Dmitry Dedov;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Ljubljanska banka d.d., Ljubljana (hereafter “the applicant bank” or “the Ljubljana Bank”) is a joint stock company incorporated under Slovenian law. Its registered office is in Ljubljana.

Before the economic reforms that were carried out in the Socialist Federal Republic of Yugoslavia (hereafter “the SFRY”) in 1989-90, its commercial banking system consisted of “basic” and “associated” banks. Basic banks had separate legal personality, but were integrated into the organisational structure of one of the nine associated banks. As a rule, basic banks were founded and controlled by socially-owned companies based in the same territorial unit (that is, in one of the Republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia – or Autonomous Provinces – Kosovo and Vojvodina). Socially-owned companies were the flagship of the Yugoslav model of self-management: neither private nor State-owned, they were a collective property controlled by their employees, based on a communist vision of industrial relations. At least two basic banks could form an associated bank (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 12, 16 July 2014).

The Ljubljana Bank (in Slovenian and Croatian: Ljubljanska banka) was founded in 1955 under the laws of the then Socialist Republic of Slovenia. In 1969 it opened an office in Zagreb in the then Socialist Republic of Croatia. From 1978 until 1 January 1990 the Ljubljana Bank Ljubljana (hereafter “the Ljubljana Bank Head Office”) operated as an “associated bank” (in Slovenian: Ljubljanska banka – združena banka) and was composed of Ljubljana Basic Bank Sarajevo, Ljubljana Basic Bank Zagreb, Ljubljana Basic Bank Skopje and a number of other basic banks. In the same period the Ljubljana Bank’s Zagreb office operated as a “basic bank”, that is, as the Ljubljana Basic Bank Zagreb (in Croatian: Ljubljanska banka – Osnovna banka Zagreb) and had separate legal personality under the law of the then Socialist Republic of Croatia. It was, however, integrated into the organisational structure of the Ljubljana Bank (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 27-31, 3 October 2008, and Ališić and Others, loc. cit.)

Within the framework of the 1989-90 reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while others became branches (without legal personality) of the former associated banks to which they had belonged (see Ališić and Others, cited above, § 21).

On 19 December 1989 the Ljubljana Bank Head Office was re-registered as a joint stock company (in Slovenian: delniška družba, “d.d.”) in the then Socialist Republic of Slovenia. The change was entered in the register of commercial companies the same day and became effective on 1 January 1990 (see Ališić and Others, cited above, § 21, and Kovačić and Others, cited above, §§ 32 and 46).

On 29 December 1989 the Ljubljana Basic Bank Zagreb was re-registered with effect from 1 January 1990 as the Zagreb Main Branch (in Slovenian and Croatian: Ljubljanska banka d.d. Ljubljana – Glavna filijala Zagreb, hereinafter: “the Ljubljana Bank Zagreb Main Branch”) in the registers of commercial companies in both the then Socialist Republic of Slovenia and the Socialist Republic of Croatia (see Kovačić and Others, cited above, §§ 33 and 48), that is, as a business unit of the Ljubljana Bank (in Slovenian: del podjetja, in Croatian: dio poduzeća) without legal personality (see paragraph 22 below).

Shortly after its declaration of independence on 25 June 1991, Slovenia nationalised the Ljubljana Bank. In 1994, it restructured the bank by virtue of the 1994 Amendments to the 1991 Constitutional Act Implementing the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia. Most of the bank’s assets and a part of its liabilities were transferred to a new bank – the New Ljubljana Bank (Nova Ljubljanska banka, see paragraph 43 below). The old Ljubljana Bank was initially administered by the Bank Rehabilitation Agency of Slovenia. It is now controlled by a Slovenian Government agency – the Succession Fund (see Ališić and Others, cited above, § 49, and Kovačić and Others, cited above, §§ 52, 60 and 62-65).

On 15 November 1991 the applicant bank instituted enforcement proceedings before the Osijek Commercial Court (Trgovački sud u Osijeku) against the company IPK Tvornica šećera Osijek d.o.o. (hereafter “the sugar factory”) seeking payment of 11,401.20 Croatian kunas (HRK) together with the accrued statutory default interest. It relied on certified excerpts from its business records showing outstanding claims against the sugar factory arising out of loan agreements concluded on 25 November 1987 and 1 June and 11 December 1990.

On 22 September 1992 the court issued a writ of execution (rješenje o izvršenju) ordering the sugar factory to pay the amount sought.

On 31 May 1994 the applicant bank instituted another set of enforcement proceedings before the same court against the sugar factory seeking payment of HRK 137,698.99 together with the accrued statutory default interest. It again relied on certified excerpts from its business records showing outstanding claims against the sugar factory arising out of loan agreements concluded on 1 June and 26 October 1990.

On 26 July 1994 the court issued a writ of execution ordering the sugar factory to pay the amount sought.

On 21 September 1994 the applicant bank signed an agreement with IPK Osijek d.o.o. entitled “Protocol on the settling of obligations of IPK Osijek and companies in its ownership toward the Ljubljana Bank” (Protokol o načinu reguliranja obveza IPK Osijek i poduzeća u njegovom vlasništvu prema Ljubljanskoj banci, hereafter “the Protocol of 21 September 1994”). The agreement acknowledged that IPK Osijek was unable to service its debts toward the applicant bank because its facilities were located in the zone affected by the Croatian War of Independence and had sustained substantial damage, which had significantly reduced its production capacities.

The agreement further stipulated that the applicant bank’s claims against the sugar factory (as one of the companies owned by IPK Osijek) were to be converted into shares of that company. However, it also mentioned that, while that arrangement had been accepted by the board of directors of the Ljubljana Bank Head Office, the Bank Rehabilitation Agency of Slovenia had not agreed to the conversion.

Lastly, the agreement contained a non-enforcement clause (pactum de non petendo) whereby the applicant bank undertook not to seek enforcement of its claims against the companies owned by IPK Osijek until an inter-State agreement regulating the status of the Zagreb Branch of the applicant bank had been concluded. In particular, paragraphs 4 and 5 of the agreement read as follows:

“4. IPK Osijek and companies in its ownership have regulated their obligations toward Ljubljana Bank – Zagreb Main Branch by previous agreements, the decision of the Board of Directors of the Ljubljana Bank Head Office and this Protocol.

A moratorium shall be placed on all obligations, all previous agreements and all decisions until the conclusion of an inter-State agreement on the status of Ljubljana Bank – Zagreb Main Branch. In that connection the Ljubljana Bank – Zagreb Main Branch, Zagreb, undertakes not to seek compulsory execution of its claims based on final court judgments.

Ljubljana Bank – Zagreb Main Branch retains the right to pursue judicially its claims against IPK Osijek and companies in its ownership [but] only with a view to preventing those claims from becoming time-barred.”

On 8 October 1999 Croatia and Slovenia concluded a bilateral agreement on property issues (hereafter “the Bilateral Agreement”). Paragraph 3 of Article 1 of the agreement expressly excluded the application of the Bilateral Agreement to issues related to the Zagreb Branch of the applicant bank (see paragraph 31 below).

On 27 October 2003 the applicant bank asked the Osijek Commercial Court to continue the enforcement in both sets of proceedings. It did so because the sugar factory had started to make a profit again and because the Croatian Supreme Court had interpreted the Bilateral Agreement as narrowing the exclusion clause provided in paragraph 3 of Article 1 only to claims which Croatia as a State had against the Ljubljana Bank (see paragraph 32 below).

In its response to the applicant bank’s request to continue the enforcement, on 17 November 2003 the sugar factory replied that by signing the Protocol of 21 September 1994, the bank had agreed not to seek enforcement until the conclusion of an inter-State agreement regulating the status of the Zagreb Branch of the applicant bank, and that the terms of the Bilateral Agreement between Croatia and Slovenia were not the same as those envisaged in the Protocol of 21 September, which specifically excluded issues related to the Zagreb Branch of the applicant bank.

By decisions of 15 and 16 December 2003 the Osijek Commercial Court stayed the two sets of enforcement proceedings. In so deciding, it entirely accepted the arguments advanced by the sugar factory. The relevant part of those decisions reads as follows:

“Proceedings in this case shall be stayed until the conclusion of an inter-State agreement that would settle the enforcement issues between the creditor and the debtor.

Given that the special agreement which would settle the enforcement issues between the creditor and the debtor has to date not been concluded, which means that this issue (section 12 of the Civil Procedure Act) has not been resolved yet, the court in accordance with section 213(1) of the Civil Procedure Act taken in conjunction with section 14 of the Enforcement Procedure Act, decided as stated in the operative provisions.”

On 30 December 2003 the applicant bank appealed against those decisions. It argued that (a) it had not had an opportunity to comment on the sugar factory’s submissions of 17 November 2003 (see paragraph 18 above) as they had never been served on it; (b) the sugar factory was not a party to the Protocol of 21 September 1994 (see paragraphs 13-15 above), which was therefore inapplicable to the enforcement proceedings in question; (c) the protocol in any event referred to claims based on final court judgments (see paragraph 15 above) whereas the enforcement proceedings in question were based on excerpts from the bank’s business records (see paragraphs 9 and 11 above); and (d) the contested decisions were contrary to the case-law of the Supreme Court, according to which the Bilateral Agreement only excluded issues relating to claims Croatia had against the bank (see paragraph 32 below) and thus did not prevent private individuals or companies from pursuing judicially their claims against the bank or vice versa.

By decisions of 9 May and 20 June 2006 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) dismissed the applicant bank’s appeals and upheld the first-instance decisions. In addition to the reasons adduced in the contested decisions, that court also added that the proceedings should have been stayed for yet another reason, namely, because the Zagreb Main Branch had been deleted from the register of commercial companies in Croatia.

The relevant part of the High Commercial Court’s decision of 9 May 2006 reads as follows:

“It is true that these proceedings were stayed until the conclusion of an inter-State agreement that would settle the enforcement issues between the creditor and the debtor. However, the case-file contains a certificate [issued] by the Zagreb Commercial Court ... of 22 August 2002 indicating that on 29 December 1989 the Zagreb Main Branch was, on the basis of the decision of the Ljubljana Basic Court [no.] Srg-3289/89, recorded as a business unit of the bank without legal personality, as a result of which on 5 June 1996 the subject was deleted from the register [of commercial companies] as a legal entity with effect from the date those facts had been established. It follows, given that the enforcement creditor no longer exists, that the first-instance court acted correctly when it stayed the proceedings because that was in accordance with section 212(1) subparagraph 4 of the Civil Procedure Act ...

It follows from the foregoing that the appeal of the enforcement creditor is unfounded and thus had to be dismissed ...”

The relevant part of the High Commercial Court’s decision of 20 June 2006 reads as follows:

“It first has to be noted that the Ljubljana Bank – Zagreb Main Branch was deleted from the register of commercial companies [in Croatia] of the Zagreb Commercial Court ...

The first-instance court stayed the proceedings, relying on section 213 of the Civil Procedure Act. However, the conditions for staying the proceedings on the basis of section 212(1) subparagraph 4 of the [same] Act have also been met.

It follows from the foregoing that the first-instance court acted correctly when it stayed the proceedings. It further follows that the appeal of the Ljubljana Bank – Zagreb Main Branch is unfounded and thus had to be dismissed ...”.

On 18 October and 2 November 2006 the applicant bank lodged constitutional complaints against the decisions of the commercial courts alleging that its right to equality before the law, the right to a fair hearing and the right to appeal guaranteed by the Constitution, had been violated. In so doing, it reiterated the arguments it had made before the appellate court (see paragraph 20 above). It added that it was a foreign legal entity incorporated under Slovenian law and registered as such in the register of commercial companies in Slovenia. Therefore, contrary to the view of the High Commercial Court, the fact that its Zagreb Main Branch had been deleted from the register of commercial companies in Croatia did not mean that the entire company had ceased to exist as a legal entity within the meaning of section 212(1) subparagraph 4 of the Civil Procedure Act, which provided for the mandatory stay of proceedings in such cases (see paragraph 34 below). In that connection, the applicant bank in its constitutional complaints stated as follows:

“1. The Zagreb Commercial Court was not the court of registration for the enforcement creditor Ljubljana Bank as a legal entity.

As the complainant has never been registered with the Zagreb Commercial Court, it could not have been deleted by that court either. That court is not the relevant court of registration for the complainant, given that the complainant’s registered office is in Ljubljana and the complainant is a foreign legal entity ...

From the complainant’s name it is evident that it is a joint stock company and that its registered office is in Ljubljana.

Given that the complainant’s seat as a joint stock company is in Ljubljana, Republic of Slovenia, the complainant is a foreign legal entity.

It follows from the excerpts from the register of commercial companies relevant for the complainant [that is, from the register of the Ljubljana District Court] that:

- the complainant, Ljubljana Bank, was recorded in the register of commercial companies of the Ljubljana District Court ... on 19 December 1989 on the basis of the decision of the Ljubljana Basic Court no. Srg 2641/89.

- on the basis of a decision of the Ljubljana Basic Court of 29 December 1989 no. Srg 3289/89 in the register folder ... of the complainant Ljubljana Bank as a joint stock company, the Zagreb Main Branch is recorded as a business unit of the complainant.

From the foregoing it is evident that the complainant Ljubljana Bank ran business on the territory of the Republic of Croatia through the Zagreb Main Branch as its business unit, the operation of which generated monetary claims that became due in the period between 31 August 1991 and 31 December 1991. These were pursued in enforcement proceedings against the debtor whose registered office is in the Republic of Croatia. After the dissolution of the SFRY, that is, after 8 October 1991 as the independence day of the Republic of Croatia, the Zagreb Main Branch as a business unit of the complainant became a business unit of a foreign bank.”

By decision of 24 November and 15 December 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant bank’s constitutional complaints inadmissible. It held that the contested decisions did not involve the determination of the bank’s rights or obligations, or of any criminal charge against it, within the meaning of section 62(1) of the Constitutional Court Act (see paragraph 33 below), and that therefore a constitutional complaint could not be lodged against those decisions. The Constitutional Court served both of its decisions on the applicant bank’s representative on 27 December 2006.

The applicant bank submitted that on the basis of calculations prepared by Z.R., an appointed court expert in finance, as of 15 June 2007 the claims it sought to enforce in the above two sets of enforcement proceedings against the sugar factory, including costs and the accrued statutory default interest, totalled HRK 422,041,634.40.

The applicant bank claimed that the decisions to stay the proceedings had been made under the influence of Mr S.L., who had been the Deputy Prime Minister of Croatia in the period between 27 January 2000 and 22 December 2003. In support of its allegations it submitted three newspaper articles from two Croatian daily newspapers.

On 9 March 2004 the business daily Dnevnik published on its front page an article entitled “The Ljubljana Bank is seizing [the assets of] Croatian companies” (Ljubljanska banka plijeni hrvatske tvrtke). The front page featured a photograph of S.L. next to which there was a text that read as follows:

“S.L.: It is dubious that the Croatian courts are making awards in favour of a legal entity which actually does not exist.”

The article continued on page 3. Next to it, on the left side, there was a small column featuring another photograph of S.L. The column read as follows:

“The first enforceable judgment against IPK [Osijek] in favour of the Ljubljana Bank was adopted in May 2003. However, as explained by the former Deputy Prime Minister S.L., one had managed to prevent the enforcement by disputing the adoption of the judgment in favour of a legal entity which does not formally exist in Croatia. For S.L. it is still dubious that the Croatian courts are making awards in favour of an inexistent legal entity because in such cases it is in his view questionable who is receiving that money.”

The article published in the daily Slobodna Dalmacija on 3 November 2006 entitled “L.: I influenced the court” (L.: Utjecao sam na sud) reads as follows:

“Slovenia’s high representative for succession M.P. claims that the problem of the Ljubljana Bank would have been resolved a few years ago if the Deputy Prime Minister at the time, S.L., had not obstructed enforcement proceedings in which the bank should have received money to pay off its savers.

S.L. himself admits that he influenced the enforcement of the Osijek court judgment according to which the money from a certain company had to be paid to some, as he says, strange people. He is persuaded that the money was not intended to be paid to savers, nor would they have ever seen it.

‘There is not much point in commenting on shameful statements of Slovenian politicians who deny that they stole from the people who trusted them by depositing their money in their bank. That problem should not even have appeared and when it did the politicians were those who could have resolved it quickly and efficiently’ L. states. The problem of recovering the debt [i.e. old foreign currency savings], he is convinced, can now be resolved only before the European court.”

The article prompted the reactions of several public figures, which were published in an article in the same daily newspapers the next day. In particular, the president of the Croatian Association of Judges at the time, Mr V.G., claimed that S.L. had committed a criminal offence and suggested that the Principal State Attorney bring criminal charges. The then president of the Parliamentary Judiciary Committee, Mr. E.T., stated that S.L. had grossly violated the Constitution, whereas a member of the same party as S.L., Mr. I.J., who was at the time the vice-president of that party’s parliamentary “club”, was more reserved, suggesting that S.L. might not have breached the law.

The Bilateral Agreement between Croatia and Slovenia on Property Issues (Ugovor između Republike Hrvatske i Republike Slovenije o uređenju imovinskopravnih odnosa, Official Gazette of the Republic of Croatia – International Agreements nos. 15/99 and 4/00) was signed on 8 October 1999 and entered into force on 23 February 2000. The relevant Article reads as follows:

“The provisions of this Agreement concern the resolution of property issues that arose before and after the Contracting Parties gained independence.

The resolution of issues related to Krško Nuclear Power Plant and the Ljubljana Bank – Zagreb Main Branch is not the subject of this Agreement, but shall be regulated by separate agreements.”

In its decisions nos. Gzz-166/02 of 27 February 2003 and Gzz-139/02 of 15 April 2003 and its judgment no. Rev 2029/01 of 16 March 2004, the Supreme Court interpreted Article 1 of the Bilateral Agreement in the following way:

“According to Article 1 paragraph 1 of the Agreement [its] provisions concern the resolution of property issues that arose before and after the Contracting Parties gained independence, whereas paragraph 3 of that Article stipulates that the resolution of issues relating to the Krško Nuclear Power Plant and the Ljubljana Bank – Zagreb Main Branch is not the subject of the Agreement but will be regulated by separate agreements.

Property issues related to the Ljubljana Bank – Zagreb Main Branch [referred to in Article 1 paragraph 3 of the Agreement], are [legal] issues arising from contracts on savings deposits in foreign currency, which Croatian citizens concluded with that bank. In that connection, one should distinguish between foreign-currency savings deposits which the clients of the Ljubljana Bank transferred into public debt of the Republic of Croatia [on the basis of legislation allowing Croatian savers to transfer their foreign-currency savings at the Zagreb Main Branch to Croatian banks, enacted by Croatia after the Zagreb Main Branch stopped repaying them their savings] – in which case the contracts on savings deposits between [them] and the Ljubljana Bank were terminated (transferred foreign currency savings) and a new [legal] relationship between the Republic of Croatia and the Ljubljana Bank Zagreb Main Branch was created – from those cases where Croatian savers did not transfer their foreign currency savings deposits to Croatian banks or into public debt of the Republic of Croatia (non-transferred foreign-currency savings) [and where thus] contractual relations between [them] and the Ljubljana Bank regarding [their] foreign-currency savings deposits remained unchanged.

In the opinion of this court, the subject of the inter-State agreement between the Republic of Croatia and the Republic of Slovenia could have been only a [legal] relationship arising from the so-called transferred foreign-currency savings, because within that [legal] relationship Croatia is the holder of rights and obligations with respect to the Ljubljana Bank Zagreb Main Branch and was therefore entitled to negotiate those rights and obligations with third parties, in this case with the Republic of Slovenia. On the other hand, non-transferred foreign currency savings could not be, nor were they, the subject of the Agreement, which is why that legal relationship is not covered by Article 1 paragraph 3 [thereof].”

The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia, no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”) ...

If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.

In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”

The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments) provide as follows:

“When the court’s decision depends on the prior resolution of an issue as to the existence of a certain right or legal relationship, and that issue has not yet been decided by a court or other competent authority (the preliminary issue), the court may settle the issue itself, unless special legislation provides otherwise.

The court’s decision on a preliminary issue shall have legal effect only in the civil proceedings in which the issue was settled.”

“Proceedings shall be stayed:

4) if a party which is a legal entity ceases to exist ...,

“The court shall stay the proceedings also:

1) if it decided not to settle the preliminary issue itself (section 12),

2) ...”

“Proceedings stayed on grounds referred to in sub-paragraphs 1) to 5) of section 212 of this Act shall be resumed if ... the legal successors of the legal entity take over the proceedings or if the court, at the request of the opposing party or of its own motion, invites them to do so.”

The relevant part of the Enforcement Procedure Act (Zakon o izvršnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia, no. 20/78 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which was in force between 1 October 1978 and 10 August 1996, provided as follows:

“Unless otherwise provided for by this Act or another statute, in enforcement ... proceedings the provisions of the Civil Procedure Act shall apply mutatis mutandis.”

Sections 611-618 of the Commercial Companies Act (Zakon o trgovačkim društvima, Official Gazette of the Republic of Croatia no. 111/93 with subsequent amendments), which has been in force since 1 January 1995, regulates the status of foreign commercial companies in Croatia.

In particular, section 612(2) provides that a foreign commercial company may not run a business in Croatia until it has established a subsidiary in Croatia.

Section 613(1) provides that the rules for establishment and registration of subsidiaries are the same for both domestic and foreign commercial companies. Under section 7(2), subsidiaries are not legal entities and the rights and obligations arising from their operation are those of the parent company.

Section 613(2) provides that the foreign commercial company has to apply for registration of its Croatian subsidiary to the commercial court having jurisdiction over the registered office of the subsidiary.

Section 616(2) reiterates the rule set out in section 7(2) for subsidiaries of domestic companies, namely, that the rights and obligations arising from the operation of a foreign subsidiary are those of the foreign parent company.

Sections 634 to 647 contain transitional and final provisions. In particular, section 644 refers to business units (dijelovi poduzeća) and reads as follows:

“(1) Business units authorised to perform certain legal transactions, which are recorded in the companies’ register on the day of the entry into force of this Act, shall continue to operate in the manner recorded in that register. Companies must, at the latest within the time-limit for bringing their bylaws in line with this Act [that is, until 31 December 1995], apply to the [relevant commercial] court to have those business units registered as subsidiaries ... or to abolish them.

(2) The court shall of its own motion delete from the companies’ register business units referred to in paragraph (1) of this section in respect of which [their parent company] did not act in the manner prescribed therein.”

According to the interpretation adopted by Croatian courts (see, for example, the Supreme Court’s judgment no. Revt 102/07-2 of 23 September 2009 and the Constitutional Court’s decisions no. U-III-64884/2009, U-III-97/2010, and U-III-1881/2010 of 3 April 2014), claims the Ljubljana Bank had against various Croatian companies arising from loans it had granted them in former Yugoslavia, had been transferred to the New Ljubljana Bank (Nova Ljubljanska banka) by the entry into force on 27 July 1994 of the 1994 Amendments to the 1991 Constitutional Act of Slovenia, in particular by virtue its section 22(b) paragraph 1 (see paragraph 7 above and paragraph 43 below). Thus, in those courts’ view, the Ljubljana bank had no standing to sue in order to obtain repayment of such loans.

The relevant provision of the 1991 Constitutional Act Implementing the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (Ustavni zakon za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije, Official Gazette of the Republic of Slovenia no. 1/91 – hereafter: “the 1991 Constitutional Act of Slovenia”), as amended by the 1994 Amendments (Ustavni zakon o dopolnitvah Ustavnega zakona za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije, Official Gazette of the Republic of Slovenia no. 45/94 – hereafter: “the 1994 Amendments to the 1991 Constitutional Act”, see paragraph 7 above), which entered into force on 27 July 1994, reads as follows:

Section 22(b)

“The Ljubljana Bank d.d., Ljubljana and the Maribor Credit Bank, d.d. Maribor shall transfer their respective businesses and assets to the new banks established under the provisions of this Constitutional Act.

Notwithstanding the provisions of the preceding paragraph, the Ljubljana Bank d.d., Ljubljana and the Maribor Credit Bank, d.d. Maribor shall retain:

(i) all potential obligations arising out of joint liability under the ‘New Financing Agreement’ and other potential obligations arising out of relations with the National Bank of Yugoslavia and the former SFRY in the part where the debtors are [located] in other republics of the former SFRY;

(ii) the relevant portion of potential claims under those headings;

(iii) all obligations relating to foreign currency [deposited] on foreign-currency ordinary and savings accounts in respect of which the Republic of Slovenia did not assume guarantees under section 19 of this Act;

(iv) obligations to the National Bank of Yugoslavia and those obligations to foreign creditors that were guaranteed by the SFRY where funds were used by the ultimate beneficiaries from other republics of the former SFRY;

(v) the claims related thereto.

The Ljubljana Bank d.d., Ljubljana shall maintain its links with the existing branches and subsidiaries of Ljubljana Bank d.d. based in the other republics on the territory of the former SFRY, but shall retain the corresponding share of claims against the National Bank of Yugoslavia in respect of foreign-currency savings accounts.”


Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The first applicant was born in 1943 and lives in Cologne and the second applicant was born in 1940 and lives in Stuttgart.

The first applicant is the natural son of a Mr H., who recognised paternity several months after his birth. The first applicant had a personal relationship with his father and worked in his business. The father died on 23 October 2007.

On 6 November 2007 the first applicant applied for a certificate of inheritance attesting that he was entitled to 100% of the estate.

On 7 November 2007 the Cologne District Court granted the certificate, upon which the first applicant took the estate into his possession and disposed of it. However, on 10 December 2007 the Cologne District Court withdrew the certificate, stating that the first applicant, being a child born outside marriage, was not Mr H.’s statutory heir. The first applicant appealed against that decision, but on 25 August 2008 the Cologne Regional Court upheld it.

On 23 July 2009 the first applicant again applied for a certificate of inheritance stating that he was entitled to 100% of Mr H.’s estate, referring in particular to the European Court of Human Rights judgment in the case of Brauer v. Germany (no. 3545/04, 28 May 2009).

In a decision of 3 November 2009 the Cologne District Court dismissed the first applicant’s application, holding that the judgment in Brauer (cited above) was not applicable to his case. Instead, it granted certificates of partial inheritance to the first applicant’s half-sister and to the grandchildren of the deceased’s wife.

On 16 November 2009 the first applicant appealed to the Cologne Regional Court, arguing that under Article 6 § 5 of the Basic Law, which states that children born outside marriage must be provided by legislation with the same opportunities as are enjoyed by children born within marriage, there were no reasons he should be treated differently from children born within marriage. He stated that if he was refused the certificate the German State would be liable for compensation claims.

In a decision of 16 February 2010 the Cologne Regional Court upheld the District Court’s decision, holding that the first applicant was not a statutory heir. The Regional Court referred to a decision by the Federal Constitutional Court of 8 December 1976, in which section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. The principles developed in Brauer (cited above) were not applicable to the present case. There was a need to protect the legitimate expectations of the deceased and other heirs. The Cologne Regional Court also considered that an interpretation of the relevant provision of the Children Born outside Marriage (Legal Status) Act in conformity with the case-law of the European Court of Human Rights was not possible as the domestic law was clear and therefore not open to any interpretation.

On 18 March 2010 the first applicant appealed to the Cologne Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against him and breach his inheritance rights and therefore violate his right to equality before the law under Article 3 and his rights under Article 6 § 5 of the Basic Law. The first applicant stressed that the Regional Court’s reasoning disregarded the Court’s judgment in Brauer (cited above) and was therefore unlawful. The first applicant further noted that he had maintained a close relationship with his father until the latter’s death and had even worked in his business. The first applicant’s father had assumed that the first applicant would be his sole heir.

In a decision of 11 October 2010 the Cologne Court of Appeal dismissed the first applicant’s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court and that it had found that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was in conformity with the Basic Law. The European Court of Human Rights judgment in Brauer (cited above) did not require a change of position because German courts were not bound by the decisions of that court. The Court of Appeal added that interpreting domestic law in the light of the Convention was restricted when domestic law was clear and therefore not open to interpretation. That was the case with the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. The Cologne Court of Appeal further noted that the first applicant’s appeal had been an appeal on points of law only. The first applicant’s argument, therefore, that he had had a close relationship with his father, which was a statement of fact, could not be taken into account when deciding on the appeal because it had been submitted for the first time before the Court of Appeal.

The second applicant is the natural son of a Mr B. and was born in the former GDR, where he lived until his flight from the country in 1957. In 1949 Mr B. was ordered by the Hamburg-Blankensee District Court to pay maintenance for the applicant. He met his father on four occasions, but was asked by the latter not to get involved in the lives of his wife and daughter. The father died on 26 June 2006, naming his daughter as sole heir in his will.

In 2009, after the European Court of Human Rights had issued its judgment in Brauer (cited above), the second applicant brought an action for a compulsory portion of the deceased’s estate (Plichtteilsklage) with the Hamburg Regional Court.

On 21 January 2010 the Hamburg Regional Court dismissed the second applicant’s claim, holding that under the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act the second applicant was not a statutory heir. That provision was in conformity with the Basic Law. The Regional Court referred to the Federal Constitutional Court’s judgment of 8 December 1976. It noted that Brauer (cited above) was not applicable to the case at hand because there had been no regular contact between the second applicant and his father, the deceased had a natural daughter and the second applicant had not lived in the former GDR for most of his life.

The second applicant appealed to the Hamburg Court of Appeal, arguing that the European Court of Human Rights judgment in Brauer (cited above) obliged the German courts to grant children born outside marriage the same inheritance rights as those born within marriage. The special circumstances of Brauer (cited above), which were referred to by the Regional Court, were not conditions that had to be present in order to apply the principles laid down in that judgment.

In a decision of 15 June 2010 the Hamburg Court of Appeal upheld the Regional Court’s decision, endorsing its reasoning. It referred to the Federal Constitutional Court’s case-law, arguing that there was a need to protect the legitimate expectations of the deceased.

The second applicant appealed to the Federal Court of Justice, which confirmed the Hamburg Court of Appeal’s reasoning in a decision on 26 October 2011. The Federal Court of Justice argued that neither the old nor the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against children born outside marriage before 1 July 1949 because the difference in treatment was based on legitimate grounds. Regarding the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, expanding the retroactive scope of the reform beyond the one adopted was not necessary as the basic principles of legal certainty and legitimate expectations had to be respected. Those principles were also necessarily inherent in the Convention, meaning that even though the inheritance rights of children born outside marriage fell within the scope of the protection of Article 8 of the Convention, a State was dispensed from reopening legal acts or reviewing situations that pre-dated the delivery of a court judgment. The Federal Court of Justice also noted that the facts at issue did not fall within the ambit of Article 8 or that of Article 14 of the Convention.

On 18 November 2010 the first applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed discrimination and therefore a violation of Article 3 and Article 6 § 5 of the Basic Law by applying the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act because there were no reasons why children born outside marriage should be treated differently from those born within marriage. The case-law of the Federal Constitutional Court, which considered that provision to be valid, disregarded the European Court of Human Rights judgment in Brauer (cited above) and was therefore unlawful. That led to a violation of Article 8 and Article 14 of the Convention.

The second applicant also lodged a constitutional complaint with the Federal Constitutional Court. Relying on the judgment in Brauer (cited above), he complained that the application of the amended version of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against him compared to children born within marriage. As a consequence he had been denied his inheritance rights.

In a decision of 18 March 2013 the Federal Constitutional Court dismissed both applicants’ constitutional complaints (file nos. 1 BvR 2436/11 and 3155/11).

The Federal Constitutional Court noted that the judgment in Brauer (cited above) had led the German legislature to pass the Second Inheritance Rights Equalisation Act of 12 April 2011 (Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder). The first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 had been changed retroactively, with the effect that the difference between children born outside marriage before and after 1 July 1949 had been set aside in cases of successions after 28 May 2009 (see paragraph 37 below).

Even though the first applicant’s claim of a close relationship with his father had only been made for the first time in his appeal to the Cologne Court of Appeal, the Federal Constitutional Court noted that that statement of fact was not relevant for the issue before it. It declared both applicants’ constitutional complaints admissible.

The Federal Constitutional Court confirmed the conformity of the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act with the Basic Law. It reiterated that the cases at hand only needed to be examined under Article 6 § 5 of the Basic Law and not under Article 14, which contained the right to protection of property. The difference between children born outside marriage before and after 1 July 1949 had been abolished by the Second Inheritance Rights Equalisation Act of 12 April 2011. The general discrimination against children born before and after that date therefore no longer existed. The time-limit in the new provision was not linked to personal characteristics but to a coincidental external event (zufälliges, von außen kommendes Ereignis). Any discriminatory treatment was therefore of a lesser degree.

Making the reform retroactive was not necessary as the conformity of the relevant provision of the Children Born outside Marriage (Legal Status) Act had been repeatedly confirmed by the Federal Constitutional Court. The Brauer case (cited above) had not changed that position because the European Court of Human Rights had clarified in Marckx v. Belgium (13 June 1979, Series A no. 31) that the principle of legal certainty, which was necessarily inherent in the law of the Convention as in European Law, dispensed a State from reopening legal acts or reviewing situations that predated the delivery of a judgment by the European Court of Human Rights.

The Federal Constitutional Court concluded that the domestic courts in the proceedings at issue had interpreted the relevant provision in accordance with the Basic Law. The European Court of Human Rights’ judgment in Brauer (cited above) did not necessitate a different interpretation, particularly because the first applicant’s submission about a close relationship with his father had been made belatedly while the second applicant had not claimed any relationship with his father at all.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1972. He was detained at the Gaziantep Foreigners’ Removal Centre (“the Gaziantep Removal Centre”) at the time of the events giving rise to this application. His current address is unknown.

In 2000 the applicant fled to Turkey because he was being searched for by the Russian authorities. It appears that shortly before his escape, he had lost his right leg in a bomb attack that struck a mosque in Chechnya.

Subsequent to his departure from Russia, criminal proceedings were brought against the applicant by the Russian authorities before the Cerkessk City Court on the following charges: (i) participation in an armed insurrection and membership of an armed organisation with the purpose of overthrowing the constitutional order and violating the territorial integrity of the Russian Federation and (ii) possessing firearms and ammunition. It appears that the Cerkessk City Court issued a detention order in respect of the applicant in his absence.

On 24 January 2008 the applicant was taken into police custody in Istanbul in the context of an operation against al-Qaeda. He was subsequently taken to Gaziantep, where he was placed in pre-trial detention at the Gaziantep H-Type Prison upon the order of the Gaziantep Magistrate’s Court.

On an unspecified date criminal proceedings were commenced against the applicant before the Adana Assize Court.

On 28 January 2009 the Adana Assize Court ordered the applicant’s release from the Gaziantep H-Type Prison. There is no further information in the case file as regards the outcome of the criminal proceedings.

Following his release from prison on 28 January 2009, the applicant was placed in detention at the Gaziantep Removal Centre, which is attached to the Gaziantep Security Directorate.

On an unspecified date the Russian authorities requested the extradition of the applicant. On 3 April 2009 the Gaziantep Assize Court refused that request, holding that the offences in question were of a political nature and that under international and national laws, alleged perpetrators of such offences could not be extradited.

On 23 October 2009 the applicant applied to the Gaziantep governor’s office with a request for asylum. On 26 April 2010 the applicant was notified that his request had been rejected.

In the meantime, on 8 April 2010 the applicant submitted a petition to the Ministry of the Interior (“the Ministry”), where he requested to be released and to be granted a residence permit. The applicant’s requests were dismissed by the Ministry. The applicant’s objection to that decision was further dismissed by the Ministry on 10 June 2010.

On 24 July 2010 the applicant was released from the Gaziantep Removal Centre, on the condition that he leave Turkey within fifteen days. It appears that the applicant left Turkey shortly after his release.

According to the information in the case file, the applicant met with his lawyer a total of nine times between 3 March 2009 and 27 July 2010 during his detention at the Gaziantep Removal Centre.


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

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. In application no. 47367/16, the applicant also raised another complaint under Article 3 of the Convention.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1980 and lives in Slavonski Brod.

In response to a request from the police, on 26 November 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of special investigative measures, namely tapping the telephone conversations of the applicant and several other individuals on the grounds of their suspected participation in organised drug trafficking, customs evasion, and the abuse of power and authority.

On 27 November 2007 the investigating judge granted the request and issued an order for the use of secret surveillance measures. His statement of reasons read as follows:

“The State Attorney’s Office for the Suppression of Corruption and Organised Crime asked the investigating judge to authorise the use of phone tapping measures under Article 180 § 1 (1) of the Code of Criminal Procedure in respect of ... Damir Bašić [and others] on the grounds that a preliminary [police] investigation suggested that these individuals were engaged in criminal activity involving the commission of offences under Articles 173 §§ 1 and 2, 298 § 2, 337 and 333 of the Criminal Code.

Having assessed the [State Attorney’s] request, and in view of [the request from the police], it is established that there is probable cause for believing that the criminal offences have been committed and that the requisite investigation in the present case could not be carried out by any other means, or would be extremely difficult. In addition, given that the matter concerns the offences enumerated in Article 181 § 1 (2) of the Code of Criminal Procedure, the request has been granted and it was decided as indicated in the operative part of this order.”

In the course of the investigation, the investigating judge issued several further secret surveillance orders to the same effect. In addition to the phone tapping, the investigating judge also authorised the covert monitoring of the suspects.

On the basis of the evidence obtained by the aforementioned use of secret surveillance measures, on 2 July 2008 the police lodged a criminal complaint against the applicant and five other persons with the Slavonski Brod County State Attorney’s Office (Županijsko državno odvjetništvo u Slavonskom Brodu) in connection with suspected drug trafficking and customs evasion.

On the same day the applicant was brought before an investigating judge of the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu), who questioned him in connection with the charges brought against him. The applicant decided to remain silent and not give any evidence.

On 4 July 2008 the investigating judge opened an investigation in respect of the applicant and the other suspects in connection with suspected drug trafficking. She also ordered the applicant’s pre-trial detention.

After the completion of the investigation, on 25 November 2008 the Slavonski Brod County State Attorney’s Office indicted the applicant and four other persons in the Slavonski Brod County Court on charges of drug trafficking.

On 12 June 2009 the applicant asked the Slavonski Brod County Court to exclude from the proceedings the evidence obtained by means of secret surveillance as being unlawfully obtained. He argued that the secret surveillance had been carried out on the basis of orders which had been issued contrary to the relevant domestic law and practice of the Constitutional Court (Ustavni sud Republike Hrvatske) in that they contained no reasoning justifying the use of secret surveillance.

At a hearing on 18 June 2009 the Slavonski Brod County Court dismissed the applicant’s request as unfounded. At the same hearing the applicant pleaded not guilty to the charges held against him, whereas three other defendants pleaded guilty. The trial bench heard several witnesses and an expert witness and examined the reports in the case file.

A further hearing was held on 29 September 2009 at which the applicant reiterated his request for the exclusion of the evidence obtained by secret surveillance as being unlawfully obtained. The applicant further contended that his exact location at the moment of the alleged commission of the offence at issue should be established by obtaining the location tracking data of the mobile phone which he had allegedly used.

The trial bench dismissed the applicant’s request as unfounded and decided to continue with the examination of evidence. It heard two witnesses and an expert witness and adjourned the proceedings in order for the defence to obtain copies of the secret surveillance recordings.

At a hearing on 26 November 2009 the applicant argued that a list of incoming and outgoing calls for the mobile phones allegedly used by the defendants should be obtained doubts as to the identification of one of the speakers as one of the applicant’s co-accused.

At a hearing on 14 December 2009 the trial bench heard further secret surveillance audio recordings. The defence had no particular objections to the recordings but requested that some additional evidence and recordings be examined at the trial.

Further hearings were held on 2 and 19 February 2010 at which the trial bench examined the secret surveillance recordings. The applicant reiterated his request for an expert telecommunications report to establish the location of his mobile phone at the moment of the alleged offence. The defence also challenged the credibility of a police report concerning the applicant’s surveillance, expressing doubts as to the reasons why there were no recordings accompanying that report. In this connection the trial bench heard evidence from the police officer in charge of the operation, Z.H., who explained that no recordings had been made for fear that, in the circumstances, the suspects might have noticed that they were being followed. The trial bench also heard evidence from another police officer, B.V., who explained the method of identifying the mobile phones used by the defendants. Following B.V.’s questioning, the trial bench dismissed all further requests for the examination of evidence and adjourned the hearing for the preparation of the defendants’ closing statements.

On 26 February 2010 the trial bench heard the parties’ closing arguments.

By a judgment of 1 March 2010 the Slavonski Brod County Court found the applicant guilty as charged and sentenced him to five years’ imprisonment. As to the applicant’s arguments concerning the alleged unlawfulness of the secret surveillance orders, that court held that the orders had outlined reasons for believing that the applicant had probably participated in the commission of the offence at issue and that the investigation could not have been conducted by other means.

The Slavonski Brod County Court further held that all doubts on the part of the defence as to the accuracy of the recordings had been clarified by questioning the police officers, who had explained the manner in which the recordings had been obtained and documented. It also found that the available police reports on covert monitoring provided sufficient information as to the defendant’s location at the moment of the commission of the offence and that there was therefore no need to obtain further evidence, such as mobile phone location data, in that respect. It therefore dismissed the applicant’s objections to the use of the evidence obtained by secret surveillance and proceeded with its detailed assessment when determining the applicant’s guilt.

On 21 April and 6 July 2010, relying on the case-law of the Constitutional Court ‒ according to which secret surveillance orders needed to be properly reasoned in order to satisfy the requirement of lawfulness under the relevant domestic law ‒ the applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske). He also complained about the use of the evidence thereby obtained in securing his conviction.

On 21 September 2010 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. It stressed in particular that the alleged lack of reasoning justifying the secret surveillance orders could not result in the unlawfulness of the evidence obtained by the use of such secret surveillance.’s conviction had been based on a proper and convincing assessment of evidence and the relevant facts.

On 23 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court complaining that his right to respect for private life and confidentiality of correspondence, as guaranteed under Articles 35 and 36 § 1 of the Constitution, had been breached by the unlawful and unjustified secret surveillance, and that his right to a fair trial under Article 29 of the Constitution had been breached by the use of the evidence thereby obtained in the criminal proceedings against him.

On 11 July 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasoning of the Supreme Court. It considered in particular that the criminal proceedings against the applicant, taken as a whole, had not been unfair. The decision of the Constitutional Court was served on the applicant on 11 September 2012.


Aleš Pejchal;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicant, Mr Fabrizio Stefano Piras, is an Italian national who was born in 1965 and lives in Moscow. He was represented before the Court by Mr A. Pagliano, a lawyer practising in Naples.

On 9 February 2015 the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, ordered the temporary freezing of bank accounts (mentioned below at paragraph 5) at three named San Marinese banks, which were traced back to the applicant.

Pursuant to the relevant law, the AIF informed the investigating judge (Commissario della Legge Inquirente) of the freezing order and provided him with all the information in its possession. A criminal investigation was thus opened against the applicant and eleven others for the continuous offence of money laundering under Articles 50, 73 and 199 bis of the Criminal Code.

By a decision of 19 February 2015, served on the applicant’s counsel on 20 April 2015, the investigating judge, relying on Article 58 bis and ter of the Code of Criminal Procedure (see relevant domestic law below) preventively seized, inter alia, the following assets, which were all traced back to the applicant: (i) bank account No. 11/0111344; (ii) bank account No. 11/01/11677; (iii) securities portfolio (dossier titoli amministrati) No. 11/71/00042; (iv) bank account No. 11/81/02166; (v) the financial product (prodotto finanziario) No. 11/46/01034; and (vi) the insurance product (prodotto assicurativo) No. 11/84/00147. The judge also ordered the seizure of any credit balance or other assets (including any safe deposit boxes) traced back to the accused persons. A judicial notice was issued on the same day by the investigating judge and served on the applicant’s legal counsel.

According to the prosecution, the accused persons had between 2008 and 2011 laundered assets which were the product of fraudulent bankruptcy committed by a certain G. (one of the co-accused) to the detriment of various Italian companies (company P., company C. and others), which had been traced back to G. and of which he had been the director and liquidator. Other laundered assets were the product of other offences (such as embezzlement, fraud and tax fraud), also committed by G. The laundering had been carried out in twenty-two different episodes (all set out precisely in the judicial notice) and the applicant had taken part in fifteen of them. In particular, the accused persons had carried out several bank operations, consisting, inter alia, of repeated withdrawals and deposits of money, the issuing and cashing of cheques on behalf of fictitious persons or the other co-accused persons and the use of bank accounts (sometimes held by other co-accused persons, by relatives or foreign companies) to transfer money within the country or abroad for the purposes of concealing its criminal origin.

Except for the assets related to the alleged fraudulent bankruptcy by G., the alleged criminal origin of the other assets was indicated in the seizure decision by means of references to the legal classification of some of the offences allegedly committed by G. The second page of the decision specified offences such as “bankruptcies, embezzlement, fraud and tax fraud”, while page 42 gave more generic indications such as “acts of fraud and tax offences”. The decision gave no further details regarding the factual basis for such predicate offences.

In the detailed seizure decision, the investigating judge reconstructed in precise terms all the above-mentioned bank operations and expressly referred, inter alia, to the applicant’s financial situation. He noted that a customer due diligence test carried out on 19 September 2008 by one of the banks involved had shown that the applicant did not have any administrative role or shareholdings in any Italian companies which could produce any income. According to the judge, after that period, from 15 February 2013, the applicant had been a partner and advisor in a named management consultancy firm. He had not carried out any other business or professional activities and was not on the list of professionals who had received legitimate payments from the bankrupt companies, P. and C. In the light of that information, the judge considered that the applicant’s financial resources were not consistent with the financial, business or professional activities he had declared he carried out.

Furthermore, the investigating judge considered that there had existed a periculum in mora (danger in delay) in not issuing a seizure order, as the consequences of the offence could have been aggravated or prolonged. Indeed, the assets could have been withdrawn and/or concealed by the accused persons, thus frustrating the possibility for confiscation at the end of the proceedings. Moreover, the laundering was allegedly still ongoing at the time of the AIF’s temporary freezing order. By the same decision the judge also summoned the applicant for questioning.

On 4 May 2015 the applicant and two other accused persons represented by the same counsel lodged a complaint against the seizure decision with the Judge of Criminal Appeals (Giudice d’Appello Penale) under Article 56 of the Code of Criminal Procedure.

The applicant primarily requested the lifting of the decision in toto or alternatively a reduction in the amount of money seized to 280,000 euros (EUR). The grounds he gave included the fact that: (i) the judge had violated the principle of nullum crimen sine lege since he had applied a wording of Articles 58 bis and ter of the Code of Criminal Procedure which had been introduced only in 2013 and had therefore not yet been in force at the material time. According to the applicant, prior to the amendments introduced by Law No. 100 of 2013, the domestic law had not provided for a precautionary seizure with the aim of the future confiscation of items other than the price, product or profit of a crime or which had been used to commit a crime – the seizure had therefore been disproportionate; (ii) the alleged offences at the origin of the laundered money had been indicated by the investigating judge in a very generic way – he argued that such a lack of specifics was not sufficient to provide one of the prerequisites for the seizure, namely the fumus delicti (the presumption of a sufficient legal basis); (iii) the only predicate offence which had been mentioned in sufficiently precise terms in the seizure decision had been that of fraudulent bankruptcy to the detriment of company P., for which G. had been found guilty, at first-instance, in Italian criminal proceedings. However, in that connection and in relation to his alternative request, the applicant noted that the Italian court, in Udine, had found that G. had taken EUR 670,000 from the assets of company P. (which had then gone bankrupt) and that only a part of that money (EUR 280,000) had then been transferred to San Marino. Thus, there was a disproportion between the money seized (approximately EUR 1,650,000) and the money having an ascertained (or at least a precisely indicated) criminal origin (EUR 280,000). The applicant argued that the judge had failed even to give a summary description of the alleged actions or factual background constituting such offences and that such lacunas had made it impossible for him to adequately defend himself.

By a decision of 25 May 2015, served on the applicant on 28 May 2015, the Judge of Criminal Appeals rejected his requests.

In particular, the judge held that there had been no violation of the principle of nullum crimen sine lege since that rule was applicable only to substantive criminal provisions not procedural ones. The latter were subject, instead, to the tempus regit actum principle (the legality of an act can only be judged according to the law in effect at the time of the act).

According to the judge, preventive seizure (either probative or preventive with the aim of eventual permanent confiscation) could be ordered regardless of a final finding of guilt concerning an offence. Such a measure was aimed at preventing the commission of further offences or making sure that future measures were not frustrated. Moreover, contrary to the opinion of the defence, preventive seizure had been applicable at the material time (before the amendment of 2013) as section 39 of Law No. 134 of 2010 had expressly provided for it.

As to the difference between the sums seized and the alleged product of the offence, the court stated that Articles 58 bis and ter of the Code of Criminal Procedure did not set any limits on seizures or state that the seized amount had to be limited to funds belonging to the accused, or to the price, product, or profit of an offence. According to the judge, a proportionality test had to be carried out only at the stage of applying permanent confiscation following a finding of guilt, not at the stage of precautionary measures, given the different purpose of the measures.

With regard to the alleged general nature of the reference to the offences which had been at the origin of some of the assets, it had already been established in domestic case-law that in order to find someone guilty of money laundering it was not necessary to determine the type of predicate offence, the perpetrator, or the victim. It sufficed instead to have evidence of the criminal origin of assets which had been transferred, concealed or substituted – thus the burden of proving the illicit origin was satisfied if such an origin emerged clearly from a logical and coherent interpretation of the evidence. Hence, the investigating judge’s reasoning had sufficed for applying the seizure order since he had described in detail the bank operations carried out by the accused – the suspicious and unreasonable complexity of the operations, the relevant amount and their lack of transparency – elements which had spoken for themselves. Moreover, the investigating judge had highlighted the close relations between G. (the person who had allegedly collected the funds) and all the other accused persons and indicated the respective role of each in carrying out the laundering.

On 24 June 2015 the applicant lodged a complaint with the ThirdInstance Criminal Judge (Terza Istanza Penale), reiterating his earlier submissions and requests. In addition, he complained that the judge had reversed the burden of proof in connection with the lack of a precise indication of the fumus delicti in the seizure decision.

On 7 September 2015 the Attorney General (Procuratore del Fisco) filed submissions against the applicant’s appeal.

By a decision of 4 November 2015, served on 12 November 2015, the judge rejected both of the applicant’s requests. The judge stated that third-instance criminal proceedings were only interim proceedings aimed solely at reviewing the legality of precautionary measures and not the merits of a case. They could not be regarded as a sort of preliminary assessment of an accused’s guilt on criminal charges (since such an assessment was for trial courts). When a Third-Instance Criminal Judge was called on to review the legality of a precautionary measure, the judge had to assess the existence of fumus delicti, namely the plausibility of the investigator’s suspicions (ipotesi investigativa) concerning the commission of an offence and the possibility to trace it to the accused. The judge also had to review whether the substantive provisions that had been applied reflected the factual circumstances described in the notice of the offence (notizia di reato) and whether there had been a correct application of the procedural provisions concerning the admissibility and the assessment of evidence. In addition, the judge had to check whether the rights and duties of the parties had been adhered to; ensure that the requirements and limits of the measure had been correctly applied; and ascertain the existence of adequate reasoning justifying the measure.

The judge found that the submissions related to the existence of the fumus delicti, the reversal of the burden of proof and the problem of the assessment of the criminal origin of the assets were inadmissible on the grounds that they concerned the merits of the case and not the legality of the procedure.

After a detailed examination of the evolution of the provisions concerning seizures in the domestic law, the judge found no violation of the nullum crimen sine lege principle in the case or, in particular, of the principle of the non-retroactivity of criminal provisions. Moreover, the judge had not had to find any periculum in mora or make any other consideration concerning the accused’s wealth, his personal situation or financial needs, in order to apply a seizure order with the aim of future confiscation.

As to any lack of proportion in the seizure, the judge reiterated that the relevant Articles of the Code of Criminal Procedure applied by the investigating judge (Article 58 bis and ter) did not set any limits and the seizure order had therefore been in accordance with the law.

The judge also dismissed all the other grounds of appeal. In conclusion, he held that the investigating judge had not made any mistakes in applying or interpreting the relevant laws or in using his powers of discretion in his assessment. The seizure had therefore been necessary, inevitable and proportionate.

The offence of money laundering, Article 199 bis of the Criminal Code, reads, in so far as relevant, as follow:

“(1) A person is guilty of money laundering where, except in cases of aiding and abetting, he conceals, substitutes, transfers or co-operates with others to so do, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto), and with the aim of hiding its origins.

(2) or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).”

Sections 38 and 39 of Law No. 134 of 26 July 2010, which were applicable until amendments to the Code of Criminal Procedure in 2013 (see paragraph 26 below), in so far as relevant, read as follows:

“(1) The Commissario della Legge shall by a reasoned decision order the seizure of the corpus delicti and of items pertaining to a crime (cose ad esso pertinenti) which he deems necessary for the establishment of the facts.

(2) Items on which or through which the crime has been committed, and items which constitute the product, profit or price of the crime, shall be considered corpus delicti.

(3) The judicial authority or the judicial police (Polizia Giudiziaria) can examine and make a copy of acts, documents, mail, data and information contained in the computer software of financial institutions and seize acts, documents, mail, securities, funds, sums of money and all other items, even if they are contained in safe deposit boxes, when they have good reason to believe that such things pertained to the crime even if [such things] do not belong to the accused or are not registered in his name.”

“(1) The Commissario della Legge shall by a reasoned decision order the seizure of items pertaining to a crime if the consequences of such a crime could be aggravated or prolonged or where the commission of other crimes could be facilitated.

(2) The Commissario della Legge may also order the seizure of items for which confiscation is allowed, as well as things to which those items may have been transformed or converted, and of things with which they may have been merged (delle cose a cui sono state mescolate) and [the seizure] of the profits obtained therefrom.”

The provisions of Law No. 134/2010 were replaced by Articles 58 bis and 58 ter of the Code of Criminal Procedure by means of section 13 of Law No. 100 of 29 July 2013. Article 58 bis and ter, concerning probative and precautionary seizures, are virtually identical to sections 38 and 39 of Law No. 134 of 26 July 2010. The only difference concerns precautionary seizure: whereas Law No. 134/2010 stated that the application of a preventive seizure with the aim of confiscation was not mandatory and depended on the judge’s discretion (“may order” - puo’ disporre), Law No. 100/2013 considered it as mandatory (“shall order” - dispone). Moreover, the latter provision also stated that judges must not only order seizure in cases that have a view to a “direct” confiscation, but also in those aimed at “confiscation by equivalent means” (confisca per equivalente).

Article 56 of the Code of Criminal Procedure, in so far as relevant, reads as follows:

“Decisions concerning coercive measures or seizures against persons or assets and their subsequent confirmation may be challenged before the Judge of Criminal Appeals by the accused or the Attorney General within ten days of notification or enforcement of the measure ...”

According to established domestic case-law (for example, the decision of 25 October 1993 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 June 1995 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 November 2000 by the Judge of Criminal Appeals in criminal proceedings no. 1186/1998; and the decision of 4 April 2001 by the Judge of Criminal Appeals in proceedings concerning letter of request no. 68/2000), a complaint under Article 56 of the Code of Criminal Procedure is inadmissible if the Judge of Criminal Appeals is asked to review in general terms all the activities carried out by the investigating judge during the investigation. A Judge of Criminal Appeals can only intervene during an investigation in the specific cases expressly provided for by law, namely in order to review decisions applying precautionary measures, searches and seizures or in the case of aberrant decisions.

Law No. 55 of 25 April 2003 sets out the procedure to challenge the legitimacy of precautionary measures, such as seizures.

According to section 24 (in the light of section 3 of Constitutional Law No. 144 of 2003), a third-instance judge is competent to decide such challenges and such a challenge does not suspend the enforcement of the measure. Section 25 states that such a challenge can be lodged by interested parties or the Attorney General within thirty days of notification of the seizure decision to the parties. The appeal is then sent to the relevant body, which allows the parties to make submissions within ten days.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. In application nos. 69916/12 and 73694/12, the applicants also raised complaints under other provisions of the Convention.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are Jehovah’s Witnesses belonging to various congregations in Moscow. In 2004, the Moscow courts banned the local religious organisation of Jehovah’s Witnesses in Moscow.

In early 2006, the applicant Mr Krupko, acting on behalf of the Administrative Centre of Jehovah’s Witnesses, signed a rental contract with the Academy of Agriculture for the purpose of holding religious meetings in the academy’s assembly hall (актовый зал) twice a week. By the time of the events, the meetings had been being held for approximately ten weeks.

The most solemn and significant religious meeting for Jehovah’s Witnesses, their families and supporters, known as the annual celebration of the Memorial of the Lord’s Evening Meal, was scheduled to begin at approximately 8 p.m., after sundown on 12 April 2006. Around four hundred people, including the four applicants, gathered for the service.

At 8:50 p.m. police officers, led by the chief of the Lyublino police station, arrived in substantial numbers at the building. The building was cordoned off by the police units whose deployment included ten police vehicles, two minibuses, an armed unit of the Special Police Force (OMON) and dozens of other officers in uniform.

The police chief went on stage, took over the microphone and announced that the meeting was unlawful and that the participants were to disperse. Those in attendance complied with the order. The police officers segregated the male individuals from the rest of the group and made them stand in the corridor behind the hall. Fourteen male members of the congregation were escorted into the minibuses waiting outside. The police then proceeded to search the premises and took away a few boxes of religious literature and some documents from the notice board.

The applicants were brought to the Lyublino police station where they were placed in a holding room and collectively photographed. Their identity documents were taken away. Their lawyer, Mr S., was not allowed to visit them at the police station.

The applicants were released shortly after midnight.

On the following day, more than twenty press agencies, including a federal television channel, reported on the disruption of the service and the detention of participants.

The four applicants brought proceedings before the Lyublinskiy District Court of Moscow, seeking a declaration that the police had unlawfully disrupted a service of worship, removed religious literature, taken them to the police station, photographed and detained them and hindered the work of their counsel. They claimed compensation in respect of non-pecuniary damage.

On 15 June 2006 the District Court gave judgment, making the following findings of fact:

“It was established that the plaintiff[s] and approximately 400 fellow believers ... had gathered for a service of worship on 12 April 2006 in the assembly hall ... The service was stopped by police officers of the Lyublino police station who declared the meeting illegal and demanded that the hall be vacated. Mr Krupko, Mr Burenkov, Mr Solovyov and Mr Anorov were detained and escorted to the Lyublino police station to give statements.

These circumstances, including the curtailment of the religious service ... were confirmed by the representative of [the Lyublino police station]. His arguments that the plaintiffs were not detained, but went of their own accord, are unfounded. The fact of detention is corroborated by the testimonies of witnesses ... the entries in the register of persons detained or escorted to the police station ... which read that the plaintiffs were escorted to the police station [for the reasons contained in] report no. KUS-5172, and the written statements of the detainees. Records of the detention and escorting to the police station were not compiled.”

The District Court held that the police had lawfully stopped the service of worship:

“Pursuant to section 16 §§ 2 and 5 of the Religions Act ... religious organisations shall conduct religious services ... in religious buildings ... and in other places provided to religious organisations for such purposes ...

In other cases, public religious services ... shall be conducted in accordance with the procedure established for conducting meetings, marches and demonstrations.

The assembly hall of the Academy of Agriculture ... does not meet the requirements established by the above-mentioned legal provisions for buildings, structures and other places provided for conducting religious rites by religious organisations. That is, since the plaintiffs belong to a religious organisation, the public religious service [they held] in a secular establishment should have been carried out in accordance with the procedure established by the Public Gatherings Act, as provided for by section 16 § 5 of the Religions Act ...

As follows from the statements of the plaintiffs, they are not members of the Moscow Community of Jehovah’s Witnesses – the religious organisation whose activity was banned in Moscow by the judgment of the Golovinskiy District Court dated 26 March 2004 – and they exercise their right to freedom of religion ... having united not as a religious organisation but as the Lyublinskaya and Krasnodonskaya religious groups. In light of the above, the court considers that, in accordance with section 7 of the Religions Act, only premises provided for the use of the religious group by its members could be used for conducting services of worship ...

The court considers that the actions of the police officers in stopping the religious ritual in the building of the Academy of Agriculture ... in which around 400 people were participating, without having observed the [notification] procedure for conducting meetings, marches and demonstrations, were well grounded.”

Nevertheless, the District Court considered that the police officers had acted unlawfully in detaining the applicants:

“In accordance with Article 20 § 2 of the Code of Administrative Offences, violations of the established procedure for organising or conducting meetings, marches and demonstrations is a ground for instituting administrative offence proceedings. However, as follows from the testimony of [the representative of the police station], no elements of an administrative offence were established in the actions of the plaintiffs and no records of an administrative violation, detention, escorting to the police station and administrative arrest were compiled. That is, there were no grounds for detaining [the plaintiffs] or escorting them to the police station.”

The District Court summarily rejected the remainder of the claims:

“The claims concerning the removal of religious literature and passports, the photographing [of the applicants] or impediments caused to counsel are unsubstantiated. The applicants’ and their witnesses’ statements in that connection are contradictory, thus making it impossible to establish the relevant facts ...”

The applicants lodged an appeal, submitting that the District Court had misinterpreted the law in that the premises for the service of worship had been legally provided under a rental contract entered into by the Administrative Centre of Jehovah’s Witnesses, a registered legal entity, of which the local religious groups were structural divisions.

On 22 March 2007 the Moscow City Court quashed the District Court’s judgment in the part concerning the finding of unlawfulness in the actions of the police:

“It appears from the register of persons detained or escorted to the police station that the plaintiffs were taken to the police station to give statements ... and spent no more than three hours at the police station, which cannot be considered as detention.

Thus, the actions of the police patrol unit of the Lyublino police station in escorting the plaintiffs to the police station were carried out within the framework of the Police Act, and there is no basis for pronouncing unlawful their actions in stopping the unlawful religious service and escorting the plaintiffs to the police station for the purposes of taking their statements and inspecting [their] identity documents.”

The City Court upheld the remainder of the judgment and dismissed the applicants’ arguments in a summary fashion:

“The fact that the service of worship held by the Lyublinskaya and Krasnodonskaya religious groups, which are part of the centralised religious organisation ‘The Administrative Centre of Witnesses’ [sic], was conducted on behalf of that organisation and on premises paid for by it does not in itself exempt it from [the need to meet] the requirements [applicable to] religious groups when conducting religious services, since the activity of that organisation is banned in Moscow.

The court has considered the other arguments in the appeal ... [They] involved in essence a different interpretation of the law and a re-evaluation of evidence ... and these cannot constitute grounds for reversing a court decision on appeal”.