CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

The applicant was born in 1968 and is currently detained in Vratsa Prison.

In 2012 the applicant was detained in Varna Prison, serving a combined sentence of eighteen years’ imprisonment for aggravated murder, lewd acts, aggravated theft and car theft.

He suffers from many chronic medical conditions and a personality disorder which manifested itself in, inter alia, several attempts at self-harm and some suicide threats.

In 2007 the applicant was treated on the psychiatric ward of Lovech Prison Hospital.

Following his placement in an isolation cell in April 2008, he again threatened to harm himself and for eight days was kept almost constantly immobile by having his hands and feet handcuffed to a bed (see Dimcho Dimov v. Bulgaria, no. 57123/08, 16 December 2014, where the Court found violations of the substantive and procedural limbs of Article 3 of the Convention in that regard).

In early 2012 the applicant was part of a prisoner group that included Mr K.I. The latter was serving a combined sentence of six and a half years for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism. According to a later psychological report, Mr K.I. had previously been admitted many times to the psychiatric ward of Lovech Prison Hospital and he suffered from a mixed personality disorder with elements of dissocial behaviour, paranoia and emotional instability.

On the morning of 15 February 2012 the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate. When he entered the cell, Mr K.I., with whom he had had a conflict since January that year, began arguing with him, telling him that he had no right to come in and remove items. A guard intervened and took the applicant out of the wing, leaving him in the prison barbershop. According to statements made by the applicant later, Mr K.I. followed him, grabbed him by the collar through the bars separating the barbershop from the corridor, and hit him on the head and nose. In a report drawn up several days later, the social worker in charge of the applicant’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant’s allegations, and the applicant had not requested a medical examination.

Alerted by the guard, the social worker came and talked with the applicant, repeating that he could not go back into that wing. According to her report about the incident, her words upset him and he began arguing with her in a loud voice. That in turn irritated Mr K.I., who began to shout at the applicant. The social worker took Mr K.I. and two other inmates to a cell, where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures. They agreed that they had overreacted and undertook to make efforts to put relations in the group right. After that, the social worker had a talk with the applicant, who was in a highly emotional state. She told him of Mr K.I.’s undertaking to calm the conflict. The applicant began shouting and insulting Mr K.I., who heard him and shouted back. To calm things down, the social worker had the applicant isolated in a cell.

The next day, the social worker received complaints from five other inmates from the group. They protested against the applicant’s return to the group, saying that he had systematically bullied and assaulted them. The applicant also filed a complaint, saying that he could no longer remain in the same group as Mr K.I.

As a result, on 21 February 2012 the social worker recommended that the prison governor move the applicant to another group. She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr K.I., which would also be bad for his emotional well-being and security. In the meantime, the applicant was provisionally held in a cell on another floor.

Six days after the first incident, on 21 February 2012, a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker. According to the guard’s report, filed the same day, the applicant swore at and threatened Mr K.I. when passing him by. The latter, upset, punched the applicant on the jaw. The social worker carried out an enquiry over the following days at the request of the prison governor and obtained statements from eight other inmates, confirming the events. She proposed that Mr K.I. be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the two. As a result of the blow he had received the applicant suffered a fractured jaw, but this was not detected immediately (see paragraphs 18, 25 and 28 below). Three weeks after the incident, on 13 March 2012, the prison governor issued Mr K.I. with a disciplinary warning.

The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on 15 February 2012.

After the incident on 21 February 2012 he was brought to Varna Prison’s medical centre, where he was seen by the feldsher as the prison’s only doctor was on long-term sick leave at the time (see paragraph 40 below). The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw. The feldsher noted some redness in his ear, but reported nothing more serious. She also noted that the applicant had no signs of other traumatic injuries to his body. She wrote a note to the prison administration, detailing her findings. According to a statement which he made in the course of the ensuing criminal proceedings against Mr K.I. (see paragraph 35 below), the applicant asked the feldsher to send him for an X-ray, but she refused.

On 22 February 2012 the applicant went to the medical centre again and was given vitamins, an anti-inflammatory drug, a muscle relaxant and antibiotics.

He visited the centre once more on 24 February 2012 and was given a painkiller.

According to a statement by the applicant in the criminal proceedings against Mr K.I. (see paragraph 35 below), he repeatedly asked to be sent to an external medical specialist for an examination.

His next visit to the centre was on 7 March 2012, when he complained of a loss of hearing in his right ear. The feldsher decided to refer him to an external specialist. The consultation took place seven weeks later, on 26 April 2012 (see paragraph 25 below). The Government said the delay was because the applicant’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison.

The applicant went to the prison’s medical centre again on 13 March 2012 and threatened to go on a hunger strike. According to a statement which he made in the course of the criminal proceedings against Mr K.I. (see paragraph 35 below), he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist.

His next visit to the centre was on 23 April 2012, when he obtained a painkiller but apparently did not complain further about his health.

On 26 April 2012 the applicant was seen by an external otolaryngologist, who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing. He also noted that the applicant had some redness on his eardrums. He prescribed painkillers and antibiotics, and suggested that the applicant be seen by a maxillofacial surgeon. The prison paid for the consultation.

On 27 April and 7 and 10 May 2012 the applicant again visited the prison’s medical centre and obtained antibiotics and analgesics. On 12 May 2012 he was taken out of prison for a consultation with a psychiatrist.

On 14 May 2012 the prison’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon. The Government explained that that had been necessary because such consultations were not covered by Bulgaria’s health insurance scheme and the prison had to make a special payment for such a consultation.

On 19 May 2012 the applicant was examined by a maxillofacial surgeon and given a panoramic X-ray. The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post-traumatic arthritis of the right temporomandibular joint. He recommended that the applicant have physiotherapy for that joint. The consultation and the X-ray were paid for by the prison administration.

On 21 May 2012 the prison feldsher offered to send the applicant to Sofia Prison Hospital for physiotherapy. He refused.

On 15 June 2012 the applicant agreed to be sent to Sofia Prison Hospital, and was admitted on 18 July 2012. He was examined and given an X-ray of the skull. It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on, and a deviated nasal septum. He was treated with antipsychotic, anticonvulsant and moodstabilising drugs, and had physiotherapy for his temporomandibular joints. He was in the hospital until 1 August 2012, when he returned to Varna Prison.

Between June and October 2012 the applicant visited the prison medical centre on several occasions. He was generally given pain medication and further on request external medical consultations were discussed.

The second consultation with an otolaryngologist took place on 27 December 2012. She noted that the applicant complained of poor hearing and pain in the right ear. She found that he had normal eardrums but poor teeth, which caused luxation of the temporomandibular joint, and also had a dysfunction of that joint. She prescribed painkillers.

In a medical report drawn up on 11 February 2013, the Varna Prison doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it. In November 2013 the applicant had surgery for the deviated nasal septum in a hospital in Varna.

On an unknown date in 2012 the applicant complained to the Varna district prosecutor’s office about the incidents on 15 and 21 February 2012. In June 2012 the prosecutor’s office refused to open criminal proceedings. It found that no prison staff had committed any offences during the incidents. On appeal by the applicant, the Varna regional prosecutor’s office upheld that decision in August 2012. The applicant appealed further and, on 10 October 2012, the Varna appellate prosecutor’s office quashed the refusal to open criminal proceedings against Mr K.I., but upheld the refusal to open proceedings against prison staff. It noted that the internal inquiry had established that the incident involving the two inmates had been promptly dealt with and that there had been no culpable omissions by prison staff. It referred the case back with instructions to the lower prosecutor’s offices to check whether Mr K.I.’s actions had amounted to causing moderate bodily harm.

Following a criminal investigation and delays in the resulting trial due to Mr K.I.’s mental health, in February 2015 the Varna District Court found Mr K.I. guilty of causing moderate bodily harm to the applicant by breaking his jaw. It sentenced him to six years’ imprisonment and ordered him to pay the applicant 2,000 Bulgarian levs (BGN) in respect of nonpecuniary damage. The court noted that the fracture had impaired the applicant’s chewing and speech functions for at least four months and had caused him considerable pain and suffering (see прис. № 68 от 12.02.2015 г. по н. о. х. д. № 3419/2013 г., РС-Варна).

In March 2016, following an appeal by Mr K.I., the Varna Regional Court fully upheld the lower court’s judgment (see реш. № 61 от 07.03.2016 г. по в. н. о. х. д. № 301/2015 г., ОС-Варна).

In September 2014 the applicant brought a claim for damages against the Chief Directorate for the Execution of Punishments at the Ministry of Justice. He alleged that over the previous two months the authorities at Varna Prison had failed to provide him with adequate medical care for pain in the right ear, his fractured jaw and numbness in his left arm.

The Varna Administrative Court heard the case on 1 December 2014 and 2 February 2015, when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

A list of the applicants is set out in the appendix.

The applicants are the owners, co-owners or perpetual lessees of estates on which various types of utility grids, substations or equipment were installed between the 1950s and 1980s. In respect of at least twenty-two of the thirty-three applications, the utilities were set up prior to the acquisition of the land by the applicants.

Until 1989, the installations in question belonged to the State Treasury (various State utility enterprises). They are currently owned by different utility companies which are the legal successors of the State enterprises. In thirty-one cases, the current owners are commercial joint-stock companies controlled by the State Treasury as the largest shareholder. In the two remaining applications, the utility equipment belongs to State companies (see Annex 1; applications nos. 8585/13 and 28531/14).

Since the date of their installation, the utility grids, substations and equipment have been accessed, maintained and used by the utility companies without any interruption or disputes with legal consequences. The applicants either live on the estates in question or use them for agriculture or manufacturing purposes. Their use of the parts of the land where the utility grids or equipment have been placed is to a greater or lesser extent restricted. Under the applicable law, access to areas directly under, over or around utility stations, pipes, poles or other equipment cannot be hindered; in particular, it cannot be blocked by vegetation or buildings.

On various dates the applicants became parties to various civil proceedings aimed at regulating the legal status of the utility installations on their estates.

Twenty-one applicants (application nos. 36350/13; 49800/13; 50041/13; 63957/13; 14891/14; 14934/14; 31089/14; 46099/14; 47538/14; 54240/14; 56980/14; 70263/14; 78040/14; 18939/15; 20670/15; 21667/15; 24271/15; 41154/15; 45573/15; 45619/15 and 48023/15), sought compensation for the resulting restriction of their property rights. They brought actions either for compensation for the establishment of a transmission easement (o ustalenie służebności przesyłu) (for the applicable domestic law, see paragraphs 28-31 below) or compensation for non-contractual use of land (o bezumowne korzystanie z nieruchomości) (for the applicable domestic law, see paragraphs 32-35 below). Some of those actions were accompanied by a claim to remove the utility equipment considered cumbersome.

Two applicants (application nos. 52591/13 and 55666/13) did not seek payment and instead brought actions exclusively for restitution of the owner’s lawful position and for the removal of the utility equipment in question (for the applicable domestic law, see paragraph 36 below).

The remaining ten applicants (application nos. 8585/13; 13512/13; 42258/13; 44773/13; 52143/13; 22059/14; 28482/14; 28531/14; 36799/14 and 20818/15) did not bring any actions and were respondents in proceedings resulting from actions for easements by prescription (o zasiedzenie służebności) lodged by relevant utility companies (for the applicable domestic law, see paragraphs 37-40 below).

In respect of thirty applicants (application nos.: 8585/13; 13512/13; 42258/13; 44773/13; 49800/13; 50041/13; 52143/13 52591/13; 55666/13; 63957/13; 14891/14; 14934/14; 22059/14; 28482/14; 28531/14; 36799/14; 47538/14; 54240/14; 56980/14; 70263/14; 78040/14; 18939/15; 20670/15; 20818/15; 21667/15; 24271/15; 41154/15; 45573/15; 45619/15 and 48023/15), the domestic courts delivered judgments concluding that the companies which ran the utility installations on the applicants’ estates had acquired the easements in question by prescription. Accordingly, it was held that the applicants concerned were either not entitled to claim compensation for past or future use of the utility grids or to seek the removal of the electrical equipment from their land.

In most of these cases, the courts of first instance initially ruled in favour of the applicants. Those decisions were later reversed by the higher courts.

The proceedings involving each of these applicants are described in more detail in Annex 1, and the applicable domestic law and practice are set out at paragraphs 37-58 below.

In respect of three applicants (applications nos. 36350/13, 31089/14 and 46099/14), the domestic courts held that their property rights had been lawfully restricted by historical administrative decisions which had been issued under Section 35 of the 1958 Act (see paragraphs 20 and 21 below).

Further details about those proceedings and the applicable domestic law and practice are set out in Annex 2 and at paragraphs 48-56 below.

In the case of Mr Jędrzejczyk (no. 45573/15; see Annex 1), the applicant co-owns with his wife, among others, five adjacent plots of agricultural land in Potok and Kolonia Grudzień (lot nos. 802 and 804PT1O/00007612/7 and PT1O/00024160/8 and lot nos. 278, 147/3 and 319 – 9PT1O/00023818/9). Title to the land in question was acquired in 1992, 1994, 1997 and 1985 respectively. In 1962 an overhead electrical grid with a number of electrical poles was installed across it.

In 2010 the applicant rejected a friendly settlement proposal made by PGE, the owner of the electrical grid. In March 2012 he sued the company for compensation for non-contractual use of his land, claiming PLN 200,000 (approximately EUR 50,000).

On 20 May 2014 the Piotrków Trybunalski Regional Court gave the first-instance judgment in the case. On 9 March 2015 the Łódź Court of Appeal partially allowed the applicant’s action. The court, granting an objection raised by the respondent, held that the utility company had acquired the easement for the electrical grids on the applicant’s lot nos. 804, 319 and 147/3 by prescription in 1985. That date was determined in view of the entry into force of the 1965 Civil Code and the statutory requirement of twenty years’ possession if it was, as in the case at hand, in bad faith. Consequently, the applicant could not claim remuneration for the use of the land since the date of prescription of the easement. In respect of the remaining two lots, the court held that the prescription period had not elapsed because, until 1997 and 1979 respectively, the State had been the landowner not possessor. In view of those considerations, the applicant was awarded PLN 41 (approximately EUR 10) on account of the utility company’s non-contractual use of lot nos. 802 and 278 between April 2002 and July 2009. This amount was in line with the calculation put forward by a court-appointed expert.

The process of rural electrification in Poland was regulated by the Public Electrification of Villages and Settlements Act of 28 June 1950 (Ustawa o powszechnej elektryfikacji wsi i osiedli), in force from 6 July 1950 until 5 December 1997. Similar processes concerning other utilities were regulated primarily by the Water Act (Prawo Wodne) of 30 May 1963, 24 October 1974 and 18 July 2001.

Currently, most of these matters are regulated by the Energy Act (Prawo Energetyczne) of 10 April 1997, which entered into force on 5 December 1997, the Water Act (Prawo Wodne) of 16 December 2016, which entered into force on 31 December 2015, and by European Union law.

The entitlement of State enterprises to access private estates in order to install and run various overhead or underground drainage, sewage, water or gas pipelines and electricity grids, substations or other similar equipment was originally regulated by the Expropriation Rules and Procedure Act of 12 March 1958 (Ustawa o zasadach i trybie wywłaszczania nieruchomości – “the 1958 Act”), in force until 1985.

Section 35 required State energy enterprises to obtain authorisation from the local administrative authority to gain access to private estates for the purpose of laying pipelines or installing electric poles and substations.

Under Section 36 of the 1958 Act, a landowner was entitled to claim compensation for damage resulting from the installation or maintenance of equipment or lines. Examples of such damage were loss of harvest or a decrease in the value of the property due to the installation of the utility grid or equipment. Entitlement to compensation did not arise, however, from restrictions on the use of the land if no damage occurred.

From 1 August 1985 until 31 December 1997 these matters were regulated in a similar way by section 70 (et seq.) of the Land Administration and Expropriation Act of 29 April 1985 (Ustawa o gospodarce gruntami i wywłaszczeniu nieruchomości) Since 1 January 1998 they have been regulated by section 124 (et seq.) of the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami). Under the provisions currently in force, a landowner is entitled to compensation not only for damage caused by the installation or maintenance of the grid, but also for granting access to the land and any related depreciation in value (sections 124 and 128).

Applications for such compensation must be lodged with the relevant administrative authorities and are not examined by the civil courts (Article 2 § 3 of the Code of Civil Procedure and the Supreme Court’s (Sąd Najwyższy) decision of 15 March 1983 (IV CZ 15/83) and judgment of 9 March 2007 (II CSK 457/06)). Civil courts, however, retain jurisdiction in respect of actions for compensation if the alleged damage has been caused by activities beyond the scope of a relevant administrative decision and for non-contractual use of the land (the Supreme Court’s judgments of 24 June 2010 (IV CSK 554/09) and 9 March 2007, cited above).

Prior to 2008, the legal status of the parts of private land burdened by utility installations was regulated under the civil law only by analogy, originally to easements by necessity (służebność drogi koniecznej) under Article 145 of the Civil Code, which entered into force in 1965, and ultimately to land easements (służebność gruntowa) under Articles 285-295 of the Civil Code.

The former approach is illustrated by the Supreme Court’s resolutions of 3 June 1965 (no. III CO 34/65) and 30 August 1991 (no. III CZP 73/91), adopted by a bench of three judges.

The latter practice was triggered by the Supreme Court’s resolution of 17 January 2003 (no. III CZP 79/02), adopted by a bench of three judges, authorising the establishment of a land easement by means of a contract for the benefit of an energy company which owned a utility grid on a property. This practice was further developed by the Supreme Court’s decision of 8 September 2006 (II CSK 112/06), authorising the energy company which owned a utility grid to acquire a land easement by prescription. In that decision, the Supreme Court applied the existing provisions beyond the traditional relationship between the two owners of estates, dominant and servient. It was reasoned that in general, a utility company owned estates which could be considered as benefiting from the easement. In this broad sense, a utility company could be viewed as the owner of a dominant estate within the meaning of the applicable provisions on land easements. It was therefore not required to identify a specific estate as dominant.

Transmissions easements (służebność przesyłu) are limited property rights introduced in Poland by the Civil Code and Other Acts Amendment Act of 30 May 2008, which entered into force on 3 August 2008 (Ustawa o zmianie ustawy - Kodeks cywilny oraz niektórych innych ustaw – “the 2008 Amendment Act”). Under Article 3051 of the Civil Code, a utility company (which owns a utility grid or equipment and is responsible for the supply and distribution of electric energy or other utilities to a given area) is entitled to enter onto and use property owned by a third party in a specific manner to run a sewage or gas pipeline or a utility grid situated on the land. The landowner, in turn, is restricted in his right to use the servient part of the estate.

Under Article 3052 of the Civil Code, the landowner and the utility company shall establish a transmission easement either by means of a contract or a court action. Just compensation (wynagrodzenie) is payable for the easement from the moment of its establishment for the future.

Lodging a court action for a transmission easement interrupts the running of the prescription period (Article 123 of the Civil Code and the Supreme Court’s resolution of 21 January 2011 (III CZP 124/10) and decision of 13 October 2011 (V CSK 502/10)).

Article 3054 of the Civil Code provides that transmission easements are further regulated, in so far as applicable, by the provisions on land easements.

The owner or perpetual lessee of land with a utility installation is also entitled to seek compensation from a utility company if the latter has possession in bad faith, in the form of an action for compensation for non-contractual use of land (o bezumowne korzystanie z nieruchomości) under Article 225 in conjunction with Article 224 of the Civil Code (in force without amendment since 1 January 1965). Such compensation can only be claimed for use of the land from the date on which the possessor was informed of the owner’s claim for compensation until the date of the court’s ruling and as long as an easement has not been established (the Supreme Court’s judgment of 7 August 2014 (II CSK 573/13)). The limitation period for such claims is ten years (Article 118 of the Civil Code).

The landowner or perpetual lessee has a claim even if he or she acquired the land in full knowledge that it was encumbered by a utility installation (the Supreme Court’s judgment of 4 July 2012 (ICSK 641/11)).

Prior to the 2008 amendments, introducing the paid transmission easement, the lodging of such a court action against a utility company interrupted the running of the prescription period. Since then, an action under Article 225 of the Civil Code ceased to have the same effect (the Supreme Court’s resolution of 26 November 2014, adopted by seven judges (III ZP 45/14)).

The criteria for the calculation of the compensation awarded under Article 225 of the Civil Code was laid down by the Supreme Court in its resolutions of 17 June 2005 (III CZP 29/05) and 10 July 1984 (III CZP 20/84), adopted by a bench of three and seven judges respectively. The compensation must be commensurate with the degree of interference with the plaintiff’s property rights and must not, in the long run, flagrantly exceed the value of the part of the land encumbered by the utility installation. The Supreme Court accepted that consequently, the amount of annual compensation awarded was likely to be insignificant.

Pursuant to Article 222 § 2 of the Civil Code (in force without amendment since 1 January 1965), a property owner has the right to claim restitution of his or her lawful position and discontinuation of infringements against anyone who infringes his ownership other than by depriving him or her of actual control of the property. There is no limitation period for such claims if they relate to immovable property (Article 223 of the Civil Code). Such actions can, but do not have to, be accompanied by a claim for compensation (o zapłatę) for past use of the property without legal title (see the Supreme Court’s resolution of 17 June 2005, cited above).

The lodging of such a court action interrupts the running of the prescription period (Article 123 of the Civil Code).

Such an action will not be allowed if the defendant has legal title to the property in question or has acquired it through prescription or adverse possession. Moreover, a landowner who acquired property which had in the past been lawfully encumbered by a utility installation is not entitled to seek its removal (the Supreme Court’s judgments of 13 January 2011 (III CSK 85/10) and 29 January 2008 (IV CSK 410/07).

The general rules concerning easements by prescription (zasiedzenie służebności) are contained in Article 292 of the Civil Code and in the provisions on adverse possession of property (zasiedzenie własności nieruchomości) contained in Articles 172-176 of the Civil Code (amended in 1990).

Under these provisions, an easement by prescription arises through the uninterrupted use of permanent and visible equipment by an autonomous possessor (owner-like possessor) without the permission of the landowner. In the event of possession in good faith (where use of the equipment has been open and notorious), the statutory prescription period was ten years prior to the 1990 amendment and is currently twenty years. In the event of possession in bad faith (where use of the equipment has been concealed or secretive), the applicable statutory period was twenty years prior to the 1990 amendment and is currently thirty years (Article 172 of the Civil Code).

Under Article 176 of the Civil Code, if during the running of the prescription period possession has been transferred from one autonomous possessor to another, the new possessor must include the period of possession by his predecessor.

A domestic court can rule on prescription in the event of an action for establishment of prescription (Article 609 of the Code of Civil Procedure) or in the course of other proceedings, if such an objection has been made by a party. A domestic court cannot rule on prescription of its own motion.

Since the 2008 amendments, the following approach has been developed by the domestic courts in cases concerning easements for utility grids and equipment.

If possession of the part of the land with a utility grid reached the necessary prescription period after 2008, when the legal concept of a transmission easement was created, the domestic courts established prescription of the transmission easement. If, however, the end of the statutory prescription period fell on a date prior to the entry into force of the 2008 amendments, the domestic courts came up with the legal concept of a “land easement corresponding in its content to a transmission easement” (służebność gruntowa odpowiadająca w swojej treści służebności przesyłu) and accordingly, ruled on the prescription of such an easement.

In practice, most of the civil actions concerning transmission easements lodged under Article 3051 of the Civil Code sought to regulate the status of historical utility grids and equipment. They therefore resulted in the establishment by prescription of land easements corresponding to transmission easements and, resulting from it, refusal to grant any payment to the owner of the servient estate.

In its resolution of 7 October 2008 (no. III CZP 89/08), adopted by a bench of three judges, the Supreme Court held that prior to the enactment of provisions on transmission easements (Articles 3051-3054 of the Civil Code; see paragraphs 28–31 above) it had been possible to acquire by prescription a land easement corresponding in its content to a transmission easement. It was reasoned that the content of the land easement was essentially the right to use servient property in connection with the activities of the company which benefited from the easement. In the resolution the Supreme Court cited its earlier case-law on the possession of utility grids and on land easements. In particular, it referred to its 2003 resolution and 2006 decision (described in paragraph 27 above).

This approach was further confirmed by the Supreme Court in its resolutions of 9 August 2011 (III CZP 10/11) and 22 May 2013 (III CZP 18/13), adopted by a bench of seven and three judges respectively; and in its judgment of 12 December 2008 (II CSK 389/08) and decisions of 26 July 2012 (II CSK 752/11), 18 April 2012 ( V CSK 190/11), 6 July 2011 (CSK 157/11) and 5 June 2009 (I CSK 392/08).

Moreover, in its judgment of 12 January 2012 (II CSK 258/11), the Supreme Court held that in the event of prescription of an easement for a utility grid or equipment, the owner of servient land could not claim compensation for the easement.

Apart from the above-mentioned approach, the domestic case-law concerning transmission easements has not been uniform. Early on, the lower and higher courts diverged, among other things, on the issue of the possession of utility easements by State enterprises prior to 1989. Over time, this area has become harmonised by the Supreme Court.

It was therefore accepted that, if during the running of the prescription period possession of an easement had been transferred from a State enterprise to a utility company, the new possessor was entitled to include the period of possession by its predecessor prior to 1989 in the calculation of the statutory prescription period for the company’s easement. It was reasoned that prior to 1989, when the principle of uniform State ownership (zasada jednolitej własności państwowej) was abolished, the State Treasury had installed and run utility grids as part of its economic activities under its mandate as a State legal entity and the owner of State property and not as a superior governor in the exercise of its imperial powers. Moreover, the State Treasury at that time only had factual control (władztwo faktyczne) and operational management (zarząd operatywny) of utility grids and equipment. That corresponded to the activities of a limited-right possessor and not an owner-like possessor. Consequently, control over a utility grid of the predecessor of the claimant utility company could result in the prescription of a land easement for the benefit of the current possessor.

This view has been expressed in the following case-law of the Supreme Court: its judgments of 31 May 2006 (IV CSK 149/05) and 15 January 2009, adopted by a bench of seven judges (I CSK 333/07); its judgment of 10 May 2013 (I CSK 495/12); and decisions of 17 December 2008 (I CSK 171/08), 13 October 2011 (V CSK 502/10), 12 January 2012 (IV CSK 183/11), 13 June 2013 (IV CSK 627/12), 20 September 2013 (II CSK 10/13) and 18 June 2014 (V CSK 405/13). The opposite opinion was held by the Supreme Court in its judgment of 9 December 2009, adopted by a bench of three judges (IV CSK 291/09).

Another discrepancy occurred in so far as the domestic courts, including the Supreme Court, initially drew different conclusions from the existence of historical administrative decisions which had been issued under Section 35 of the 1958 Act in order to authorise the installation of utility grids and equipment on particular private estates (see paragraph 21 above).

In cases in which an administrative decision under Section 35 of the 1958 Act had not been issued or in cases in which that element was left undetermined, the domestic courts generally ruled consistently. They held that a claimant utility company who had for a sufficiently long period exercised autonomous possession of an easement for a utility installation had acquired it by prescription. In all such cases, the domestic courts also refused to grant any compensation to the owner of the servient estate.

This line of case-law is illustrated by the Supreme Court’s case-law described in paragraphs 41-45 above and, further, by the domestic court decisions delivered in the proceedings giving rise to the following twenty applications lodged with the Court: no. 8585/13; 13512/13; 42258/13; 49800/13; 50041/13; 52143/13; 52591/13; 55666/13; 63957/13; 14934/14; 56980/14; 70263/14; 18939/15; 20670/15; 20818/15; 21667/15; 24271/15; 45573/15; 45619/15 and 48023/15 (see Annex 1).

In cases in which it was revealed that the installation of a utility grid or equipment had been authorised by an administrative decision issued under Section 35 of the 1958 Act, some domestic courts still granted easements by prescription; others refused to do so. Either way, the domestic civil courts also decided not to allow claims for compensation to the servient land’s owner for the restriction of his property rights.

The former approach was taken by the Supreme Court in its decision of 17 December 2008 (I CSK 171/08). It held that the restriction of property rights by means of a binding administrative decision issued under Section 35 of the 1958 Act (in that particular case, in 1977), was to be considered a “public easement” or a “transmission easement”. Consequently, in the Supreme Court’s view, prescription of a transmission easement was possible; the period of use of the electrical grid by the legal predecessor of its current owner could be calculated towards the statutory prescription period and the administrative decision in question made the use of the grid lawful, hence in good faith. This view was further upheld by the Supreme Court in its judgment of 9 December 2009 (IV CSK 291/09) and decision of 21 February 2013 (I CSK 354/12).

The domestic court decisions delivered in the course of the proceedings in the following ten applications lodged with the Court illustrate the above-mentioned line of case-law: no. 44773/13; 14891/14; 22059/14; 28482/14; 28531/14; 36799/14; 47538/14; 54240/14; 78040/14; and no. 41154/15 (see Annex 1).

The latter, opposite approach was expressed for the first time in the Supreme Court’s resolution of 8 April 2014 (III CZP 87/13), adopted by a bench of seven judges. It held that the enforcement of rights bestowed by a decision issued under Section 35 of the 1958 Act did not lead to prescription of a land easement corresponding in its content to a transmission easement. The Supreme Court observed that the decision of a relevant local administrative authority issued under Section 35 of the 1958 Act to authorise construction and maintenance of a utility grid on private land had the character of an expropriation decision. Consequently, it did not create an easement but permanent legal title which determined the content or particular restriction of a property right. Unlike the right to an easement, such a restriction had a public-law character as it was derived from the act of law and from a related administrative decision.

The Supreme Court also expressly stated that the claims of utility companies which could not prove title for taking over and using private land were beyond the subject matter of that resolution.

This line of case-law was relied on by the domestic courts in the proceedings which gave rise to the following three applications lodged with the Court: no. 36350/13; 31089/14 and 46099/14 (see Annex 2).

Irrespective of the issue of prescription of easement, the Supreme Court consistently ruled that a decision issued under Section 35 of the 1958 Act constituted legal title for a utility company to permanently use the estate identified in such a decision. In consequence, no claims for compensation for the authorised use of the land by such a utility company could be made under the civil law because it was lawful. Compensation could only be sought under the administrative law (the Supreme Court’s resolution of 20 January 2010 (III CZP 116/09), adopted by a bench of three judges and judgments of 9 January 2008 (II CSK 432/07) and 9 March 2007, cited above).

The divergent practice as described above gave rise to a question of law (pytanie prawne) as to whether Article 292 taken in conjunction with Articles 172 and 285 of the Civil Code, in so far as it provided a legal basis for the establishment by prescription of a land easement corresponding in its content to a transmission easement for the benefit of a utility company, was in compliance with the Constitution and with Article 1 of the Protocol No. 1 to the Convention.

On 17 July 2014 the Constitutional Court (Trybunał Konstytucyjny) held that it was beyond its mandate to pronounce on a question of law which in fact concerned the interpretation given to the law by the courts of general jurisdiction (P 28/13). It was observed that the Constitutional Court was entitled to rule on the constitutionality of a provision which gained particular judicial interpretation but only if that interpretation was obviously settled through uniform and authoritative practice of the Supreme Court and the Supreme Administrative Court. In the Constitutional Court’s view, the uniform practice of granting prescription of land easement corresponding in its content to a transmission easement (as described in paragraphs 41-45 above), was disrupted by the 2014 resolution of the Supreme Court (III CZP 87/13) (see paragraph 54 above). Consequently, it was held that in the current situation, the applicable law was not implemented in an uncontestably uniform manner.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in Peqin in 1977. He is currently serving a prison sentence.

In 1998 the applicant was implicated in the commission of the criminal offence of setting up and being a member of an armed gang and of other criminal offences.

On 4 February 1999 the prosecutor charged him with the offences of membership of an armed gang, attempted intentional murder and other crimes. The notification of the prosecutor’s charges was acknowledged by the applicant’s officially appointed lawyer.

It appears that throughout the investigation proceedings the applicant was represented by an officially appointed lawyer.

On 12 February 1999 the Elbasan District Court ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be traced.

On 19 February 1999 the Elbasan District Court declared the applicant a fugitive from justice after unsuccessful attempts to locate him. The decision stated that it was impossible to find him as it appeared that he had escaped to an unknown destination (këto kërkime nuk kanë bërë të mundur kapjen e të pandehurit pasi ai rezulton të ketë ikur në drejtim të paditur).

On an unspecified date the prosecutor decided to commit the applicant for trial.

On 28 May 1999 the Supreme Court transferred the case for examination to the Durrës District Court.

On 2 June 1999 the applicant’s father appointed a lawyer to represent the applicant before the domestic courts.

The trial proceedings against the applicant were conducted in absentia and he was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”).

On 15 February 2000 the Durrës District Court convicted the applicant in absentia of establishing and participating in an armed gang and attempted intentional murder. He was sentenced to fifteen years’ imprisonment. The decision was based on evidence from documents and witness testimony.

The applicant’s family-appointed lawyer and the other co-accused appealed against the conviction to the Durrës Court of Appeal (“the Court of Appeal”). On 19 April 2000 the Court of Appeal declined to examine the applicant’s appeal on the grounds that the applicant’s family had not given any express authority to the lawyer for such a procedure. However, the Court of Appeal examined the applicant’s case as part of its overall examination, having regard to the appeals of the other defendants. It convicted the applicant of the same offences as before and sentenced him to thirteen years’ imprisonment.

On 7 December 2000 the Supreme Court dismissed appeals by the applicant and other co-accused against the Court of Appeal’s decision of 19 April 2000.

On 16 September 2005 the applicant was arrested by the Czech authorities on the basis of an arrest warrant issued by Albania.

On 25 January 2006 the applicant was extradited to Albania.

On 1 March 2006 the applicant was officially informed of his conviction in absentia.

On 13 September 2007 the applicant lodged a constitutional appeal against the conviction in absentia.

On 24 October 2007 the Constitutional Court, sitting in camera, declared the appeal time-barred as the two-year time-limit had started to run on 7 December 2000. The Constitutional Court’s reasoning stated that throughout the proceedings the applicant had been represented by a courtappointed lawyer or a family-appointed lawyer and that accordingly he had had the opportunity to become acquainted with the proceedings brought against him.


Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Erik Møse;Eva Brems;Ganna Yudkivska;Giovanni Bonello;Guido Raimondi;Helena Jäderblom;Khanlar Hajiyev;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Robert Spano;Georges Ravarani;Pere Pastor Vilanova

The applicant was born in 1962 and lives in Prague.

On the basis of a contract signed on 2 November 2004 and governed by the provisions of the Labour Code, the applicant became an employee of the Ministry of Defence.

On 27 December 2004, the Ministry’s authorised representative requested the National Security Authority (Národní bezpečnostní úřad – “the Authority”) to issue the applicant with security clearance (osvědčení) giving him access to State classified information in the “secret” category (tajné) in accordance with the duties to be carried out by him.

On 1 January 2005 the applicant took up his duties as director of the Department of administration of the Ministry’s property (Sekce správy majetku Ministerstva obrany).

On 19 July 2005 the Authority issued the applicant with security clearance, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category.

During the year 2006 the applicant was appointed deputy to the first Vice-Minister of Defence (zástupce Prvního náměstka ministra obrany), while continuing to carry out his duties as director of the Department of administration of the Ministry’s property.

On 7 October 2005 the Authority received confidential information from the intelligence service, classified “restricted” (vyhrazené) and dated 5 October 2005. It started an investigation in order to verify the information received. In the course of that investigation the intelligence service provided the Authority with other information, dated 21 March 2006, classified “restricted” and annexed to the security file (bezpečnostní spis) under number 77. On the basis of that information the Authority revoked the security clearance on 5 September 2006. There were two unrelated reasons for that decision: firstly, the applicant had failed to indicate, as he should have done when applying for security clearance, that he held directorships in a number of companies and accounts in foreign banks; and secondly, the applicant was considered to pose a national security risk, within the meaning of section 14(3)(d) of Law no. 412/2005. With regard to that risk, the decision did not however indicate which confidential information it was based on, as this was classified “restricted” and could not therefore legally be disclosed to the applicant. The decision indicated that the facts established in respect of his conduct, as documented in the information received by the Authority on 7 October 2005, cast doubt on his suitability for security clearance and his ability not to be influenced and to keep sensitive information secret, and thus indicated that he was no longer trustworthy.

On an administrative appeal (rozklad) by the applicant, the director of the Authority, after obtaining an opinion from the appeals board, confirmed on 18 December 2006 the Authority’s decision of 5 September 2006, but on partly different grounds. He dismissed as unfounded the complaint that the applicant had failed to disclose certain information prior to being issued with security clearance. However, he agreed with the Authority’s conclusions regarding the existence of a security risk, which had transpired from the investigation carried out by the Authority and from the classified documents.

In the meantime, on 4 October 2006, the applicant had asked to be discharged, for health reasons, from his duties as deputy to the first Vice-Minister of Defence, and from those of director of the Department of administration of the Ministry’s property. He was removed from office on the same day under Article 65 § 2 of the Labour Code (see paragraph 26 below). On 20 October 2006 he signed an agreement, under Article 43 of the Labour Code, terminating his contract by mutual consent with effect from 31 January 2007.

On 19 January 2007 the applicant lodged an application with the Prague Municipal Court (městský soud) for judicial review of the decision revoking his security clearance. He and his lawyer were permitted to consult the file, but the parts classified as confidential were excluded. However, the documents containing information about the existence of a risk, including the confidential documents, had been sent by the Authority to the court, which had access to them. At the public hearing the applicant was given the opportunity to make his submissions and to state what he thought were the reasons for revoking his security clearance. He stated that he believed the information in question had been provided by a military intelligence service which had sought to take revenge on him for his refusal to accept a proposal to co-operate in a manner exceeding his statutory obligations.

In a judgment of 1 September 2009 the court dismissed the application for judicial review. It observed that in a procedure revoking security clearance the relevant authority could only disclose reasons for revoking clearance that were based on non-classified documents and that as regards grounds based on classified documents it had to confine itself to referring to the relevant documents and their level of confidentiality. It found that the approach taken by the Authority, which had not disclosed to the applicant the contents of the information on the basis of which the security clearance had been revoked, had not been illegal as disclosure of such information was prohibited by law. It added that the applicant’s rights had been sufficiently respected because the court had power to obtain knowledge of the classified information and assess whether it justified the decision taken by the Authority.

In a judgment of 15 July 2010 the Supreme Administrative Court (Nejvyšší správní soud) dismissed an appeal on points of law (kasační stížnost) lodged by the applicant as unfounded. It considered that the classified documents in question had shown beyond any doubt that the applicant did not satisfy the statutory conditions to be entrusted with secret information. It observed that the risk in his regard concerned his conduct, which affected his credibility and his ability to keep information secret. The Supreme Administrative Court added that disclosure of the classified information could have entailed the disclosure of the intelligence service’s working methods, the revelation of its information sources or the risk of influencing possible witnesses. It explained that there was a statutory prohibition on indicating where exactly the security risk lay and on specifying the considerations underlying the conclusion that such a risk existed, the reasons and considerations underlying the Authority’s decision being based exclusively on classified information. Accordingly, the reasons for the decision had to be limited to a reference to the documents on which it was based and the level of confidentiality of the information used. It went on to observe that, owing to the special nature of proceedings where classified information was concerned, not all the applicant’s procedural rights could be guaranteed but that the non-disclosure of the exact reasons underlying the decision to revoke security clearance was counterbalanced by the guarantee that the administrative courts had unlimited access to the classified documents. The Supreme Administrative Court pointed out that the report on the result of the investigations carried out by the intelligence service, included in the file under no. 77, contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service.

On 25 October 2010 the applicant lodged a complaint with the Constitutional Court (Ústavní soud), complaining of the unfairness of the proceedings. In a judgment of 18 November 2010 the court dismissed his complaint as manifestly ill-founded. Referring to its earlier case-law on the subject, it observed that given the special nature and the importance of decisions adopted in respect of classified information where national security interests were manifest, it was not always possible to apply all the guarantees relating to fairness of proceedings. It considered that in the present case the courts’ conduct had been duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution; that they had not departed from procedural standards and constitutional rules to an inordinate degree; and that the Constitutional Court was not therefore required to intervene in their decision-making procedure.

On 16 March 2011 the prosecution service lodged a bill of indictment against the applicant and 51 other persons on charges of influencing the award of public contracts at the Ministry of Defence from 2005 to 2007. The applicant was indicted for participation in organised crime (účast na zločinném spolčení); aiding and abetting abuse of public power (pomoc k trestnému činu zneužívání pravomoci veřejného činitele); complicity in illegally influencing public tendering and public procurement procedures (pomoc k trestnému činu pletich při veřejné soutěži a veřejné dražbě); and aiding and abetting breaches of binding rules governing economic relations (pomoc k trestnému činu porušování závazných pravidel hospodářského styku).

In a judgment of 25 March 2014 the České Budějovice Regional Court (krajský soud) found the applicant guilty and sentenced him, inter alia, to three years’ imprisonment. In a judgment of 27 May 2016 the Prague High Court (Vrchní soud) upheld the first-instance judgment convicting the applicant, but suspended execution of his prison sentence for a two-year probationary period. That judgment became final.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation)

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1990 and lives in Gyöngyöspata. He is of Roma origin.

On 12 August 2010 at about 1.50 a.m. the applicant was taken to Gyöngyös Police Department after he and his accomplices had been apprehended while driving a car containing goods apparently stolen from a nearby summer house.

The applicant submitted that shortly afterwards, for about twenty minutes, he had been ill-treated by two police officers; at about 4.30 a.m. the two officers had returned and had continued hitting and kicking him for another thirty minutes or so. Some two hours later the two officers had escorted the applicant to another room for questioning, but had then continued beating him, together with several other officers. In the applicant’s account of the events, altogether six officers and two security guards took part in the ill-treatment, with the apparent intention of extracting his confession to further offences. He stated that he had been hit in the face, forced to his knees and kicked repeatedly; a paper bag had been pulled over his head and the soles of his feet had been hit many times with a piece of wood. The officers had insisted that he admit to at least three counts of theft in order for them to stop hitting him, and they had repeatedly insulted him, making references to his Roma origin. One of them had said that they would not mind if he died – there would just be one Gypsy less.

The applicant eventually signed the record of the questioning, which stated that the questioning had taken place between 5.51 a.m. and 6.33 a.m.

Later that morning, at about 6 a.m., the applicant was allegedly escorted to the toilet, where he said the officers had again started hitting and kicking him. One of them had removed a towel-holder from the wall and hit the applicant’s hand with it. Again, references were allegedly made to the applicant being a Roma.

The applicant was released at about 2 p.m.

Later that day, at the request of the applicant’s mother, the general practitioner of the neighbouring village, Dr C.S., came to the applicant’s house and examined him. Since she had apparently been told only about chest complaints, she did not examine the applicant’s legs or feet. She did not identify any marks indicating external injury on the applicant but found that his ribs were sore and suggested that he go to hospital if he wished to obtain a medical certificate recording his injuries. Dr C.S. herself did not produce a medical report on the premises.

On the same evening the applicant went to the emergency room of Bugát Pál Hospital in Gyöngyös. At 7.34 p.m. he was issued with a medical certificate, for which he paid the fee due, stating that he had bruises on the forehead, the nose and the left shoulder and an abrasion on the right hip; both his hands and arms were swollen and hyperaemic; and the rear surface of both thighs, as well as the soles of his feet, were swollen, red and sore. According to the certificate, the applicant had numerous contusions that had been inflicted by other persons.

Still on the same evening, at 8.38 p.m., X-rays were taken of the applicant at Albert Schweitzer Hospital in Hatvan, a town at a distance of 32 kilometres, where the applicant was driven by his family members. He was diagnosed with a “chest contusion”, a “skull contusion” and “bodily injury inflicted by human force”.

The applicant stated that he had been unhurt at the time that he had been taken to the police department. He added that between his release and the medical inspection, he had been continuously accompanied by his relatives, who testified in the ensuing proceedings that he had not suffered any injuries outside the police department.

On 27 September 2010 the applicant lodged a criminal complaint alleging that he had been brutalised by police officers. The applicant alleged that during the ill-treatment the officers had made repeated references to his Roma origin. The case was being investigated by the Miskolc Public Prosecutor’s Office.

On 8 November 2010 the applicant was heard as a witness and shown, for the purposes of his identifying his alleged assailants, the photos of police officers serving at the Gyöngyös Police Department. The applicant acknowledged from the outset that he would be able to identify with certainty only three of the several perpetrators. Nevertheless, he finally identified eight persons as the perpetrators – six police officers (T.B., M.Z., Gy.K., K.V., F.I. and H.A.) and two security guards employed by the police department (P.G. and Z.A.). Subsequently, the applicant became uncertain about the involvement of K.V. and H.A.

The prosecutor’s office appointed a forensic expert. This expert had at his disposal the medical reports issued by Bugát Pál and Albert Schweitzer Hospitals. In his opinion given in retrospect, he made the following statement as to the time when the applicant’s injuries had been sustained:

“The exact time of the infliction of the injuries cannot be established. Given that the doctor examining the applicant did not document any lesions characteristically pointing to an inveterate injury, it can only be said that the injuries had been sustained within a 24-48-hour-time-frame preceding the medical care. Since, according to the police report on the application of coercive measures, the local police constable handed the applicant over to the officer on duty without any complaints or injuries, the injuries were likely to have occurred after this point in time.”

“A sérülések pontos keletkezési ideje nem határozható meg. Tekintettel arra, hogy a vizsgáló orvos idősülőben lévő sérülésre jellegzetes elváltozásokat nem dokumentált, az valószínűsíthető, hogy a sérülések az orvosi ellátást megelőző 24-48 órás időtartamon belül alakultak ki. Mivel a kényszerítő eszköz alkalmazására írt rendőri jelentés adatai szerint a körzeti megbízott panasz és sérülésmentesen adta át nevezettet az ügyeletes tisztnek, a sérülések valószínűsíthetően ezen időpontot követően keletkeztek.”

On 28 December 2010 the Miskolc Investigating Prosecutor’s Office discontinued the investigation, holding in essence that the applicant’s version of events was not plausible. The prosecutor emphasised the fact that since the applicant had been apprehended just after he had committed the crime in question (and still in possession of the proceeds of that crime), coercive interrogation by police officers with the intention of extracting his confession to the offence in question seemed pointless and thus hardly plausible. Relying on the internal records of the police department recording the shifts of the officers, the prosecutor was satisfied that three of the alleged perpetrators, Gy.K., F.I. and H.A., had alibis for the time of the incident, in that early in the morning of that day, they had been assigned to patrol service. Therefore, they could not possibly have been present at the applicant’s questioning. Furthermore, the two security guards (P.G. and Z.A.) were not allowed to leave their station and thus could not have been present at the incident. The prosecutor also observed that a general practitioner had examined the applicant between his release from the police department and the first hospital inspection, but had recorded no injuries. The prosecutor also found it material that the applicant had been uncertain of the identities of the alleged perpetrators when shown photos of the Gyöngyös police officers; that he had contradicted himself on several occasions; and that he had complained about the alleged incident only on 27 September 2010, not before.

On 16 January 2012 the Borsod-Abaúj-Zemplén County Public Prosecutor’s Office dismissed the applicant’s complaint against the discontinuation order. The prosecutor was satisfied that the investigation had been adequate and comprehensive, and that the obtaining of further evidence – in particular, by questioning the applicant’s brother and friend, who were present at his release – was superfluous. The applicant’s allegations about racist motives behind the ill-treatment were not addressed.

This decision was served on the applicant on 23 January 2012.

On 21 March 2012 the applicant brought a substitute private prosecution against the eight presumed perpetrators – that is to say, six police officers and two security guards – on charges of coercive interrogation. The motion included assertions about racial insults being uttered during the incident.

The Eger High Court held a hearing on 26 September 2012. At that hearing the applicant stated that he did not recognise the defendants P.G. and Z.A. and that he was not certain if K.V. had beaten him, so he dropped the charges against them. Accordingly, the court terminated the proceedings against these three defendants.

The remaining defendants either denied the charges or refused to make any statements. The High Court heard Dr C.S., who confirmed that she had not seen any marks of external injury on the applicant’s body when examining him on the day of the incident. A court-appointed medical expert stated that if the applicant had had the injuries in question when examined by Dr C.S. then the latter must have noticed them. The court also obtained testimony from the applicant’s mother and brother and a friend (the two latter had not been heard during the investigation), who had been waiting for him in front of the Gyöngyös Police Department on his release. They all stated that the applicant had already had those injuries at the moment of his release.

The High Court was satisfied that Gy.K., F.I. and H.A. had alibis for the time of the incident. As to the charges against the two other officers, T.B. and M.Z., the court highlighted that even though the applicant said that he had been ill-treated in order to force him to admit to at least three counts of theft – which he finally did – there was actually no reference in the record of the questioning to any further counts of theft. The court also emphasised that, contrary to the statements of the applicant, the two officers could not have been continuously present in the Gyöngyös Police Department because between 3 a.m. and 5 a.m. they had been carrying out some onsite inspections in another town, Gyöngyöspata.

On 28 November 2012 the Eger High Court acquitted the officers for want of sufficient evidence. According to the reasoning of the judgment, the court relied on documentary evidence relating to the applicant’s apprehension and questioning, documents relating to the service particulars of the officers involved, the testimony of the applicant, medical documentation, and the testimony of the officers.

The applicant did not appeal.

As a consequence of the applicant lodging, but subsequently withdrawing, a criminal complaint against K.V., criminal proceedings on charges of false accusation were conducted against the applicant. On 7 November 2013 the Eger District Court found him guilty as charged and placed him on three-year probation. The judgment was upheld in essence by the Eger High Court on 10 June 2014; however, the applicant’s sentence was altered to 180 days of community work.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary;Yonko Grozev

The first applicant is a professional photographer. Since 1998 he has owned and managed a single-member limited liability company through which he operates a photography studio in Plovdiv.

In January 2014 the French authorities informed the Bulgarian Border Police that a Turkish national who had a permit to reside in Bulgaria was suspected of forging Bulgarian identity documents and providing them to Turkish nationals residing unlawfully in France. Electronic surveillance had showed that he had exchanged email messages with an alleged accomplice whose email account was hosted by a Bulgarian Internet service provider.

Enquiries by the Bulgarian Border Police revealed that the email account belonged to the first applicant and his company. A wiretap placed on the Turkish national’s French mobile telephone showed that on 4 March 2014 he had called the photography studio’s landline and talked with a woman who spoke Bulgarian with a Russian accent. They discussed the receipt of the photographs of two people.

On 10-11 March 2014 the Turkish national travelled from Bulgaria to France by car, and was arrested shortly after entering French territory. A search of his car revealed eight fake Bulgarian identity cards, five fake Bulgarian drivers’ licences and six fake Bulgarian passports.

Two days later, on 13 March 2014, the Plovdiv district prosecutor’s office applied for warrants to search the photography studio, the first applicant’s car and the applicants’ house, and seize evidence there. It set out the above developments, and said that it was investigating the forging of identity documents in which the main suspect was the above-mentioned Turkish national. According to the available information, he had received assistance from the first applicant. The applications were worded as follows:

“In the course of the proceedings, the need has arisen to carry out a search and seizure in [the applicants’ house, the first applicant’s car, and the photography studio], since the available evidence gives probable cause to suspect that [these places] contain items of relevance to the case – items relating to the subject matter of the case. I therefore ... ask for permission for an investigator to search [these places] with a view to finding and seizing the above-mentioned items.”

Between 3.30 and 4 p.m. the same day, a judge of the Plovdiv District Court, sitting in private, issued three warrants authorising the searches and seizures in the following terms:

“The submitted materials make it clear that it is necessary to carry out a search and seizure in [these places] with a view to finding the items set out in the application[s] relating to the forging of identity documents and others, relevant to the case which is the subject matter of the criminal proceedings.”

At about 9 a.m. the following day, 14 March 2014, just as the first applicant was leaving his house, he was intercepted by three police officers, two in plain clothes and one in uniform.

The parties’ accounts of the ensuing events differ widely. According to the applicants, the police did not identify themselves, roughly pinned down and handcuffed the first applicant behind his back, scared his two daughters, the third and fourth applicants, who were minors, and then searched the house in a rude and chaotic manner, without presenting the warrant authorising them to do so. According to the Government, whose account was based on a statement informally obtained from one of the officers who took part in the search, the first applicant attempted to run back to the house, possibly to conceal evidence, and was only handcuffed for that reason. The officers searched the house with restraint, specifically endeavouring not to frighten the two children. They were only looking for computers, mobile telephones and similar devices, and did not rummage needlessly through things in the house.

According to the record of the search, it lasted between 9.15 and 10.50 a.m. and took place in the presence of two certifying witnesses. The police seized eleven SIM cards, identity and other documents, a laptop computer, three mobile Internet dongles, and a mobile telephone.

According to the applicants, after the search the officers dragged the first applicant into the street, bent over with his hands handcuffed behind his back, in sight of many neighbours and passers-by. Between 10.55 and 11.05 a.m. they searched his car, from which they did not seize anything. The officers then put the first applicant in a police car and drove to the photography studio, very close to the corner of a busy pedestrian street in the centre of Plovdiv, which they searched between 11.35 a.m. and 12.30 p.m. They again refused to allow the first applicant to acquaint himself with the search warrant. According to the record of that search, the officers seized three desktop computers, two video cameras, two still cameras, several flash memory cards, flash memory drives, and cash.

At about the same time, between 11.15 and 11.30 a.m. the police searched the first applicant himself, without a judicial warrant. They seized three flash memory drives and two mobile telephones. They submitted the search record to a judge of the Plovdiv District Court, who approved it at 5 p.m. the same day.

The officers then took the first applicant to a police station for a “conversation”. According to the first applicant, he was kept in handcuffs the whole time. The Government denied this, noting that if that had indeed been the case, the first applicant would not have been able to sign the search records and produce a handwritten statement in the police station.

In the statement the first applicant explained, inter alia, that he used the email account in which the police were interested (see paragraphs 7 and 8 above) to exchange computer files, mostly image files, with clients of his photography studio. He stated that he agreed to provide access to the account for the needs of the investigation, so that the police could subject the messages in it relating to the Turkish national to examination by an expert, and then gave his password. The Government submitted that the police had used the password to go through the email account, but had not seized any messages from it. The first applicant was released at about 6 p.m. The police did not issue a written order for his detention.

The first applicant’s wife, the second applicant, came back to Plovdiv later that evening. According to her, she had been contacted earlier during the day by telephone by her older daughter, the third applicant, and had become worried at the news that her husband had been arrested and their daughters left alone, frightened, in the house. She kept calling her daughters and trying to call her husband throughout the day.

On 20 March 2014 the investigator in charge of the case asked a computer expert to copy the data from three of the seized flash memory cards to an optical disk. In his report, submitted the following day, 21 March 2014, the expert said that he had copied all the files from two of the cards and that the third card did not contain any files.

On 6 June 2014 the investigator asked the same expert to copy the data from the laptop computer seized in the applicants’ house to an external hard drive and to inspect the three desktop computers seized in the photography studio for the presence of software or files which could be used for the forging of documents. In his report, submitted on 18 June 2014, the expert said that he had copied 192,610 files with a total size of 333,204 megabytes from the laptop computer to an external hard drive, which he enclosed with his report, and that his inspection of the desktop computers had revealed that two of them contained software programs which could be used to edit image files, and that the third computer was defective and could not be booted up.

It is unclear what happened with the data copied from the laptop computer and the two memory cards.

On 17 March 2014 the first applicant asked the Plovdiv district prosecutor’s office to order the return of all the seized items. He submitted that they were not relevant for the case and that he urgently needed them for his work as a photographer. On 20 March 2014 the prosecutor’s office partly allowed the request and ordered the return of some of the items – two cameras, two flash memory cards, and two video cameras – but only after the police had made copies of their contents. The next day, 21 March 2014, those items were given back to the first applicant. On 7 April 2014 he appealed to the Plovdiv regional prosecutor’s office, complaining of the refusal of the lower prosecutor’s office to order the return of the remainder of the seized items. It does not appear that he received a formal reply to his appeal, but on 14 May 2014, two months after the seizure, the investigator in charge of the case gave him back three mobile telephones, three mobile Internet dongles, 1,000 euros (EUR), 100 United States dollars, four flash memory cards, and three flash memory drives. The remainder of the seized items were given back to the first applicant a little more than three months after the seizure, on 18 June 2014, immediately after their contents had been inspected by the expert (see paragraph 21 above).

On 9 July 2014 the police sent the case file to the Plovdiv district prosecutor’s office, recommending that the proceedings be discontinued. On 2 September 2014 that office disagreed and instead decided to stay the proceedings on the grounds that the author of the presumed offence had not been identified. On 10 September 2014 it sent the case file back to the police for further investigation. On 18 March 2015 the police again transmitted the case file to the Plovdiv district prosecutor’s office. It appears that the proceedings are still pending. Neither the first nor the second applicant has been charged with an offence.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicants are spouses who were born in 1960 and 1961 respectively and live in the village of Shchorsove, in the Odessa Region.

Late in the evening of 18 June 1997 A., the applicants’ son (born in 1982), died in a traffic accident. According to the applicants, on that day D., the driver of the car, compelled A. to sit in the vehicle and travel with him. During the drive, D. exceeded the speed limit and the car turned over. The applicants’ son died from his injuries. The driver and other passengers survived.

Between 00.40 a.m. and 1.55 a.m. on 19 June 1997 the police prepared a site inspection report. They also questioned witnesses on the same day.

On 20 June 1997 the police instituted criminal proceedings related to the death of the applicants’ son.

On 1 October 1997 D. was charged with violating traffic safety rules and causing the death of the applicant’s son. Given that D. had not appeared before the police and that his whereabouts were unknown, the investigator, following approval by the prosecutor of the Ivanivka District of Odessa Region (“the District Prosecutor”), on the same day ordered the placing of D. in custody as a preventive measure.

On 11 November 1997 D. was placed on the list of wanted persons.

On 14 April 1998 D. visited the police department in charge of the criminal case and stated that between August 1997 and February 1998 he had been undergoing medical treatment outside Ukraine. On the same day the investigator, following approval by the District Prosecutor, changed the preventive measure from pre-trial detention to a written undertaking not to abscond.

On 24 June 1998 the first applicant brought civil claims for damages and requested that D.’s property be held as security for the claims. The claims were joined to the criminal case file.

In July 1998 the case was referred to the Ivanivka District Court of Odessa Region (“the District Court”) for consideration on the merits.

On 20 January 1999 the District Court put D. on the list of wanted persons, stating that he had failed to appear for court hearings on several occasions. The court ordered that he be placed in custody.

On 29 March 2010 the police informed the president of the District Court that D. had been arrested and taken to the local pre-trial detention centre.

On 20 April 2010 the applicants brought new civil claims, seeking damages within the criminal proceedings against D.

On 14 May 2010 the District Court closed the criminal proceedings on the basis of an Amnesty Act passed in 1998, releasing D. from criminal liability and punishment. The District Court dismissed the civil claims without considering them on the merits.

The applicants appealed.

On 26 August 2010 the Odessa Court of Appeal upheld the District Court’s decision concerning the termination of the criminal case against D. As to the civil claims, it found that the District Court dismissed them unlawfully and ordered that they be considered further by the District Court in accordance with civil procedure.

On 22 September 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal by the applicants on points of law as unsubstantiated.

On 22 May 2013 the District Court partly allowed the applicants’ civil claims. Referring to the results of the criminal proceedings, the court found that D. had been responsible for the traffic accident, causing the death of the applicants’ son. It awarded each applicant 400,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage and a further UAH 16,050 to the first applicant in respect of pecuniary damage.

On 1 October 2013 the Odessa Court of Appeal considered an appeal by D. and reduced the non-pecuniary damage award to UAH 50,000 for each applicant.

On 24 October 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed an appeal on points of law by the applicants, who sought to increase the amount of damages.

On 24 June 2014 the State Bailiffs Service returned letters of execution to the applicants, stating that no funds or property belonging to the debtor could be found.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1971 and lives in Barking.

The applicant arrived in the United Kingdom on 7 January 2003. He claimed asylum on 15 January 2003 but his claim was refused by the Secretary of State for the Home Department on 15 March 2003 and his appeal against that decision was refused on 1 October 2003.

On 13 February 2004 the applicant was convicted of indecent assault in relation to an incident involving two fifteen-year old girls and was sentenced to twelve months’ imprisonment. He was released on licence on 7 September 2004 but his licence was revoked on 24 September that year because he failed to comply with the terms of the licence.

The applicant was re-arrested on 16 January 2005.

On 31 March 2005 the applicant was served with the decision to make a deportation order. On the same day he was detained pursuant to the Secretary of State’s powers under paragraph 2(3) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The deportation order was signed on 4 August 2005 and served on him on 12 August 2005.

On 5 September 2005 the applicant indicated that he wished to return to Iran. One month later an application was submitted to the Iranian authorities for an emergency travel document to enable him to travel there. However, the application was rejected by the Iranian authorities on 22 November 2005.

The applicant was subsequently interviewed at the Iranian Embassy on 15 September 2006. However, two days later the Embassy informed his solicitors that they could not issue a travel document as no formal identification of the applicant had been provided. On 17 October 2006 the Home Office was informed that the Iranian Embassy required a birth certificate before any travel documents could be issued. It appears that the Home Office thereafter proposed to submit copy documents. The Iranian Embassy initially agreed to this proposal, but later refused.

On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention.

On 6 November 2007 the Iranian Embassy agreed to issue a travel document provided that the applicant was prepared to sign a “disclaimer” consenting to his return.

On 11 December 2007 the Administrative Court ordered the applicant’s release from detention subject to a number of conditions, including that he be subject to a curfew; that he remain at a fixed address; that he report on a weekly basis to the nearest Border and Immigration Agency office; and that he take the steps necessary to obtain travel documents.

The applicant refused to sign a “disclaimer” on 14 December 2007. Although he was released on 17 December 2007, four days later the matter was brought back to the Administrative Court and a different judge discharged the previous order on account of his failure to comply with the conditions for release (namely, that he take the steps necessary to obtain travel documents). As a consequence, the applicant was once again liable to detention.

On 27 December 2007 Group 4 Securicor reported that they had on two occasions attempted to visit the applicant at his nominated address to install the equipment required for electronic tagging. Both visits took place during the hours of curfew. Very shortly afterwards the applicant reported a different address to the immigration authorities so that they could continue to communicate with him.

On 8 January 2008 an authority was issued for the applicant’s detention and on 14 January he was detained while reporting to the immigration authorities.

By February 2008 the authorities had been alerted to the fact that the applicant was showing some signs of psychological disturbance, had been diagnosed with “reactive depression” and was receiving medication for his psychological symptoms.

On 26 February 2008 the claim for judicial review launched on 13 September 2007 was dismissed.

The applicant attended at the Iranian Embassy on 7 April 2008 but no travel document was issued. On 4 June 2008 he again refused to sign a disclaimer.

On 25 July 2008 the applicant was alleged to have displayed “inappropriate behaviour” to a female member of immigration staff at a detention centre. His behaviour was also alleged to have been disruptive.

In or around September 2008 the immigration authorities discussed the possibility of prosecuting the applicant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for failing without reasonable excuse to comply with the Secretary of State’s requirement to take specified action to enable a travel document to be obtained. However, no prosecution was ever mounted.

On 13 October 2008 the applicant wrote to the United Kingdom Border Agency, indicating that he would be willing to return to Iran if he were to be compensated for the periods of detention which he had undergone. However, the Border and Immigration Agency refused to agree to any such request.

On 6 January 2009, 6 February 2009, March 2009, May 2009, June 2009 and September 2009 the authorities made further attempts to engage the applicant in a voluntary return. However, on each occasion he indicated that he was not willing to co-operate or sign a disclaimer.

On 17 March 2009, 9 June 2009 and 7 October 2009 the applicant made three applications for bail to the Asylum and Immigration Tribunal. On each occasion the application was dismissed. The reasons given for the dismissal of the applications included the fact that the applicant could end his own detention by signing the disclaimer.

The applicant’s solicitors wrote a letter before action on 21 October 2009 and proceedings were issued on 6 November. On 4 December 2009 the High Court granted the applicant permission to apply for judicial review and the Home Office was ordered to release him on bail within forty-eight hours.

At the hearing counsel for the applicant argued that both periods of the applicant’s detention could properly be looked at as being unlawful, although he focused his attention on the second period. Counsel for the Secretary of State for the Home Department argued – and the court appears to have accepted – that the first period could not be in question legally, since the applicant had been released for one month pursuant to a court order and the order enforcing release had been discharged. However, he conceded that when considering the lawfulness of the second period of detention, the first period of detention would have to be taken into account.

In considering the lawfulness of the second period of detention, the Administrative Court judge recalled that the authorities should be free to make strenuous efforts to obtain the assent of a person they proposed to deport. If they were unsuccessful, they could and should seek any way around his consent, for example by persuading the country of origin to issue a travel document without a disclaimer. However, the judge noted that the law did not permit the indefinite detention of someone who was never going to consent to deportation.

Bearing that in mind, the judge considered the history of the applicant’s second period of detention. He observed that during this period there had been no change in approach to the applicant, no prosecution had been brought under section 35 of the 2004 Act, and there had been no further approach to the Iranian authorities to see if they would change their position.

The judge then had regard to the relevant principles of domestic law set out in R v. The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and in the guidance given by the Court of Appeal in both R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 and WL (Congo) v. Secretary of State for the Home Department [2010] EWCA Civ 111 (see paragraphs 35-36 below). Applying those principles and the relevant guidance, the judge noted that the most important factor justifying detention was the applicant’s refusal to sign the relevant disclaimer. He further noted that lengthy detention could be justified by the applicant’s offending, by the realistic fear that he would further offend and by the genuine and reasonable concern that he might abscond. However, even given those factors, the judge found that there had to come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging the applicant to change his mind, in full expectation that he would not, ceased to be detention genuinely for the purpose of deportation. The judge therefore concluded that “the woeful lack of energy and impetus” applied to this case from at least the middle of 2008 meant that it could not possibly be said that the Secretary of State on this occasion had complied with the obligation in Hardial Singh to act with “reasonable diligence and expedition”. He therefore held that the applicant’s detention had been unlawful from 14 September 2009.

With regard to the question of whether there should be guidance on how long it might be appropriate to detain an individual, the judge made the following observations:

“It cannot be right for the Secretary of State to be led to believe, by looking at a digest of the range of decisions that have been taken, that it is safe to detain for X months or X years.

Equally, it cannot be right for those who are in the positon of being detained for considerable periods, stubbornly refusing to comply with the authority’s requests to facilitate voluntary repatriation, to be put in a position of saying, ‘If I hold on another year, or two years, or three years, then I am all right’. A tariff is repugnant and wrong, and it seems to me that it would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases.”

In a decision dated 13 May 2011 the applicant was awarded GBP 6,150 in damages.

The applicant sought permission to appeal. On 31 October 2011 permission to appeal was refused. However, on 7 November 2012 the applicant renewed his application for permission to appeal and on 10 February 2012 he was granted permission to appeal only in respect of the quantum of damages awarded. The outcome of that appeal is unknown.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1967 and lived in Rostov-on-Don prior to his arrest.

On 30 March 2006 the applicant was arrested on suspicion of murder. By judgment of 16 May 2006, the Orlovskiy District Court of the Rostov Region found him guilty and sentenced him to seven years’ imprisonment. On 18 July 2006 the Rostov Regional Court upheld the conviction. The applicant and his counsel lodged an application for supervisory review of the conviction.

On 12 April 2007 the Presidium of the Regional Court, upon hearing the prosecutor, counsel for the applicant and for the injured party, quashed the conviction for formal defects and ordered a re-trial. The Presidium directed that the applicant should be held in custody, without citing grounds for the custodial measure or setting a time-limit for its application.

On 26 June 2007 the District Court held a preliminary hearing and fixed the trial date for 3 July. By the same decision, the court determined that the applicant should remain in custody because he was charged with a particularly serious offence and could pervert the course of justice if released. The applicant and his counsel filed an appeal against the extension order.

On 31 July 2007 the Regional Court examined the appeal in the absence of the applicant and his counsel. It annulled the detention order on the ground that the District Court had failed to set a time-limit for the applicant’s detention, in breach of the requirements of the Code of Criminal Procedure. It did not take any decision regarding the applicant’s further detention and referred the issue to the District Court for a new examination.

On 7 September 2007 the District Court extended the applicant’s pretrial detention for a period of six months starting from 28 April 2007 and lasting until 28 October 2007, referring to the gravity of the charges and the applicant’s new line of defence which, in the District Court’s view, was an indication that he might abscond. On 8 October 2007 the Regional Court rejected in a summary fashion the appeal against the extension order.

On 15 October 2007 the District Court extended the applicant’s detention until 28 December 2007, referring to the gravity of the charges and the flight risk. On 11 December 2007 the Regional Court upheld the detention order on appeal.

On 13 December 2007 the District Court examined the applicant’s request for release. Noting that the trial was approaching the final stage, that the witnesses had been heard, and that the applicant had family and dependent children, the court held that the applicant could be released on bail. The applicant was released the following day. On 5 February 2008 the Regional Court quashed the bail decision, holding that the District Court had not taken proper account of the gravity of the charges. On 20 February 2008 the District Court reconsidered the matter and held that the applicant should be re-detained for a further three months on account of the gravity of the charges against him. On 26 March 2008 the Regional Court upheld the detention order on appeal.

On 3 March 2008 the District Court found the applicant guilty of murder and sentenced him to five years’ imprisonment. On 23 April 2008 the Regional Court upheld the conviction.