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

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1970.

On an unspecified date in the second half of 1994 the applicant was arrested and detained in investigation detention facilities in Kyustendil and Sofia in the framework of a criminal investigation against him. On 25 November 1994 he was transferred to Pazardzhik Prison.

On 11 July 1996 the Kyustendil Regional Court found the applicant guilty of a number of violent offences committed between May 1993 and August 1994 and sentenced him to death. On 4 February 1999 the Sofia Court of Appeal upheld the applicant’s conviction but, following the abolition of the death penalty with effect from 27 December 1998 and the concomitant introduction of the sentence of life imprisonment without commutation (see paragraph 30 below), replaced his sentence with life imprisonment without commutation.

On 27 January 2000 the applicant was transferred from Pazardzhik Prison to Bobov Dol Prison, where he has been serving his sentence ever since. By order of the prison governor, he was placed alone in a constantly locked cell, as required under the legal provisions governing the regime of life prisoners (see paragraph 30 below).

In a decision of 30 November 2001, which became final on 25 April 2002, the Sofia Court of Appeal decided that the applicant was to serve his sentence under the “special regime” applicable to life prisoners at that time (see paragraph 30 below).

On 19 April 2007 a special commission in charge of deciding on changes in a prisoner’s regime decided to place the applicant under the “enhanced regime” (see paragraph 30 below).

On 1 June 2009, when the Execution of Punishments and Pre-Trial Detention Act 2009 superseded the Execution of Punishments Act 1969, the applicant was placed under the “severe” regime (see paragraph 30 below). His continued to be kept isolated from the rest of the prison population, as normally required under the relevant provisions of the 2009 Act and the regulations for its application (ibid.). The above-mentioned commission has apparently not decided to place the applicant together with the main prison population, as permitted under those provisions under certain conditions (ibid.).

In Bobov Dol Prison, the applicant was kept in an individual cell measuring thirteen and a half square metres. The Government submitted that not later than 2007 significant improvements had been made to that cell. In particular, central heating was installed and the old wooden window frames were replaced by modern ones measuring 138 cm by 50 cm and providing enough temperature isolation and access to sunlight. According to evidence put before the Kyustendil Administrative Court and its judgment of 9 June 2011 (see paragraph 28 below), those works were completed in October or November 2006.

At all relevant times the applicant’s cell contained an in-cell toilet and a water tap.

The applicant’s assertions in respect of the material conditions of his detention are voluminous and lack clarity in that grievances apparently relating to different periods of time are not clearly distinguished. The applicant alleged that during unspecified periods of his incarceration in Bobov Dol Prison he had encountered the following problems: food had been substandard and insufficient in quantity, with some meals containing pieces of plastic, hairs and fur, and the meat meals often containing meat substitutes or no meat at all; the plates in which the food was being served had been dirty and greasy; tap water had been muddy; there had been iron pieces bulging from the bed-spring which had made his bed very uncomfortable, and the bedding provided had been unclean; the taking of a shower (twenty minutes per week) and applicant’s visits to the doctor had been counted as part of his daily outdoor activities; the yard in which he took his daily outdoor exercise had not had toilet facilities, which had prevented him from relieving his needs before the end of the exercise period, and inmates had not been provided with waterproof clothing when spending time outdoors; guard dogs had been placed several metres from the window of the applicant’s cell and with their constant barking at night had prevented him from sleeping; other inmates and the applicant himself had found and killed rats in the cells; the temperature in the applicant’s cell had not risen above twelve degrees Celsius in winter and the heating coal provided in winter had been insufficient; there had been no heating in the bathroom and inmates had been freezing when taking showers in winter; the applicant’s cell lacked sufficient sunlight; for a long time the cell’s floor had been left riddled with holes and not covered with linoleum; and the cleaning products provided for the in-cell toilet had been insufficient, consisting of a mere two spoonfuls of chlorine a month, which had made the smell unbearable as the main part of the cell was only separated from the toilet area by a screen.

The evidence submitted by the applicant in support of those allegations consisted of his own statements, a statement written in the same handwriting as in all other letters sent by the applicant but co-signed by two other inmates on an unspecified date, and copies of more than fifty complaints that the applicant had sent to the prison administration and various other authorities between 2000 and 2009 and of some of the replies received. The vast majority of those complaints concerned the food served in prison: concrete instances in which the applicant had allegedly not received a full portion, yoghurt had been missing, the food had had a bad taste or smell, or meat had not been provided or had been of low quality. Some of those complaints had been acknowledged as well-founded by the prison administration and the applicant had been assured that measures would be taken.

In some of those complaints the applicant raised concerns in relation to the poor quality of coal given to inmates before the installation of a central heating system in October 2006, the fact that bed linen or clothes had not been properly washed, the choice of products available for purchase at the prison canteen, and the fact that a refrigerator in the canteen used to store personal food items had not functioned for a certain period of time.

For their part, the Government denied the applicant’s allegations concerning the material conditions of his detention. They said that the quality and quantity of food served to inmates had been fully adequate, and that hygienic conditions in the prison canteen, including in relation to cutlery, had been maintained in line with the applicable standards. Water in the prison had not been muddy; it came from the same pipeline as the water supplied to the town of Bobov Dol. Inmates could also buy bottled mineral water from the prison canteen. The allegation that iron pieces had protruded from the applicant’s bed was not true, and his bed sheets had been changed and washed every week. Bathing time had not been counted as part of the outdoor walk time; unlike other inmates, who had only had one hour of daily outdoor walk time, life prisoners had been allowed one and a half hours. The only reasons for interrupting that walk had been rowdy conduct or bad weather; in the latter case, more outdoor time had been made available later on. The yard designated for the daily outdoor walk did not have a toilet for security and hygiene reasons. Such a toilet was in any event not needed because that yard was adjacent to the applicant’s cell, which was equipped with a toilet. If the applicant had felt an urgent need to go to the toilet during his daily walk, he could have always used that one, and would have never been prevented from doing so. The prison administration was not under a duty to provide inmates with waterproof clothing; when such clothing had been provided as a matter of courtesy, the inmates had very quickly damaged it. It was not true that guard dogs had been kept near the applicant’s cell; such dogs had not been used at all in the zone at issue. Nor had there been rats inside the applicant’s cell; its door, windows and piping had been built in a way not permitting rats to come in, and the prison administration was under a duty regularly to carry out pest control. The applicant’s cell had had central heating since 2007, and the temperature inside the cell and the bathroom had been around eighteen degrees Celsius. The cell’s window, which, like all windows in Bobov Dol Prison, had had its old wooden frame replaced with a new PVC one, did not have any covers preventing sunlight from coming in and could be freely opened, and the cell’s floor was covered with linoleum which was in a good condition. Cleaning products were distributed weekly. Cable television was available in the cell. Lastly, works were under way for enlargement of the area for outdoor walks.

Apparently in view of the fact that the applicant is serving a sentence of life imprisonment without commutation, he is always handcuffed when taken out of his cell, including inside the prison. The handcuffs are removed once the destination has been reached, if security conditions permit. In particular, the applicant is handcuffed when taken out of his cell for his daily outdoor walk, but the handcuffs are removed during the walk.

It does not appear that the applicant has ever been involved in violent incidents in prison or disciplined for violent or aggressive conduct. There is no indication that he has ever tried to abscond from prison either.

The facts summarised in this subsection were set out by the applicant in two separate applications to this Court lodged by him in August 2010 (application no. 53109/10) and September 2011 (application no. 67629/11). In those applications he complained about various issues, such as an alleged lack of access to a court, the outcome of proceedings for damages, the impossibility to vote in the October 2011 presidential elections in Bulgaria, and an alleged interference with his right to correspondence.

From the materials submitted by the applicant in those two cases it transpires that in 2010-11 he brought a number of claims for damages under section 1 the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) before the territorially competent Kyustendil Administrative Court. Those claims concerned dozens of allegations concerning various aspects of the conditions of his detention and specific incidents allegedly breaching his rights.

The claims that directly relate to the subject matter of the present case concerned, inter alia: the allegedly poor quality of tap water in Bobov Dol Prison; the allegedly insufficient heating; the allegedly insufficient surface of the area for outdoor walks; the alleged failure of the prison authorities to transfer the applicant to a collective cell with a view to enabling him to have contacts with other inmates; the alleged failure of the prison authorities to provide any educational courses for the applicant or to enable him to take part in artistic, cultural, sport, religious or other activities; the fact that the applicant had been routinely handcuffed when taken out of his cell; and allegedly frequent body searches by prison guards.

Other claims concerned matters such as an alleged refusal of the prison authorities in 2010 to provide the applicant with copies of receipts showing that he had paid for mail sent by him; alleged delays and obstacles in respect of mail that the applicant had wished to send; an alleged refusal to allow the applicant to use a combined MP3/radio device as opposed to separate radio and MP3 devices, which were allowed; an alleged refusal of the prison administration to wash the applicant’s underwear, etc.

In relation to several claims, the Kyustendil Administrative Court instructed the applicant to clarify the link between the facts described in his statement of claim and the alleged damage, and to submit a declaration of means. As the applicant did not comply with those instructions, the court discontinued the proceedings in respect of some of the claims.

At least four cases proceeded to judgment on the merits.

In a case decided on the merits on 25 February 2011, the Kyustendil Administrative Court dismissed the applicant’s claim for damages concerning the fact that tap water in Bobov Dol Prison had on occasions been muddy and unfit for drinking. The court noted that although there was evidence that sometimes, especially after heavy rains, the quality of that water had been bad, the laboratory analysis had confirmed that it had been safe for drinking. The prison was connected to the general water supply system and got the same water as that supplied to households nearby. The applicant’s allegations, for instance that he had endured acute stomach pain and had required medical assistance, had not been made out. Moreover, the applicant had had the possibility to buy bottled mineral water from the prison canteen or, if he did not have the necessary means for that, boil tap water using a device which he confirmed that he had in his cell, or filter it. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of BGN 5 for the processing of the appeal (see опр. № 9496 от 28 юни 2011 г. по адм. д. № 8190/2011 г., ВАС, ІІІ о.).

A case decided on the merits by the Kyustendil Administrative Court on 1 March 2011 concerned a specific incident on 2 September 2009 in which prison staff had entered the applicant’s cell for a search accompanied by a dog trained to find narcotic drugs. The court dismissed the applicant’s claim that he had endured stress because of his fear of dogs. There was no evidence that the dog, which had been kept on a leash, had been handled in an inappropriate manner. That case ended in a judgment of the Supreme Administrative Court of 14 November 2011 (реш. № 14766 от 14 ноември 2011 г. по адм. д. № 8803/2011 г., ВАС, ІІІ о.) whereby the applicant’s appeal on points of law against the Kyustendil Administrative Court’s judgment was dismissed.

Another case decided on the merits by the Kyustendil Administrative Court on 17 March 2011 concerned thirty-three separate allegations relating to various aspects of the conditions of the applicant’s detention. It appears that in his statement of claim the applicant had made confused assertions about the periods of time to which those claims related and that he eventually only claimed non-pecuniary damages in respect of a limited period of time in the first half of 2010. The court dismissed all of the applicant’s claims. With regard, in particular, to the surface of the area for daily outdoor walks, it found that it was one hundred square metres. It went on to note that the bodily searches to which the applicant had been subjected had not involved any undressing or inappropriate touching of his private parts but patting, through his clothes, with a view to determining whether or not he had had on him any unauthorised items. The systematic handcuffing of the applicant was not in breach of the Execution of Punishments and PreTrial Detention Act 2009 or the regulations for its application, was not inconsistent with the applicant’s prison regime, could be considered necessary in view of the seriousness of the offences in relation to which he had been sentenced to life imprisonment, and had not been intended to humiliate the applicant. With regard to the claim that the applicant had not been transferred to a multi-occupancy cell despite the possibility to do so for life prisoners serving their life sentence under the “severe” regime, the court found that those matters fell within the discretion of the special commission for the execution of sentences; there had therefore not been a failure on the part of the prison authorities to observe a binding legal obligation. The same went for educational courses. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of 5 Bulgarian levs (BGN) (the equivalent of 2.56 euros (EUR)) for the processing of the appeal (see опр. № 9090 от 23 юни 2011 г. по адм. д. № 8057/2011 г., ВАС, ІІІ о.).

The applicant’s claim concerning the allegedly low temperatures in his cell related to two winters: the periods between October 2005 and April 2006, and the period between October 2006 and April 2007. The court ordered an expert report, which showed that the amount of coal provided to inmates in Bobov Dol Prison in 2005-06 had been adequate and that central heating had been installed in the prison in October 2006. In a judgment of 9 June 2011 the Kyustendil Administrative Court found that the prison administration had provided the applicant with enough coal to secure a temperature of approximately twenty degrees Celsius in his cell during the first period, and that central heating had been installed before the second period. The applicant’s claim was therefore dismissed. That judgment was apparently not validly appealed against.

From other materials submitted by the applicant it appears that in 2012 he tried to bring a number of further claims under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) in relation to various instances in which his rights had allegedly been breached by the prison authorities. None of those claims was accepted for examination by the Kyustendil Administrative Court as a result of apparent failures on the part of the applicant to formulate his claims properly and pay the requisite court fees. In a series of decisions given in 2012-13 the Supreme Administrative Court upheld the lower court’s decisions not to examine the claims on the merits.


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

The applicant, Ms Ljubica Lalić, is a Croatian national, who was born in 1950 and lives in Šibenik. She was represented before the Court by Mr I. Labura, a lawyer practising in Šibenik.

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’s husband was an employee of the “Slavonac” company. On 24 September 1998 the applicant and her husband, as guarantors of a loan to the company, entered into an agreement with the Jadranska bank of Šibenik to use their house as security for a loan of 200,000 Croatian kunas. It was stipulated that unless the debtor paid its outstanding debts within five years, the creditor bank was entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house.

On 13 March 2005 the applicant brought a civil action before the Šibenik Municipal Court against the said bank and the “Slavonac” company, claiming that neither she nor her husband had ever signed the fiduciary agreement in respect of their house and that she had learned about it for the first time in the inheritance proceedings instituted after the death of her husband.

The Municipal Court commissioned an expert in graphology, who confirmed that the signatures on the said agreement were indeed those of the applicant and her husband, and on 15 February 2008 the Municipal Court dismissed the applicant’s claim. This judgment was upheld by the Šibenik County Court on 27 September 2010 and the Supreme Court on 2 July 2013.

The applicant’s subsequent constitutional complaint was dismissed on 12 March 2014.

In the meantime, on 18 April 2006 the Jadranska bank of Šibenik applied to the Šibenik Municipal Court for enforcement of the fiduciary agreement against the applicant. It sought her eviction on the basis of a report of 21 February 2006 and its appendix, certified by a notary public on 9 February 2006 (Zapisnik o posvjedočenju činjenica s potvrdom kojeg je sastavio javni bilježnik i dopuna Potvrde). Those documents had been issued in connection with the above-mentioned fiduciary agreement in respect of the applicant’s and her husband’s house.

On 26 May an eviction order against the applicant was issued by the Šibenik Municipal Court.

On 14 June 2006 the applicant lodged an appeal against the eviction order, referring to the above-mentioned civil proceedings, which were still pending. The appeal was dismissed by the Šibenik County Court on 26 February 2007. However, on 9 October 2007 the eviction was postponed.

On 20 January 2012 the creditor asked the court to postpone the applicant’s eviction until further notice.


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

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

The applicant was born in 1932 and lives in Domitrovec.

On 12 February and 29 August 2003 the daily newspaper Večernji list published two articles in which the applicant accused his neighbour, a certain Mr I.M., of “stealing” his house and orchard.

In the ensuing two sets of criminal proceedings instituted by I.M. by way of private prosecution, the applicant was found guilty of two counts of defamation (kleveta). By a judgment of 17 December 2004 the Varaždin Municipal Court (Općinski sud u Varaždinu – hereinafter “the Municipal Court”) fined the applicant 3,475 Croatian kunas (HRK) and ordered him to pay I.M. HRK 2,660 for the costs of the proceedings. By a judgment of 12 January 2005, amended by the Varaždin County Court (Županijski sud u Varaždinu – hereinafter “the County Court”) on 15 November 2005, the Municipal Court judicially admonished (sudska opomena) the applicant and ordered him to pay I.M. HRK 2,208 in costs.

In subsequent civil defamation proceedings which I.M. instituted against the applicant, the civil courts also found in favour of the plaintiff and awarded him damages. By a judgment of 31 May 2006, amended by the County Court on 4 September 2007, the Municipal Court ordered the applicant to pay I.M. HRK 20,000 as compensation for non-pecuniary damage, together with statutory default interest and HRK 6,942 in costs.

Meanwhile, another set of civil proceedings between the same parties had also ended unfavourably for the applicant. By a judgment of 2 May 2005 the Municipal Court dismissed the applicant’s action to declare an in-court settlement between him and I.M. of 15 January 1997 null and void, and ordered him to pay the defendant HRK 2,318 in costs.

Since the applicant did not pay the sums stipulated above (hereinafter “the debt”) on time, on 7 September and 31 October 2007 I.M. instituted two sets of enforcement proceedings in the Municipal Court, seeking enforcement against the applicant’s immovable property, specifically his share in the house and surrounding land he owned with his wife. The property in question consisted of the house, a yard and arable land (fields) measuring 150, 500 and 204 square meters respectively (hereinafter “the property”).

On 5 November 2007 and 4 January 2008 respectively the court issued two writs of execution (rješenja o ovrsi) ordering the seizure and sale of the applicant’s share in the property.

On 10 March 2008 and 2 June 2009 the Varaždin County Court dismissed appeals lodged by the applicant and upheld the writs.

By a decision of 18 March 2010 the Municipal Court joined the two sets of enforcement proceedings.

At a hearing on 8 April 2010 the court, on the basis of information provided by the tax authorities, determined that the value of the applicant’s share in the property was HRK 131,200. The applicant did not attend the hearing even though he had been duly notified.

By a ruling of 27 July 2010 the court ordered the sale of the applicant’s share in the property (zaključak o prodaji, see paragraph 48 below) and scheduled a public auction for 14 October 2010 at which, in accordance with the law, the property (or share of it) could not be sold for less than two-thirds of its value (see paragraph 50 below).

The auction was not attended by any interested buyers. The applicant, however, submitted a certificate confirming that on 8 September 2010 he had paid HRK 14,400 of the debt, and promised to pay the rest by New Year.

Since he did not do so, on 12 January 2011 I.M. asked the court to schedule a second public auction.

On 17 January 2011 the applicant submitted another certificate confirming that on 14 January 2011 he had paid HRK 7,340 of the debt, and asked the court not to schedule a second auction because he would gradually pay the rest of the debt.

On 1 February 2011 I.M. reiterated his request for a second auction and stated that, by repeatedly promising to gradually pay the debt within self-imposed deadlines he did not observe, the applicant was merely protracting the enforcement proceedings which had thus far lasted three and a half years.

By a decision of 3 February 2011 the court scheduled the second public auction for 17 March 2011 at which, in accordance with the law, the property (or share of it) could not be sold for less than one-third of its value (see paragraph 50 below).

At the second auction only I.M. offered to buy the applicant’s share in the property, for HRK 43,734. This was the minimum price allowed by law and corresponded to one-third of its value. The applicant’s representative asked the court to postpone the auction and promised that the applicant would pay the rest of the debt within three months. The court refused this request and issued a decision declaring that I.M. had “satisfied the conditions to be awarded [the share in] the property”. It also specified that the decision actually awarding him the share in the property (rješenje o dosudi, see paragraphs 25 and 50 below) would be delivered at a later date.

On 21 March 2011 the applicant paid HRK 21,450 of the debt.

On 2 May 2011 he informed the court that earlier that day he had paid a further HRK 15,225.75, and had thereby settled the debt of HRK 58,415.75 in full (consisting of the principal amount of HRK 34,128.43 and HRK 24,287.32 of statutory default interest). What remained to be paid were the costs of the enforcement proceedings. He therefore asked the court to discontinue the enforcement and issue a decision specifying those costs, which he promised to pay immediately.

At a hearing on 26 October 2011 I.M. confirmed that on 2 May 2011 the applicant had paid the debt in full, but had not covered the costs of the enforcement proceedings. He thus asked the court to issue a decision on costs, and the award decision.

On 18 November 2011 the court delivered its award decision (rješenje o dosudi, see paragraph 21 above and paragraph 50 below). It specified that the property would be surrendered (transferred) to I.M. after he deposited the purchase price, within three months of the decision becoming final. The court found the fact that the applicant had paid the debt in full on 2 May 2011 irrelevant, since the decision on the sale of the applicant’s share in the property to I.M. had been adopted earlier, on 17 March 2011 (see paragraph 21 above). It noted however that the fact that the applicant had paid off the debt would be taken into account when distributing the proceeds of sale (see paragraph 32 below). In particular, the court held as follows:

“Given that the property was sold on 17 March 2011 at the second public auction when it was established that the bidder I.M. had made the best bid and had offered [to pay] HRK 43,734, and thereby met the conditions to be awarded the property, the court adopted [the present] award decision ... regardless of the fact that the enforcement debtor on 2 May 2011 settled the debt in respect of the principal amount and the interest. When settling the enforcement creditor’s claim, the court will deliver a distribution decision whereby it will take into account the fact that the enforcement debtor had settled the debt in respect of the principal amount and the interest.”

On 5 December 2011 the applicant appealed against that decision. He argued that he had settled the debt in full several months before the court had issued the contested award decision. In that sense I.M. “had got it both ways” as he had both been paid the debt and acquired the share in the property. There had been no reason to sell his share in the property to pay the same debt. He further stated that he would also have covered the costs of the enforcement proceedings that remained due if the court had issued a decision specifying the amount, which it had not done.

On 16 January 2012 the County Court dismissed the applicant’s appeal and upheld the contested decision, which thereby became final. It held that the necessary conditions for selling the applicant’s share in the property to I.M. had already been met on 17 March 2011. The fact that he had later paid off the debt had no bearing on the validity of the sale. In particular, that court held as follows:

“Having regard to the fact that on 17 March 2011 the second public auction was held at which the enforcement creditor appeared as a bidder and made the best (the only) bid, and given that after the auction the court established that the enforcement creditor had offered the highest price and had met the conditions to be awarded the property in accordance with section 98(3) of the Enforcement Act, the first-instance court was, pursuant to section 98(4) of [that] Act, entitled (and obliged to) adopt the contested [award] decision ...

The fact that the enforcement debtor after the [second public] auction, on 2 May 2011 settled the creditor’s claim in full is of no relevance for the validity of the contested decision, regardless of the unjustified (time) gap between the auction and the adoption of the impugned decision. [That is because] at the auction of 17 March 2011, which was held in line with the [relevant] provisions of the Enforcement Act, it was established that the enforcement creditor offered the highest price and that he met the conditions to be awarded the property. [Therefore] the events that occurred subsequently cannot call into question the award of the property, nor can the said event constitute grounds for discontinuation of enforcement under the Enforcement Act.”

On 27 February 2012 the applicant lodged a constitutional complaint against the County Court’s decision, alleging a violation of his constitutional right to fair procedure.

On 7 March 2012 I.M. informed the court that he had deposited the purchase price, and submitted proof thereof.

By a ruling of 24 April 2012 (zaključak o predaji, see paragraph 51 below) the Municipal Court surrendered (transferred) the applicant’s share in the property to I.M. On 29 June 2012 the court’s land registry department recorded him in the land register as co-owner of the property instead of the applicant.

By a decision of 24 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint of 27 February 2012 inadmissible (see paragraph 28 above). It held that the contested decision was not open to constitutional review.

On 17 September 2012 the Municipal Court issued a distribution decision (rješenje o namirenju, see paragraph 54 below), distributing the HRK 43,734 deposited with the court by I.M. for the applicant’s share in the property. The court specified the costs of the enforcement proceedings, which were incumbent on the applicant, as HRK 10,703.12, and returned that amount to I.M. The remaining HRK 33,030.88 was paid to the applicant.

On 14 December 2012 the County Court dismissed an appeal by the applicant against that decision. On 27 February 2013 lodged a constitutional complaint against the decision of the County Court.

By a decision of 25 April 2013 the Constitutional Court declared that constitutional complaint inadmissible, holding that the contested decision was not open to constitutional review.

By a decision of 20 January 2013 the Municipal Court declared the enforcement completed. An appeal by the applicant against that decision was dismissed by the County Court on 26 March 2013.

On 23 May 2013 I.M. instituted non-contentious proceedings in the Municipal Court against the applicant’s wife by lodging a petition for partition of co-ownership. Since the property could not be physically divided, he sought a partition by sale, whereby the proceeds would be distributed to the co-owners.

As the applicant’s wife opposed the partition, by a decision of 2 July 2013 the court discontinued the non-contentious proceedings and instructed I.M. to institute separate civil proceedings against her to that end.

On 17 July 2013 I.M. brought a civil action against the applicant’s wife as instructed, in the same municipal court. He sought a partition of co-ownership in the same way as in his petition of 23 May 2013.

By a judgment of 6 November 2014 the Municipal Court ruled for the plaintiff and ordered a partition by sale and distribution of the proceeds to the co-owners. It also ordered the applicant’s wife to pay the plaintiff HRK 4,050 in costs.

She appealed and the proceedings are currently pending before the second-instance court.

Meanwhile, on 3 July 2013 I.M., had also instituted another set of civil proceedings before the Municipal Court against the applicant, seeking payment of rent for the use of the property. He explained that the applicant had remained living in the house even after he acquired the applicant’s share. As a co-owner he was thus entitled to seek from the applicant half of the rent under which the house could be rented out. These proceedings are still pending before the first-instance court.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 14+5-1-c - Prohibition of discrimination (Article 14 - Discrimination) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1964 and lives in Parede. At the material time, she was working as a Chinese-Portuguese translator and was married to a Portuguese national.

On 16 December 2010 criminal proceedings were initiated against the applicant, her husband and others by a public prosecutor of the Central Department of Investigation and Prosecution (Departamento Central de Investigação e Ação Penal) in Lisbon on allegations of aiding illegal immigration, money laundering and forgery.

In April 2011 the applicant sent letters to the Attorney General (Procurador-Geral da República) and Director of the Immigration and Borders Service (Serviço de Estrangeiros e Fronteiras), informing them that she knew she was being investigated, and that she was available to present herself to the judicial authorities to be questioned and considered as a defendant. The letters read, in so far as relevant, as follows:

“[The applicant] is ready to be made a defendant and questioned. She hereby suggests the following dates for these procedural steps, for which she volunteers to attend when summoned:

30 April – Saturday, at any time;

1 May – Sunday, at any time;

7, 8, 9, 10, 17, 18 and 20 May, at any time.”

On 9 June 2011 the public prosecutor issued an arrest warrant against the applicant on the basis of Articles 254 and 257 § 1 of the Code of Criminal Procedure (hereinafter “the CCP”), as the case material provided sufficient grounds for believing that she might abscond, obstruct the investigation or continue the alleged criminal activity. The arrest warrant reads, in so far as relevant, as follows:

“In view of the above, it is essential to question the suspect and thus assess the application of other preventive measures in addition to providing information on identity and residence [termo de identidade e residência]. Having regard to the strong grounds that exist regarding the commission of the acts described, which are crimes allowing for the application of pre-trial detention, and taking into account that, in the present case, there is a risk of absconding, a risk of continuing the criminal activity and obstructing the investigation ... I order Qing Xu’s arrest... to bring her before the investigating judge...”

On 14 June 2011 the applicant was arrested at her home between 5 and 6 a.m. She was questioned by an investigating judge of the Lisbon Criminal Investigation Court over the following two days, 15 and 16 June 2011.

The applicant challenged the arrest before the investigating judge and submitted observations with regard to the preventive measure she thought should be applied. She argued that there was no reason to believe that she would abscond and, as such, the arrest warrant had been issued by the public prosecutor unlawfully. She further stated that she did not have a criminal record; she had two young children who lived with her. She further claimed that she had a permanent residence in Portugal, where she had been living for at least twenty years. She also stated that she was ready to hand over her passport, and that prohibiting her from going to places attended by immigrants and contacting the other defendants in the proceedings would be adequate preventive measures.

On 16 June 2011 the investigating judge dismissed her request, noting as follows:

“In the present case it appears evident that there is a risk of the defendant absconding, given that she is a Chinese national and once confronted with the seriousness of the facts attributed to her, she could flee from Portugal to her home country.

... the crimes of aiding illegal immigration and money laundering allow the application of the preventive measure of pre-trial detention in respect of the defendant. The requirements established under Article 257 § 1 of the CCP have thus been met and the defendant’s appeal is dismissed.”

The investigating judge also remanded the applicant in custody for the duration of the investigation, noting as follows:

“The acts committed by the defendants are objectively serious. [They] are Chinese nationals, with the exception of defendant J.G. [the applicant’s husband], raising fears that when confronted with the seriousness of the facts attributed to them, they would evade justice and flee to their home country.

It is also evident that there is a risk the investigation will be obstructed with regard to the gathering of evidence, as there are numerous investigative steps to be carried out, namely the examination of witnesses.

... taking into account the profits obtained from the criminal activity, it is also evident that there is a risk that the criminal activity will continue.

The defendants Qing Xu and K.G. are primarily responsible for the criminal organisation acting in Portugal... Thus, having regard to the severity and multiplicity of the crimes against them, the risk of absconding and ... obstructing the investigation and finally, it being predicted that a custodial sentence will be imposed after trial, only detention on remand would be adequate and proportionate to the severity of the facts and the preventive aims required in this particular case.

With regard to defendants B.G., J.G. [the applicant’s husband] and M.M., the application of other preventive measures which would not deprive them of liberty [medidas não privativas de liberdade] would be proportionate to the purpose of preventing the above-mentioned risks.

In view of the above:

- defendants K.G, Qing Xu and Z.M. should ... be held in pre-trial detention pursuant to Articles 191, 193, 196, 202 § 1 (a) and 204 (a), (b) and (c) of the Code of Criminal Procedure.

- defendants B.G, M.M. and J.G. [the applicant’s husband] are prohibited from leaving Portugal and must surrender their passports, prohibited from contacting each other, and must attend their nearest police station on a weekly basis ... the prohibition on contact does not apply to J.G. and defendant Qing Xu or to B.G. and defendant K.G., as they live together.”

The applicant appealed against the decision of the investigating judge to the Lisbon Court of Appeal. She complained that there had not been any justification for her arrest or for the application of the custodial measure as her family situation, place of residence and other personal circumstances had not been taken into account when the court had ordered her detention. She also argued that she had voluntarily shown that she was available to be questioned by the authorities in April 2011.

On 13 July 2011 the public prosecutor in charge of the criminal case asked the investigating judge to classify the proceedings as particularly complex, noting that more time was needed to complete the investigation.

On 5 August 2011 the investigating judge accepted the public prosecutor’s request to classify the proceedings as particularly complex and extended the pre-trial detention to twelve months, taking into account the number of applicants and crimes that were being investigated.

On 14 September 2011 the Lisbon Court of Appeal dismissed the applicant’s appeal against the arrest warrant and upheld the court’s decision of 16 June 2011 to hold her in pre-trial detention. The court held, inter alia, the following in relation to the lawfulness of the arrest warrant:

The public prosecutor’s reasoning that ‘there were grounds for considering that [the applicant] would not present herself to the authorities on a scheduled date could not eventually be justified’; however, one cannot say that the arrest warrant was unlawful because of that.”

In relation to the necessity of the detention on remand, it noted that:

It can be considered that there is ‘no high risk of the defendant absconding’ since on 29 April 2011, aware of the ongoing criminal proceedings against her, she nevertheless volunteered to be questioned [by the authorities] and even detained. Furthermore, she did not flee from her residence or the country. However, neither her family circumstances nor the measure of electronic surveillance are, at present, capable of safeguarding the risk [relating to the] gathering of evidence...

Indeed, it would not be possible to safeguard the risk for the investigation, which is very high, especially given the nature of the Chinese community in Portugal.

And it does not avoid the risk of the criminal activity continuing especially since, as said by the public prosecutor at first instance, ‘it was mainly done from home, and the contact was established with third parties.’”

The applicant filed a request for clarification with the Lisbon Court of Appeal regarding its decision of 14 September. On 2 November 2011 it was rejected.

Between October 2011 and February 2012 the applicant lodged three requests with the investigating judge of the Lisbon Criminal Investigation Court asking for her release and the remand in custody to be replaced with police supervision pending trial or house arrest with electronic surveillance, reiterating that there was no risk of her absconding or continuing criminal activity, that she had contacted the police voluntarily, that she had not committed the alleged crimes, that she was a mother of two children living in Portugal, and that she had a permanent place of residence there.

On 12 October 2011, 13 December 2011 and 13 February 2012 the investigating judge of the Lisbon Criminal Investigation Court upheld the decision to maintain her in pre-trial detention, noting as follows:

“... the requirements for the order [of pre-trial detention] remain unchanged and strengthened. For that reason, [the defendants] should remain in pre-trial detention pending trial (Article 213 § 1 a) of the CCP).”

“The arguments submitted by the defendant [the applicant] do not interfere with the reasons on which the pre-trial detention was based. It is therefore our understanding that these reasons remain valid.”

“The defendant claims equal treatment in the judicial decisions. In her arguments she did not inform [the court] of any new circumstances which could affect the reasons that justified her detention on remand.

The reasons which were already analysed in an appeal remain unchanged and there are therefore no grounds capable of mitigating the preventive requirements which justified the detention on remand. I therefore dismiss the defendant’s request and order that she remains in pre-trial detention pending trial.”

Between October 2011 and February 2012 the applicant also lodged two requests with the Prosecutor General’s Office to have the criminal inquiry expedited (pedido de aceleração processual).

On 9 November 2011 and 20 February 2012 the Prosecutor General’s Office rejected the request. It substantiated its decisions by the fact that the requests were manifestly ill-founded, given the complexity of the proceedings and the fact that the investigation was under way.

On 19 March, 30 May, 30 August and 19 November 2012 the investigating judge reviewed the grounds for application of the applicant’s pre-trial detention, in accordance with Article 213 § 1 of the CCP. He noted that they remained unchanged and, therefore, upheld the custodial measure applied in respect of the applicant.

On an unspecified date the applicant was indicted and her case sent to the Lisbon Criminal Court for trial.

On 29 January 2013 the investigating judge decided to release the applicant from pre-trial detention and place her under house arrest with electronic surveillance. The relevant parts of the decision read as follows:

“From the analysis of the case file ... there are no new facts capable of affecting the strong grounds surrounding the acts attributable to the defendants; nor does it seem that the risks mentioned [in the 16 June 2011 order] have ceased to exist.

From the evidence provided to date, namely with regard to their personal and family circumstances, less severe preventive measures can be applied in respect of the defendants. The risk of absconding still exists; however, it can be safeguarded through electronic surveillance.”

On 30 January 2013 the applicant was released from pre-trial detention.

On 20 February 2013 the Lisbon Criminal Court delivered its judgment. The applicant was acquitted of money laundering and forgery. She was convicted of aiding illegal immigration and sentenced to five years’ imprisonment, although the sentence was suspended on the condition that she made an annual payment of EUR 1,500. On the same day she was released from house arrest.

On an unspecified date she appealed against the judgment to the Lisbon Court of Appeal. According to the latest information received on 29 April 2015, the proceedings are still pending.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1962 and lives in Harju County. She is the widow of R.

On 20 February 2001 M. attempted to smuggle 105 kilograms of waste containing precious metals into Estonia. The waste was hidden in the fuel tank of his car. However, it was found at the border and seized by the Estonian authorities. M. was arrested. J., a suspected organiser of the smuggling, fled to Russia.

Investigating authorities asked R., an expert in geology, to give an expert opinion in respect of the content of precious metals in the waste. According to the expert opinion, dated 1 March 2001, the value of the metals was 19,620.90 kroons (EEK) (approximately corresponding to 1,254 euros (EUR)). This value was above the limit of a “significant amount” as defined in criminal law. P. who apparently had certain interests in the matter, approached R. and asked him to prepare another expert opinion, which would state that the value of the metals was lower. R. drew up another report, dated 6 March 2001, which stated that the value of the seized metals was EEK 13,356 (EUR 854), which was below what was designated as a “significant amount”. Smuggling of less than a “significant amount” of goods would not have been a criminal offence but a misdemeanour. P. sought to pass, through an intermediary, the new expert opinion, along with a sum as a bribe, to an officer dealing with the matter. However, the intermediary was apprehended when handing over the money and the second expert opinion.

On 11 March 2001 R. was arrested. His home and later his workplace were searched. A large amount of various substances containing precious metals as well as pure precious metals was seized, including 150 kilograms of silver, one kilogram of gold, thirty-one silver bars, five diamonds and eighteen silver-coloured spoons.

On 12 March 2001 R. committed suicide in the detention facility. He was taken to hospital in a state of clinical death, and died there on 17 March 2001.

In the case file there are two decisions of the police concerning the discontinuance of criminal proceedings in respect of R.

In a decision of 27 March 2001 the above situation was described, including the fact that two expert opinions had been drawn up by R. It was concluded that he had knowingly given a false expert opinion and had thereby committed an offence under Article 175 § 1 of the Criminal Code (Kriminaalkoodeks). The criminal proceedings against him were terminated because of his death.

In a decision of 9 April 2001, firstly, it was stated that the applicant had committed the offence under Article 175 § 1 of the Criminal Code.

Secondly, the decision stated that it had been established that since 1995 R. had been giving unofficial expert opinions concerning substances containing precious metals. Knowing that such substances were not found in Estonia and that they were being smuggled from Russia, he had committed an offence of smuggling as an accomplice (Article 17 § 6 and Article 76 § 3 (2) of the Criminal Code).

Thirdly, in respect of the silver, gold and diamonds the decision stated as follows:

“During the search of [R.’s] home and workplace a large amount of pure precious metals ([about] 150 kg of silver granules, 31 silver bars, [about] 1 kg of gold, five diamonds) [and] other items made of precious metals were found, which refer to purchasing items made of precious metals from the population, and substances containing precious metals [were also found], which were similar to the substance found in a hiding place in [M.’s] car. Therefore it can be concluded that [R.] was involved in the smuggling of substances containing precious metals as an accomplice who analysed the substances; he was probably also engaged in purchasing, purifying and marketing substances containing precious metals. Under Regulation No. 142 of 29 July 1994 of the Minister of Finance, items made of precious metals, precious scrap metal and precious stones may only be purchased and remelted by legal persons whose purchasing point is registered by the Estonian Assay Office (Eesti Proovikoda) and who have an operating licence for the purchasing of precious metals and precious stones and items containing them. Thus, [R.], who did not have the required licences, committed a large-scale violation of the rules for purchasing metals, and thereby committed an offence under Article 152-3 § 3 of the Criminal Code.

[R.’s] official income according to his tax return for 2000 was [EEK] 18,564 [EUR 1,186] after the deduction of income tax, which indicates that he could not have legally acquired such a quantity of precious metals. [R.’s] wife, [the applicant], is also unaware of the origin of these items.

Nor is it possible to obtain additional evidence in relation to the crimes committed by [R.], because after his arrest ... [he] committed suicide...”

The investigator decided to discontinue the criminal proceedings under Article 175 § 1, Article 17 § 6 and Article 76 § 3 (2), and Article 1523 § 3 of the Criminal Code because of R.’s death. The precious metals and substances containing precious metals found at R.’s home and workplace were ordered to be deposited in a police storage facility since the identity of their legal owner had hot been established and it was unclear to whom they belonged.

By an order dated 9 April 2001 the police declared the substances and items seized from the car (see paragraph 6 above) and from the applicant’s home and place of work (see paragraph 8 above) to be evidence and it was decided that they should be deposited in a police storage facility. The evidence was inspected on the same day.

On 10 May 2001 the applicant enquired of the police about the death of her husband, R., in the police custody, about the charges against him and about the return of the items which were not rare earth, such as the silver granules, diamonds, gold and silver bars that had been seized during the search.

On 28 May 2001 the police responded that a decision on the return of the seized items would be made by the officer in charge of the investigation after clarification of their origin.

In the meantime, on 14 May 2001 the police ordered an expert examination of the seized substances. According to an expert opinion delivered on 22 May 2001 the packages analysed contained galvanic mud from which metals could be separated by the use of special technology and equipment. Some of the samples contained precious metals.

According to an intestate succession certificate issued by a notary on 16 August 2001 the applicant and her two sons were R.’s heirs, each inheriting one-third of his property.

An expert opinion in respect of further items and substances seized from R.’s home and workplace was commissioned on 21 September 2001. According to an expert opinion given on 5 November 2001 some of the analysed substances were galvanic waste not known to be generated in Estonia, and certain further samples contained precious metals probably bought from the population.

In the meantime, on 27 September 2001 K., R.’s colleague, was interviewed as a witness. He submitted that they carried out about 500 expert analyses per year; the number of official analyses had been about ten per year. He described the powder and “mud” the content of which they had analysed. The “mud” was a by-product of nickel production; it was brought from Russia. They did not have equipment in their laboratory for separating precious metals from the “mud”, they could only analyse its content. K. gave details about persons to whom he had communicated the results of the expert examinations. According to K., R. had also purchased equipment for the laboratory with his own money, the cost of which was about EEK 500,000 (EUR 32,000). K. had suspected that by doing the analyses R. had been involved in something illegal and that he also got paid for this. He referred to R.’s new cars and construction of a house as something that he could not have afforded on his salary. According to K., the substances and items taken from a table in their workplace were samples they had examined. K. could not tell anything about the origin of the items found in R.’s cupboard and locked drawer.

On 10 October 2001 the applicant was interviewed as a witness. According to the report on the interview drawn up by the police, the applicant stated that she did not know anything about the items seized from their garage and their home. These items had been acquired by R., who put his money into precious metals since he apparently had no trust in bank accounts. In respect of the diamonds she could not say anything; these had been, like the other substances and items, acquired by R. The money matters of the family had been handled by R.; the applicant even did not know how much he earned in salary.

On 25 July 2002 the police applied to the Narva City Court to authorise the confiscation of the items and substances that had been declared as physical evidence in the criminal case. In respect of the items and substances taken from R.’s home and workplace during the search, it was stated as follows:

“On 9 April 2001 the items and substances found during the search carried out at [R.’s] home and workplace were declared to be evidence (vol. 2, pp. 154-172), as this property had been obtained through crime. Information gathered in the criminal proceedings about [R.’s] income (vol. 2, pp. 179-80 and pp. 182-83) and statements by [R.’s] colleague [K.] also refer to this fact, that is [to the fact that] the property [had been] obtained through crime. [R.’s] wife, [the applicant], was unable to give explanations about the items and substances seized during the search (vol. 2, p. 185).

Having regard to the above, it is expedient to request from a court confiscation of the evidence mentioned above, that is of property obtained through crime and prohibited for natural persons in accordance with the “Rules for the import and export of precious metals and precious stones and products made of them” (vol. 1, pp. 4951).”

On 19 August 2002 the Narva Prosecutor’s Office approved the statement of charges. It was noted that the evidence taken from R. was in the police storage facility. On 22 August 2002 M. and J. were prosecuted.

On 20 January 2004 the Narva City Court convicted M. of attempted smuggling of prohibited goods. J. was convicted as an accomplice. In the judgment, reference was made to statements by anonymous witnesses to the effect that J. had for years been smuggling substances containing precious metals into Estonia; samples of the substances had been analysed in R.’s laboratory. No decision was made in respect of the items seized from R. On appeal, J.’s counsel L. did not make reference to these items.

On 14 April 2004 the Viru Court of Appeal quashed the City Court’s judgment for insufficient reasoning. It noted, inter alia, that the anonymous witnesses had not been heard at the court hearing and that their statements had been of a general nature. It was also noted that the County Court should have indicated what to do with the physical evidence and other seized items. The case was remitted to the first-instance court for a new examination.

In the meantime, on 11 March 2004, the applicant again enquired about the return of the items in question. On 15 April 2004 the police responded that these items were part of the physical evidence in the criminal case and that it was for the judge examining the matter to rule on the measures to be taken in respect of the evidence.

At the Viru County Court hearing of 10 March 2009 the prosecutor requested discontinuance of the criminal proceedings in respect of M. and J. under Article 168-1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks) because of the lack of public interest. The defendants agreed. The prosecutor asked the court to confiscate the substances and metals seized from R.’s home and workplace. J.’s counsel L. thought that it would be better to leave the latter question open since the applicant could have claims in this respect.

On 17 March 2009 the Viru County Court discontinued the proceedings as requested, finding that there was no public interest in continuing the proceedings. It ordered M. and J. to pay the court costs and certain additional lump sums to the State. A separate decision was to be made in respect of the physical evidence found at R.’s home and workplace.

On 24 March 2009 the Viru County Court ordered the confiscation of the substances containing precious metals and the pure precious metals in question. It relied on Article 63 (3) of the Code of Criminal Procedure, under which property received as a result of a criminal offence and whose legal owner could not be established was to be transferred to the State. It gave the following reasons for the confiscation:

“The court, having examined the evidence in the criminal case, finds that the materials containing precious metals and the pure precious metals which were found at [R.’s] home and workplace and which are held in the police depository must be confiscated and transferred to the State.”

A copy of the decision was sent to the applicant.

On 31 March 2009 the Viru County Court amended its order of 24 March 2009 by providing an exact list of the substances and items to be confiscated.

The applicant, represented by counsel L., lodged an appeal against the County Court decision of 24 March 2009. She argued that the decision contained no reasoning. It had not been established that the substances found at R.’s home and workplace had been obtained through crime. Nor had it been established that the identity of their legal owner had not been ascertained. It had only been clear that R. had been in possession of the property in question. She also complained that the court had made a decision about her rights in written proceedings without inviting her to take part in the proceedings or hearing her, and that she had only received the County Court’s decision by post. She asserted that she was R.’s widow and heir, together with their two sons. The applicant requested that the County Court’s decision be annulled and the case remitted for re-examination to the County Court.

The Viru Circuit Prosecutor’s Office in its reply to the applicant’s appeal submitted that the applicant was not a party to the proceedings and therefore her appeal had to be dismissed. If she considered herself to be the legal owner of the property, Article 62 § 8-1 of the Code of Criminal Procedure applied, under which in cases of seized property whose legal owner could not be identified, the legal owner whose identity was established later had the right to reclaim the amounts received from the sale of the seized property from the State.

On 25 May 2009 the Tartu Court of Appeal, in written proceedings, dismissed the appeal. It noted that the applicant was not a party to the proceedings. She had been questioned on 10 October 2001 as a witness (see paragraph 23 above). The County Court had had no obligation to involve her in the determination of what should happen to physical evidence. However, since the applicant’s rights had allegedly been violated by the confiscation of the property in question, the Court of Appeal decided to examine her appeal.

The Court of Appeal stated as follows:

“The Court of Appeal finds, on the basis of the evidence in the criminal case, that the items found at [R.’s] home and workplace that were declared physical evidence constitute property obtained through crime, and that the identity of the lawful owner thereof has not been established.

On the basis of the material of the criminal case there were sufficient grounds to believe that [R.] had been involved in smuggling; for that reason his home was searched on 11 March 2001 and eighteen items were seized (vol. 2 pp. 147-49). On 12 March 2001 his workplace was searched and thirty-four items were seized (vol. 2 pp. 151-53). Some of the seized items were declared to be evidence and were inspected (vol. 2 pp. 154-73). A chemical expert examination was carried out in respect of the physical evidence (vol. 2 pp. 174-78). The Court of Appeal notes that the list provided in the County Court’s ... decision of 31 March 2009 corresponds to the list provided in the decision of 9 April 2001 concerning the evidence (vol. 2 p. 154).

The criminal proceedings under Article 175 § 1, Article 17 § 6 and Article 76 § 3 (2), and Article 152-3 § 3 of the Criminal Code in respect of [R.] were discontinued on 9 April 2001 because of his death (he died on 17 March 2001). No appeal was lodged against that decision.

According to the decision concerning the discontinuance of the criminal proceedings (vol. 2 pp. 191-92) the precious metals and substances containing precious metals that had been declared evidence had been obtained through crime (Article 152-3 § 3 of the Criminal Code) and the identity of their legal owner had not been established. Proceeding on the basis of the above, an investigator requested confiscation of these items of physical evidence on 25 July 2002, because it was property obtained through crime. In the [investigator’s] request (vol. 3 pp. 41-42) evidence was set out demonstrating that the property had been obtained through crime. The evidence included, inter alia, statements by witness [K.] (vol. 2 pp. 188-90) and [the applicant] (vol. 2 p. 185).

The Court of Appeal notes that [the applicant], in whose interests the present appeal was lodged, was interviewed as a witness on 10 October 2001. It follows from that interview that she knew nothing about the items that had been seized during the search of 11 March 2001. She did not know the origin of the items. She knew that they had been obtained by [R.], who had placed his money in precious metals. In respect of the diamonds she could say nothing; these had also been obtained by [R.]. As can be seen from the above, [the applicant] has not declared that also she had title to some of the items declared as evidence or that they had belonged to [her and R.] as common property.

Since it had been established that the property had been obtained through crime, it had to be confiscated, which was ordered by the County Court decision of 24 March 2009.”

On 14 April 2010 the police submitted to the assay office of the company Metrosert Estonia the substances containing precious metals, as well as the pure precious metals, confiscated by the court rulings in the criminal proceedings at hand. The list also includes substances and precious metals confiscated from R.


CASE OF HRVATSKI LIJEČNIČKI SINDIKAT v. CROATIA

Preliminary objection joined to merits and dismissed (Article 34 - Locus standi);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Non-pecuniary damage - finding of violation sufficient

Christoph Grabenwarter;Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant union is a trade union of medical practitioners incorporated under Croatian law. Its registered office is in Zagreb.

On 8 December 2004 the Government of Croatia on the one side, and the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia, the Croatian Professional Trade Union of Nurses, the Trade Union of Workers in the Health Service, Social Service and Disability Pension Insurance of Croatia, and the applicant union on the other, concluded the Collective Agreement for the Health and Health Insurance Sector (Kolektivni ugovor za djelatnost zdravstva i zdravstvenog osiguranja – hereinafter “the Collective Agreement” or “the main Collective Agreement”). Its clause 102 stipulated that the agreement would enter into force on 15 January 2005 if approved by a majority of the votes cast in a referendum, in which at least one third of those employed in the health-care institutions and the Croatian Health Insurance Fund voted. The Collective Agreement was approved in the referendum held on 5 January 2005 and entered into force, as envisaged, on 15 January 2005.

In order to regulate issues specific to doctors and dentists, on 8 December 2004 the Government of Croatia and the applicant union also concluded the Collective Agreement for the Medical and Dentistry Sector (Strukovni kolektivni ugovor za liječničku i stomatološku djelatnost), which formed an annex (hereinafter “the Annex”) to the above-mentioned main Collective Agreement. Clauses 6 and 98(2) of the Annex stipulated that if doctors approved it in a referendum, it would enter into force on 15 January 2005.

On 15 December 2004 the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia and the Croatian Professional Trade Union of Nurses instituted civil proceedings against the State and the applicant union, seeking to declare the Annex null and void because it had not been entered into by all the trade unions that had concluded the main Collective Agreement, contrary to the law (for a more detailed description of the course of those proceedings see paragraphs 26-30 below).

On 29 December 2004 the Government of Croatia adopted an instruction whereby it (a) instructed the State Attorney’s Office to acknowledge the plaintiffs’ claim in those proceedings because it was well-founded, with a view to having the Annex declared null and void, and (b) instructed the Ministry of Health and Social Welfare to immediately commence negotiations on the conclusion of a new collective agreement for the medical and dentistry sector.

Meanwhile, on 21 December 2004 the referendum committee issued a decision to hold the referendum mentioned in the Annex (see paragraph 7 above).

However, on 31 December 2004 the President of the Socio-Economic Council (Gospodarsko-socijalno vijeće) – a tripartite body consisting of representatives of trade unions, employers and the Government – set aside the decision on holding the referendum.

The referendum was nevertheless held on 5 January 2005. Of 11,016 doctors, 8,290 voted; 8,255 voted “yes” and twenty-five voted “no”.

On 18 January 2005 the President of the Socio-Economic Council issued a decision not to recognise the results of the referendum.

In a letter to the Ministry of Health and Social Welfare of 23 March 2005, the applicant union announced a strike for 11 April 2005. It stated that the strike was being organised in order to (a) protect the social and economic interests of doctors by insisting that the Government of Croatia honour its obligations arising from the Annex, (b) have the results of the referendum on the approval of the Annex recognised, and (c), as an subsidiary ground for the strike, address issues specific to doctors and dentists within the healthcare system by demanding that a collective agreement for the medical and dentistry sector be concluded. In particular, as regards the last-mentioned ground the applicant union stated as follows:

“– addressing issues specific to doctors within the healthcare sector by concluding a collective agreement for the medical and dentistry sector.

As a subsidiary ground for the strike, the Croatian Medical Union notes that the [main] Collective Agreement for the Health and Health Insurance Sector does not address issues specific to the medical and dentistry professions. Therefore, on the instruction of the Government of Croatia and in accordance with the opinion of the Socio-Economic Council ... of 31 March 2004, the Annex to that Collective Agreement addressing issues specific to doctors was concluded at the same time [as the aforementioned collective agreement]. In that way, issues specific to doctors within the healthcare and health-insurance sectors were comprehensively addressed. Given that at present the Government of Croatia refuse to apply the Collective Agreement for the Medical and Dentistry Sector [i.e. the Annex], and issues specific to the medical and dentistry professions, including a salary increase and other pecuniary rights of doctors, are not addressed in the [main] Collective Agreement for the Health and Health Insurance Sector, a subsidiary ground for the strike is to demand that the Government address issues specific to jobs and professions of doctors and dentists within the healthcare and health-insurance sectors.”

On the same day the Ministry of Health and Social Welfare invited the applicant union to conclude a new collective agreement for the medical and dentistry sector in the form of an annex to the main Collective Agreement. The draft of the new annex was enclosed with the Ministry’s letter. The Ministry emphasised that the draft envisaged a salary supplement amounting to 10% of the basic salary of doctors and dentists in 2005 on account of their increased responsibility for the life and health of patients. It also added that the other trade unions, parties to the main Collective Agreement agreed with the draft, and invited the applicant union to inform it within seven days whether it accepted the draft.

On 30 March 2005 the applicant union informed the Ministry that, regrettably, the proposed draft did not address the important issues specific to doctors and dentists within the healthcare sector.

On 5 April 2005 the Government of Croatia adopted a decree whereby it unilaterally increased salaries of doctors and dentists by 10% in 2005 (see paragraph 38 below).

On the same day, 5 April 2005, the State brought an action against the applicant union in the Zagreb County Court (Županijski sud u Zagrebu), asking the court to prohibit the announced strike. The plaintiff argued that the announced strike would be illegal because it would seek to enforce the Annex, which had never entered into force given that the decision to hold the referendum required for its coming into force had been set aside (see paragraphs 7, 11 and 13 above).

By a judgment of 8 April 2005 the County Court found for the State and prohibited the strike. It held that seeking compliance with the obligations arising from a collective agreement or the recognition of the results of a referendum were not permitted grounds for a strike under section 210(1) of the Labour Act (see paragraph 32 below). The relevant part of that judgment reads as follows:

“From the cited provision [that is, section 210(1)] it follows that, by using the formulation ‘in order to protect and promote the economic and social interests’, the legislator clearly excluded enforcement of the rights stipulated in a particular collective agreement as a permitted ground for a strike because ... the individual and collective enforcement of rights stipulated in a collective agreement is regulated by sections [191] and [202] of the Labour Act.

As regards the subsidiary ground for the strike ... it has to be noted that the defendant’s representative stated at the main hearing that this ground had been listed as subsidiary in case [the Annex was in the meantime declared invalid] in the [parallel] proceedings pending before the Municipal Court.

Finally, it has to be concluded that a strike is legally allowed only in industrial disputes on ... matters that are not legally regulated, and not in those which [are]. Given that the defendant insists on compliance with the [Annex], it is evident that the matters [in dispute] ... are regulated by that Annex and that the procedure for [its] entry into force is also legally regulated, for which reason the substantive requirements for organising the strike are not satisfied.”

The applicant union then appealed against that judgment to the Supreme Court (Vrhovni sud Republike Hrvatske).

On 11 April 2005 the applicant union held the strike as planned because under the domestic law its appeal prevented the County Court’s judgment from becoming final. According to media reports the applicant union alleged that almost 90% of some 8,000 doctors and dentists had participated in the strike whereas the Minister of Health claimed that only 25% of them had actually been striking while the others had merely expressed solidarity. The Minister also stated for the media that 85% of the services had been rendered and that work stoppages occurred in one out of five clinical centres, one out of seven university hospitals and in six out of 22 general hospitals. The strike lasted until 13 April 2005 when the applicant union called it off in order to comply with the County Court’s subsequent provisional measure of 12 April 2005 prohibiting the strike (see the next paragraph).

Following a request by the State, on 12 April 2005 the Zagreb County Court imposed a provisional measure prohibiting the strike until that court’s judgment of 8 April 2005 became final, that is, until the Supreme Court decided on the applicant union’s appeal against the judgment. On 21 April 2005 the Supreme Court dismissed the applicant union’s appeal against the decision imposing the provisional measure.

By a judgment of 27 April 2005 the Supreme Court dismissed the applicant union’s appeal against the County Court’s judgment of 8 April 2005 (see paragraphs 19-20 above). It held that the Annex was invalid because it had not been entered into by all the trade unions that had concluded the Collective Agreement, contrary to section 186(1) of the Labour Act (see paragraph 32 below), and that therefore any further action based on that agreement, including the strike, was unlawful. The relevant part of the Supreme Court’s judgment reads as follows:

“Given that the Annex was found to be invalid, that is, unlawful, any further actions by the signatories of such an unlawful collective agreement, such as calling for and holding a referendum ... as well as the two first grounds for the strike, which are also based on the unlawful Annex, are also unlawful.

The view of the first-instance court that it was not necessary to address the third, subsidiary, ground for the strike is correct. This is so because, as stated by the defendant’s representative at the hearing held on 8 April 2005, this ground had been listed as subsidiary in case [the Annex was in the meantime declared invalid] in the [parallel] proceedings pending before the Municipal Court, a condition which has not been met.”

On 30 May 2005 the applicant union lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s judgment alleging violations of, inter alia, its constitutionally-guaranteed right to strike and its freedom of association guaranteed by the Convention. In so doing the applicant union relied on Article 60 of the Constitution (see paragraph 31 below) and Article 11 of the Convention.

On 17 December 2008 the Constitutional Court dismissed the applicant union’s constitutional complaint and served its decision on the applicant union’s representatives on 26 January 2009. The relevant part of that decision reads as follows:

“Having established that the [contested] judicial decisions were based on the relevant provisions of the Labour Act, the Constitutional Court finds that those decisions were not in breach of the complainant’s constitutional right [provided] in Article 60 paragraph 1 of the Constitution nor [were they in breach] of the international-law provisions the complainant relied on.”

Meanwhile, as already noted above (see paragraph 8) on 15 December 2004 the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia and the Croatian Professional Trade Union of Nurses brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the State and the applicant union, seeking to declare the Annex null and void.

On 19 October 2006 the Zagreb Municipal Court found for the plaintiffs and declared the Annex null and void.

On 16 December 2008 the Zagreb County Court dismissed the applicant union’s appeal and upheld the first-instance judgment, which thereby became final.

On 17 March 2010 the Supreme Court dismissed a subsequent appeal on points of law (revizija) lodged by the applicant union. It endorsed the reasoning of the lower courts which had found the Annex invalid because it had not been entered into by all the trade unions that had concluded the main Collective Agreement, contrary to section 186(1) of the Labour Act (see paragraph 32 below) and clause 21 of that collective agreement (see paragraph 36 below).

On 16 March 2011 the Constitutional Court dismissed a constitutional complaint lodged by the applicant union.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing.

The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences.