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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano

The applicants were or still are detained in Chios Prison, either in pre-trial detention or serving prison sentences. The first to fifth applicants and the tenth and thirteenth applicants were placed in cell no. 9, the sixth to ninth applicants and the eleventh and twelfth applicants were placed in cell no. 5, and the fourteenth applicant was placed in cell no. 3.

The fifth applicant was transferred to Korydallos Prison on 10 September 2013, the seventh applicant was released on 29 October 2013 and the ninth applicant was released on 4 September 2013.

The applicants submitted that Chios Prison was overcrowded, resulting in a situation where each inmate was allocated approximately 2 sq. m of personal space. The prison consisted of six cells which each had fifteen beds and five mattresses on the floor, and three cells which each had ten beds. As regards the cells in which the applicants were held, their measurements were as follows: cell no. 3 measured 10 sq. m. and accommodated six detainees, cell no. 5 measured 40 sq. m. and accommodated twenty detainees, and cell no. 9 measured 20 sq. m. and accommodated ten detainees. The sixth, eighth and ninth applicants slept on the floor, which was standard practice for other inmates as well.

The applicants pointed out that the toilets in the cells were not partitioned off from the rest of the cells, and there was no hot water. Filthiness of the cells, in addition to overcrowding, exposed the inmates to contagious diseases and created various psychological problems, in respect of which no medical treatment was provided. Detainees lacked access to adequate dental care.

The applicants stressed that inmates were not sufficiently separated according to their health conditions or according to whether they were in pre-trial detention or serving prison sentences, as was required by the Penal Code.

The applicants also contended that they were confined to their cells for sixteen to seventeen hours per day, in the absence of any recreational or educational activities.

Meals, which were insufficient and of poor quality, were served in the cells and consumed on the beds.

On 29 August 2013 the applicants lodged a complaint with the Prison Board, arguing that the conditions of their detention were very poor, but did not receive any reply.

The Government submitted that Chios Prison consisted of nine cells, each furnished with a table, stools, a fridge, cooking stoves, wardrobes and a television. Cells were sufficiently ventilated and heated and had adequate natural light. Additionally, they were regularly cleaned and disinfected.

In respect of prison overcrowding, the Government argued that the prison had accommodated 142 inmates at the time the applicants had lodged their application with the Court, only slightly exceeding its capacity of 120 detainees.

All detainees had access to adequate medical care provided by the prison doctor. In case of emergency, or when a serious incident occurred, detainees were transferred to Chios General Hospital or Korydallos Prison Hospital in Athens. Those suffering from contagious diseases were held separately or transferred to hospital. The Government provided information showing that some of the applicants had had consultations with doctors in respect of various conditions.

There were fifty available places for detainees who wished to work. In addition, detainees had the opportunity to attend educational programmes or other recreational activities which were scheduled from time to time. Most of the applicants participated in some of the educational courses.

As regards prisoners’ meals, the Government submitted a menu from a week selected at random to demonstrate that meals were varied.


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

All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).


CASE OF YORDANOVA AND OTHERS v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicants were born in 1937, 1934 and 1941 respectively. The first and third applicants live in Sofia.

The applicants’ fathers owned printing houses in Sofia, which were nationalised by the Communist authorities in 1949 and 1950. After that their assets were taken over by a State-owned printing house. In 1991 the latter was registered as a State-owned company, currently named ‘Obrazovanie i nauka’ EAD. The company is managed by the Minister of Education. Among the tasks of the company is the printing of school textbooks.

In 1997 Parliament adopted the Compensation of Owners of Nationalised Real Property Act (hereinafter “the Compensation Act” – see paragraph 23 below).

In March 1998 the first and second applicants and their mother applied under the Compensation Act to receive compensation for the nationalised printing house. As to the manner of compensation, they expressed preference to receive shares in ‘Obrazovanie i nauka’ EAD. In a decision of 14 June 1999 the Minister of Education allowed their request, stating that the exact number of shares to be awarded would be determined after a valuation of the assets of the former printing house.

Despite that, in another decision dated 3 July 2000 the Minister rejected the request for compensation. That decision was quashed by the Supreme Administrative Court in a final judgment of 24 June 2002, on the ground that it impermissibly modified the previous one, which had become final.

After that an expert prepared a valuation of the nationalised property, which was confirmed by the Minister of Education on 5 June 2003. It stated that the first and second applicants and their mother were entitled to compensation for 57,932 Bulgarian levs (BGN, equivalent of 29,630 euros (EUR)), which equalled 579 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100 (EUR 51).

However, on 26 August 2003 the Minister adopted another decision, stating that the applicants and their mother were to receive compensation bonds instead of shares. He relied in particular on the fact that ‘Obrazovanie i nauka’ EAD had been included in the list under section 11 of the concluding provisions of the Privatisation and Post-Privatisation Control Act 2002 (hereinafter “the Privatisation Act” – see paragraph 24 below). Once again, that decision was quashed by the Supreme Administrative Court, in a final judgment of 18 October 2004, as it impermissibly modified the previous decisions awarding the first and second applicants and their mother compensation in the form of shares, which had become final. The domestic court held in particular that section 11 of the concluding provisions mentioned above could not justify such a modification.

In 2006 the first and second applicants and their mother filed with the Minister of Education and other State bodies several complaints, requesting that the compensation procedure be completed. In a letter dated 7 April 2006 the Council of Ministers (Government) informed them that the Ministry of Education was seeking “a lawful solution”, which “would not infringe upon the public interest and would not be in breach of the [Privatisation Act]”. In another letter dated 30 August 2006 the parliamentary Committee on Petitions informed the applicants and their mother that it had urged the Minister of Education to find a solution, pointing out that with the enactment of the Compensation Act Parliament had sought “to restore historical justice”.

The first and second applicants’ mother passed away in 2007 and was succeeded by them.

In August 1998 the third applicant, her mother and her sister applied under the Compensation Act to receive compensation for the nationalised printing house. They stated that they preferred to receive shares in ‘Obrazovanie i nauka’ EAD.

Their request was allowed by the Minister of Education in a decision of 22 December 1998.

In 1999, 2001 and 2003 an expert drew up three valuations of the expropriated property. The last of them, stating that the third applicant, her mother and her sister were entitled to compensation for BGN 26,309 (the equivalent of EUR 13,460), equalling 263 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100, was confirmed by the Minister of Education on 6 June 2003.

Despite the above developments, in another decision dated 26 August 2003 the Minister stated that the third applicant, her mother and her sister were to receive compensation bonds instead of shares. As in the procedure described above concerning the first and second applicants, he relied on the fact that the company had been included in the list under section 11 of the concluding provisions of the Privatisation Act (see paragraph 24 below). That decision was quashed by the Supreme Administrative Court in a final judgment of 31 March 2004, on the ground that it impermissibly modified the previous decisions concerning the compensation to be provided, which had become final. The domestic court again held that section 11 of the concluding provisions mentioned above could not justify such a modification, as it was not applicable to pending compensation proceedings.

The third applicant’s mother and sister passed away in 2006 and 2004 respectively, leaving the third applicant her father’s only surviving heir.

In 2007 the Ministry of Education requested the Privatisation Agency to authorise the transfer to private parties of shares in ‘Obrazovanie i nauka’ EAD. The authorisation, related to the claims of all applicants, was given on 23 April 2008.

The Ministry took no further measures to complete the compensation procedures.

In 2011 the third applicant wrote a letter to the executive director of ‘Obrazovanie i nauka’ EAD, urging him to enter into the company register her shareholding and to present to her copies of all decisions taken by the company’s general meeting after 2003. She received no response.

In a decision of 5 March 2013 the Council of Ministers authorised the sale by ‘Obrazovanie i nauka’ EAD of real properties owned by the company (such an authorisation was required by law). The applicants applied for the judicial review of that decision, arguing that it affected their rights as shareholders. In a judgment of 27 January 2015 the Supreme Administrative Court dismissed their application, noting that they were not shareholders in the company, since the compensation procedures had not been completed with the actual transfer of shares to them in accordance with the law.


CASE OF PARTNERS 2000 KFT AND OTHERS v. HUNGARY

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

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

The first applicant, Partners 2000 Kft, is a Hungarian limited liability company with its seat in Nyárliget. It is owned and run by the second applicant. The second applicant is a Hungarian national, who was born in 1972 and lives in Sopron. The third applicant is the second applicant’s wife, who was born in 1973 and lives in Sopron. The fourth applicant is the second and third applicants’ minor child, born in 2000.

On 11 September 2012 Parliament enacted Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail. The Act was published on 24 September 2012.

According to the Act, tobacco retail was to become a State monopoly (exercised through a State-owned company, ND Nemzeti Dohánykereskedelmi Nonprofit Zrt), and tobacco retailers would become authorised through a concession tender, advertised on 15 December 2012. The time-limit for applying was 22 February 2013.

Entities or persons previously engaged in tobacco retail had no privileges in the tender. Legal persons were not entitled to apply.

The Act was subsequently amended on several occasions, and the final version was enacted on 6 June 2013, with entry into force on 1 July 2013. Government Decree no. 181/2013. (VI.7.), which contained the detailed rules for the operations of the future concession-holders, was published on 8 June 2013, that is, after the completion of the tendering process, the results of which had become public on 22 April 2013. The decision about the tenders was taken by ND Zrt itself.

The first applicant, Partners 2000 Kft had been active in tobacco retail for several years. Since, however, it was not entitled to apply for a concession under the new law, the second applicant applied personally for one, on several occasions. However, ND Zrt turned down his applications, informing him that he had not obtained a tobacco retail concession. The decisions said that his applications did not fully meet the requirements, without developing the shortcomings.

No compensation is available for ex-tobacco-retailers who, by not being awarded a concession, lost part of their livelihood. The refusals, such as those of Mr Györkös, were not subject to any legal remedy.

The applicants submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand, in non-comparable situations – were granted concessions, which difference in treatment cannot be explained by any circumstance other than political adherence.


Preliminary objections dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione materiae;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1973 and lives in Bucharest. He is a lawyer.

In a judgment of 25 May 2011, the Bucharest Court of First Instance sentenced him to seven years’ imprisonment for embezzlement and forgery. On 1 December 2011 he was imprisoned in the police station’s detention facility in Bucharest (Centrul de reţinere şi arestare preventivă nr. 2 – secţia 4 Poliţie), where he started serving his sentence. The judgment of the Court of First Instance was upheld by a final judgment of the Bucharest Court of Appeal of 25 November 2011, which was finalised on 25 May 2012.

The applicant lodged two applications for a stay of execution of sentence under Article 453 § 1 b) and c) of the former Code of Criminal Procedure (“the CCP”) (see paragraph 22 below). He submitted that he was married and had a child who was only a few months old, born on 19 May 2011, whom he wanted to look after, and that his family were experiencing financial and social difficulties on account of his detention.

In a judgment of 27 March 2012, the Bucharest Court of First Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by Article 453 § 1 b) of the CCP for convicted mothers up to their child’s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy. It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by Article 453 § 1 c) of the CCP to allow a deferral of sentence, especially as they had existed prior to his placement in detention.

On appeal by the applicant, the Bucharest County Court upheld the judgment of the Court of First Instance in a judgment of 7 May 2012.

In a judgment of 13 June 2012, the Bucharest Court of First Instance dismissed the second application lodged by the applicant under Article 453 § 1 c) of the CCP on the grounds that the statutory conditions were not satisfied. In particular, the court found that enforcement of the sentence did not endanger the applicant’s personal or family situation. In a judgment of 17 July 2012, the Bucharest County Court dismissed an appeal by the applicant against that judgment.

The applicant was detained in a number of different prisons, including the Bucharest police detention facility (from 1 to 13 December 2011), BucharestRahova Prison (from 13 to 19 December 2011, 21 December 2011 to 9 January 2012 and 17 January 2012 to 30 January 2013), Mărgineni Prison (from 9 to 17 January 2012) and Giurgiu Prison (from 30 January to 25 February 2013 and from 11 March to 26 September 2013).

With regard to the Bucharest police detention facility, the applicant stated that he had been detained there with three other detainees, in cell no. 1, which he said measured 1.80 x 2 sq. m. He said that the cell had only one window, measuring 30 x 40 sq. cm, which had two rows of bars across it and therefore did not let natural light in. He added that the toilets were dirty and separated from the rest of the cell only by a curtain. Lastly, he stated that running water was available only two hours per day.

With regard to BucharestRahova Prison, the applicant said that he had been detained in cell no. 209 with eight other detainees. He said that the cell measured 3.20 x 5.80 sq. m and had only one window, measuring 1 x 1.20 sq. m, with bars and a grille and thus no natural light. He added that the cell had been damp and had an unpleasant smell.

With regard to Mărgineni Prison, he stated that he had been detained there with twenty-four other detainees in a 2 x 6. sq. m. cell and that there had been no running water.

Regarding Giurgiu Prison, he said that he had been detained in an overcrowded cell. He alleged, among other things, that hot water had only rarely been available and that the mattress and bed linen had been dirty. He also complained of the presence of cockroaches, rats and bed bugs.

The Government stated that in the Bucharest police detention facility the applicant had been held in a 10.68 sq. m cell containing four bunk beds, a television, natural light and toilets measuring 2.5 sq. m.

At Bucharest-Rahova Prison the applicant had been successively detained in seven cells, varying from 19.30 sq. m to 19.58 sq. m in size and containing ten bunk beds. They added that the cells were equipped with toilets, a kitchenette and ventilation and had natural light.

At Mărgineni Prison the applicant’s cell had measured 28.35 sq. m and contained twenty-one beds. They specified that it was equipped with toilets, a kitchenette, ventilation and natural light.

At Giurgiu Prison the applicant had been detained successively in four cells, varying from 20.35 sq. m to 20.96 sq. m in size and containing space for six detainees. They contained individual beds, a table allowing the inmates to eat their meals together, three bedside tables, a small bench, a television socket and a shoe cupboard. They added that the cells all had toilets measuring 4.03 sq. m, but did not specify whether these were included in the cell area. They stated, lastly, that the cells and the laundry provided to inmates were in good condition.


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

The applicant, Mr Veselin Angelov Dinchev, is a Bulgarian national, who was born in 1952 and lives in Sofia. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice.

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

The applicant brought civil proceedings against his former employer, claiming that he had been dismissed unlawfully. He asked to be reinstated and sought damages of over 11,000 Bulgarian levs (BGN corresponding to about EUR 5,500). His claim was rejected at first instance by the Sofia District Court, but granted almost in its entirety on appeal by the Sofia City Court on 17 March 2005.

The other party, his former employer, a company, appealed in cassation in May 2005. The applicant submitted a written response to the cassation appeal. His response was dated 21 July 2005; it was received at the Sofia City Court on 25 July 2005. The file was then sent by the Sofia City Court to the Supreme Court of Cassation (“the SCC”) for examination. The SCC gave the file a number in September 2005 and scheduled a hearing for 9 December 2008.

In the meantime, a new Code of Civil Procedure was adopted in July 2007, a major part of which was to enter into force on 1 March 2008. According to paragraph 2 (4) of the Code’s Transitional and Concluding Provisions, all labour disputes pending before the SCC and in which a hearing had been scheduled for later than 30 June 2008 had to be transferred to “the appropriate court of appeal”.

On 7 August 2007 the SCC terminated the proceedings before it and sent the case to the Sofia Court of Appeal (“SCA”) for information and action. The applicant was not informed of the transfer of the case to the SCA and the applicant’s written response to the cassation appeal of his former employer was not transmitted to the SCA.

On 6 and 19 February 2008 the SCA sent two letters to the other party, the applicant’s former employer, informing the company that the proceedings in the case it had brought would be terminated if it failed to pay the requisite court fee. The company replied on 5 March 2008 that it had paid the fee.

The SCA scheduled a hearing for 27 May 2008. It notified the parties of the hearing via publication in the State Gazette, in accordance with the applicable legal provision (see paragraph 13 below). The record of the hearing showed that the SCA had noted that the parties had been regularly notified and had not sent representatives, and also that the case was ready for decision.

The SCA examined the company’s cassation appeal on the merits. It delivered a final judgment on 23 July 2008, quashing the decision of the Sofia City Court which had upheld the applicant’s claim. The SCA noted in its judgment that the applicant had made no submissions in respect of the arguments and claims put forward in the cassation appeal. The court then observed that, taking into account the submissions of the company and the available information in the case file, the company’s counterclaims against the applicant were justified. The SCA found in favour of the applicant’s former employer.

The applicant only learned about this decision in November 2008 when he inquired at the SCC’s registry about the date of the hearing in his case before the SCC, as he had repeatedly done on previous occasions in 2006 and 2007. Until then he believed the hearing was going to take place on 9 December 2008 as scheduled and as the SCC’s website continued to indicate at the time.

A new Code of Civil Procedure (“the 2007 Code”) was adopted in July 2007 and the larger part of it entered in force on 1 March 2008. According to paragraph 2 (5) of the Code’s Transitional and Concluding Provisions, cassation appeals in labour disputes concerning unlawful dismissals, which were pending before the SCC and in which a hearing had been scheduled for a date subsequent to 30 June 2008, had to be transferred to “the competent court of appeal”.

Article 218d of the Code of Civil Procedure 1952 (“the 1952 Code”), in force until 1 March 2008, provided that before the end of each month the SCC should publish in the State Gazette the dates on which it would hold hearings and the cases to be heard during the following month. The second sentence in that provision stated that “when the circumstances so required, the parties received notice of the hearing”. This was reproduced in Article 289 of the 2007 Code.

The general rules for summoning to court hearings can be found in Article 41 to Article 52 of the 1952 Code and in Article 37 to Article 55 of the 2007 Code. Those stipulate, inter alia, that a court notice or a summons has to be delivered in person or via an intermediary, by a court clerk or by registered mail, at the address given in the case.

Article 303 of the 2007 Code provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata. Requests for reopening are examined by the SCC (Article 234, the 2007 Code). Reopening can be requested within three months as from the moment in which a party became aware of the facts that would serve as a ground for the reopening (Article 305, the 2007 Code). Reopening in such cases can be requested on the basis of specific grounds, which are exhaustively listed in the 2007 Code.

Article 303 § 1(5) of the 2007 Code (and before that Article 231 § 1e of the 1952 Code) stipulates in particular that a party to a case can seek reopening when in breach of the relevant rules the party has been deprived of the opportunity to take part in the proceedings and has not been adequately represented, or when the party could not appear in person or be represented before the court for reasons beyond that party’s control.

In an interpretative decision, delivered by a plenary of the court and binding all courts, the SCC clarified in 2004 the type of circumstances necessitating a departure from the special procedure for summoning to a cassation hearing (тълк. реш. № 2 от 2.07.2004 г. по тълк. гр. д. № 2/2004). It held that failure in such cases to summon the parties in accordance with the general rules for summoning (see paragraph 14 above for those rules) could be a ground for allowing reopening of the proceedings. Such circumstances include the rescheduling of a hearing for a new date, despite the initial summoning to a different date having been fully in compliance with the legal requirements. In another interpretative decision of 2017 the SCC further clarified that the party seeking reopening of the proceedings is allowed to submit evidence before the SCC in support of his or her claim that the circumstances justified reopening (тълк. реш. № 7 от 31.07.2017 г. по т. д. № 7/2014, ОСГТК).

The SCC has allowed requests for reopening on the above-indicated grounds in a number of decisions (see, among many others, реш. № 10 от 9.02.2010 на ВКС по гр. д. № 973/2009 г., ГК; реш. № 689 от 30.12.2010 на ВКС по гр. д. № 1731/2009 г., ГК; реш. № 329 от 10.10.2012 на ВКС по гр. д. № 289/2012 г., ГК; реш. № 338 от 27.12.2013 на ВКС по гр. д. № 5550/2013 г., ГК), including in comparable circumstances to those of the applicant in the present case (реш. № 480 от 1.10.2009 на ВКС по гр. д. № 2194/2008 г.). In two other decisions in cases with similar circumstances to those of the applicant, different formations of the SCC found that there were no grounds for reopening in the specific circumstances of these cases and did not allow it (see реш. № 500 от 7.10.2009 по гр. д. № 4318/2008, II ГК; реш. № 798 от 28.10.2009 по гр. д. № 3714/2008, IV ГК).


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

The applicant, Ms Danica Lorger, is a Slovenian national who was born in 1955 and lives in Ljubljana. She was represented before the Court by Odvetniška Pisarna Tine Šnajder Paunović, a law firm practising in Ljubljana.

On 22 December 2009, following her dismissal from work, the applicant brought a claim against her former employer in the Ljubljana Labour Court, requesting that the dismissal be declared unlawful and that she be reinstated to her previous position. She alleged, inter alia, that her previous employer had transferred its entire printing business to another company, and that this company (by virtue of the applicable labour law) had a duty to assume the contractual obligations of her previous employer.

On 29 November 2010 the Ljubljana Labour Court dismissed the applicant’s claim, having established that her employer had in fact closed its printing business and terminated the employment contracts of all its employees in the printing department. The court found that the termination was justified, having regard to the circumstances. Moreover, it held that the applicant’s previous employer had not transferred its printing business, but had merely sold the printing equipment to another company.

The first-instance judgment included information on legal remedies and drew the applicant’s attention to the fact that the provisions of the Civil Procedure Act concerning the amendment and perfection of pleadings did not apply to appeal proceedings.

On 14 January 2011 the applicant lodged an appeal with the Higher Labour Court.

On 6 September 2011 the Higher Labour Court dismissed the applicant’s appeal, finding that the first-instance judgment did not contain any error of fact or law. The court confirmed that the sale of the printing equipment had not constituted a transfer of the business, and that the applicant was therefore not entitled to continue her employment with the new owner of the equipment.

On 9 November 2011 the applicant lodged an appeal on points of law. The appeal document was submitted with a power of attorney, which was given for the specific purpose of lodging the appeal in the applicant’s case. The power of attorney was signed by the applicant and her lawyer. The appeal document itself bore the lawyer’s stamp, but was not signed by either the applicant or her lawyer.

On 6 February 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible for failure to meet the formal requirements. The court explained that sections 335 and 383 of the Civil Procedure Act set down minimum requirements for appeals on points of law: identification of the judgment which was subject to appeal and a signature of either the appellant or the lawyer. The Supreme Court noted that the appeal on points of law was not signed by either the applicant or her lawyer, rendering it incomplete. According to the rules of civil procedure, an incomplete appeal on points of law was to be rejected forthwith, without a party being given the opportunity to perfect it.

On 19 April 2012 the applicant lodged a constitutional complaint with the Constitutional Court, alleging that one of the component parts of the appeal on points of law was the original power of attorney signed by both herself and her lawyer. The applicant was of the view that the sanction of rejecting her appeal on points of law constituted an excessive interference with her right to judicial protection and her right of appeal. The applicant pointed out that the Supreme Court’s rejection had precluded her right to appeal, as the time-limit for lodging an appeal had meanwhile expired. In her opinion, in labour dispute cases such as her own, where workers, as the weaker parties, were aiming to protect their socioeconomic status, they should not be made to suffer such grave consequences. In this connection, the applicant claimed that the interference complained of was disproportionate to the aim pursued by the legislature. According to a parliamentary bulletin containing draft laws and explanatory commentary, the 2008 amendment to the Civil Procedure Act – which had, inter alia, removed the possibility of amending or perfecting incomplete pleadings in appeal proceedings – had been passed with a view to tackling the backlog of cases pending before the higher courts, thereby guaranteeing a party’s right to trial within a reasonable time. The applicant, however, pointed out that the rule on the immediate rejection of incomplete pleadings did not affect an appellant’s duty to pay court fees. While the higher courts continued to call upon appellants to pay fees instead of rejecting their applications forthwith, the applicant had not been afforded the possibility of remedying the procedural defect in her appeal on points of law. Having regard to the unchanged rules regarding the payment of fees, the applicant maintained that the rule in question did not in fact pursue the legitimate aim of accelerating proceedings.

On 12 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant.

The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07, with a further amendment passed on 9 May 2008, Official Gazette no. 45/08) state:

In extraordinary judicial review proceedings, a party may only perform procedural steps through a representative who is a practising lawyer.”

“If pleadings are unclear or do not contain all of the information necessary for proceeding with the case, the court shall request the person submitting the pleadings to amend or perfect them. ...

Upon ordering the amendment or perfection of pleadings, the court shall fix a time-limit for such changes.

If the pleadings are not amended or perfected so as to be capable of being dealt with, the court shall reject them.

“An appeal shall contain

a reference to the decision which is subject to appeal;

a statement as to whether the decision is being challenged in whole or in part;

the grounds of appeal; and

the signature of the appellant.”

“In appeal proceedings, the provisions of section 108 of this Act concerning the amendment or perfection of incomplete pleadings are not applicable.

“An out-of-time, incomplete or inadmissible appeal shall be rejected by order of the presiding judge of the court of first instance without a hearing.

An appeal is incomplete if it does not contain the elements referred to in the first and fourth points of section 335 of this Act.

“When the case file for the appeal arrives at the court of second instance, the reporting judge shall decide whether the appeal is ... complete ... An incomplete ... appeal shall be rejected by order of the reporting judge, if the presiding judge of the panel of the court of first instance has not already done so (section 343).

“An appeal on points of law may be lodged against a final judgment of a court of second instance within thirty days of service of a transcript of the judgment (in the case of a statutorily permitted appeal), or within fifteen days of service of a Supreme Court decision granting leave to appeal (in cases of leave to appeal).

An appeal on points of law shall be permitted if the value of the subject of the part of the final judgment which is in issue exceeds EUR 40,000 (statutorily permitted appeal).

If an appeal on points of law is not permitted under the provisions of the preceding subsection, it may only be lodged if leave to appeal is granted by the court under section 367.a of this Act.

“An appeal on points of law may be lodged:

on the grounds of a violation of the essential requirements of civil procedure referred to in the second subsection of section 339 of the present Act, except where the violation concerns an issue of territorial jurisdiction ... or arbitration agreement ..., or if the judge of the court of first instance has given a judgment without hearing the case ..., or if the court has adjudicated upon a claim which is subject to another action which is pending ..., or if the public has been wrongfully excluded from the substantive hearing ...;

on the grounds of a violation of the essential requirements of civil procedure referred to in the first paragraph of section 339 of this Act in the proceedings before the court of second instance; or

on the grounds of a violation of substantive law.

An appeal on points of law may not be lodged on the grounds of erroneous or incomplete determination of the facts.

“If not otherwise provided for in sections 367-382, the provisions of this Act concerning appeals against judgments (sections ... 335, 336) ... shall be applicable mutatis mutandis to proceedings concerning appeals on points of law.”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Serbia);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants were born on 1 January 1983 and 3 June 1980 respectively. Having left their home country, Bangladesh, they travelled through Pakistan, Iran, and Turkey, and entered the territory of the European Union in Greece. From there, they transited through the former Yugoslav Republic of Macedonia to Serbia. Mr Ilias spent some 20 hours on Serbian territory; whereas Mr Ahmed two days. At last, on 15 September 2015 they arrived in the Röszke transit zone situated on the border between Hungary and Serbia. On the same day, they submitted applications for asylum.

From that moment on, the applicants stayed inside the transit zone, which they could not leave in the direction of Hungary. They alleged that the transit zone was, in their view, unsuitable for a stay longer than a day, especially in the face of their severe psychological condition. They were effectively locked in a confined area of some 110 square metres, part of the transit zone, surrounded by fence and guarded by officers; and were not allowed to leave it for Hungary. They claimed that they had no access to legal, social or medical assistance while in the zone. Moreover, there was no access to television or the Internet, landline telephone or any recreational facilities. They submitted that they stayed in a room of some 9 square metres containing beds for five.

The Government submitted that the containers measured 15 square metres. There were five beds in each container and an electric heater. The number of asylum-seekers never exceeded thirty in the material period. Hot and cold running water and electricity were supplied. Three pork-free meals were available daily to the applicants in a dining-container. Medical care was available for two hours daily by doctors of the Hungarian Defence Force.

According to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) (see paragraphs 36 below), asylum seekers in the Röszke zone were accommodated in rooms of some 13 square metres in ground surface that were equipped with two to five beds fitted with clean mattresses, pillows and bedding. The accommodation containers had good access to natural light and artificial lighting, as well as to electric heating. Further, there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during the day. The sanitary facilities were satisfactory. The CPT delegation had a good impression of the health-care facilities and the general health care that was provided to foreign nationals in the establishment.

The applicants, both illiterate, were interviewed at once by the Citizenship and Immigration Authority (“the asylum authority”). By mistake, the first applicant was interviewed with the assistance of an interpreter in Dari, which he does not speak. Both applicants’ mother tongue was Urdu. According to the record of the meeting, the asylum authority gave the first applicant an information leaflet on asylum proceedings, which was also in Dari. The interview lasted two hours. An Urdu interpreter was present for the second applicant’s interview, which lasted 22 minutes.

According to the notes taken during the interviews Hungary was the first country where both applicants had applied for asylum.

By a decision delivered on the very same day of 15 September 2015, the asylum authority rejected the applicants’ asylum applications, finding them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree no. 191/2015. (VII.21.) on safe countries of origin and safe third countries (“the Government Decree”, see paragraph 33 below). The asylum authority ordered the applicants’ expulsion from Hungary.

The applicants challenged the decision before the Szeged Administrative and Labour Court. On 20 September 2015 the applicants, through representatives of the Office of the United Nations High Commissioner for Refugees (“UNHCR”) who had access to the transit zone, authorised two lawyers acting on behalf of the Hungarian Helsinki Committee to represent them in the judicial review procedure. However, the authorities did not allow the lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing.

On 21 September 2015 the court held a hearing regarding both applicants with the assistance of an Urdu interpreter. Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined.

The court annulled the asylum authority’s decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum proceedings more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a “safe third country” with the assistance of legal counsel.

On 23 September 2015, at the request of their lawyers, a psychiatrist commissioned by the Hungarian Helsinki Committee visited the applicants in the transit zone and interviewed them with the assistance of an interpreter attending by telephone. Her opinion stated that the first applicant (Mr Ilias) had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. When he refused, he was attacked and suffered injuries. The psychiatrist observed that he was well oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (“PTSD”).

With regard to the second applicant (Mr Ahmed), the medical report stated that he had fled his country five years before. He had previously worked abroad, during which time his whole family had died in a flood. He had then left Bangladesh and migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression.

Neither of the reports contained any indication of urgent medical or psychological treatment. However, the psychiatrist was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement.

According to the documents in the case file, on 23 September 2015 the asylum authority informed the applicants’ legal representatives by telephone that a hearing would be held two days later. However, the applicants submitted that no such precise information had been given to their representatives.

Since their legal representatives were not present at the hearing, the applicants decided not to make any statement. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the presumption of Serbia being a safe third country.

On 28 September 2015 the applicants’ legal representatives made submissions to the asylum authority and requested that a new hearing be held, which they would attend.

On 30 September 2015 the asylum authority again rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of “persons deserving special treatment” since they had not revealed any special need that could not be met in the transit zone. As to the status of Serbia being classed as a “safe third country”, the asylum authority noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case, thus they had not managed to rebut the presumption. As a consequence, the applicants’ expulsion from Hungary was ordered.

The applicants sought judicial review by the Szeged Administrative and Labour Court. On 5 October 2015 the court upheld the asylum authority’s decision. It observed in particular that, in the resumed proceedings, the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees and had found on the basis of the relevant law and the country information obtained that it was so. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia together with other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and because the reasons for its decision were clearly stated and were reasonable.

The court further emphasised that the applicants’ statements given at the hearings were contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore it could not be taken into account as evidence. Never in the course of the administrative proceedings had he referred to the conduct of human traffickers before his hearing by the court. The second applicant’s statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia non-safe in their respect. They had contested the safety of Serbia only in general which was not sufficient to rebut the presumption.

Lastly, the court was satisfied that the authority’s procedure had been in compliance with the law.

The final decision was served on the applicants on 8 October 2015. It was written in Hungarian but explained to them in Urdu. Escorted to the Serbian border by officers, the applicants subsequently left the transit zone for Serbia without physical coercion being applied.

On 22 October 2015 the transcript of the court hearing held on 5 October 2015 was sent to the applicants’ lawyer. On 10 December 2015 the lawyer received the Urdu translation of the court’s decision taken at the hearing. On 9 March 2016 the applicants’ petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases.