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

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

The applicant was born in 1956 and is currently detained in Giurgiu Prison.

For the last nine years the applicant had been convicted several times and he had been detained in various prisons. For certain periods of time he had been held in the Jilava and Rahova prison hospitals.

On 1 November 2007 the applicant was convicted by the Arad County Court on two counts of robbery and theft and was sentenced to seven years’ imprisonment. The court also ordered the applicant’s committal to the psychiatric section of the Bucharest Jilava Prison Hospital until his recovery.

In his application forms and letters sent to the Court since 2009, the applicant complained of the severe overcrowding he had had to endure in Galaţi Prison, where thirteen to fifteen detainees were held in a cell of between 20 and 24 sq. m, as well as in Rahova and Jilava Prisons.

The applicant also alleged that the quality of food and drinking water had been very poor in these prisons, that he had not always been served a diet in accordance with his Muslim religious beliefs and that most of the time he had been starving as the portions had not been sufficient.

In all three prisons hot water had only been provided for short periods of time in which there had not been enough time to brush his teeth. Furthermore, in Jilava Prison there had not been enough cold water provided.

The applicant further alleged that, although he had no financial resources and had had no family to help him, the prison authorities in all three prisons had failed to provide him with the necessary clothes, toilet paper, soap or toiletries to brush his teeth.

In Galaţi Prison the applicant was held for almost eight months in six different cells including in the infirmary and the “hunger strike” (refuz de hrană) cell. The cells in this prison are approximately 24 sq. m with a maximum of fifteen beds. The applicant shared the cells with a maximum of eleven other prisoners (2.1 sq. m of space per person, including the space occupied by beds and other furniture).

Cold water was available at various intervals for a total of seven hours per day and was not available between 9 p.m. and 6:30 a.m. The quality of the drinking water was certified by the Galaţi Public Health Authority.

The applicant received a diet in accordance with his religious beliefs and the composition of the daily menu was in line with the regulations.

Toiletries were provided as the budget allowed. During the period of almost eight months that the applicant spent in Galaţi Prison he received the following: two tubes of toothpaste, six razors, four tubes of shaving cream, nine bars of poor quality soap, six rolls of toilet paper, two toothbrushes and washing powder.

Throughout his detention in Galaţi Prison the applicant received no visits and was considered unfit for work. He did not have any income.

The applicant was held in Rahova Prison for six months and four days. He was placed in cells measuring 21 sq. m which he shared with nine other prisoners (2.1 sq. m of space per person including beds and other furniture). The cells had bathrooms equipped with two sinks, a shower and a toilet. Cold water was constantly available and hot water was twice per week following a schedule.

Food was prepared in accordance with the standards and regulations. Renovation of the food preparation and storage areas were under way when the Government’s observations were being submitted.

The Government submitted that upon their placement in a detention facility, prisoners received one set of bed linen.

Throughout his detention in Rahova Prison the applicant received no visits, was considered unfit for work and did not have any income.

The applicant was detained in Jilava Prison for twenty-two days. For a few days he shared a cell measuring 40.28 sq. m with twenty-seven prisoners; there were thirty beds as well as other items of furniture (1.43 sq. m of space per person including beds and other furniture). This cell was equipped with two toilets and two sinks where cold water was constantly available. The rest of the time he was held in the infirmary where he had approximately 6 sq. m of personal space.

Hot water was provided in common shower facilities according to a pre-established schedule for two hours on Mondays and Fridays for half of the prison and Tuesdays and Saturdays for the other half. In one of the infirmary wards, where the applicant spent fourteen days, two showers with hot water were available for up to seven prisoners, for the same periods as the general schedule (two hours per week).

During the twenty-two days he spent in this prison, the applicant received one roll of toilet paper, a razor and one tube of shaving cream.

The Government alleged that on 17 May 2013 the applicant also received clothing that he could use during his stay in this prison but they submitted no documents in support of this claim.

The applicant received the “Muslim menu” in accordance with the internal regulations.

The applicant had access to the exercise yard for six hours per day.

Throughout his detention in Jilava Prison the applicant received no visits and did not have any income.

On 11 June 2013 the applicant was transferred to Giurgiu Prison.

The applicant lodged numerous complaints with the prison authorities or the post-sentencing judge outlining his dissatisfaction with the overcrowding, the poor quality of the drinking water or the quality and quantity of the food he received. He asked on several occasions to be placed in a single occupancy cell and to be given certain foods such as fried eggs or fried potatoes.

These complaints were always rejected as being ill-founded.

On 30 September 2009, the Bucharest District Court rejected with final effect the applicant’s complaint concerning the lack of adequate provision of drinking water in Jilava Prison, reasoning that this situation was a result of budgetary constraints. Another complaint lodged with the delegate judge while the applicant was being held in Rahova Prison has on its reverse side the note “Transferred”.

The complaints about overcrowding were always solved with the conclusion that the assignment of detainees to sections and cells was a function of the prison’s administration and placement in individual cells was not possible and was not allowed by law.

On several occasions the applicant complained to the post-sentencing judge that the food served in prison was of very poor quality and the portions were not adequate. All his complaints were rejected as ill-founded as the post-sentencing judge considered that the applicant’s allegations had been contradicted by the information submitted by the authorities of the prisons concerned.

On 7 March 2013 while he was held in Rahova Prison the applicant requested one pair of shoes, two pairs of socks and one tracksuit. A note on the request says that it shall be examined depending on stocks, but there is no subsequent mention of whether the applicant received any of the items requested.

On July 2009, following a dental examination in Rahova Prison Hospital, the applicant was diagnosed with periodontitis (I and II degree) and frontal, lateral and terminal edentulism. The doctor prescribed specific periodontitis treatment, a mobile prosthesis and a liquid or semi-liquid diet until the installation of the prosthesis.

Since then, the applicant had been taken to see a dentist on numerous occasions upon his requests following bouts of inflammation of the gums or pain. He was consistently prescribed symptomatic treatment with antibiotic or anti-inflammatory drugs. On these occasions the doctors would repeat the prescription for a liquid or semi-liquid diet.

In November 2009 the applicant was diagnosed with chronic generalised marginal periodontitis and was prescribed antibiotics, anti-inflammatory drugs and hygienisation of the oral cavity by a dentist within the prison system. On the same occasion he was also diagnosed with inflammation of the salivary glands and surgery was prescribed, which was performed on 28 March 2013.

On 11 May 2010 the applicant was diagnosed with a duodenal ulcer and on 11 August 2011 with chronic gastroduodenitis.

On 21 July 2011 during a medical examination in Galaţi Prison the applicant, who had been previously diagnosed with several personality disorders, was diagnosed as showing symptoms of paranoia; it was recommended that he be committed to the psychiatric section of the Poarta Albă Prison Hospital.

Between 15 and 19 October 2012 the applicant was hospitalised for an acute inflammation of the salivary glands and generalised stomatitis. He was released with a prescription to eat liquid and semi-liquid food, to brush his teeth three times per day, to take antibiotics and to use mouthwash.

The applicant had one tooth extracted on 29 November 2012.

On 24 February 2014 the applicant was taken to the prison hospital with congestion and swelling of the gums. He was diagnosed with, among other conditions, chronic acute otitis, generalised stomatitis, chronic apical periodontitis, neurovegetative disorders, conjunctivitis and spondylosis.

On several occasions the applicant was taken to prison hospitals or to the emergency unit of public hospitals with a broken nose or ribs after having been assaulted by other prisoners.

Throughout his detention the applicant refused treatment with drugs or, on a few occasions, to be transported to Rahova Prison Hospital for conditions not related to his dental problems. In November 2011 the applicant, who was in a nervous state, refused to be seen by the prison dentist. On 3 February 2014 the applicant refused to have a tooth extracted.

On 15 October 2009 the applicant complained before the prison authorities and the post-sentencing judge that he was not receiving the liquid and semi-liquid diet prescribed by the doctor. On 3 November 2009 the post-sentencing judge in Rahova Prison rejected the complaint, agreeing with the prison authorities that there was no prescription from a doctor for such a diet in the applicant’s medical file. Another similar complaint lodged by the applicant in January 2013 had been rejected by the post-sentencing judge for the same reason.

On 21 May 2012, in August 2012 and on 10 September 2012 the applicant complained to the prison administration that he had toothache and that he could not eat as he had not been given a liquid diet, as requested. No replies to these complaints could be found in the applicant’s prison file submitted by the Government.

In January 2013 the applicant complained before the post-sentencing judge of the poor quality of the food served in prison; the vegetables were undercooked; he received bones without meat. He further complained that he had not been given the liquid diet prescribed by the doctors and that he had thus constantly received food that he could not chew and eat. The prison administration averred before the judge that no special diet had been prescribed to the applicant by a doctor and that the food served in prison was in accordance with the regulations and within the limits of the budget of 4.06 Romanian lei per prisoner per day (approximately 1 euro). On 8 January 2013 the post-sentencing judge rejected the applicant’s complaint as ill-founded, considering that the food received by the applicant had been in accordance with the regulations and the budget.

In March 2013 the applicant complained again before the post-sentencing judge. He alleged that, due to his dental problems, he could not eat the food served in prison. He mentioned that the meat was not cooked through and very often during transport he had received raw, unsliced bacon and biscuits that he could not eat. On 21 March 2013 the post-sentencing judge rejected the applicant’s complaint because the facts described by him had been refuted by the prison authorities. At that time, no doctor had prescribed that the applicant be given a liquid or semi-liquid diet. On 14 May 2013 the Bucharest District Court rejected this complaint with final effect holding that the prison menus were prepared and administered in accordance with the internal regulations and within the limits of the budget.

On 16 and 25 June, 23 December 2013 and 12 and 24 March 2014 the applicant complained to the prison administration of toothache and requested treatment for his periodontitis. The authorities replied to these complaints that the doctor was on holiday and that an appointment would be scheduled in the future.

According to the applicant, on 14 February 2013 when he was being transported to an infirmary outside the prison, he was ill-treated by a prison guard escorting him.

Immediately after the incident the applicant lodged a criminal complaint against the prison guard for ill-treatment and abusive behaviour.

On 27 November 2013 the Prosecutor’s Office of the Bucharest District Court issued a decision not to commence criminal proceedings in the case. According to a copy of the prison’s correspondence logbook, as submitted by the Government, the applicant received a copy of the decision on 12 December 2013.

The applicant did not contest this decision before the superior prosecutor as provided for by the Criminal Procedure Code.


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

The applicant, Mr Dubravko Brljačić, is a Croatian national who was born in 1955 and lives in Požega. He was represented before the Court by Mr N. Sabljar, a lawyer practising in Rijeka.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

In September 1997, following a public tender for the purchase of real properties owned by a company, P.-d. (hereinafter “the company”), the applicant bought a commercial property (a retail store) from the company.

On the basis of the purchase contract the applicant registered his ownership of the retail store in the land register.

In October 1998 the applicant transferred his ownership of the retail store to his wife, D.B.B., who then duly registered her ownership in the land register.

On 29 March 2000 the Požega County State Attorney’s Office (Županijsko državno odvjetništvo u Požegi) indicted thirteen managers of the company before the Požega County Court (Županijski sud u Požegi) on charges of abuse of power and authority in connection with several disadvantageous contracts concluded by the company, including the one concluded with the applicant.

The company joined the criminal proceedings by lodging a civil claim seeking the annulment of the contracts concluded by the alleged commission of a criminal offence.

During the proceedings before the Požega County Court the applicant was examined as a witness concerning the criminal charges against the accused. He explained that he had intended to start his own retail business and thus he had initially rented the retail store in question from the company. However, in July 1997 he had been offered the chance to buy the store, which he had accepted. The applicant also explained that subsequently, given that he had been unemployed and thus not eligible to take out a loan to pay for the renovation of the store, he had transferred his ownership of the store to his wife, who had been in a position to take out a loan.

On 4 February 2002 the Požega County Court found the accused guilty as charged and sentenced them to imprisonment. It granted the company’s civil claim and declared the contracts concluded by the accused null and void, including the contract concluded with the applicant. It also held that the decision declaring the contracts null and void should not call into question the rights of parties who had bought the real properties from the company in good faith, as that would require further proceedings to establish whether they had acted in good faith when concluding the contracts, and that would be contrary to the principle of efficiency of criminal proceedings.

The accused and the Požega County State Attorney’s Office appealed against the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske) alleging numerous substantive and procedural flaws in the findings of the Požega County Court concerning the criminal responsibility of the accused. The applicant and several other parties who had concluded contracts with the company also appealed against the first-instance judgment, challenging the annulment of the contracts on which they had based their property titles.

On 19 April 2006 the Supreme Court dismissed the appeals by the accused and the Požega County State Attorney’s Office as unfounded and declared the complaints lodged by the applicant and the other third parties inadmissible on the grounds that they did not have standing to lodge an appeal against the first-instance judgment.

The applicant then challenged the judgments of the lower courts by lodging a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He contended in particular that the decision to declare the real property purchase contract null and void had unlawfully and unjustifiably interfered with his property rights and that the Supreme Court had declined to examine his complaint in that respect.

On 30 June 2010 the Constitutional Court dismissed the applicant’s constitutional complaint against the judgment of the Supreme Court as unfounded and ruled the complaints against the first-instance judgment of the Požega County Court inadmissible as they had been lodged outside the thirty-day statutory time-limit for lodging a constitutional complaint. In particular, the Constitutional Court examined the applicant’s complaint from the perspective of the right to a fair trial and found that there had been nothing unlawful or arbitrary in the decision of the Supreme Court; in its view, no other issue arose with regard to the remainder of the applicant’s complaints.

On 18 July 2007, relying on the final judgment of the Požega County Court by which the applicant’s purchase contract had been declared null and void, the company instituted civil proceedings against the applicant and his wife, D.B.B., before the Požega Municipal Court (Općinski sud u Požegi). It asked that the contract on the transfer of the property title from the applicant to his wife be declared null and void and that the successive entries in the land register of the applicant’s and D.B.B.’s titles to the retail store be cancelled. Alternatively, the company claimed 690,402.97 Croatian kunas (HRK) (approximately 92,600 euros (EUR)), plus statutory default interest.

During the proceedings the applicant and D.B.B., represented by a lawyer, contested the company’s civil claim on the grounds that they had purchased the real property at issue in good faith and that there were no grounds for annulling their property title. They also pointed out that the final judgment of the Požega County Court by which the contracts concluded by the company’s directors had been declared null and void did not call into question the rights of third parties who had obtained their property titles in good faith.

At a hearing on 31 March 2014 the Požega Municipal Court examined the relevant materials concerning the conclusion of the contracts and the transfer of title to the retail store from the company to the applicant and from the applicant to D.B.B. It also heard the company’s representative, the applicant and D.B.B., and read out the judgments of the Požega County Court and the Supreme Court.

On 29 April 2014 the Požega Municipal Court dismissed the company’s civil action on the grounds that both the applicant and D.B.B. had become owners of the real property at issue in good faith. It explained that whereas it was not possible to call into question the Požega County Court’s final judgment declaring the applicant’s purchase contract null and void, that judgment had to be read in conjunction with the relevant provisions of the Civil Obligations Act, which protected parties who had acted in good faith from being obliged to return that which they had acquired on the basis of an annulled contract. In the case at issue, the Požega Municipal Court considered that there was nothing suggesting that the applicant, and subsequently D.B.B., had not acquired title to the retail store in good faith.

The company lodged an appeal against the judgment of the Požega Municipal Court with the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu). The company argued, in particular, that the first-instance court had erred in its findings concerning the question of whether the applicant and D.B.B. had obtained title to the retail store in good faith.

The company’s appeal was forwarded to the applicant’s representative, who did not respond to the company’s arguments.

On 16 March 2015 the Slavonski Brod County Court dismissed the company’s appeal as unfounded and upheld the first-instance judgment of the Požega Municipal Court. In its reasoning, the Slavonski Brod County Court stated that there was nothing to call into question the findings of the first-instance judgment with regard to the question of whether the applicant and D.B.B. had acquired title to the retail store in good faith.

On 24 April 2015 the company lodged an appeal on points of law with the Supreme Court challenging the judgment of the Slavonski Brod County Court. The proceedings before the Supreme Court are still pending.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 05/2014) read as follows:

“In the determination of his rights and obligations or of any criminal charge against him, each person is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

“The right of ownership shall be guaranteed ...”

The relevant provision of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:

“If the civil claim concerns the annulment of a legal transaction, and the court finds that the request is well-founded, it shall declare the full or partial nullity of that legal transaction, including its effects, without interfering with the rights of third parties.”

The relevant parts of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999 and 88/1000) provide as follows:

“(1) A contract that is contrary to the Constitution, peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates that some other sanction or the law in a particular case provides otherwise.

(2) If the conclusion of a contract is prohibited only in respect of one party, the contract shall remain valid, unless the law in a particular case provides otherwise, in which case the party that has breached the statutory prohibition shall bear the relevant consequences.”

“(1) Where a contract is null and void, each contracting party is bound to return to the other everything it has received on the basis of such a contract. If that is not possible, or if the nature of the obligation performed renders [such return] impracticable, an appropriate [amount of] monetary compensation shall be given, according to the value of the object in question at the moment at which [the relevant] court decision is passed, unless the law provides otherwise.

(2) However, if a contract is null and void because its substance or purpose is contrary to the Constitution and peremptory rules, the court may dismiss, fully or partially, a request for restitution [made by] the party that has not acted in good faith ...”


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

The applicant, Mr Raj Arjandas Bhojwani, is an Indian national, who was born in 1957 and according to the most recent information available to the Court is currently detained at HM Prison La Moye in Jersey. He is represented before the Court by Carey Olsen, a law firm based in Jersey.

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

Between 1996 and 1997 the applicant secured two contracts to supply vehicles to the Nigerian Government, then under the rule of General Abacha. He was paid almost 149 million United States dollars (“USD”) for the first contract and almost USD 29 million for the second. He paid all sums into two accounts in the Bank of India in Jersey (“BOIJ”). He subsequently paid approximately USD 100 million to accounts in Switzerland and elsewhere connected with General Abacha and Colonel Marwa, a close collaborator of General Abacha.

Following General Abacha’s death in 1998, a Special Investigation Panel was set up in Nigeria to investigate the use of Government monies during General Abacha’s regime. The Panel was chaired by the Deputy Commissioner of the Nigerian Police Force, Mr G.

On 23 October 2000 the applicant converted the balance of the two BOIJ accounts into six bankers’ drafts totalling almost USD 44 million. On 25 October 2000 he couriered the bankers’ drafts to London. The bankers’ drafts were subsequently returned to Jersey and, on 2 November 2000, the applicant deposited them into three accounts at the BOIJ.

On an unknown date the Jersey police commenced a criminal investigation into money laundering in respect of the applicant. On 17 June 2002 the Attorney General of Jersey sent a letter of request to the Nigerian Government asking for assistance with the money laundering investigation. The Nigerian authorities instructed Mr G. to gather relevant evidence. Mr G. and Colonel B., a retired army officer who had worked closely with General Abacha, made witness statements to a Jersey police officer in Jersey and Nigeria. Mr G. also gathered various business documents which he provided to the Jersey authorities. The Attorney General of Nigeria provided an undertaking that the Government of Nigeria would use its best endeavours to ensure that the necessary witnesses travelled to Jersey to give evidence at any future criminal trial against the applicant.

On 15 October 2009 the applicant obtained declarations from the Federal High Court of Nigeria (“the Nigerian judgment”) that the Special Investigation Panel was unconstitutional and that all investigatory actions undertaken by it in respect of the applicant were “null and void, and lacking any valid or legal effect whatsoever”.

Meanwhile, the applicant was charged with two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct from the jurisdiction.

Following delivery of the Nigerian judgment, the applicant made two applications to the court.

In the first, he sought a stay on proceedings on grounds of abuse of process. He contended that the use of the business documents by the Attorney General of Jersey was an abuse of power because the Nigerian court had ruled that they had been unlawfully obtained and because they had been obtained for an “investigation” only, so that there had been no consent to their use at trial. On 9 November 2009 the Royal Court delivered its ruling on this application, declining to stay proceedings. It held that there was no evidence of an abuse of power and that since the purpose of an investigation into a criminal offence was to prosecute that offence, there would be little point in providing the information for the former but not the latter. The court noted that the defence conceded that the admission of the relevant Nigerian evidence did not prejudice the fairness of the applicant’s trial. The judge said:

“70 ... [I]t follows that I would not exercise my discretion under Article 76 of [the 2003 Law] to exclude it on the grounds set out in this application.”

In his second application, the applicant relied on Article 66 of Police Procedures and Criminal Evidence (Jersey) Law 2003 (“the 2003 Law” – see paragraph 28 below), which allowed the court to exclude admissible evidence “in the interests of justice”. He argued that since the case was focused on alleged corruption at the highest level of government in Nigeria at the relevant time, it should not be assumed that the business documents were reliable. On 23 November 2009 the Royal Court allowed the admission of the business documents. It noted that there was nothing on the face of the documents to indicate that they were not authentic. While it was true that the applicant could not controvert the documents, it was necessary to balance the competing interests. There were a substantial number of documents that the applicant was in a position to controvert and he was also able to give evidence as to the nature of his involvement with General Abacha and Colonel Marwa. It was in the interests of justice that the business documents be admitted.

The prosecution subsequently applied under Article 64 of the 2003 Law (see paragraph 27 below) to read the witness statements by Mr G. and Colonel B. The defence argued that further steps should be taken by the prosecution before the judge could conclude that it was “not reasonably practicable”, in terms of Article 64, to secure the attendance of the witnesses.

On 6 January 2010 the court held that the witness statements were admissible. It was satisfied “to the criminal standard” that it was not practicable to secure the attendance of the witnesses. It further rejected the applicant’s argument that the admission of the statements would breach his rights under Article 6 §§ 1 and 3 (d) of the Convention. The court recognised the conflict between the approach of the English courts, as outlined in R v. Horncastle and Others [2009] UKSC 14, with the approach of a Chamber of this Court in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. It concluded that the “sole and decisive” test had no application in Jersey. There was nothing inherently unreliable on the face of the statements and it would be in the interests of justice to admit them.

Meanwhile the Attorney General of Jersey wrote to the Attorney General of Nigeria requesting that Nigerian witnesses attend in Jersey to give their evidence. The Attorney General of Nigeria replied that, following the Nigerian judgment, he was unable to accede to the request for Nigerian witnesses to testify at the trial in Jersey “as the crux of the matter is centred on the national interest and I have a constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria”. He asked for the business documents to be returned to Nigeria.

On 21 January 2010 the applicant applied to have the Nigerian evidence excluded and his prosecution stayed on grounds of breach of international law and comity, based on developments since the 9 November 2009 ruling of the Royal Court (see paragraph 10 above). On 26 January 2010, with reasons delivered on 11 February 2010, the Royal Court refused the applications. It noted that the defence did not contend that the admission of the Nigerian evidence would adversely affect the fairness of the proceedings and that the application to exclude was not therefore brought under Article 76 of the 2003 Law (see paragraph 29 below) but was brought instead under the court’s inherent jurisdiction to exclude evidence as a matter of comity. The court considered that the only conduct being impugned by the defence was the decision of the Attorney General to lead admissible evidence at trial. The only remedy available to a defendant whose complaint was based solely on the merits of the decision to lead admissible evidence was the exclusion of the evidence under Article 76 of the 2003 Law.

The trial subsequently commenced in the Royal Court before the Commissioner and two jurats (professional judges of fact). On 5 March 2010, the applicant was convicted of money laundering. On 25 June 2010 he was sentenced to six years’ imprisonment.

The applicant sought permission to appeal against his conviction and sentence. He raised twelve grounds of appeal, dated 24 May 2010. Ground 8, which it was stated was intended to be taken together and supplemented by matters addressed in grounds 9 to 12, related to the admission into evidence of “the whole of part of the Nigerian evidence”, namely, the business documents and the witness statements. The grounds explained that the applicant’s grounds of appeal in relation to the Nigerian evidence under grounds 8 to 12 proceeded on the premise that it was open to him to challenge the admissibility of evidence either by an application for a stay on the basis of abuse or an application for the court to exercise its statutory discretion under Article 76 of the 2003 Law to exclude the evidence.

The applicant’s challenge in ground 8 was to the decision of the trial judge of 9 November 2009 not to stay proceedings as an abuse of process (see paragraph 10 above). Ground 9 was also a challenge to the decision of 9 November 2009, this time on the basis that the use of the business documents at trial breached the applicable law on mutual legal assistance because they had been used for a purpose other than that for which they had been provided. Ground 10 was a challenge to the decision of 6 January 2010 to admit the witness statements (see paragraph 13 above). It explained that their admission had resulted in unfairness in that the applicant had been denied the opportunity to test and controvert that evidence in circumstances where it was the sole and decisive evidence relied on by the prosecution to prove a part of its case. The ground referred to the trial judge’s finding that the “sole or decisive” test had no application in Jersey’s law and that the admission of the statements would not breach Articles 6 §§ 1 and 3 (d). Ground 11 concerned the judgment of 11 February 2010 to refuse to exclude the Nigerian evidence on grounds of breach of international law and comity and the refusal to stay proceedings on that basis (see paragraph 15 above). Ground 12 concerned the admission of a statement made by the applicant which he does not challenge in the present application.

The applicant subsequently prepared a written skeleton argument dated 2 August 2010, which ran to around 1,025 paragraphs, and a bundle of authorities placing before the court some 178 case-law authorities. In his skeleton argument, he explained that in grounds 8, 9 and 11, he contended that the exercise by the trial judge of his discretion to stay the proceedings as an abuse of process was flawed; that the judge had erred in the exercise of his discretion to exclude evidence under his inherent jurisdiction to uphold comity and international law; that the judge had erred in not excluding the evidence under the “overlapping jurisdiction between stay for abuse of process and Article 76” of the 2003 Law; and that the judge had erred in admitting the Nigerian evidence when it had been obtained for a different purpose. He contended that his challenge to the prosecution application in January 2010 (see paragraph 12 above) had included an argument that, if it failed to grant a stay, the court should exclude the evidence under Article 76 of the 2003 Law, but that this argument had not been addressed by the trial judge. He further elaborated on his Article 76 submission, referring to authority on the exclusion of unlawfully-obtained evidence.

In further developing ground 10 in his skeleton argument, the applicant challenged the trial judge’s decision that the admission of the witness statements was not unfair. He relied on Article 66 of the 2003 Law (see paragraph 28 below). He criticised a number of determinations by the trial judge, including that the prosecution had done all that it practically could to ensure the attendance of the witnesses, that the inability to controvert the evidence of Mr G. gave rise to only a minimal risk of unfairness, that there was no unfairness in admitting Colonel B.’s statement and that the applicant’s actions in seeking the Nigerian judgment were the direct cause of the non-attendance of the witnesses and should be taken into account. He referred to the English law equivalent of Article 66 as well as relevant English authorities as to the interpretation of the provision. He made no reference in his skeleton argument to Article 6 of the Convention or to relevant case-law.

In its skeleton argument in response, the prosecution said:

“The Crown assumes that the Appellant has abandoned its challenge to the learned [trial judge’s] conclusion that the ‘sole or decisive’ test has no application in Jersey ... This challenge is not mentioned in the Appellant’s skeleton argument. It would also require the court to come to a different conclusion to the United Kingdom Supreme Court in R v. Horncastle [2010] 2 WLR 47.”

At the subsequent hearing, the applicant’s counsel argued, in respect of grounds 8 to 12 of the grounds of appeal, that the use of the evidence was an abuse of executive power because the Attorney General knew that it had been obtained unlawfully, the Nigerian authorities did not consent to its use and the Nigerian authorities had asked for the return of the evidence. There had also been a breach of Nigerian sovereignty, international law and comity for these reasons.

On 10 February 2011 the appeal was refused by the Court of Appeal. The court considered whether unlawfully obtained evidence could be fairly admitted and concluded that it could. It noted that “additional grounds relied on in the skeleton argument were not developed in oral argument ... We list them only for completeness and deal with them briefly”. It then addressed the witness statement argument in Ground 10 as follows:

“104. It was contended that the evidence of Commissioner [G.] and Colonel [B.] should have been excluded as hearsay when it was reasonably practicable to have secured their attendance, and its admission was unfair to Mr Bhojwani who, accordingly, could not cross-examine them. We note that Mr Bhojwani objected to the Commissioner’s decision that he had been responsible for the absence of the two witnesses in Jersey by instructing the claim for declarations before the Nigerian Court: and Advocate Kelleher sought to explain the dilemma in which his client was placed by the possibility of prosecutions in two jurisdictions.

In our view the attribution of responsibility was a finding of fact open to the Commissioner, and the admission of hearsay evidence was a matter for his discretion which there is no basis to impugn.”

Leading English counsel provided advice on appeal in writing on 18 March 2011. While the advice referred to the invitation to counsel to consider whether there were arguable grounds for leave to appeal sentence, the advice also appeared to address grounds for appeal against conviction. Counsel referred to various “significant and unusual” features of the case, but noted that these did “not necessarily found compelling matters of law of general public importance”, which, counsel said, was the test applied by the Privy Council for granting leave.

As regards grounds of appeal 8 to 12, counsel referred to the submission to the Court of Appeal that use of the unlawfully-obtained evidence without the consent of the Nigerian Government was an abuse of executive power and a breach of Nigerian sovereignty, international law and comity. He discussed at some length the position as regards use of unlawfully-obtained evidence. As to the specific comments on Ground 10, counsel said:

“I am unimpressed by the observations at paragraph 104 of the judgment that the failure of witnesses to attend was the ‘responsibility’ of Mr Bhojwani. This implies that he was at fault in circumstances where he merely sought a declaration from the Federal Court of Nigeria upon the lawfulness of what had occurred. There was a basis for impugning the exercise of the Commissioner’s discretion but I do not consider that the Appellate Committee [of the Privy Council] will find this an argument involving matters of law of general public importance. In any event, the evidence given by Commission [G.] and others which was read was not determinative of guilt.”

Counsel concluded his advice by emphasising the difference between advising on the merits of an appeal to the Court of Appeal and seeking the special leave of the judicial committee of the Privy Council. He explained:

“In the latter case it is necessary to identify a point or points of law of general public importance, in the former there is I understand an appeal as of right on matters of law. I would be failing in my responsibility if I encouraged hopes of success when my view was that no such hopes exist. Considering the case objectively as an outsider who was not involved in the trial or first-tier appeal process I am able to stand back and consider the grounds of appeal dispassionately and I have no hesitation in concluding that there is no prospect of leave being granted in this case.”

The 2003 Law deals with the admissibility of evidence in criminal proceedings. Article 64 provides, inter alia, that a statement made by a person in a document shall be admissible in criminal proceedings if the person who made the statement is outside of Jersey and it is not “reasonably practicable” to secure his attendance. Article 65 allows documents to be admitted provided that certain conditions are satisfied.

Article 66(1) provides that if a court is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or Article 65 ought not to be admitted, it may direct that the statement should not be admitted. Article 66(2) provides that the court must have regard:

“(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.”

Article 76 allows the court to exclude evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it.

The Human Rights (Jersey) Law 2000 (“the Human Rights Law”) incorporates the Convention into Jersey law. Article 3 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account relevant case-law from this Court. Article 7 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under article 8, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings.

In Hamilton and Anor v. Attorney General 2010 JLR 313, the Jersey Court of Appeal was asked to consider whether hearsay evidence at a criminal trial had been “sole and decisive” evidence against the appellant and had thus breached his right to a fair trial under Article 6 of the Convention. On 21 July 2010 it dismissed the appeal. It considered the Chamber’s judgment in Al-Khawaja and Tahery and the subsequent judgment of Horncastle in which the Supreme Court had declined to apply it (both judgments cited above). The Court of Appeal concluded that it was not necessary for it to decide, for the purposes of the case before it, whether Horncastle should be followed. It therefore proceeded on the basis that the Chamber judgment in Al-Khawaja and Tahery represented “the law of this Island”.

The Judicial Committee of the Privy Council is composed of Justices of the Supreme Court of the United Kingdom and other senior United Kingdom and Commonwealth judges. It is the court of final appeal for Jersey. In criminal cases from Jersey there is no appeal as of right and special leave from the Judicial Committee of the Privy Council is required. Privy Council Practice Direction 3 on “Application for Permission to Appeal” provides that, for criminal appeals against conviction and sentence, permission will be granted only in respect of “applications where, in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred”. Further information concerning appeals to the Privy Council is set out in L.L. v. United Kingdom (dec.), no. 39678/08, §§ 11-12, 15 January 2013.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant, Ms Gabriele Fürst-Pfeifer, is an Austrian national who was born in 1964 and lives in Mödling. She is a psychiatrist and has been registered since the year 2000 as a psychological expert for court proceedings in custody and contact-rights-related disputes and decisions on public care as well as child abuse. Specialised in the psychological examination of children and adolescents, her focus is mainly on custody and contact-rights-related disputes.

The online publication “meinbezirk.at” was published and edited by the “Print” Multimedia Company GmbH, a private company which had its registered office in St. Pölten.

The regional weekly print publication Bezirksblatt, which was sent to every household of the district free, was published and edited by the “Print” Zeitungsverlag GmbH, a private company which had its registered office in Innsbruck.

On 23 December 2008 an article was published in “meinbezirk.at” as well as in the print version of Bezirksblatt, which stated as follows:

“The quality of experts in the spotlight (Gutachterqualität im Visier)

Disclosed: Court Expert for custody proceedings a case for therapy

(Aufgedeckt: NÖ Sorgerechts-Sachverständige selbst ein Therapie-Fall)

Suffering from up-and-down mood swings, panic attacks, suicidal thoughts and hallucinations, together with paranoid ideas – but working as a court-appointed expert. In the last 12 years she has examined over 3.000 married couples in custodyrelated disputes. Now it seems, it gets rough for [the applicant] as an expert report about her psychological condition has been disclosed ...

A psychological expert report by Dr. M. was commissioned in 1993 in the course of civil proceedings (action because of an alleged breach of promise of marriage) which unearthed the deficiencies of [the applicant] described above. Moreover, Dr. M. came to the conclusion that the applicant’s impairments were hereditary, as the history of her family showed an accumulation of these impairments. Three years later, the applicant was introduced to the “expert community” at the Wiener Neustadt Regional Court, and her integrity was beyond reproach for a decade – until now.”

The passage was followed by comments by a member of the Green Party, who had made a criminal complaint against the applicant with the Public Prosecutor’s office, the Youth Advocate at the Regional Government of Lower Austria, and the Vice-President of the Wiener Neustadt Regional Court, who was responsible for managing the list of experts at the court. At the end of the article it was mentioned that the applicant was no longer answering her phone and had withdrawn from all her cases.

As a result of the article the applicant was confronted with questions related to it from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court to clarify whether she was still fit to work as a court-appointed expert. In the course of those proceedings the applicant’s mental status was also set to be examined.

On 14 January 2009 the applicant lodged an action with the St. Pölten Regional Court. She sought damages under section 8a of the Media Act (Mediengesetz) and the publication of the judgment claiming that the article and in particular the passages dealing with the psychological expert report on the applicant had violated her intimate personal sphere and compromised her publicly. However, she did not argue that the expert report had been obtained unlawfully.

On 3 April 2009 the St. Pölten Regional Court (Landesgericht St. Pölten) allowed the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the operative part of the judgment to be published. Furthermore, the publisher was to bear the costs of the proceedings. The court found that an average reader would understand the article as putting the expert opinion from 1993 in direct relation to the applicant’s work as an expert now, thus questioning the quality of her work. The article, that also featured the applicant’s full name and the description of her psychological impairment, touched her intimate personal sphere, since it created a link between her mental state and the quality of her work. However, the information itself did not allow for such a link, especially since the expert opinion dated from 1993 and dealt only with a very specific question in the context of civil proceedings at the time. The incomplete and manipulative content of the article was not able to meet the standards of reporting on matters of fact. Furthermore, the court did not consider that there was a direct link between the contents of the article and the applicant’s public position, given that she mainly worked as an expert in custody cases, which were not usually heard in public. Furthermore, it could be assumed that the applicant, a psychiatrist herself and a medical doctor, was managing her illness well and was able to do her work without any impairments.

The publisher appealed on points of law and fact, as well as against the sentence (Berufung wegen Nichtigkeit, Schuld und Strafe).

Thereupon, on 30 November 2009, the Vienna Court of Appeal (Oberlandesgericht Wien) heard the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. The Court of Appeal confirmed that the article and the impugned passages giving opinions on the applicant’s mental state affected her intimate personal sphere and were capable of compromising her. However, the content of the article was true, as it only repeated true information that had not been disputed by the applicant. Furthermore, the court did not find the article to be incomplete or manipulative, but sufficiently well-balanced and faithful to the different sides of the story in that it also referred to the fact that the applicant’s integrity had never been questioned in ten years; the court also asked for statements from the Vice-President of the Wiener Neustadt Regional Court, a member of the Green Party, and the Youth Advocate of the Regional Government of Lower Austria.

The Court of Appeal further found that the publication in issue was directly linked to the applicant’s public status. She had been included in the list of experts to be appointed by the courts since the year 2000 and had been appointed in several cases. This regular work as an expert in court proceedings belongs beyond doubt to the public sphere (“...ist zweifellos dem öffentlichen Leben zuzuordnen...”) as she took part in association with the State-organised judiciary and held an important position in connection with the decision-making process of judges. Even though the impugned expert opinion dated from 1993 and concerned a period in the applicant’s life prior even to that date, the reporting in question touched sufficiently upon the present public activities of the applicant. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of good conduct of the administration of justice, which was what had happened as the next step in the present case. According to the Court of Appeal, the article took up doubts arising from the neurologist opinion in 1993 without denying the applicant’s abilities as an expert in the area. The truthful information in the article and the public interest in the subject matter justified the article’s critical questioning of exactly those abilities.

That judgment was served on the applicant’s representative on 17 December 2009.

In the meantime the applicant lodged an action with the Innsbruck Regional Court on 7 April 2009. She sought damages under section 8a of the Media Act (Mediengesetz) and publication of the judgment claiming that the article, and in particular the passages dealing with the psychological expert report on her, violated her intimate personal sphere and compromised her publicly.

On 2 October 2009 the Innsbruck Regional Court (Landesgericht Innsbruck) granted the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the publication of the operative part of the judgment. Furthermore, costs were awarded against the publisher. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and that this placed in question the quality of the applicant’s work so far. That the applicant’s psychological illness was directly linked to the intimate personal sphere was beyond doubt. The present article not only mentioned the applicant’s mental health status, but also grossly exaggerated individual symptoms, which was also capable of compromising her. The article was so incomplete and distorted that it could not be considered a report of matters of fact. The Regional Court in particular noted that the article did not mention that the period of examination was even earlier than 1993 and that only certain aspects of the expert opinion had been published, while others had not. Scandalously the article created the impression that the applicant had rendered decisive opinions in custody proceedings for over a decade while herself suffering from the symptoms described above. Furthermore, the publication was not linked in any way to the applicant’s public status (“...steht [...] in keinem unmittelbaren Zusammenhang mit dem öffentlichen Leben der Antragstellerin”). There was no connection between the applicant’s work at present and her mental health status years ago. Her work in the context of custody proceedings was also not conducted in public.

Thereupon, on 11 February 2010, the Innsbruck Court of Appeal (Oberlandesgericht Innsbruck) granted the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. In contrast to the Regional Court it found that the average reader would understand from the article at issue that in 1993 an expert opinion was rendered in respect of the applicant that showed the above-mentioned psychological impairments. However, the article also stated that the applicant’s integrity had not been questioned for over a decade. The article, while focusing on the applicant’s work in custody proceedings, gave space to comments from the Youth Advocate of the Regional Government of Lower Austria, a member of the Green Party, and the Vice-President of the Wiener Neustadt Regional Court. The article did not indicate however that the applicant was not competent to exercise her profession as a psychological expert. Furthermore, the published information was true. The fact that only parts of the expert opinion were repeated in the article did not render the article distortive, nor the relevant information untrue.

As regards the connection to the public sphere and public interest, the Court of Appeal found that the State administration, together with the administration of justice, belonged to the public sphere. The applicant had been included in the list of court-commissioned experts since the year 2000, and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere. The activity was closely linked to the administration of justice, and had a considerable influence on judges’ decision-making processes. The impugned article concerned the applicant’s activity as an expert in custody proceedings. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of the proper administration of justice, which had happened as a next step in the present case. Insofar, a truthful report linked to a person’s public status, which also contained information belonging to the intimate personal sphere must be permitted to be published. The Court of Appeal concluded that the article, by way of an appropriate commentary, critically examined a matter of public interest and therefore exercised its role as a “public watchdog”.

That judgment was served on the applicant’s representative on 11 March 2010.


Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant, Mr Antun Krpić, is a Croatian national, who was born in 1958 and lives in Zagreb. He was represented before the Court by Mr Z. Zaninović, an advocate practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

The applicant held a specially protected tenancy (stanarsko pravo) of a flat in Zagreb measuring 16.25 square metres. The flat was located in a socially-owned building in the centre of Zagreb built in 1776.

By a decision of 16 January 1990 the local authorities decided to demolish the building because it was so dilapidated that it risked collapsing at any time and thus posed a risk to life and property. The decision specified that the building would be demolished once all the tenants (five at the time, including the applicant) had vacated it, after being provided with replacement flats pursuant to the law, in particular section 107(2) of the Housing Act (see paragraph 24 below).

On the basis of that decision two of the tenants living in the building were subsequently allocated replacement flats.

On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force (see paragraph 25 below). It entitled holders of specially protected tenancies to purchase the flats in respect of which they held such a tenancy under favourable conditions. In that way, a large majority of specially protected tenancies became a right of ownership for those tenants.

On 11 January 1993 an explosive device was detonated in front of one of the flats in the building, which caused further damage.

On 14 January 1993 the applicant and another tenant who were still living in the building, wrote to the local authorities housing department asking it to allocate them urgently replacement flats, as after the explosion the building was no longer suitable for habitation.

On 25 January 1993 the local authorities held an on-site inspection and established that due to the damage caused by the explosion, the building was indeed no longer habitable and that the two remaining tenants (of which one was the applicant) had moved in with their friends.

On 26 January 1993 the applicant was offered a replacement flat in Zagreb measuring 17.10 square metres. He refused the flat, stating that it “was damp and had rotten floors” and was therefore uninhabitable.

On 8 April 1994 the applicant, relying on section 107 of the Housing Act (see paragraph 24 below), brought a civil action against the local authorities, in particular the City of Zagreb, before the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking to be provided with a replacement flat. More specifically, he asked to be awarded a specially protected tenancy of such a flat.

At the hearing held on 3 July 1996 the applicant stated, inter alia, that the building in which his old flat was located had been demolished.

On 5 November 1996 the Lease of Flats Act entered into force (see paragraph 27 below). It repealed the Housing Act, abolished the legal concept of the specially protected tenancy and provided that the remaining holders of such tenancies were to become “protected lessees” (zaštićeni najmoprimci, see paragraphs 29 and 32 below). Under the Act such lessees are subject to a number of protective measures, such as the duty of landlords to conclude a lease of indefinite duration; payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and is significantly lower than the market rent; and better protection against termination of the lease (see paragraph 28 below).

Accordingly, in his written submissions of 4 March 1997 the applicant amended his action and sought to be awarded a replacement flat under the protected lease scheme, with an option to purchase it under the conditions set forth in the Specially Protected Tenancies (Sale to Occupier) Act (see paragraph 25 below).

On 1 April 1998 the applicant deregistered his domicile at the address at which his old flat was located and registered it at the address where his stepson was living.

By a judgment of 26 September 2006 the Municipal Court dismissed the applicant’s action. The court established, on the basis of a witness testimony, that the replacement flat the applicant had been offered but had refused (see paragraph 11 above) had indeed been unsuitable for habitation because it was shabby and had flooded floors and damp walls. It held, however, that while the local authorities had indeed been bound under section 107 of the Housing Act (see paragraph 24 below) to provide the applicant with a replacement flat, that obligation had been extinguished with the entry into force of the Lease of Flats Act, which had repealed the Housing Act and abolished the specially protected tenancy as such.

On 27 April 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal lodged by the applicant and upheld the first-instance judgment by endorsing the reasons given therein. The first-instance judgment thereby became final.

The applicant then, on 24 June 2010, lodged an appeal on points of law (revizija) against the second-instance judgment. Aware that the value of the subject matter of the dispute, amounting to 21,000 Croatian kunas (HRK), which he had set when bringing his action did not reach the statutory threshold (HRK 100,000) for lodging an ordinary appeal on points of law, the applicant lodged a so-called extraordinary appeal on points of law under section 382(2) of the Civil Procedure Act (see paragraph 23 below), stating that the main issue in his case was important for the uniform application of the law.

By a decision of June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible the applicant’s appeal on points of law. It found that the applicant had not complied with the formal requirements for lodging an extraordinary appeal on points of law, as stipulated in section 382(3) of the Civil Procedure Act (see paragraph 23 below), because he had not specified the legal issue for which he had lodged the appeal or explained why it was important for the uniform application of the law.

On 26 July 2011 the applicant lodged a constitutional complaint against the Supreme Court’s decision, alleging violations of his constitutional rights to equality before the law, equality before the courts, fair procedure and the right of ownership.

By a decision of 7 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 25 May 2012. It held, inter alia, that the Supreme Court’s decision was not arbitrary and that it did not raise a constitutional law issue.

The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/1991, with subsequent amendments), which has been in force since 1 July 1977, read as follows:

“(1) Parties may lodge an appeal on points of law (revizija) against a second-instance judgment:

- if the value of the subject matter of the dispute of the contested part of the judgment exceeds HRK 100,000,

- [in certain employment disputes],

- [if the second-instance court assessed the evidence and/or established the facts differently from the first-instance court or held a hearing].

(2) In cases where parties are not entitled to lodge an appeal on points of law in accordance with paragraph 1 of this section, they may [nevertheless] do so if a decision in the dispute depends on the resolution of a substantive or procedural legal issue [that is] important for ensuring the uniform application of the law and equality of citizens, for example:

- if the Supreme Court has not yet ruled on that issue ... in respect of which there is divergent case-law of the second-instance courts,

- if the Supreme Court has not yet ruled on that issue and the second-instance court may develop divergent case-law in respect of it, for example, because of possible different interpretations of certain statutory provisions,

- if the Supreme Court has already ruled on that issue but the decision of the second-instance court is not in conformity with that ruling,

- if the Supreme Court has already ruled on that issue and the decision of the second-instance court is in conformity with that ruling but ... the case-law should be revisited in view of changes in the legal system occasioned by new legislation, international treaties or decisions of the Constitutional Court or the European Court of Human Rights.

(3) In the [extraordinary] appeal on points of law referred to in paragraph 3 of this section, the appellants must specify the legal issue for which they are lodging the appeal and give reasons as to why they find that issue important for ensuring the uniform application of the law and equality of citizens.

(4) An appeal on points of law must be lodged within thirty days of the service of the second-instance judgment.”

“A belated, incomplete or inadmissible [in the strict sense] (section 386) appeal on points of law shall be declared inadmissible by a decision of the judge rapporteur of the Supreme Court, unless the first-instance court ... has not already done so.”

The relevant provision of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), which was in force between 25 December 1985 and 5 November 1996, read as follows:

“(1) A specially protected tenancy shall be terminated if, on the basis of a decision issued by the relevant authority or in the proceedings for enforcement of a decision on expropriation, the building or part of the building in which the flat is located has to be demolished.

(2) If, in the case referred to in paragraph (1) of this section the tenants have to move out, on the basis of a decision [issued] by the housing authority, the municipality or the person to whose benefit the building is being demolished shall provide them with another [replacement] flat which does not significantly reduce the quality of their housing.

(3) If the relevant authority establishes that a building has to be demolished or reconstructed because it poses a risk to life or property, or for other reasons specified in separate legislation, the specially protected tenancy of flats in such a building shall be terminated and the provider of the flats ... shall provide the tenants with other [replacement] flats which do not significantly reduce the quality of their housing.”

(4) ...

(5) ...”

The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/91 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled holders of specially protected tenancies of flats in social or State ownership to purchase the flats in respect of which they held such tenancy under favourable conditions.

Section 3(1) subparagraph 1 excluded the application of the Act to the sale of flats located in buildings in respect of which proceedings for demolition had been instituted.

The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, regulates the legal relationship between landlords and lessees with regard to the lease of flats.

Transitional provisions (sections 30-49) of the Lease of Flats Act establish a special category of lessees (“protected lessees” – zaštićeni najmoprimci), namely, those who previously held specially protected tenancies in respect of privately owned flats or those who did not purchase their flats under the Specially Protected Tenancies (Sale to Occupier) Act. Such lessees are subject to a number of protective measures, such as the obligation of landlords to conclude a lease of indefinite duration; payment of protected rent (zaštićena najamnina), the amount of which is set by the Government; and a limited list of grounds for termination of the lease.

Section 30 of the Act provided for the abolition of the remaining specially protected tenancies and holders of such tenancies became “protected lessees” once the Act entered into force.

Section 51 provided, inter alia, that within six months of the Act’s entry into force the local authorities had to adopt criteria for renting out flats in their ownership.

Section 52(1) provides that proceedings instituted under the Housing Act must be concluded under the provisions of that Act.

Section 53 provided that on the date of the Act’s entry into force, the Housing Act was repealed.

In its decision no. U-III-1925/2005 of 19 December 2007 the Constitutional Court held that after the repeal of the Housing Act, the right of a holder of a specially protected tenancy to be provided with a replacement flat under section 107 of the Act (see paragraph 24 above) had been transformed into the right to be provided with such a flat with an option to purchase it under favourable conditions, as provided for in the Sale to Occupier Act (see paragraph 25 above).

In that case the complainant’s flat, in respect of which she held a specially protected tenancy, was located in a building that had to be demolished. The local authorities eventually allocated a replacement flat to the complainant in 1998, that is, after the repeal of the Housing Act. She therefore could not acquire a specially protected tenancy of the replacement flat (see paragraph 29 above).

The complainant sued the local authorities before the ordinary courts, seeking to purchase the replacement flat under favourable conditions, a right granted to holders of specially protected tenancies under the Sale to Occupier Act. The ordinary court held that the complainant’s specially protected tenancy of her old flat had been extinguished in 1990 when the local authorities had decided to demolish the building in which the flat was located. Furthermore, the complainant did not have a specially protected tenancy of the replacement flat for the reason stated (see the preceding paragraph). Consequently, she had no right to purchase that flat, as under the Sale to Occupier Act such a right was granted only to holders of specially protected tenancies.

The Constitutional Court allowed the constitutional complaint, found a violation of the complainant’s constitutional right to equality before the law and quashed the judgments of the ordinary courts. It held as follows:

“[From the complainant’s submissions] it is evident that her constitutional complaint is essentially based on the view that, despite the fact that her specially protected tenancy had undoubtedly been extinguished by the operation of the law, there is a need for more extensive interpretation of the relevant legislation, in which case her right to purchase a flat would continue to exist. The applicant considers that she was prevented from exercising her right to purchase a flat only because the time-limits for submitting a request to that effect had expired, which was not due to her fault, but the fault of [the local authorities] which had offered her appropriate replacement flat ‘too late’.

The contested decisions [of the ordinary courts] are based exclusively on the fact that the complainant’s specially protected tenancy had been extinguished in 1990 on the basis of section 107 of the Housing Act ...

Bearing in mind that the Sale to Occupier Act recognises the right to purchase flats only in respect of tenants, and that after the entry into force of the Lease of Flats Act a specially protected tenancy could no longer be acquired, the [ordinary] courts took the view that, because she had lost the status of a holder of a specially protected tenancy, the complainant did not have the right to purchase the flat, and [thus] dismissed her action.

The purpose of the Sale to Occupier Act was, regarding specially protected tenancies of socially-owned flats, to precisely define owners of socially-owned property, and that the owners would primarily be the persons who legally occupied such flats thus far. The said Act was amended on several occasions in ways that clearly indicate that its purpose was, taking into account the objective social circumstances and the legal and factual difficulties, to facilitate the exercise of the right [to purchase the flat] for those who under that Act were entitled to do so. The loss of rights of citizens because of the expiry of time-limits, prescription or similar reasons was not the aim of the Act, as this would have been contrary to its purpose.

Therefore, the court, in principle, finds well-founded the arguments raised in the constitutional complaint ... concerning the need for an extensive interpretation of the relevant legal norms, when this is in accordance with the Constitution.

[T]his means that the complainant had lost her specially protected tenancy of the old flat but that, under the assumption that she was allocated another appropriate flat while the Housing Act was still in force, she would have reacquired the rights and obligations of a holder of a specially protected tenancy on the basis of the mere fact that she had previously held such a tenancy. It is evident that in the period between the termination of one and the acquisition of another specially protected tenancy there can be no ‘legal vacuum’. On the contrary, during this period the rights inherent to a specially protected tenancy exist as ‘pending’ rights. It is beyond doubt that citizens who were at the same time in the same legal situation as the complainant, save for the fact that in their cases the proceedings for allocating replacement flats were shorter, had acquired specially protected tenancies and, as holders of such tenancies, had acquired the right to purchase their flats under the Sale to Occupier Act. In the end, they had acquired ownership of those flats.

In this case, however, the procedure for allocating another appropriate flat to the complainant was not completed while the Housing Act was still in force. The Act was repealed by the entry into force of the Lease of Flats Act on 5 November 1996 ...

However, section 52(1) of the Lease of Flats Act provides that proceedings instituted under the Housing Act must be concluded under the provisions of that Act. This provision implies that even in the changed legislative circumstances the interpretation that the rights inherent in the specially protected tenancy ..., which have been the subject of proceedings [instituted] while the Housing Act was in force but not completed before the entry into force of the Lease of Flats Act, exist even after the repeal of the Housing Act. Otherwise, the meaning and purpose of section 52(1) of the Lease of Flats Act would be called into question. It is clear that since the Housing Act has been repealed the legal basis for acquiring a specially protected tenancy no longer exists ... However, respecting the principles and values of the constitutional order of the Republic of Croatia ... requires the legislature and the authorities ... applying the law ... to be guided by these principles and values and to follow them.

The legal views expressed in the judgments of the competent courts are based on a constitutionally unacceptable interpretation of the relevant substantive law because it neglects the constitutional guarantee of equality. The scope and effects of this principle in the present case are not determined by the mere mechanical subsuming of the facts under the relevant provisions of the Housing Act and the Lease of Flats Act, but also by giving effect to the other highest values of the constitutional order of the Republic of Croatia.”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

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

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

The applicants stated that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia.

The facts of the case may be summarised as follows. The applicants are relatives of a Turkish-Cypriot man who went missing from hospital in Nicosia on 23 December 1963 at a time of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted.

Their relative was listed as a missing person, the information being given to the Cypriot authorities, the Red Cross and the United Nations.

The remains of the missing man were found in 2007 during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”). The remains were identified in 2008.

By letter dated 11 October 2010, the Attorney-General instructed the police to carry out an investigation into the circumstances of the death of the applicants’ relative.

By report dated 21 June 2013, the Attorney-General informed the applicants that police had submitted in the investigation file in September 2012. He had returned it, indicating further steps to be taken. In April 2013, the file had been re-submitted. On the basis of the information obtained and analysis of the file, the Attorney-General had come to the conclusion that the investigation had reached a point where it could not proceed further as all leads had been pursued exhaustively, the evidence concerning the core facts was scanty and did not lead to persons who could be considered as possible suspects. He listed the investigative steps taken, which included

The police searched for any evidence in the hospital files to identify anyone who might have been in the same ward or who might have taken the deceased away; they found the name of one person admitted at the same time but this person had since died;

The police made enquiries at the state prison where the deceased had been a warder to find information about the persons who might have accompanied the deceased to the hospital or might have come to take him away; only one name H.F. was identified as a person who had come to the hospital to take the deceased away; enquiries revealed that H.F had moved to Greece and had since died; of 17 persons who had been working at the prison at the time, they identified that 11 were still;

The police interviewed all 11 ex-prison staff. Six said that they had known the deceased; none admitted having any information about how he had gone missing from the hospital, save for a rumour that his family had gone to pick him up.

The police also interviewed police officers who were in service at the relevant time but no relevant information was forthcoming about the deceased.

The Attorney-General concluded that the passage of time since events had rendered unfeasible the questioning of the persons who might have been able to shed light on the investigation. As there were no remaining leads, the investigation could not be pursued further. However, if any new evidence or information did come to light in the course of other ongoing investigations into events in 1963-1964, he had instructed the police to bring it to his attention for evaluation and further directions. He would keep the applicants updated in such event.


CASE OF VASILE VICTOR STANCIU v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1957 and lives in Bucharest.

On 11 December 2011 one of the applicant’s neighbours called the police to complain about the fact that the applicant had stored personal items in the common space of their apartment building.

At 6 p.m. on 11 December 2011 two police officers arrived at the applicant’s door and asked for his identification papers without giving their names or informing him of the purpose of their visit. The applicant asked them what the purpose of their request was but they did not answer. For that reason, the applicant refused to present his papers, telling the police officers to come “some other time” (altădată).

The police officers immobilised the applicant, threw him to the ground and then handcuffed him. Noting the escalation of events, the applicant’s partner, G.C., searched for his identification papers and handed them all to the police officers: identity card, pension benefits slip and a certificate that he had been a fighter in the 1989 Revolution.

The police officers took the papers without looking at them and took the applicant to police station no. 19 to be identified.

At the police station the applicant was struck with fists, feet and truncheons. The pain was so intense that the applicant soiled himself. During the beating, the applicant’s mobile phone and still camera were destroyed and his clothes were torn.

When the beating ended, the police officers checked the applicant’s papers and then left him alone for fifteen minutes in a room. When they returned they informed him that they were leaving on a mission. After being again left alone, the applicant managed to find the officer on duty at the police headquarters (ofiţerul de serviciu) to ask permission to use the toilet. The police officer sent him home to clean himself up.

The applicant went home and then returned to the police section to recover his identity papers.

On 16 December 2011 the applicant was examined by a forensic doctor at Mina Minovici National Forensic Institute (“the Forensic Institute”). The doctor drafted a medical report dated 16 December 2011; a copy of the report was given to the applicant on 4 January 2012. It noted that the applicant had borne traces of violence on his wrists, arms and legs as a consequence of having been hit with a hard object; that he had complained of chest pains; and that the injuries could have dated from 12 December 2011 and had needed four to five days of medical care.

Two weeks after the incident, the applicant received by mail an offence report (proces verbal de contravenţie) drafted by the police officers on 23 December 2011 in his absence, whereby he was fined 100 Romanian lei (RON) for “refusal to present data necessary for his identification”.

On 11 December 2011 two police officers were directed by the officer on duty at police station no. 19 to settle a conflict between the applicant and a neighbour. Upon arrival, the police officers asked the applicant to present his identity papers, but he became violent and refused to comply. When the applicant tried to return to his apartment the police officers handcuffed him and transported him to the police station. After his identity had been established, the applicant left the police station.

The applicant lodged a criminal complaint against the two police officers, accusing them of unlawful deprivation of liberty, unlawful investigation and torture, and seeking compensation. The complaint was registered with police station no. 19 on 13 January 2012. On 7 August 2012 the file was sent for investigation to the internal investigations department of the Bucharest General Police Headquarters, and police officers from that department were delegated to conduct all relevant investigations.

These investigators heard evidence from the two police officers, from the officer on duty on the day of the events and from the neighbour’s husband (see below).

On 11 September 2012 the investigating police officers heard evidence from the neighbour’s husband, who declared that when the applicant, “known as a mentally ill person”, had refused, in inappropriate and disrespectful language, to present his identification papers and had attempted to return to his apartment, the police officers had immobilised him on the ground and handcuffed him, without ill-treating him in the process.

The officer on duty declared on 3 October 2012 that he had not spoken at all to the applicant on the night in question and had only seen him when the police officers had brought him in to establish his identity; those same officers had subsequently advised him to leave the police station – the officer on duty stated that he had seen the applicant again when he was leaving the building. He added that as he had been very busy in his office he had seen the applicant only for a couple of seconds, and had thus not been in a position to see whether the applicant had been injured.

Lastly, the two police officers gave their statements on respectively 4 and 5 October 2012.

One of the officers declared that at the time of the events in question, the applicant had been under the influence of alcohol, because he had smelled of alcohol and had displayed a defiant attitude towards the police officers.

Both officers mentioned in very similar terms that when asked to present his identification papers, the applicant had tried to evade the measure (“se sustrage măsurii legitimării”) and had attempted to re-enter his apartment by using physical force; for this reason, they had proceeded to handcuff him and had taken him to the police station. Both officers denied having inflicted any harm on the applicant, claiming that they had acted proportionately in view of the applicant’s opposition to their request.

G.C., the applicant’s partner, was never heard by the investigators.

On 12 November 2011 the prosecutor’s office attached to the Bucharest County Court decided not to prosecute. On the basis of the evidence in the file, attesting, inter alia, to the fact that the applicant was known as a person who engaged in violent behaviour and who was frequently under the influence of alcohol, the prosecutor decided that the injuries suffered by the applicant had been superficial and that the use of force had been proportionate and necessary in order to immobilise him and take him to the police station, as provided for by Articles 26 § 1 (2) and Article 31 § 1 a) and b) of Law no. 218/2002 on the Organisation and Functioning of the Romanian Police (see paragraph 26 below).

The applicant lodged an objection. The prosecutor’s decision was upheld on 22 March 2013 by the head of the above-mentioned prosecutor’s office, who considered that the police intervention had been rendered necessary by the applicant’s violent behaviour and had not been excessive, as demonstrated by the fact that the injuries suffered had been insignificant.

The applicant lodged a complaint with the Bucharest County Court against the two decisions. He mainly argued that the investigation had been superficial, and that the conclusions of the investigation had been based exclusively on the statements given by the two police officers who had behaved aggressively towards him, while his partner, for instance, had never been heard. He contested the prosecutor’s opinion that the injuries incurred had been superficial. He referred to the Court’s relevant case-law, which required a plausible explanation for any traces of violence sustained while a person had been under police supervision. He also contested the proportionality of the police reaction, pointing out that he had merely refused orally to show his identification and that the police officers could not claim or prove that they had sustained any traces of violence during that intervention.

On 11 June 2013 the County Court dismissed the complaint and consequently upheld the prosecutors’ decisions. The court considered that the police intervention had been lawful. It further held that the applicant’s minor lesions had been caused when he had fallen at the moment of his being immobilised by the police, which had been necessary because of the applicant’s verbal and physical resistance. The court considered that the applicant had not been kept unlawfully in the police station but had been released as soon as his identity had been established, and that the consequences of the police intervention had not been serious enough to constitute the crime of torture, as alleged by the applicant. The decision was final, no further appeal being possible.


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Mr Vladimir Andreevich Kolosov, is a Russian national who was born in 1961 and lives in Aprelevka (Russian Federation). He was represented before the Court by Mr Y. Aksaev, a lawyer practising in Moscow (Russian Federation).

The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.

Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Russian Government expressed no wish to do so.

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

On an unspecified date the applicant’s wife filed divorce papers with the competent court in Moscow, also seeking the division of property.

On 27 January 2011 she applied to the Court of First Instance (Osnovni sud) in Kotor (Montenegro) for an interim measure prohibiting the applicant from disposing of two apartments (zabranjuje otuđenje i opterećenje nepokretnosti) in Budva (Montenegro) until the proceedings in Moscow had ended.

On 1 February 2011 the court, in the absence of both the applicant and his representative, approved the measure, which was duly registered in the Budva real estate register. On 18 February 2011 the applicant received the relevant decision, which also contained information that he could appeal to the High Court, through the court in Kotor, within three days.

On 21 February 2011 the applicant allegedly sent his appeal by express mail and it was received at the High Court (Viši sud) in Podgorica on 28 February 2011 by a named court officer. The applicant submitted a copy of a Pony Express delivery company envelope to the Court with a date of 21 February 2011. It was addressed to the High Court in Podgorica, with a waybill number of 11-8895-0367 marked on it.

On 18 March 2011 the High Court found that the applicant had sent his appeal on 22 February 2011 and rejected it (odbacio) as out of time.

On 17 June 2011, the proceedings in Moscow ended with a friendly settlement.

On 22 June 2011 the applicant wrote to the High Court, maintaining that he had appealed on 21 February 2011 and had therefore been in time. He enquired about the basis for the High Court’s conclusion that the appeal had been sent on 22 February 2011.

On 7 September 2011 one of the three High Court judges dealing with the applicant’s case informed the president of the High Court that there was proof in the case file that the appeal had been sent on 22 February and that the High Court had not taken other documents submitted by the applicant into account, namely “a receipt, a bill and a fax sent on 21 February 2011”.

On 30 November 2011 the applicant’s ex-wife waived her rights in respect of the property in Montenegro and requested that the interim measure be revoked and deleted from the real estate register.

On 16 December 2011 the applicant informed the courts in Kotor and Podgorica about the termination of the proceedings in Moscow and requested that the interim measure be revoked.

On 10 January 2012 the court in Kotor revoked the measure (ukida se privremena mjera).

On 30 April 2012 the applicant tried to sell his property in Budva, but could not as the interim measure was still in the register. It transpired that the court in Kotor had not transmitted the relevant decision to the Budva real estate registry.

On 15 May 2012 the Court of First Instance in Kotor requested that the real estate registry in Budva delete the measure.

On 25 May 2012 the registry issued a decision to strike out the interim measure in respect of one of the apartments, which was executed on 3 December 2013. On 10 July 2014 the registry issued a decision to strike out the interim measure in respect of the other apartment, which was executed on 4 August 2014.

Section 108(2) of the Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 22/04, 28/05 and 76/06, and Official Gazette of Montenegro no. 73/10) provides, inter alia, that submissions sent by post are considered as having been lodged with the relevant court on the day of posting.