Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in 1943 and lives in Bucharest.

At the relevant time the applicant was a member of the teaching staff, as associate professor (“conferenţiar universitar”), of the University of Agronomical Sciences and Veterinary Medicine (hereafter “the University”), which is a State university.

Between 2002 and 2005 the applicant submitted many requests to the education authorities of the University and the Ministry of Education for the creation of a position of full professor in his department. He claimed that he met all the required professional criteria for occupying such a position. On 23 March 2005 the rector informed the applicant that for financial and other objective reasons, a new professor position could not be created.

The applicant was also a member of a non-profit organisation called the European Association of University Teaching Staff in Romania (“the Association”). Its general aim was to stop the degradation of education and research standards by making known the abuses, unlawful acts and corruption in education.

On 8 March 2005, a journalist, S.A., had an article published in the newspaper România liberă entitled “Corruption at university level”. The article stated that intellectual theft and plagiarism had been noted at the University of Agronomical Sciences and Veterinary Medicine. The journalist stated in this connection that O.A.A. had published a book, which was mostly (80%) a copy of another book. She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector, Professor N.C.I., who was also the scientific referent of the book.

On 7 June 2005 S.A. had another article published in the same newspaper, entitled “University lecturer ostracised because he denounced university corruption”. The article referred to the applicant, who, having noted that his disclosure about O.A.A.’s plagiarism to the dean and the rector of the University had not been followed up by any measures, had informed the press. Instead of benefiting from the protection provided by Law no. 571/2004 for employees who revealed infringements of the law within public authorities and institutions, the applicant had been invited to a meeting organised by the rector on 14 March 2005 and asked why he had informed the press. On 19 April 2005 another meeting was organised by the deputy rector and the dean of the applicant’s faculty. On the pretext of redistribution of the faculty’s space, they cleared the laboratory used by the applicant for research and practical activities with his students.

On 3 August 2005 the Association organised a press conference the main topic of which was corruption at university level. Seven cases of alleged corruption were presented. While other members of the Association referred to the corruption existent in other universities, the applicant, in his capacity as secretary-general of the Association, delivered a speech about corruption in his own university. He referred to the cases of O.A.A., a colleague, and of the deputy rector, N.C.I. The former had published a book called The Chemistry of Wine that according to him was mostly (80%) a copy of another book, Oenology, published in 1994 by another author. The applicant also mentioned that the book had been written under the direct supervision and guidance of N.C.I, who had written a eulogistic foreword to the book.

The applicant criticised the way in which N.C.I. had managed the AGRAL programme concerning public funding of scientific research stations; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains.

The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of the Romanian Communist Party. According to the applicant, N.C.I. was occupying too many positions to be able to handle them properly: professor at several different universities; deputy rector of the University of Agronomical Sciences and Veterinary Medicine; president of the National Office of Wine and Vineyards; and director of the AGRAL programme for public funding of research stations. He was also the head of the Department of Viticulture and Oenology.

The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of Viticulture and Oenology led by N.C.I. there was a mafia-type organisation (“încregătură de tip mafiot”).

Most of those statements were repeated in an article entitled “Professor at Piteşti University accused of corruption” published in the weekly newspaper Impact în Argeş of 26-30 September 2005.

On 10 November 2005 N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation. He claimed that the newspaper Impact în Argeş had published an article containing the applicant’s views expressed at a press conference on 3 August 2005.

The applicant adduced extensive documentary evidence before the Bucharest District Court. He submitted certificates from different universities at which N.C.I. had taught, the statute of the Association, different documents concerning the AGRAL programme, including the composition of the management of the programme, and a few letters issued by the Odobeşti research station at which O.A.A had performed research activity. He also submitted several newspaper articles containing criticism of N.C.I. and O.A.A.

N.C.I. gave a statement before the court on 13 February 2006. He acknowledged that he was cumulatively occupying the positions of deputy rector of the University, president of the National Office of Wine and Vineyards and director of the AGRAL programme for public funding of research stations. He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of the University, the dean of the Faculty of Oenology and the Ministry of Education.

On 13 March 2006 the court heard as a witness on behalf of the applicant S.A., one of the journalists who had written articles about the alleged corruption in the University (see paragraphs 9 and 10 above). He stated that he had attended the press conference of 3 August 2005. As regards the applicant’s allegation that N.C.I. was responsible for the incorrect manner in which public money had been allocated for scientific research, the journalist pointed out that on the basis of the documents he had seen on that occasion, such as salary slips and reports, it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and the University. The very high payments received by certain members of the University staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding. The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities. Lastly, the journalist stated that he had based his articles about the University not only on the material presented by the Association but also on documents from other sources, which he could not reveal.

By a judgment of 17 April 2006, the Bucharest District Court dismissed the criminal complaint. It held that even though the applicant could not prove the veracity of his statements, one element of the crime of defamation was missing, namely an intent to damage the reputation of N.C.I. It also held that the applicant, convinced by the accuracy of his statements, had only intended to present a case of corruption at university level. The most relevant part of the judgment read as follows:

“In the instant case, the defendant did not prove the accuracy of his statements despite the fact that on 13 February 2006 the court (taking into account that the morality and legality of the education system at university level is obviously a topic of public interest, and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with Article 207 of the Criminal Code and the Court’s case-law – the case of Castells v. Spain and the case of Colombani v. France) had admitted all the evidence proposed on his behalf.

Moreover, the documents submitted by the defendant (namely, the foreword of the book signed by the injured party (N.C.I.), copies of the book covers of The Chemistry of Wine and of the original Oenology, chapters from the two books) do not prove that the injured party encouraged plagiarism.

Some resemblance in the form and contents of the two works that could be noted by reading in parallel certain chapters cannot lead to the conclusion that the injured party was liable for not denouncing plagiarism. Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works, noting some inconsistencies which he ignored ...

However, the role of that foreword (and of any foreword in general) is to express a point of view about a work ... and does not represent an objective and critical opinion.”

“Moreover, the defendant did not prove that the injured party had blackmailed the research stations ...

The documents submitted by the defendant (copies of the pay slips of March 2005 issued by the Odobeşti research station, the records of the salaries paid by the same research station to several collaborators, and the report of an assessment performed at the research station by an authority of the Agriculture Minister on 20 July 2005) could not lead to the conclusion that the injured party had blackmailed the Odobeşti research station”.

“In addition, the defendant’s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true, as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices.

As regards the defendant’s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence.

The minute (“proces-verbal”) signed by the Faculty of Horticulture and a private company proved that the latter rented a building and the adjacent greenhouse, in which no plants were cultivated; moreover the minute was not signed by the injured party.

Under these circumstances, after the examination of all evidence, it cannot be concluded that the defendant has proved, beyond any reasonable doubt, that the aspects stated by him are true.”

As regards the applicant’s intent to commit defamation, the firstinstance court stated the following:

“The court notes that the defendant’s statements were made in the context of a press conference organised by the European Association of University Teaching Staff (of which the defendant is secretary-general), the main topic of which was the corruption and unlawful acts committed at university level, it being well known that the main object of the Association is the monitoring and disclosure of irregularities in the academic system.

Even though the defendant’s speech was shocking and exaggerated, it should be regarded as part of a topic of public interest – namely, corruption among university teaching staff – and the legislative and moral reform of the teaching system, an objective desired by the whole of society.

It should be noted that before the press conference of 3 August 2005, the newspaper România Liberă had published an article concerning the plagiarism of The Chemistry of Wine, and the Association had drafted a report concerning the situation of teaching in Romania. The report denounced the fact that university teachers were simultaneously teaching at several universities (“cu normă întreagă”) and that teachers, guilty of plagiarism and scientific fraud, were maintained in their positions at universities (a report that should have been known by the defendant in his capacity as secretary-general of the Association). These aspects prove that the topic had been previously published and debated in a public context.

At the same time, another important aspect is the fact that at the conference the defendant submitted several documents, such as: time sheets (“fişe de pontaj”), reports, the foreword written by the injured party for The Chemistry of Wine and copies of the alleged plagiarised book ..., documents which the defendant considered as evidence of the alleged acts.

Notwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused, they formed the basis of the defendant’s intimate conviction that the former was guilty of committing certain irregularities.

In this context, even though it is obvious that the honour and reputation of the injured party were objectively harmed, the court considers that this situation was the result of the speech and not an aim in itself, since the speaker had expressed his viewpoint in his capacity as a member of the Association and not as a private person, with the intention of contributing to informing on a topic of extreme public interest, that of corruption at university level, which had already been known by the press.

Consequently, the court considers that the defendant did not act with intent to gratuitously harm the injured party’s reputation, but with the conviction that he was revealing a corruption case.”

The court partially allowed the civil complaint, ordering the applicant to pay compensation for non-pecuniary damage amounting to 3,000 Romanian lei (RON) (approximately 860 euros (EUR)). It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault. Therefore, the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity.

The relevant passages of the decision read as follows:

“The way in which the defendant brought this information to the journalists’ attention, without clear evidence, convinced them that the presented facts were plausible (see in this respect the statements of witness S.A., as well as the articles published in the daily newspapers Impact de Iaşi and Fortune).

Consequently, the presentation of superficial information, with a high degree of suggestibility, constitutes an illicit act.

As regards the defendant’s liability, it must be emphasised that the court’s finding concerning the defendant’s good faith has relevance only in connection with the criminal complaint, given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault.

It is true that according to the ECHR’s case-law, persons acting as whistleblowers can share information concerning topics of public interest, even if shocking and disturbing; however, they should also take into account the protection of the reputation of others, as provided for by Article 10 § 1 of the Convention (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I).”

Appeals on points of law lodged by the parties were allowed. By a decision delivered on 11 November 2006 the Bucharest County Court dismissed the criminal complaint, as a direct consequence of an amendment made to the Criminal Code regarding the decriminalisation of defamation. The civil complaint was left unresolved.

On 13 December 2006 Professor N.C.I., brought a separate civil action for compensation against the applicant before the Bucharest Civil Court of First Instance. He claimed that certain remarks made by the applicant on 3 August 2005 and other occasions had constituted an attack on his reputation.

The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements. He adduced copies of the books The Chemistry of Wine and Oenology, and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book The Chemistry of Wine, a “protégée” of N.C.I., was registered as an employee and received a salary from the Odobeşti research station, which benefited from funding granted by N.C.I., without ever turning up to work there. He tried to prove that despite the fact that under the applicable law, a professor does not have the right to teach at more than two universities, N.C.I was a professor at at least three universities.

On 2 April 2007 the Bucharest Civil Court of First Instance allowed the action and the sum of RON 20,000 was awarded to N.C.I as compensation for non-pecuniary damage. It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists, who were convinced of the accuracy of his information and had published it in newspapers. The court endorsed the reasoning of the Bucharest District Court in its judgment of 17 April 2006 by copying most of the paragraphs from the latter judgment. Thus, it held among other things, that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion. The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions.

The applicant was also ordered to pay N.C.I.’s legal expenses.

The applicant lodged an appeal on points of law against that judgment. He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “in the department of oenology there is a mafiatype organisation (“încregătură de tip mafiot”) into the statement that N.C.I. “is involved in a mafia-type organisation”. On 30 October 2007 the Bucharest County Court dismissed the appeal, upholding the judgment of the firstinstance court. The applicant was ordered to pay the N.C.I.’s legal expenses.

On 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant’s monthly salary up to RON 27,877 (approximately EUR 7,470), representing compensation for non-pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts.

On an unspecified date the Association lodged a criminal complaint against O.A.A. accusing her of plagiarism. On 20 March 2007 the prosecutor’s office attached to the Bucharest County Court decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party. It noted, however, that a significant part of the two books, The Chemistry of Wine and Oenology, was similar.

On 6 May 2009 the Association together with the author of the book Oenology lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A.’s plagiarism in his capacity as scientific coordinator of the book. On 17 November 2010 the prosecutor’s office attached to Bucharest County Court discontinued the investigation on the grounds that the statutory time-limit for prosecuting the offence of plagiarism had expired.

On 3 October 2006 the applicant lodged a complaint against the University’s decision to decrease his salary of April and May 2006 on account of his unjustified absence from work. He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at the University until June 2006. Moreover, he adduced evidence according to which he had been at work on the days in question. Among other aspects, he pointed out that the actual reason for sanctioning him was his conflict with the management of the University because he had made public that the deputy rector had encouraged plagiarism.

By a decision of 26 March 2007 the Bucharest County Court – Department of Labour Litigation – allowed the applicant’s complaint and ordered the University to pay him the amounts withdrawn from his salaries of April and May 2006. The court held that under Article 287 of the Labour Code the burden of proof lay with the applicant’s employer but that it had been unable to produce any legal documents which could prove the applicant’s unjustified absence from work.

On 19 June 2006 the University issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension, for a period of two years, of his right to apply for a higher teaching position, to obtain a teaching degree or take up a management position. The reasons for the sanction were the following: (i) unjustified absences from several classes and teaching activities; (ii) non-compliance with the teaching curriculum; and (iii) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory.

The applicant challenged the decision before the Bucharest County Court.

On 25 May 2007 the county court noted that the applicant’s action remained without object as the University had decided to revoke its decision of 19 June 2006.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in 1967 and lives in Madrid.

He was living in Spain together with a Slovak national, to whom he was not married. On 27 May 2009 a child was born to the applicant’s partner (“the mother”) in Slovakia. The applicant is the father of the child. The child is both a Slovak and a Spanish national.

Following the birth, the applicant, the mother and the child lived together with the applicant in Spain until 21 July 2010, when the mother took the child from Spain to Slovakia. Neither of them has ever returned.

On 31 August 2010 the mother petitioned the District Court (Okresný súd) in Martin (Slovakia) to make an order governing the exercise of parental rights and responsibilities in respect of the child. At the same time, she requested that, pending the final outcome of the proceedings, the District Court deal with these matters by way of an interim order.

On 14 September 2010 the District Court issued an interim order, pursuant to which the child was placed with the mother and the applicant was ordered to contribute towards the child’s maintenance pending the outcome of the proceedings on the merits. It was submitted by the applicant and not disputed by the Government that the written version of the interim order was not served on the applicant before 9 February 2011 and that, upon its service, the applicant was contributing to the child’s maintenance as ordered.

The interim order remained in force until the proceedings on the merits of the mother’s petition were terminated by the District Court on 28 February 2011 and, following the mother’s appeal, by the Regional Court (Krajský súd) in Žilina (Slovakia) on 30 June 2011.

These courts found that the relevant law for the determination of jurisdiction in the matter was Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 2201/2003”) and that, under Regulation No. 2201/2003, the crucial criterion for establishing jurisdiction over the matter was the place of habitual residence of the child. Having regard to the conclusions that had meanwhile been reached in that respect by the Bratislava I (Slovakia) District Court and the Bratislava Regional Court (see paragraphs 20 and 23 below), the place of the child’s habitual residence was Spain, and the Slovakian courts had no jurisdiction to entertain the matter.

Meanwhile, on 5 August 2010, the applicant had complained about the removal and retention of the child by the mother before the Spanish Central Authority responsible for implementing the Hague Convention.

Subsequently, on 21 October 2010, the applicant lodged an application with the Bratislava I District Court under the Hague Convention and Regulation No. 2201/2003.

In his application, he argued that the child’s habitual residence was in Spain and that the mother had removed or retained the child wrongfully within the meaning of Article 3 of the Hague Convention.

Accordingly, the applicant sought an order for the child’s return to Spain.

On 3 November 2010 the District Court appointed the social services department for the city of Martin to represent the child’s interests in the proceedings.

The District Court called a hearing for 11 November 2010. However, two days before that date, that is to say on 9 November 2010, the mother’s lawyer asked for an adjournment on the grounds that the summons had only been received on that day, that a copy of the application had been served on them without enclosures, and that they had consequently not had adequate time and facilities to prepare.

On 10 November 2010 the District Court informed the mother’s lawyer, in response to her request of the previous day, that, in view of the short time limits in proceedings under the Hague Convention, it was not possible to have the hearing postponed and that it would take place.

On the same day the mother’s lawyer inspected the case file; informed the court that, nevertheless, and on the same grounds as previously relied upon, they would not appear; and insisted that the hearing be adjourned.

On 11 November 2010 the District Court held a hearing as scheduled, in the presence of the applicant and his lawyer, who both made oral submissions. Neither the mother, nor the child, nor the social services department on the child’s behalf were present. The hearing was adjourned until 18 November 2010.

On 16 November 2010 the mother’s lawyer again inspected the case file and, on 18 November 2010, she lodged extensive written submissions. She explained the development of her client’s relationship with the applicant and described it. She submitted that, in connection with her falling out with the applicant, the mother had sought care from a mental health specialist; and that the child was closely attached to the mother and their separation was unthinkable. In addition, she submitted a letter from an association in Slovakia supporting women in need attesting that since 26 August 2010 the mother had been receiving their support in connection with allegations she had made that the applicant had been mistreating her. While admitting that there was no risk of direct harm to the child, the lawyer submitted that the applicant’s behaviour towards the mother should nonetheless be taken into account.

On 18 November 2010 the District Court held a hearing in the presence of the parties and their legal representatives, who all made oral submissions. The social services department on behalf of the child were not present.

At the conclusion of the hearing, the District Court allowed the applicant’s claim and ordered the child’s return to Spain. The order had the procedural form of a decision (uznesenie).

The District Court established that the child’s habitual residence was in Spain, that the mother had removed the child from there wrongfully, and that there were no obstacles to the return of the child there within the meaning of the Hague Convention. In addition, the District Court pointed out that its ruling in the present proceedings had nothing to do with questions of care and residence.

As to the mother’s specific claim that the return of the child should be declined in view of the applicant’s behaviour toward the mother, the District Court found that she had failed to substantiate her allegations. The letter from the association that had been offering care and support to the mother was solely based on the mother’s allegations and as such could not serve to support those allegations. In her own words, the applicant had never mistreated her physically and there was nothing to support her allegations of psychological mistreatment. In that respect, the District Court found it of relevance that the mother had not brought the alleged psychological mistreatment to the attention of the Spanish authorities at the time when it had allegedly taken place.

On 29 December 2010 the mother filed an appeal (odvolanie) with the Bratislava Regional Court. In the first place, she reiterated her argument concerning the time and facilities made available for preparation prior to the hearing of 11 November. Moreover, she challenged the District Court’s conclusions as regards the letter from the association that had been providing her with care and support and contended that the Distract Court had failed to obtain a report from the mental health specialist treating her. In addition, she argued that the District Court had failed to take into account the loss which the child would suffer by separation from the mother. In that respect, she relied on a written statement of the court-appointed representative for the child. Moreover, the mother claimed that risk within the meaning of Article 13 (b) of the Hague Convention did not have to be imminent, but could lie in the future. Lastly, in connection with the District Court’s conclusions as regards the habitual residence of the child and the wrongfulness of the child’s removal, the mother submitted that it had been her and not the applicant who had actually been taking care of the child and was better disposed and equipped to do so.

On 21 January 2011, in the procedural form of a decision, the Regional Court dismissed the appeal and upheld the first-instance decision.

The Regional Court fully endorsed the District Court’s reasoning and conclusions. In addition, it pointed out that the object and purpose of the Hague Convention was to ensure immediate restoration of the status quo which has been unlawfully changed by a person who wrongfully removes or retains a child by returning the child to the country of his or her habitual residence so that questions on the merits concerning care and residence may be examined by the court in that country. The purpose of the present proceedings had nothing to do with such substantive questions and they fell within the exclusive jurisdiction of the courts of the country of the child’s habitual residence.

The Regional Court further held that the Hague Convention and Regulation No. 2201/2003 represented a departure from the traditional private-international-law principle of nationality towards a principle based on the child’s habitual residence.

On the facts of the case, the Regional Court found no merit in the mother’s argument concerning the time and facilities given for preparation prior to the hearing of 11 November 2010, pointing out that time-limits under the Hague Convention had precedence over time-limits under the national procedural rules; that the mother and her lawyer had been duly summoned to the hearings; and that they had been granted ample opportunities to familiarise themselves with the case and to answer it. As to the mother’s complaints of the District Court’s alleged failure to obtain evidence she had sought to have adduced, the Regional Court pointed out that, under Article 13 of the Hague Convention, in return proceedings it was the person opposing the return who bore the burden of proof. Moreover, and in any event, some of the evidence adduced by the mother bore on questions falling outside of the scope of the present proceedings. As to the mother’s specific allegations of mistreatment, these were contradicted by the contents of the case file, in particular by copies of her e-mail communications with the applicant and his sister, as well as by photographs of the mother, the child and the applicant from the period between the child’s birth and her wrongful removal from Spain.

Lastly, the Regional Court held that the order for the child’s return by no means implied her separation from the mother, as the mother was free to return to Spain with the child and to assert her claims in respect of the child before the courts having jurisdiction to entertain them.

The order for the child’s return to Spain became final and binding on 4 February 2011.

Subsequently, on 15 February 2011, the mother lodged an appeal on points of law (dovolanie) with the Supreme Court (Najvyšší súd) of Slovakia. The applicant was then allowed to submit observations in reply.

On 22 March 2011 the Supreme Court declared the appeal inadmissible. As to the applicable principles, it acknowledged that, in Hague Convention proceedings, the courts are duty-bound diligently to establish the facts, and not to limit themselves to the evidence adduced by a single party to the proceedings.

As to the specific facts of the present case, the Supreme Court observed that the applicant’s application for the commencement of the Hague Convention proceedings had been served on the mother without its enclosures. However, it held that this error had quickly been corrected when, on 10 November 2010, the mother’s lawyer had inspected the case file (see paragraphs 11, 14 and 15 above).

Moreover, the Supreme Court held that it had been wrong of the Bratislava I District Court to hold the hearing of 11 November 2010 in the absence of the mother and her lawyer and without giving them adequate time and facilities to prepare. However, that error had also been rectified by hearing the case again on 18 November 2010. At that hearing, the mother had made extensive submissions and, in addition, she had had further ample opportunity to make her case before the Court of Appeal.

Finally, as to the child, whose court-appointed representative (see paragraph 13 above) had failed to show up without any excuse at either of those hearings, the Supreme Court observed that the representative had duly been summoned and held that, in the circumstances, the representative’s absence had been no obstacle to the District Court proceeding with the determination of the case.

In parallel to her appeal on points of law, the mother also petitioned the Public Prosecution Service (“PPS”) to exercise their discretionary power to challenge the lower courts’ decisions by way of an extraordinary appeal on points of law (mimoriadne dovolanie).

The PPS decided not to act upon the petition, on the grounds that the mother’s appeal on points of law and her later petition for reopening (see paragraphs 29 et seq. below) were still pending, these remedies having precedence over an extraordinary appeal on points of law. This position was upheld in a letter of the Bratislava Regional Office of the PPS of 12 January 2012.

In that letter, the PPS endorsed the reasoning behind the judgment of the Supreme Court of 22 March 2011 (see paragraph 26 above) and, in addition, expressed a detailed and reasoned opinion that the order for the child’s return was correct on merits.

In addition to the extraordinary remedies mentioned above, on 20 June 2011 the mother filed a petition to have the Hague Convention proceedings reopened (návrh na obnovu konania).

The petition was dismissed by the Bratislava I District Court on 5 August 2011 and, following the mother’s appeal, by the Bratislava Regional Court on 25 October 2011. The grounds for the rejection were that the Hague Convention proceedings had been concluded in the procedural form of a decision (see paragraph 19 and 23 above), as opposed to a judgment (rozsudok), and that, in the circumstances, the reopening of proceedings concluded by a decision was not permissible by law (Article 228 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – the “CCP”).

By letter of 12 February 2011 the applicant invited the mother to abide by the return order, to no avail.

On 22 February 2011 the applicant applied to the Martin District Court for a warrant to have the return order enforced, pointing out that the order had become final and binding on 4 February 2011 (see paragraph 24 above).

On 16 March 2011 the District Court called upon the mother to abide by the return order voluntarily and summoned her for an interview on 31 March 2011. In response, the mother asked for the proceedings to be stayed in view of her extraordinary appeal and petition for reopening that were still pending (see paragraphs 27 – 30 above), and she did not show up for the interview.

On 17 March 2011 the District Court appointed the Martin Social Services Department as the representative of the child’s interests for the purposes of the enforcement proceedings.

The District Court heard the enforcement case on 28 April and 13 May 2011. At a further hearing called specifically for that purpose on 16 May 2011, it delivered a warrant for the enforcement of the return order and authorised the applicant to carry out the enforcement.

The mother and the child’s court-appointed representative appealed to the Žilina Regional Court, which – on 7 September 2011 – decided to stay the proceedings on their appeal. It did so observing that, in the meantime, the mother had petitioned for reopening of the Hague Convention proceedings (see paragraph 29 above) and that, if her petition was granted, the enforcement proceedings would be stayed by operation of law.

Following the dismissal of the mother’s petition for reopening (see paragraph 30 above), on 24 November 2011 the Regional Court resumed the appeal proceedings, only to stay them again, on 1 December 2011, this time in view of the mother’s petition to the PPS for an extraordinary appeal on points of law (see paragraph 27 above), which was still pending.

Following the dismissal by the PPS of the mother’s petition for an extraordinary appeal (see paragraph 28 above), the appeal proceedings were again stayed on 2 February 2012, this time on the basis of the judgment (nález) of the Constitutional Court (Ústavný súd) of 13 December 2011 (see paragraphs 42 et seq. below).

On 1 July 2011, acting in her own name as well as that of the child, the mother challenged the decision of the Supreme Court of 22 March 2011 to reject the appeal on points of law (see paragraph 26 above) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

The complaint was directed against the Supreme Court. The applicant was neither a party to the ensuing proceedings nor informed of them.

On 18 October 2011 the Constitutional Court declared the complaint admissible.

On 13 December 2011 it gave a judgment dismissing the complaint on the merits in so far as it had been brought by the mother and, at the same time, in so far as the child was concerned, finding that the Supreme Court had violated the child’s rights as specified below.

In particular, a violation of the child’s rights was found under Articles 46 § 1 (judicial protection), 47 § 3 (procedural equality) and 48 § 2 (hearing in one’s presence and opportunity to comment on evidence) of the Constitution; Article 6 § 1 (fairness) of the Convention; and Articles 3 §§ 1 (consideration of the best interests of the child) and 2 (protection and care necessary for the child’s well-being) and 12 §§ 1 and 2 (expression of the child’s views and being heard in judicial proceedings) of the Convention on the Rights of the Child.

The Constitutional Court endorsed the Supreme Court’s view that the District Court’s error in respect of the mother had been rectified at the hearing of 18 November 2010.

In so far as the child was concerned, however, the child’s views were to have been expressed by the court-appointed representative, whose failure to appear had not been a valid reason for ruling on the matter without having the child’s views established. There were tools, including procedural fines, for ensuring the proper involvement of the court-appointed representative in the proceedings.

Consequently, the Constitutional Court quashed the challenged decision and remitted the mother’s appeal on points of law to the Supreme Court for re-examination.

The judgment was final and not amenable to appeal.

On 22 March 2012 the Supreme Court re-examined the mother’s appeal on points of law of 15 February 2011 (see paragraph 25 above) against the return order. Being bound by the Constitutional Court’s assessment of the case, it quashed the order and remitted the case to the first-instance court with a view to having the views of the child established by means appropriate for the child’s age and maturity.

The Bratislava I District Court heard the case on 6 and 27 June 2012. A further hearing was scheduled for 18 July 2012, but it was cancelled on the grounds that a few days before, the mother’s lawyer had been appointed the head of the Slovakian Central Authority responsible for implementing the Hague Convention. Consequently, the lawyer had had to resign and the mother had appointed a new lawyer.

At a subsequent hearing on 22 August 2012, the District Court ruled that the child was not to be returned to Spain. This ruling was upheld on 20 November 2012 by the Bratislava Regional Court following the applicant’s appeal.

The courts’ reasoning may be summarised as follows. The child’s habitual residence for the purposes of the Hague Convention proceedings was Spain and her retention by the mother in Slovakia had been wrongful.

However, in view of the mother’s objections, it had to be examined whether there was any grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention.

For that purpose, in addition to the other evidence taken, the District Court had interviewed the child, aged three at the time, and the child’s courtappointed representative, and the courts had also examined complex documentary evidence, including a report from the Spanish Central Authority as to the circumstances to which the child would be returned there.

The courts were guided by the best interests of the child, which they considered to be twofold, namely the interest in preserving relations with the child’s family and the interest in developing in a healthy environment.

The courts found that the child was attached to the mother and, in view of the child’s age, also to the child’s home environment, to which the child had been introduced when it had been fourteen months’ old. The child only spoke Slovak, attended a kindergarten in Slovakia and was part of an extended family circle there. The courts concluded that the child’s removal from this environment would give rise to the risk of considerable detriment to the child and that, in the circumstances, the child’s best interests prevailed over those of the applicant.

As regards the applicant, the courts concluded that it had been two years since he had seen the child, that he had not been displaying a genuine interest in the child and that he had not been contributing to the child’s maintenance.

A separation of the child from the mother did not come in question. However, the mother’s vulnerable financial situation made it impossible to ensure proper care for the child in Spain. The child’s removal to Spain with the mother would thus expose the child to the risk of living in poverty.

In view of those circumstances, the courts examined whether adequate arrangements within the meaning of Article 11 § 4 of the Regulation No. 2201/2003 had been made to secure the protection of the child on its return.

In that respect, the courts expressed the view that adequate arrangements had to eliminate with the highest possible probability the risks that the child would face and that they should entail the provision of low-rent housing for the mother and the child, free of charge specialised social and psychological counselling, and a detailed explanation of the welfare benefits and supervision by social services available to the mother in Spain.

The courts held that, in so far as any guarantees had been identified by the Spanish central authority, they were not specific enough. In so far as the applicant had been offering to cover the costs of the mother’s and the child’s air travel, the child’s health insurance and kindergarten in Spain, and a room free of charge in his apartment there, these guarantees were found not to be adequate and the courts noted that their “doubts as to whether he would actually keep his promises had not been assuaged”.

The courts considered that they had established an overall picture of the social environment to which the child would return and had thoroughly examined the entire family situation. Based on the findings mentioned above, they concluded that the child’s return under the Hague Convention was not permissible.


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants, Ms Danuta Dobrzańska and Mr Wiktor Dobrzański, are Polish nationals, who were born in 1928 and 1941 respectively and live in Sosnowiec. They were represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

The applicants are the legal successors of former owners of land situated in Niwka, Poland. In 1951 the applicants’ legal predecessors were obliged to transfer their property to the State Treasury without compensation. The transfer was confirmed by a protocol dated 8 February 1951 issued by the Ministry of Mining.

On 19 September 2002, at the applicants’ request, the Minister of Economy declared the 1951 protocol null and void. This decision entitled the applicants to seek compensation on the basis of the relevant provisions of the Code of Administrative Proceedings.

The applicants applied to the Ministry of Economy for compensation for the loss of profit they could have made had they had the property at their disposal. Their request concerned the period between 17 October 1997 (the date of entry into force of the 1997 Constitution) and 19 September 2002 (the date on which the property in question was returned to the applicants).

On 9 July 2008 the Ministry of Economy refused to grant the applicants compensation for lost profit, finding that the rights to the property in question had been restored to the applicants and that they had not proved that they had sustained any further damage. It also found that according to the case-law of the Polish Supreme Court and Constitutional Court, the applicants could not seek compensation for the loss of expected profit which they had allegedly sustained before the entry into force of the 1997 Constitution.

The applicants then applied to the civil courts seeking compensation for the loss of expected profit. On 18 December 2008 they lodged a claim with the Warsaw Regional Court. Subsequently, they limited their claim to the period from the entry into force of the 1997 Constitution until 2008; they maintained that the conduct of the authorities had prevented them from using their property even after its return. They claimed 126,726.75 zlotys (PLN) and requested exemption from the court fees.

On 12 January 2009 the applicants’ request was granted and they were exempted from court fees in excess of PLN 300 (approximately 75 euros (EUR)).

On 9 July 2009 the applicants further limited their claim to compensation for the period between 1997 and 2002.

On 22 July 2010 the Warsaw Regional Court dismissed the applicants’ claim. The court admitted that the Supreme Court’s case-law had gone in two opposite directions; the first line of case-law accepted that in situations similar to that of the applicants they could seek both actual loss (damnum emergens) and loss of expected profit (lucrum caessans), whereas the second line limited the compensation to actual loss only. The court decided to base its judgment on the latter case-law of the Supreme Court and held that it could not grant the applicants compensation for loss of expected profit because the right to full compensation had not been inserted in the Polish Constitution until 17 October 1997, when the Constitution entered into force, whereas the damage in question had occurred before that date.

Taking into consideration the incoherent case-law of the Supreme Court, the Regional Court applied Article 102 of the Code of Civil Proceedings and decided not to impose the costs of the proceedings on the applicants.

The applicants appealed against the first-instance judgment.

On 20 January 2011 the applicants’ lawyer requested that the court stay the proceedings pending a decision by the Supreme Court on the legal issue in question.

On 21 January 2011 the Warsaw Court of Appeal granted the request and stayed the proceedings.

On 31 March 2011 the Supreme Court, sitting as a full bench, adopted a resolution (III CZP 112/10) in which it acknowledged that the respective provisions of civil and administrative law had given rise to serious difficulties and to divergent interpretation in judicial practice. It held that in situations similar to that of the applicants, if a final decision had been given in breach of the law before the entry into force of the 1997 Constitution, compensation on the basis of Article 160 of the Code of Administrative Proceedings would not include lucrum caessans even if the loss of expected profit had happened after the entry into force of the 1997 Constitution.

On 31 January 2012 the proceedings before the Warsaw Court of Appeal were resumed.

On 15 March 2012 the Court of Appeal referred to the abovementioned Supreme Court resolution of 31 March 2011 and held that compensation for loss of expected profit could be granted only if the wrongful decision had been issued after the entry into force of the 1997 Constitution. Finding that the loss in the applicants’ case had occurred before that date, it dismissed the applicants’ appeal.

The court did not impose the costs of the proceedings on the applicants.

The applicants did not lodge a cassation appeal, since it would not have had any prospects of success; the Supreme Court would have had to follow the resolution adopted in 2011 by the Supreme Court plenary.

Article 77 of the Polish Constitution, which entered into force on 17 October 1997, provides:

“1. Everyone is entitled to compensation for damage caused by the unlawful acts of a public authority.

A statute shall not bar access to court to persons seeking redress for any breach of their freedoms or rights.”

Article 155 of the Code of Administrative Proceedings permits the amendment or revocation of any final administrative decision whenever necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to revocation if it has been issued by an authority which had no jurisdiction to do so, or if it has no legal basis or is contrary to the applicable laws.

The relevant part of Article 156 § 2 of the Code of Administrative Procedure reads as follows:

“A decision shall not be revoked ... if more than ten years has passed since the date on which it was delivered or if the decision had irreversible legal consequences.”

Article 158 § 2 of the Code of Administrative Proceedings reads as follows:

“If it is impossible to set aside a decision for reasons referred to in Article 156 § 2, the administrative authority shall only declare that the challenged decision has been issued in flagrant breach of the law and shall give reasons for refusing to set it aside.”

The relevant part of Article 160 of the Code of Administrative Proceedings, as applicable to the applicants’ case, reads:

“Anyone who has suffered loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the revocation of such a decision may claim compensation for actual damage, unless he has been responsible for the circumstances mentioned in this provision.”

By a judgment of 23 September 2003 (K 20/02) the Constitutional Court declared Article 160 of the Code of Administrative Proceedings unconstitutional in so far as it limited the scope of compensation to actual damage only. The Constitutional Court held that its judgment applied only to losses which had occurred after the entry into force of the 1997 Constitution, that is, after 17 October 1997.

On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code, including the addition of a new Article 4171. New Article 417 1 § 2 of the Civil Code provides that compensation can be claimed for damage caused by way of an unlawful and final decision, after the unlawfulness of such a decision has been declared in separate administrative proceedings. The 2004 Amendment abrogated Article 160 of the Code of Administrative Procedure. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 of the Civil Code as applicable before 1 September 2004 and Article 160 of the Code of Administrative Procedure apply to all events and legal situations that subsisted before that date.

An administrative decision in respect of a compensation claim was amenable to appeal before a civil court.

Article 417 § 1 of the Civil Code, as applicable after 1 September 2004, provides:

“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

Following the judgment of the Constitutional Court, the domestic courts, including the Supreme Court, took two different approaches in interpreting the term “time in which loss occurred”.

According to the first approach, which could be observed from 2006 onwards, the decisive date was that on which the original decision had been issued. This, in turn, meant that if the decision in question had been issued before the entry into force of the Constitution, only actual damage could be compensated for. The first approach was adopted by the Supreme Court in its judgments of 25 January 2006 (I CK 273/05), 26 April 2006 (III CZP 125/05), 12 September 2007 (I CSK 220/07), 5 December 2007 (I CSK 301/07), 16 April 2009 (CSK 524/08), 18 June 2009 (II CSK 26/09) and 15 October 2009 (I CSK 66/09).

According to the second approach adopted for the first time in 2008, loss could occur after the entry into force of the Constitution even if the decision constituting the source of the loss had been issued long before that date. In such circumstances, a claimant could effectively seek full compensation for both: actual loss and expected profit. This approach was adopted by the Supreme Court in the judgments of 22 January 2008 (case no. 376/07), 8 February 2008 (I CSK 477/07), 12 March 2008 (I CSK 435/07), 9 January 2009 (I CSK 272/08), 14 May 2009 (I CSK 306/08) and 14 May 2009 (I CSK 485/08).

On 8 January 2010 the President of the Supreme Court requested that a bench of the Civil Chamber composed of seven judges convene to clarify a legal question and adopt a resolution. The issue concerned the substantive law governing compensation claims in respect of damage caused by administrative decisions issued before 1 September 2004 where the unlawfulness of the decisions had been declared by way of an administrative decision given after that date. The President noted, inter alia, that two strands had developed in the case-law of the Supreme Court and other courts, against a background of serious difficulties concerning the temporal scope and consequences of the Law of 17 June 2004 as to the applicable substantive law (see paragraphs 11 and 16 above). These divergences decisively affected the compensation rights of individuals in respect of whom unlawful administrative decisions had been made prior to 1 September 2004.

On 24 August 2010 the Civil Chamber of the Supreme Court, sitting as a bench of seven judges, requested the full composition of that Chamber to adopt a resolution clarifying the issues raised by the President (III CZP 4/10). The Chamber noted that the issue had given rise to serious discrepancies in judicial practice, including that of the Supreme Court itself. Considering the importance of the issues involved and the fact that previous decisions and resolutions of the Supreme Court had failed to bring uniformity to judicial practice, a resolution by the Civil Chamber of the Court sitting as a full bench was called for.

On 31 March 2011 the Civil Chamber of the Supreme Court, sitting as a full bench, adopted a resolution (III CZP 112/10). It acknowledged that the applicable provisions had given rise to serious difficulties and to divergent interpretations in judicial practice. The Supreme Court held that former Article 160 of the Code of Administrative Procedure was applicable. It further held that:

“If a final administrative decision which was deficient (wadliwa) was issued before the date of entry into force of the Constitution, compensation due on the basis of Article 160 § 1 of the Code of Administrative Proceedings shall not encompass lost profits, even if the damage occurred after the entry into force of the Constitution.”

On 24 April 2014 the Constitutional Court gave judgment (SK 56/12) holding as follows:

“Article160 § 1 of the Code of Administrative Proceedings in conjunction with Article 5 of the Act of 17 June 2004 amending the Civil Code, as far as it limits compensation for damaged caused by an unlawful act of a public authority to actual loss in cases where the deficient final decision was issued before 17 October 1997:

a. is consistent with Article 2 [rule of law in a democratic state] and with Article 32 § 1 [equality before the law] of the Constitution;

b. is not inconsistent with Article 77 § 1 of the Constitution.”


No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicant was born in 1964 and lives in Vinnytsya.

On 21 November 1995 the applicant was provided with a flat by the local authorities in the city of Vinnytsya.

On 1 December 1995 the applicant married S. and the couple lived in that flat.

On 22 December 1997 the applicant and S. had a son.

On 13 March 2001 the couple divorced, but neither of them would agree to vacate the flat.

According to the applicant, after the divorce his former wife repeatedly demanded that he sell the flat. As he refused to do so, he allegedly received threats from S., her relatives and certain police officers. Whenever disputes broke out between the former spouses living in the same flat, S. called the police to handle them.

In December 2005 the Zamostyanskyy District Court of Vinnytsya considered an administrative case against the applicant following the submissions of the police concerning the domestic violence by the applicant. The court found the applicant guilty of violent behaviour in respect of his son and former spouse and imposed a fine on him.

At about 11 p.m. on 14 February 2006 three police officers arrived at the applicant’s flat after receiving a telephone call from S. complaining about the applicant. According to the Government, the call was made by the applicant’s neighbour; the applicant was shouting and threatening S. and the latter was crying that the applicant was threatening her with a knife.

According to the applicant, he refused to let the police officers in as they did not show their ID cards or present themselves, it was too late at night and the light in the corridor was turned off. The police tried to enter but failed to do so. At about 2 a.m. on 15 February 2006 two of S.’s brothers arrived and demanded that the applicant open the door. By that time, the light in the corridor was switched on and the applicant checked to see who was there by looking through the peephole in the door. As he saw only the two brothers without any police officers, he decided to open the door. Once he had unlocked the door, the brothers together with three police officers burst in and started to beat up the applicant. The applicant did not resist. When trying to handcuff the applicant the police officers twisted his arms and broke his right arm. They then took the applicant to the police station. They allegedly ill-treated him on his way to the police station and once there.

According to the Government, S.’s brothers arrived at the scene after receiving a call from S. At 2 a.m. on 15 February 2006 they managed to persuade the applicant to open the door. However, as soon as he did so, he saw the police officers in the corridor and made an attempt to close the door. S.’s brothers and the police officers pushed against the door and burst into the flat. Having been pushed away from the door, the applicant fell onto a chair and the floor. In order to arrest the applicant and take him to the district police station, the police officers decided to handcuff him. As the applicant was resisting his arrest, they had to apply force against him. In the course of handcuffing the applicant, his arm was unintentionally broken.

In the police station the applicant complained about his broken arm. An ambulance was therefore called and he was taken to the Vinnytsya City Hospital no. 2 (“the hospital”).

In the hospital the applicant was diagnosed with a fractured right humerus accompanied by displacement of bone fragments, neuritis of the radial nerve, crushed soft tissue, and bruises on both wrists and on his jaw.

On 16 February 2006 the applicant underwent an operation on his arm. He stayed in the hospital until 1 March 2006 for inpatient treatment.

On 15 February 2006 S. complained to the district police that the applicant had threatened to kill her and their son.

On the same day the police questioned S., her brothers, the applicant and the neighbours. They also inspected the scene of the events.

On 16 February 2006 a forensic medical examination of S. was carried out. The expert report stated that S. had a bruise on her right lower leg, which could have been caused by a blunt object on 14 February 2006.

On 23 February 2006 the police, having regard to S.’s refusal to maintain her complaint, refused to institute criminal proceedings against the applicant.

On 21 September 2006 the investigator instituted criminal proceedings against the applicant in connection with an offence under Article 129 § 1 of the Criminal Code of Ukraine (threat to kill). According to the applicant, the criminal case was closed for lack of evidence.

On 21 February 2006 the applicant complained to the Zamostyanskyy District Prosecutor’s Office of Vinnytsya (“the district prosecutor’s office”) on account of his ill-treatment by the police and his former wife’s brothers.

On 14 March 2006 the assistant prosecutor at the district prosecutor’s office refused to institute criminal proceedings in connection with the alleged ill-treatment. Considering the facts of the incident, he noted that the applicant had been pushed backwards when the door had been forced open and had fallen onto a chair, hitting his right arm against the floor. He held that that might have been when the applicant had sustained the injuries. Having regard to those circumstances and the applicant’s behaviour during the conflict, the assistant prosecutor concluded that there had been no corpus delicti in the actions of the police officers. The decision was based on the reports of the police officers and the interviews of the applicant, S., her brothers and the neighbours. The assistant prosecutor also had regard to the city police’s internal inquiry report of 28 February 2006, which suggested that the police officers had acted lawfully.

On 28 March 2006 the district prosecutor quashed that decision as unfounded and ordered additional pre-investigating enquiries. He noted, in particular, that the medical examination of the applicant had not been completed and the role of S.’s brothers in the incident had not been properly examined.

On 3 April 2006 the district prosecutor’s office received an internal inquiry report of the Vinnytsya Regional Police Department suggesting that the applicant had sustained his injuries when falling onto a chair and the floor.

The medical examination of the applicant was completed on 26 April 2006. The experts noted in their report that, apart from a fractured right humerus, the applicant had sustained bruises on his right forearm, right shoulder, left leg and both wrists.

On 6 May 2006 the district prosecutor’s office, having carried out additional pre-investigating enquiries, refused to institute criminal proceedings in connection with the alleged ill-treatment for the reason that there had been no elements of crime in the conduct of the police officers. The decision reproduced the same version of events as the one established earlier by the authorities, suggesting that the applicant had sustained his injuries when falling onto a chair and the floor. It specified that the applicant had a strong constitution and had offered resistance during the arrest. The police officers had therefore been assisted by S.’s brothers when restraining and handcuffing the applicant.

On 9 June 2006 the Vinnytsya Regional Prosecutor’s Office quashed that decision and ordered further pre-investigating enquiries. It considered that it was necessary to examine the applicant’s personality, his behaviour before the quarrel with S., and whether he had been drunk at the time. Furthermore, the circumstances in which the applicant was injured and the role of each of the participants of the incident had to be scrutinised and an additional medical examination of the applicant carried out.

During the additional pre-investigating enquiries the authorities once again interviewed the applicant and S. They took statements from the ambulance paramedic as to the circumstances of the applicant’s hospitalisation. They inspected the scene of the incident, and enclosed a negative reference letter from the local house-maintenance authority in respect of the applicant.

On 26 June 2006 the juvenile department of the city council interviewed the applicant’s minor son in the presence of S., a school teacher and a school psychologist. By that time the son had undergone a psychological examination by the school psychologist, who had concluded, inter alia, that the son was scared of his father and did not include him in the family circle. During the interview at the juvenile department the applicant’s son claimed that his father had uttered obscenities and had threatened him and his mother; occasionally, his father would grab hold of him and shake him. He alleged that his father had taken a knife and had chased his mother around the flat; his father had also often threatened to throw his mother off the balcony. When asked about his attitude towards his father, the applicant’s son replied that he was scared of his father and wished to live just with his mother.

On 18 August 2006 the panel of experts concluded that the fracture of the applicant’s arm had resulted from a rotary application of force, when the arm had been turned about its axis. They noted that this corresponded to the applicant’s statement that his arms had been twisted behind his back. The experts added that the fracture could not have been caused by a direct application of force, including when the applicant, as alleged by the police officers, had fallen down as the door had been pushed open.

On 25 September 2006 the medical expert was interviewed as regards the possible origin of the applicant’s injuries. The expert opined that the bruises on the applicant’s wrists could have been caused by the handcuffs. He did not exclude the possibility that the other identified injuries, except for the fractured arm, might have resulted from the applicant’s fall and the impact with a chair and the floor.

On 26 September 2006 the district prosecutor’s office refused to open an investigation in connection with the alleged ill-treatment for the reason that there were no elements of crime in the conduct of the police officers. According to the decision, the applicant might have sustained the fractured arm when the police officers, assisted by S.’s brothers, were twisting his arms in order to handcuff him; the bruises on his wrists might have been caused by the handcuffs; the other bruises might have been caused by the applicant’s fall onto a chair and the floor when he was pushed backwards by the entrance door. The decision specified that the applicant had a strong constitution and had offered resistance during the arrest.

On 28 November 2006 the Staromiskyy District Court of Vinnytsya quashed the decision of 26 September 2006, holding that the pre-investigating enquiries were incomplete. The court ordered the authorities to take additional measures to scrutinise the circumstances of the incident, the role of each participant, the personality of the applicant and the situation in the family.

On 12 February 2007 the district prosecutor’s office, having conducted additional enquiries, refused to institute criminal proceedings in connection with the alleged ill-treatment. The decision set out the facts in the following way. In the evening of 14 February 2006 the local police station received a telephone call reporting a domestic dispute at the applicant’s flat. At about 11 p.m. three police officers arrived at the flat but could not enter as the applicant refused to open the door. The police officers could hear a woman and a child crying for help. In particular, the woman was crying that the applicant was wielding a knife and threatening to kill her. The woman asked the applicant to open the door several times, but to no avail. The police officers attempted to negotiate with the applicant. Two neighbours stood nearby and observed the situation.

At 2 a.m. on 15 February 2006 two of S.’s brothers arrived and asked the applicant to open the door, claiming that the police had left. When the applicant unlocked the door the police officers and the brothers burst into the flat, pushing the applicant backwards with the door, which he was trying to shut. The applicant fell onto a chair and the floor, and might have been injured.

In the flat the police officers decided to handcuff the applicant and take him to the police station. As the applicant had a strong constitution and resisted the arrest, the police officers were assisted by S.’s brothers. They twisted the applicant’s arms behind his back and handcuffed him. Once the applicant had been taken to the police station, he started to complain of pain in his right arm. He was then taken to the hospital by ambulance for treatment.

Relying on those facts, the district prosecutor’s office found that the police officers and S.’s brothers had acted lawfully and had had no intention of injuring the applicant. Their intention had been to arrest him and stop his unlawful and dangerous conduct. The recourse to physical force had been lawful and necessary in the circumstances. The fractured arm might have been caused when the applicant resisted the twisting of his arms behind his back; the bruises on his wrists were probably caused by the handcuffs, and the other bruises might have resulted from the applicant’s fall onto a chair and the floor when he was pushed away from the door. The district prosecutor’s office concluded that in those circumstances there had been no corpus delicti in the actions of the police officers and S.’s two brothers.

On 23 March 2007 the Staromiskyy District Court of Vinnytsya upheld the decision of 12 February 2007, finding that the prosecutor’s office had taken all the necessary measures and examined the incident thoroughly, comprehensively and objectively.

On 17 May 2007 and 12 July 2008 the Vinnytsya Region Court of Appeal and the Supreme Court, respectively, upheld the decision of the first-instance court of 23 March 2007.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

The applicant was born in 1948 and lives in Donetsk, Ukraine. According to him, at the material time he had obtained a basic education (середня спеціальна освіта) in law and was working as a police officer.

On the morning of 23 August 2001 the applicant had a fight with D. in the course of which blows were exchanged. At least three people witnessed the fight. After the fight the applicant went to work for a twentyfour hour shift. The next morning D. was found dead in the vicinity of the applicant’s place of work.

According to the applicant, he was arrested on the same day – that is to say 24 August 2001 – and was detained at the police office until the evening of 25 August 2001. The applicant also submits that during this period he was ill-treated by the police, who forced him to plead guilty, and that he was coerced into declining legal representation. The applicant submits that he did not yield to such pressure and did not make any statements nor confess to committing the murder. He further maintains that the police planted evidence against him, putting a blood stain on his shirt.

On 25 August 2001 the local police instituted criminal proceedings against the applicant, charging him with inflicting grievous bodily harm on D., which resulted in his death. At the end of that day the applicant was released, having signed a written undertaking not to abscond.

Between the end of August and the beginning of September 2001 a hoe was found close to the place where D.’s body had been found.

According to the applicant, he was arrested again on 14 September 2001. However, the arrest report refers to 15 September 2001. On 18 September 2001 the Kirovsky District Court of Donetsk (hereafter “the District Court”) extended the applicant’s arrest until 25 September 2001. On the latter date the District Court ordered the applicant’s detention on remand. It is not clear from the applicant’s submissions whether he appealed against that court decision.

On 25 August, 15 September and 18 September 2001 the applicant, having been apprised of his right to legal assistance, declined to exercise this right and wished to defend himself in person. On 2 October 2001 he changed his mind and on 16 October 2001 a lawyer was appointed for him (according to the applicant, however, he was only represented by a lawyer from 6 December 2001).

By November 2001 the investigator had taken a number of investigative steps including an on-site inspection, a post-mortem examination of the victim’s body and other forensic examinations, questioning of the applicant and witnesses, and face-to-face confrontations between the latter and the applicant.

On 26 November 2001 the indictment was approved by the district prosecutor and sent to the District Court.

According to the applicant, the decisive evidence against him, namely the aforementioned bloodstained shirt and the hoe, which was believed to be the murder weapon, were not sealed during the investigation, as required by the relevant rules of procedure, and were later replaced with other items more consistent with the charges against him and consequently more incriminating. He denied the charges.

On 11 December 2001 the District Court took over the case and commenced the trial.

On 25 December 2001 it held the first hearing. The applicant and his lawyer filed several motions and requests, including one to record the hearings using audio and video equipment. In order to arrange the latter, the court postponed the hearings until 12 March 2002.

During the trial the applicant filed numerous further requests (for example, to summon additional witnesses, to familiarise himself with the case file, etc.) and challenged the judge and prosecutor on numerous occasions; as to the charges against him, the applicant pleaded not guilty.

On 10 September 2002, after four hearings, the District Court found the applicant guilty of the murder of D. and sentenced him to eleven years’ imprisonment.

On 9 December 2002, in the course of the applicant’s study of the case file, which at the material time consisted of two volumes, the District Court found that the applicant was abusing this right by requesting simultaneous familiarisation with the court minutes and the audio and video recordings, and challenging the lawfulness of the minutes of the court hearings and how the case file was processed. Eventually on 8 January 2003 the District Court terminated the applicant’s study of the case file. On 27 January 2003 the District Court dismissed the applicant’s complaints concerning the lawfulness of the minutes of the court hearings.

The applicant appealed against the rulings of 8 and 27 January 2003, but the result is not clear. According to the applicant, he was not provided with access to the audio and video records of the court hearings, some of the documents in the case file (for instance, minutes of the court hearings) were drafted in an improper manner (in his view he was not provided with the final version of court minutes but only with a draft version) in illegible handwriting, the case file was improperly processed, etc.

The applicant and his lawyer appealed against the judgment of 10 September 2002, challenging the conclusions of the forensic examinations and the testimonies of a number of witnesses, and alleging procedural shortcomings in the investigation and the trial. They requested discontinuation of the proceedings in question due to lack of evidence of the applicant’s guilt.

On 11 July 2003 the Donetsk Regional Court of Appeal (“the Court of Appeal”), pointing out a number of the inferior court’s shortcomings (for example, failure to establish how D.’s injuries had been caused and how the blood stain had appeared on the applicant’s shirt, failure to address the applicant’s version of events, etc.), found that the applicant’s guilt was not sufficiently proven, and quashed the judgment. Accordingly, the case was remitted for fresh consideration.

On 23 September 2003 the District Court resumed the trial.

As in the course of his first trial, the applicant again filed a large number of mostly unsuccessful requests and complaints (including some concerning the quality of his defence lawyer’s services) and challenged the judges and prosecutor on numerous occasions. The situation culminated on 26 March 2004 when the applicant was expelled from the court room during the hearing because of his shouting and interrupting the proceedings. After ten hearings had been held, at which, it appears, the applicant’s lawyer was present, the applicant was once again allowed to be present at the court hearing on 21 July 2004.

On 13 June 2004 the applicant refused the assistance of his lawyer, alleging the latter’s collusion and incompetence, and on 21 July 2004 the applicant requested that the court appoint another specified lawyer to represent him. The applicant’s lawyer also sought leave to discontinue his services to the applicant, citing the latter’s offensive behaviour and defamatory statements concerning him. On 21 and 30 July 2004 the District Court dismissed all those requests.

According to the applicant, on 30 July 2004 the court interrupted him and prohibited him from finishing his last plea.

According to the applicant, at several points during the trial and retrial he requested the summoning of certain witnesses (in particular, C., the investigator; an unidentified policeman who on 24 August 2001 escorted the applicant to the police station; A., the policeman in whose office on 25 August 2001 his bloodstained shirt had allegedly been produced; S., the policeman who signed the protocol on the examination and seizure of the aforementioned evidence), but to no avail. On several occasions he also unsuccessfully challenged the judges who were examining his case.

In June and July 2004 additional forensic examinations were held.

On 2 August 2004, after nineteen hearings, the District Court, having examined the case before it, found the applicant guilty of D.’s murder and sentenced him to eleven years’ imprisonment. In convicting the applicant, the court took into account:

(a) the eye-witness testimonies to the fight between the applicant and D. on the morning of 23 August 2001. These stated that D. had sustained no injuries from the fight and that the applicant and D. had had these types of conflicts before;

(b) medical evidence of injuries on the applicant’s body. The Court referred to the reports of 25 and 29 August 2001 stating that, according to them, the applicant’s injuries had been caused on “23-24 August 2001” and noted that, according to the applicant’s own explanation to the medical expert, these injuries had been caused by the fight with D. (see paragraph 40 below);

(c) the testimonies of those who discovered D.’s body;

(d) the testimonies by the applicant’s colleagues, according to which the hoe had been at their workplace on 23 August 2001, before the murder, but could no longer be found there on 24 August 2001, after the murder;

(e) the statement by L., the police officer who interrogated the applicant in August 2001, that the applicant had pleaded guilty but refused to confirm his confession in writing;

(f) the forensic cytological examination report of 7 September 2001 according to which the blood stain on the applicant’s shirt “could be from any person, including D.” and was not identified as being the applicant’s blood;

(g) the post-mortem examination report of 15 September 2001 according to which the injuries to D. could have been caused either by a blunt instrument or by a hoe;

(h) the forensic expert report of 9 October 2001 concluding that it was not possible to establish the features of the instrument with which D. was attacked but “the probability that the injuries to D. [had been] caused by the hoe under examination [could] not be excluded”;

(i) the additional forensic expert report of 9 July 2004 stating that blood would not have gushed out of D.’s injuries during the assault but could have spattered onto surrounding objects.

The court also noted that the procedural shortcomings committed during the pre-trial investigation were not so serious as to prejudice its examination of the case. It did not specify those shortcomings. In addition to the judgment, the court on the same day delivered a special ruling (окрема ухвала) informing the superior investigation authorities of the bad faith and negligence of their subordinates in charge of the applicant’s case. In particular, the court noted that, initially, blood and hair samples had been found on the hoe, but these had subsequently been lost by the investigators at the pre-trial stage. In another special ruling given on the same day, the court informed the head of police of its subordinates’ failure to bring the applicant to the courthouse for the hearings scheduled for 9 March, 28 and 29 July and 2 August 2004 notwithstanding the court’s requests; such a failure, according to the court, had delayed the examination of the applicant’s case.

The judgment itself states that the hearing was public and that the defence lawyer was present. According to the applicant, this judgment was pronounced to him “secretly” on 2 August 2004 in the SIZO, that is to say the remand centre, where he was being detained. In support of his claim, the applicant submitted a copy of the District Court’s letter of the same date requesting that the SIZO administration provide them with a room in which to pronounce the judgment to the applicant.

From 7 October 2004 to 28 February 2005 the applicant familiarised himself with the case file. On the latter date the District Court, alleging the applicant’s abuse of this right, terminated the applicant’s study of the case file. On 9 December 2005 the Court of Appeal remitted the case to the District Court so that the applicant could be given additional opportunity to familiarise himself with the case file. The applicant studied the file additionally from 27 April to 6 May 2005.

At this stage of the proceedings the applicant again challenged the lawfulness of the minutes of the court hearings, obliging the District Court to give interlocutory decisions.

The applicant further appealed against the judgment of 2 August 2004. He maintained, inter alia, that the impugned judgment lacked reasoning and had been “secretly” pronounced to him in the SIZO.

On 29 March 2005 the applicant repeatedly refused the assistance of his lawyer, alleging his collusion and incompetence.

According to the Government, on 9 December 2005 the applicant refused legal assistance from any lawyer. On 17 March 2006, after the applicant had changed his mind, the Court of Appeal ordered that a lawyer be appointed for the applicant and for that reason adjourned the hearing until 31 March 2006.

On 31 March 2006 the Court of Appeal, having reiterated the aforesaid pieces of evidence, upheld the judgment of 2 August 2004. It did not address the alleged lack of “publicity” of the criminal proceedings against the applicant as maintained in his appeal.

The text of the appellate court’s decision states that the hearing was held in the presence of the applicant and the prosecutor; no indication of the applicant’s lawyer’s presence at the hearing can be found. However, on the same day the applicant, apparently, filed a written statement before the hearing that he rejected the defence lawyer provided to him, and he did not request another one.

On 25 October 2007 the Supreme Court of Ukraine, sitting in camera, rejected the applicant’s appeal on points of law. According to the applicant, he familiarised himself with that decision on 28 November 2007.

According to the applicant, on 24 and 25 August 2001 he was “beaten” (“избивали”) by police officers and threatened and psychologically pressurised by the investigator, who allegedly coerced him into pleading guilty.

On 25 August 2001 a forensic medical expert examined the applicant, found some bruises on his shoulders and right elbow, and classified them as light ones. Forensic expert report no. 2948 (акт судовомедичного освідування) concluded that these injuries had been caused two or three days before the examination, during a fight or in selfdefence. The report contains a typed statement by the expert to the effect that during the examination the applicant had said that he had sustained the injuries in the course of the fight with the victim. The applicant denies that he had made that statement.

On 29 August 2001, following an order from the investigator, the same expert re-examined the applicant and came to the same conclusion, stating additionally that the injuries could have been caused between 23 and 24 August 2001 (forensic expert report no. 2948/787).

On 9 November 2001 the prosecutor, having examined the matter proprio motu as required by domestic law, noted that, as the injuries caused to the applicant were light ones, the investigation of such offences was a matter for private prosecution. In the absence of a corresponding complaint by the applicant, the prosecutor refused to institute criminal proceedings.

According to the Government, the applicant had not complained to the prosecutor of ill-treatment by the police and the investigator until 15 December 2001. In his description of ill-treatment the applicant stated that on 24 August 2001 L. had exerted pressure under the applicant’s ear with his finger, had slapped him with the palm of his hand on his forehead and had hit him on the nose with a passport; at the same time another police officer had pushed the applicant in the back with his hand, and had punched him below the knee and on his head. In reply, on 26 December 2001, after holding a preliminary inquiry, the prosecutor refused to institute criminal proceedings, finding no prima facie case. The applicant states that no copies of that or any other decisions on the matter were served on him and he could therefore not challenge them before the domestic courts.

Subsequently the applicant repeatedly asked the prosecutor to institute criminal proceedings against certain specified policemen and the investigator, but to no avail. In particular, the decision of 26 December 2001 was set aside and an additional investigation was ordered; eventually, by decisions of 13 April and 20 June 2002 the prosecutor refused to institute criminal proceedings, finding no corpus delicti in the behaviour of the investigator or the police officers. In particular, in reaching her conclusions in the latter decision the prosecutor took into account:

- the conclusions in the forensic report of 25 August 2001 (see paragraph 40 above), namely that the injuries had been caused before the applicant first came into contact with the police;

- the report of 12 June 2002 from the ITT (the police detention facility) that in the period from 15 to 18 September 2001 no bodily injuries had been found on the applicant;

- the report of 29 December 2001 from the SIZO (the remand prison), according to which the applicant did not complain and had no bodily injuries upon arrival;

- the explanations offered by the police officers and the investigator against whose actions the applicant had complained.

The applicant did not appeal against these decisions. According to the Government, both decisions were sent to the SIZO for the applicant’s information. According to the applicant, he was served with a formal notification that the prosecutor had refused to institute criminal proceedings but not with copies of the relevant decisions. On several occasions he asked to be provided with the copies of the relevant prosecutor’s decisions (among others, letters no. Л247 sent on 25 May 2004; no. Л343 sent on 20 July 2004; no. Л23 sent on 18 January 2005; no. Л31 sent on 21 May 2008). In fact, a copy of the decision of 20 June 2002 was not sent to him until 11 June 2008.

During the trial the applicant also complained that he had been illtreated, without however alleging that this treatment resulted in a statement and a confession. On 10 September 2002, in the course of examining the charges against the applicant, the District Court declared the complaint to be unfounded.

On 11 July 2003 the Court of Appeal remitted the criminal case against the applicant for fresh consideration, pointing out the inferior court’s failure to address the applicant’s complaints of ill-treatment.

In its judgment of 2 August 2004 the District Court referred to the applicant’s injuries in the terms set out in paragraph 28 (b) above.

On 9 December 2005, having examined the applicant’s appeal against the judgment of 2 August 2004, the Court of Appeal remitted the case to the District Court and ordered the local Prosecutor’s Office to hold an inquiry into the applicant’s complaints of alleged ill-treatment in the course of the pre-trial investigation. On 7 February 2006 the District Court remitted the case to the prosecutor in compliance with the appellate court’s instructions. According to the Government, the prosecutor sent the copies of the earlier decisions of 13 April and 20 June 2002 to the court and the latter was satisfied with them.

In their decisions of 31 March 2006 and 25 October 2007 the Court of Appeal and the Supreme Court of Ukraine, respectively, rejected the applicant’s complaints of ill-treatment as unsubstantiated (see paragraphs 36 and 38 above).

In the course of the criminal proceedings against the applicant, the applicant or his lawyer applied to the courts on several occasions for release (at least on 27 November and 3 December 2001, 27 August and 21 September 2002) but it is not clear whether the courts examined their requests.

On 23 September 2003 the defence lawyer requested that the District Court release the applicant. He argued that the applicant had had no previous convictions, had his permanent residence in Donetsk and had not gone into hiding during the initial stage of the proceedings against him, had not obstructed the investigation, and that the suspicions raised in the detention order were no longer justifiable. The applicant’s lawyer also referred to the principle of the presumption of innocence. On 27 February 2004 the District Court dismissed the request, limiting its reasoning to a statement that “there [were] no grounds for replacing the applicant’s detention on remand with a non-custodial preventive measure”. In the operative part the court noted that its decision could be appealed against to the Court of Appeal.

In judgments of 10 September 2002 and 2 August 2004 the District Court and in rulings of 11 July 2003 and 9 December 2005 the Court of Appeal (see paragraphs 17, 28, 21 and 31 respectively) ordered, without any argumentation, that the applicant should remain in detention; they did not specify any time-limit for his detention.

On an unspecified date the applicant requested that the local police and the Prosecutor’s Office institute criminal proceedings in respect of the theft of his property which allegedly took place following his detention in 2001. In February 2002 the local police refused to institute the requested proceedings. Subsequently this decision was quashed and the preliminary inquiry was resumed several times. On 12 October 2006, the latest available decision, the local police again refused to institute the requested proceedings.

The applicant did not appeal against these refusals to a court.

On an unspecified date the applicant requested the local department of the State Pension Fund (hereafter “the SPF”) to grant him a pension in so far as he was eligible due to his age. In a letter of 6 July 2006 the local department of the SPF replied that the applicant was not entitled to a pension under national law as long as he was serving a prison sentence.

On 16 August 2006 the local department of the SPF stated that the applicant would be entitled to a pension upon his release from prison.

It appears that the applicant did not challenge the aforesaid refusals before any domestic court.