed drug treatment for prostate cancer.

On 15 May 2014 the applicant was examined by an oncologist, who recorded his cancer treatment and ordered tests.

In August 2014 the applicant spent two weeks in the prison hospital.

The following month he was seen by doctors and was prescribed further treatment for cancer. The medical staff apparently complied fully with that prescription.

On 19 September 2014 a medical panel concluded that the applicant’s state of health warranted his early release on medical grounds. Ten days later the Sosnovborsk Town Court of the Krasnoyarsk Region dismissed an application for early release, finding that the applicant was receiving the required treatment in detention. On 23 December 2014 the Regional Court quashed the decision on procedural grounds and remitted the case for fresh consideration. The parties did not inform the Court of the outcome of those proceedings. However, given the further developments, it appears that the applicant remained in detention.

On 9 April 2015 the applicant was certified as having a first-degree disability.

In May 2015 he was admitted to the prison hospital for a medical examination and treatment. There are no details regarding his subsequent treatment.

The applicant was detained in the remand prison between 10 December 2010 and 25 May 2015, save for short periods in the prison hospital. The applicant complained of the poor conditions of his detention, including overcrowding. The Government disagreed.


Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant, Mr Vladas Koturenka, is a Lithuanian national, who was born in 1971 and lives in Trakai. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

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

The applicant and his wife got married in 1999 and subsequently had two sons. In 2004 the applicant’s wife moved to Germany to pursue doctoral studies and, with the applicant’s consent, she took the children with her. A year later the applicant’s wife initiated divorce proceedings before the Lithuanian courts.

On 25 May 2007 the Vilnius City First District Court granted the divorce. The court found that the marriage had broken down due to the applicant’s fault – it was established that he had regularly gambled, using his wife’s and her relatives’ money for that purpose.

During the court proceedings, the applicant agreed that the custody of the two children be awarded to his ex-wife. He subsequently changed his position, first requesting custody of the older son and later of the both children. However, the court held that the interests of the children were best served by awarding custody to their mother. It found that the children were very attached to their mother and to each other, and that the applicant had not maintained regular contact with them since their move to Germany.

The applicant was ordered to pay maintenance to the two children. The court held that the amount of maintenance had to be calculated according to German law and found this amount to be 247 euros (EUR) per month for each child. The court then noted that the applicant did not have sufficient income to provide this amount: during the court proceedings the applicant himself stated that he was only able to afford 200 Lithuanian litai (LTL, approximately EUR 58) per month for each child. However, the court also noted that the applicant owned an apartment in Vilnius, the market value of which was estimated to be LTL 205,000 (EUR 59,400). Stressing that the interests of children took priority over the interests of their parents, the court awarded the apartment as a form of maintenance jointly to the two children.

On 4 October 2007 the Vilnius Regional Court upheld the decision of the lower court with certain amendments. The court held that the maintenance needs of the children had to be determined in accordance with Lithuanian (and not German) law. The court re-evaluated the amount of maintenance on the basis of the documents submitted by the applicant’s ex-wife and accepted her claim that LTL 2,000 (EUR 580) per month for each child would be appropriate. The court then estimated that the applicant’s apartment, sold at its market price (see paragraph 6 above), could provide each child with approximately LTL 600 (EUR 174) per month until they turned eighteen. It also concluded that the applicant’s ex-wife nonetheless had to bear a significantly larger financial burden in the upbringing of their children. Therefore, the court held that awarding the applicant’s apartment for the maintenance of the children was proportionate and justified.

The applicant lodged a cassation appeal with the Supreme Court arguing that the decision to award his apartment as a form of maintenance was unjustified. However, on 21 November 2007 the Supreme Court refused to examine the appeal on the ground that it raised no important legal questions. The applicant then lodged a new cassation appeal, but on 8 January 2008 the Supreme Court refused to examine it (on the same grounds).

Article 38 of the Constitution of the Republic of Lithuania provides that parents have the obligation to support their children until they come of age.

Article 3.3 of the Civil Code provides that the legal regulation of family relationships shall be based on, inter alia, the priority of protecting and safeguarding the rights and interests of children.

Article 3.192 of the Civil Code reads as follows:

“1. Parents shall be obliged to maintain their children until their majority. The procedure and form of maintenance shall be determined by the mutual agreement of the parents.

The amount of maintenance must be commensurate with the needs of the children and the financial situation of their parents; it must ensure the conditions necessary for the children’s development.

Both parents must provide maintenance to their children until their majority in accordance with their financial situation.”

Article 3.196 § 1 of the Civil Code reads as follows:

“1. The court may issue a maintenance order obliging the parents (one of the parents) who fail in their duty to maintain their children to provide maintenance to their children in the following ways:

1) regular monthly payments:

2) a defined lump sum;

3) award of a particular property.”

Article 3.198 § 1 of the Civil Code provides that when making a maintenance order in respect of two or more children, the court shall determine an amount sufficient to meet at least the minimal needs of all the children.

Article 668 § 1 of the Code of Civil Procedure provides that judgments cannot be enforced against property which is essential for the debtor’s subsistence, occupation or studies.

On 23 June 2005 the Senate of the Supreme Court issued decision no. 54 “On the application in the case-law of laws regulating parents’ duty to financially maintain their children before the age of majority”, which was aimed at harmonising the case-law of the lower courts. The relevant parts of the decision read as follows:

“10. Parents’ financial situation shall be determined taking into account all types of income: wages; other employment-related income; royalties; pensions; scholarships and social benefits; income from commercial and economic activity (rent, dividends and others); funds in banks and other credit institutions; movable (cars, valuable portable items, jewellery) and immovable (houses, flats, other buildings, land, forests, and so forth) property; securities (equities, bonds); legal entities (sole proprietorships, and so on) and their property. In determining the financial situation of parents, other statutory dependants are also to be taken into account.

When determining the proportionality between the needs of the child and the parents’ financial situation, the court should take into consideration the fact that the amount of maintenance must be commensurate with the reasonable needs of the child and the parents’ financial situation (Article 3.192 § 2 of the Civil Code) ...

Maintenance must also be imposed on a father (or mother) who receives only the minimum wage, a State pension or other minimum income. The parents’ severe financial situation is an important criterion for calculating the amount of maintenance but it cannot be grounds for exempting the father (or mother) from the obligation to provide maintenance for their children ...

The court may award maintenance in the following forms: regular monthly payments; a defined sum of money; an award of a particular property to a child (Article 3.196 § 1 of the Civil Code).

The form of maintenance chosen must allow the maximum satisfaction of the needs of the child, taking into account the interests of the child and the financial situation of the parents. The court may choose on its own initiative the form of maintenance which satisfies the child’s best interests (Article 376 § 3 of the Code of Civil Procedure).

The selection criteria for the form of maintenance are the following: the child’s needs, age and health status; the parents’ financial situation; the structure of the parents’ property; their income level and income periodicity; and the father’s (and mother’s) ability to properly manage the assets and other aspects relating to property management.

In selecting the form of maintenance, the court must take into account the fact that maintenance by its nature has the purpose of satisfying the everyday needs of children before their majority: the child’s food, clothing, housing, education, health and development.

Maintenance in the form of periodic payments paid monthly guarantees a fixed amount for the child’s maintenance every month. Such a form of maintenance should be applied where the child’s father (or mother) has a permanent income (earnings, pensions, allowances, and so forth).

A defined sum of money as maintenance may be determined where this is allowed by the available funds of the child’s father (or mother) who is liable for maintenance. The full amount of maintenance in a specific, one-off payment of money shall be determined by multiplying the amount of maintenance per month by the number of months until the child’s majority.

Maintenance in the form of awarding ownership of the father’s (or mother’s) specific property to a child may be applied where the father (or mother) has a property and by using it or realising [its value], the income for the child’s maintenance may be received or the child’s needs may be met. A court deciding to award maintenance in this form must take into account the type of the property to be awarded, the father’s (or mother’s) ability to manage the property, future costs for the property’s maintenance, liquidity of the property, and so forth. The value of the property shall be determined on the basis of the value determined by market prices at the time the decision is rendered (Articles 3.4, 3.119 of the Civil Code) ...”

In case no. 3K-3-303/2008 of 26 May 2008, the Supreme Court held as follows:

“The purpose of maintenance is to fulfil the child’s daily needs, and it is constantly necessary, every day, and not some time in the future when the parents will be able or willing to provide for those needs. It is therefore important to secure stability of maintenance ... The parent who lives with the minor child also assumes the daily care of the child which is normally not compensated for by awarding maintenance [from the other parent]. Meanwhile both parents are responsible for ensuring a safe environment and proper conditions for the child to grow and develop, for providing support in the child’s education and realisation of his or her talents and interests. The Supreme Court has established in its case-law that inadequate compliance or non-compliance with parental duties can be justified only in exceptional circumstances which are outside the parents’ control; therefore, parents ought to evaluate their financial situation and readiness to take care of a child in advance; in failing to evaluate their readiness to raise a child, develop his personality and provide suitable conditions for his development, parents consciously assume an increased social risk and its consequences (ruling of the Supreme Court in civil case no. 3K-3-259/2004 of 26 April 2004). Thus, when assessing the party’s financial status, the court evaluates not only his or her existing possessions and income, but also the action that he or she has taken to ensure income commensurate with his or her age and professional capabilities, which could be used to provide maintenance for his or her children ...”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention.


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

The applicant, Mr Aleksandr Iosifovich Nagorskiy, is a Ukrainian national who was born in 1967. He is represented before the Court by Mr A. Fedosov, a lawyer practising in Strasbourg.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice of Ukraine.

On 3 August 2010 the applicant was arrested on suspicion of a number of criminal offences.

On 6 August 2010 the Obolosnky District Court of Kyiv remanded him in custody: this detention was further extended on a number of occasions.

On 16 July 2013 the Obolonsky District Court of Kyiv found the applicant guilty as charged and sentenced him to ten years’ imprisonment. In the operative part of its judgment the court also ruled that the applicant’s pre-trial detention should be continued as a preventive measure pending the entry of that judgment into force. It further noted that the judgment could be challenged on appeal within fifteen days of the date of its pronouncement.

On 12 May 2014 the above judgement was quashed on appeal, and the case was remitted to the investigative authorities for additional investigation.

No information was submitted by the parties as to the further course of the proceedings.

On an unspecified date between July and October 2014 the applicant was granted an amnesty and released.

On 8 May 2014 the applicant was escorted from the Kyiv Pre-trial Detention Centre (“the SIZO”) to the Shevchenkivsky District Court, Kyiv, for a hearing regarding the lawfulness of his detention. The hearing lasted about fifteen minutes and was further adjourned until 12 May 2014.

After the closure of the hearing, the applicant, his co-accused and some others attending the hearing remained in the courtroom demanding that the judge rule that the applicant should be released immediately. One hour later, at about 4.30 p.m., officers of the “Gryfon” (police special unit ensuring legal order on the court premises) arrived in the courtroom, having been summoned by the judge. Twelve officers split up into two groups: the first group held the applicant stretched out and started beating him with handcuffs and truncheons; the second group formed a human chain so that others in the room would not be able to see what was going on in the defendant’s cage. As a result, the applicant sustained serious bodily injuries, including several wounds to his head. Somebody called an ambulance but a chief officer prevented the applicant from being taken to hospital and he was transferred back to the SIZO. No medical assistance was provided in the SIZO until 9 p.m., when following pressure from the media the applicant was transferred to the Emergency Care Hospital (“the Hospital”) and received medical treatment.

Dissatisfied with the adjournment of the hearing, the applicant, his co-accused and several others present demanded the applicant’s immediate release and refused to comply with the escorting officers’ request to leave the courtroom. The presiding judge called the police special unit to ensure order on the premises. The applicant continued to resist police officers and was therefore forcefully escorted out of the courtroom. As a result, he sustained bodily injuries. Upon return to the SIZO, the applicant was examined at the medical unit and was then transferred to the Hospital, where he was provided with the requisite medical assistance.

On 8 May 2014 Mrs K. notified the police of the applicant’s ill-treatment in the courtroom by unidentified police officers. On the same day, the relevant information was entered in the “Integrated Register of pre-trial investigations” and criminal proceedings were commenced on suspicion of excess of powers by “Gryfon” officers. Mrs K. was questioned and the courtroom was examined by the police. According to the police report, dark red drops which looked like blood were found on the floor next to the hearing room and in the defendant’s cage. According to Mrs K., she arrived to the courtroom once she became aware that a “Gryfon” officer had hit the applicant on the head with a rubber truncheon. Upon arrival, she saw that there was blood all over the courtroom.

On 22 May 2014 the Kyiv Prosecutor’s Office took over the proceedings.

On 23 May 2014 Mrs B. was questioned as a witness. She stated that about ten or fifteen “Gryfon” officers, equipped with handcuffs and truncheons, had entered the courtroom after the hearing was over. They had formed a human chain and separated the applicant from the other people in the room. A “Gryfon” officer then went into the defendant’s metal cage and started pulling the applicant by the arm. A few seconds later there was blood on the applicant’s face. Mrs B. did not see who injured the applicant or how it happened, but noted that the latter did not resist the officers. At the same time, she saw “Gryfon” officers twisting the applicant’s hands forcefully while trying to handcuff him.

On 17 June 2014 Mrs N. and Mr G. were questioned as witnesses. Mrs N. stated that she was not present at the hearing but was told by Mrs B. that the conflict arose because of the applicant’s refusal to leave the courtroom. Mr G., who had been present at the hearing when “Gryfon” arrived, stated that the applicant was not kicked or punched. Instead, he saw some officers, standing outside the metal cage, twisting the applicant’s arms. As a result, the applicant hit his head on the metal cage and fell down. Then up to eight officers entered the cage and dragged the applicant out of the courtroom. According to Mr G., the officers did not identify themselves when they arrived and did not ask anybody to leave the premises.

On 24 June 2014 the applicant was questioned as a victim. According to him, “Gryfon” officers appeared in the courtroom wearing bulletproof vests and neck and face coverings which rendered their identification impossible. One of them, accompanied by an officer from the escorting unit, approached the applicant from the opposite side of the cage, pulled the applicant’s hands forward and twisted his arms. “Gryfon” officers then entered the cage and started beating him in the face with truncheons and dragging him in different directions. As a result, the applicant hit his face on the cage bars. He was also kicked in the head by the “Gryfon” chief officer. Once the applicant started bleeding, he was stretched out on the floor, handcuffed and dragged out of the courtroom. On the way down, on the third floor, his head was intentionally banged against a metal case and he lost consciousness. According to the applicant, it was the Federal Security Service of the Russian Federation that had ordered “Gryfon” to kill him.

On the same day, a forensic medical examination of the applicant was ordered.

On 14 October 2014 a forensic medical examination report was issued. On the basis of the documents provided by the investigator, the expert stated that the applicant had sustained a contused head wound and numerous abrasions on the face and the left hand. The expert opined that those injuries had been caused by blunt objects; as to their date, it could not be excluded that they had been inflicted on 8 May 2014. The injuries were classified as minor. The expert further found no clinical evidence that the applicant had sustained concussion. He noted in this respect that no pathology was evident from the description of the applicant’s neurological state during his first and subsequent medical examinations. Likewise, there was no description of any radial nerve disorder in the file. The expert observed that some changes revealed during the head and spine X-ray examination indicated the progress of the applicant’s chronic diseases, either of which, taken separately or together with others, could present neurological signs similar to those which would appear with concussion.

On 28 November 2014 the Kyiv Prosecutor’s Office terminated the criminal proceedings. The relevant resolution referred to the results of the above forensic medical examination and gave details of the testimonies of the applicant and those of Mr G., Mrs B. and “Gryfon” officers, questioned as witnesses. According to the “Gryfon” officers, they had had no means of restraint during the operation and had used no force on the applicant. They stated that the applicant’s injuries could have been self-inflicted when he resisted being escorted from the court. The resolution further referred to the provisions of the Criminal Code, according to which abuse of powers was criminally punishable only if the damage caused was in money terms at least 100 times greater than the citizen’s tax-exempt minimum income. It noted that the case file contained no evidence that the applicant had sustained such damage. The prosecutor finally concluded that no proof of abuse of powers by “Gryfon” officers was obtained during the investigation. It was noted that the resolution could be challenged within ten days of the date of its receipt. The resolution has not been appealed against by Mrs K. or the applicant.

On unspecified dates Mrs B. lodged a number of complaints with different State authorities, including MPs, about the events of 8 May 2014.

On 26 June 2014 the Kyiv Main Police Department, having completed their internal inquiry in respect of some of Mrs B.’s complaints, found no misconduct by “Gryfon” officers. According to the internal inquiry report, on 8 May 2014 the police special unit arrived at the courtroom as Mrs B. and others attending the hearing were refusing to leave; they impeded the applicant’s being escorted out of the court premises. The officers identified themselves and demanded that the public cease offering resistance and leave the premises. As they did not comply, some of the “Gryfon” officers and the escorting officers formed a human chain and pushed the members of the public back, allowing other officers to take the applicant out of the courtroom. The applicant behaved inappropriately, uttering obscenities and hanging on to the metal bars of the cage. As a result, he injured his arm. According to the report, no force or special means of restraint was used.

On 8 March 2010 the applicant was admitted to the SIZO. On admission he underwent a medical examination, including an X-ray, and his medical file was studied. He was diagnosed with a number of chronic conditions, for which he received outpatient treatment. The applicant was also put on the list for regular medical check-ups.

According to the Government, during his stay in the SIZO the applicant presented himself to the medical unit on a number of occasions and was examined by the SIZO medical staff and, where necessary, by specialists from State health-care institutions.

On an unspecified date the applicant consulted the SIZO dentist and was diagnosed with chronic periodontitis and edentulous upper arch. Symptomatic in-patient treatment and consultation of a general practitioner were recommended.

On 22 June 2013 the applicant was examined by a maxillofacial surgeon and cardiologist from the Main Military Hospital. He was diagnosed with a number of chronic conditions, had some of his teeth extracted, and was prescribed appropriate treatment. He was also advised to undergo an electrocardiogram.

On 6 February 2014 the electrocardiogram was done; it revealed no particular problems.

On 7 May 2014 the applicant was examined by the SIZO general practitioner and expressed no particular complaints as to his state of health. No serious pathology requiring treatment was revealed. It was recommended that he undergo a preventive medical examination and have some tests.

On the same day blood and urine tests were carried out: they revealed no pathology. A repeated blood sugar test was recommended.

On 8 May 2014, after his return from the court hearing, the applicant was examined at the SIZO medical unit and was diagnosed with bruises on his forearms and head, periorbital haematomas of both eyes, and two stab wounds to the forehead. The applicant was then referred to the Hospital.

At the Hospital, the applicant was examined by a general practitioner and a neurosurgeon. He underwent an electrocardiogram and head X-ray and was diagnosed with a contused head wound, numerous bruises, abrasions on the head and left hand, and a number of other conditions he had previously been diagnosed with. Having received first aid for the injuries he had sustained, the applicant was escorted back to his cell as, according to the Hospital physician, his state of health did not require in-patient treatment at the Hospital or the SIZO medical unit.

On 12 May 2014 the stitches on the applicant’s head were removed with no complications.

On 21 May 2014 the applicant was examined by a neuropathologist of the SIZO medical unit and was diagnosed with cephalic syndrome resulting from concussion and post-traumatic radial nerve neuropathy. Outpatient treatment was prescribed.

On 19 June 2014 the applicant was re-examined by the neuropathologist. The previous diagnosis was confirmed and it was recommended, inter alia, that he undergo a brain and spine MRI.

On 20 June 2014 the applicant was examined by an endocrinologist and underwent a fasting blood sugar test. No particular problems were revealed.

On 25 June 2014 the SIZO authorities asked the Hospital for an MRI for the applicant and for the SIZO to be informed of the date of the examination.

On 4 July 2014 the applicant underwent MRI scans of the brain and spine.

According to a Prisons Department certificate of 24 June 2014, the applicant’s state of health was satisfactory. He was under constant supervision by the SIZO medical staff and did not require in-patient treatment in the SIZO medical unit or elsewhere.

The Code of Criminal Procedure (in force since 19 November 2012):

Article 214

Opening of pre-trial investigation

“1. An investigator or a prosecutor shall immediately, but not later than twenty-four hours after submission of an allegation or notification that a criminal offence has been committed, or having discovered themselves from any source indications that a criminal offence has been committed, be required to enter such information in the Integrated Register of pre-trial investigations and shall open an investigation ...

The pre-trial investigation shall begin as soon as data have been entered in the Integrated Register of pre-trial investigations ...”

Article 284

Termination of criminal proceedings

“... 3. An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code.

A copy of the investigator’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator’s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim.

A copy of the prosecutor’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, his/her representative, the suspect, and defence counsel.

The court’s decision to terminate the criminal proceedings may be challenged on appeal.”

Article 303

Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal

“1. During the pre-trial proceedings the following decisions, acts or failures to act of the investigator or the prosecutor are amenable to appeal:

3) the investigator’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative;

4) the prosecutor’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...”

Article 305

Legal consequences of lodging a complaint against a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation

“1. The lodging of a complaint against decisions, acts or failures to act of the investigator or the prosecutor during the pre-trial investigation shall not stop the execution of the decision or the act of the investigator or the prosecutor.

The investigator or the prosecutor may set aside his or her own decisions referred to in paragraphs 1, 2, 5 and 6 of Article 303 of this Code, or terminate the act or failure to act complained of, which results in the termination of the proceedings concerning the complaint.

The prosecutor can set aside his or her own decisions referred to in paragraph 3 of Article 303 of the Code and appealed against in accordance with the procedure provided for in paragraph 5 of Article 284 of this Code, which results in the termination of the proceedings concerning the complaint.”

Article 306

Procedure for examination of complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor during the pre-trial investigation

“1. Complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor shall be examined by an investigating judge of a local court ...

Complaints about decisions, acts or failures to act during the pre-trial investigation shall be examined within seventy-two hours of receipt of a complaint, except for complaints about the decision to terminate criminal proceedings, which shall be dealt with within five days of receipt of the complaint.

Examination of complaints about decisions, acts or failures to act during the pre-trial investigation shall be carried out with the mandatory participation of the person who lodged the complaint or his or her defence counsel or representative, and the investigator or prosecutor whose decisions, acts or failures to act are being challenged. The absence of the investigator or prosecutor shall not be an obstacle to examination of the complaint.”

Article 307

Decision of the investigating judge following examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation

“... 2. A ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act during the pre-trial investigation may concern:

1) the quashing of the decision of the investigator or prosecutor;

2) obligation to terminate an act;

3) obligation to perform a certain act;

4) dismissal of the complaint.

The ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor is not amenable to appeal, unless it concerns a decision on the dismissal of a complaint about a decision to terminate criminal proceedings.”

Article 309

Rulings by the investigating judge amenable to appeal during a pre-trial investigation

“... 2. During a pre-trial investigation decisions of the investigating judge to dismiss a complaint against a decision to terminate criminal proceedings ... may be challenged by means of an appeal.”

Article 310

Procedure for appealing against decisions by an investigating judge

“1. The decisions of the investigating judge may be challenged in accordance with the appeal procedure.”