Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants are brothers. Mr Stuart Gray (the “first applicant”) lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”) lives in Darmstadt, Germany.

The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray” or “the deceased”) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom.

Mr Gray suffered from kidney stones and from 2004 on he had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom’s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take Care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays.

Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs.

On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray’s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT’s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills.

U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U.’s professional competence prior to his first assignment the next day.

U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intramuscular injection. Some two hours after U. had left, Mr Gray’s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site.

On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment.

On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis.

On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government (Bezirksregierung), Germany, and by letter of 11 March 2008 his German professional indemnity insurance company of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation.

By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father’s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts.

A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as the cause of Mr Gray’s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death.

By a letter of 10 July 2008 to the deceased’s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased’s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake.

On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed.

Following Mr Gray’s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence.

On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation (Bundeskriminalamt) requesting in particular the supply of data with respect to U.’s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008.

On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal letter of request to the Ministry of Justice of the Land North RhineWestphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U.’s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray’s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary.

The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor (Oberstaatsanwalt) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police.

Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings (Ermittlungsverfahren) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic and international law and practice below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U., who was represented by counsel. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview.

In accordance with the letter of request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U.’s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U.’s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia-Lippe Medical Association (Ärztekammer) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom.

Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police’s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray’s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray’s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U.’s treatment of the deceased had thus been inadequate and had violated basic principles of medical care.

According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray’s partner following the latter’s death.

By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional indemnity insurance company.

By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray’s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim’s relatives acting as joint plaintiffs to the prosecution (Nebenkläger) the right to inspect the files in such preliminary proceedings.

On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter’s apology letter of 10 July 2008 to the deceased’s partner and the first applicant as well as the TCN’s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file.

On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine.

On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order (Strafbefehl) to be issued against U. convicting him of having caused Mr Gray’s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a payment of 5,000 euros (EUR) to the treasury. A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence.

The Chief Public Prosecutor’s assessment of the facts of the case and U.’’s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U.’s notification to his professional indemnity insurance company dated 11 March 2008 as well as his apology letter to the deceased’s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim’s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased’s treatment and had thus violated basic principles of the medical profession.

On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation.

By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor (Generalstaatsanwalt) was the competent authority to deal with questions regarding U.’s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law and practice below).

On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final.

By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions.

By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file.

On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below).

By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) requested the Hamm Higher Regional Court (Oberlandesgericht) to declare U.’s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below).

By a decision of 14 May 2009 the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U.’s extradition inadmissible.

By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court’s decision to the Colchester Magistrates’ Court in Chelmsford, United Kingdom.

By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS’s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray’s death through the CPS’s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray’s death. A copy of the related penal order of 20 March 2009 was attached to the letter.

On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential.

In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08.

As a consequence of the German authorities’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued.

After U. had informed the Arnsberg District Government of Mr Gray’s death in March 2008, the competent District health authorities commenced investigations regarding U.’s fitness to practice as a doctor (approbationsrechtliches Verfahren). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U.’s fitness to practice in general. Furthermore, at the applicants’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27

Following completion of their investigations by the end of 2010 the health authorities, considering U.’s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U.’s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U.’s licence to practice medicine in Germany and discontinued the proceedings regarding U.’s fitness to practice.

By written submissions of 15 April 2010 the Westphalia-Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008.

By a decision dated 27 April 2011 of the competent Münster Administrative Court sitting in a special formation as disciplinary jurisdiction for the healthcare professions (Berufsgericht für Heilberufe) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined him 7,000 EUR. The decision became final on 4 June 2011.

A number of further investigations and proceedings were instituted in the United Kingdom following Mr. Gray’s death. An Inquest into the circumstances of the incident was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission, a public body overseen by the Department of Health, which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. Moreover, on the occasion of proceedings conducted by the General Medical Council regarding U.’s fitness to practice in the period from 2 to 18 June 2010, the circumstances of Mr Gray’s death were further investigated and additional evidence from expert witnesses and the deceased’s next of kin was considered. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U.’s name from the medical register in the United Kingdom. In addition, in 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The applicants’ compensation claims were settled with respect to all three defendants by consent orders of December 2009, January and August 2010.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1982 and currently lives in Budapest.

The applicant crossed the Hungarian border from Serbia clandestinely in the evening of 24 June 2014. Apprehended by a border guard patrol, he was taken into custody, since he was unable to show documentary evidence of his identity or right to stay in the country.

The applicant then claimed asylum.

At the hearing held on 25 June 2014 by the Immigration Office, the applicant declared that he had fled from his country of origin, Iran, because of his homosexuality. He stated that he had been forced to leave Iran and, with the help of a human trafficker, he had entered Hungary without documents, because he had had no other way of doing so. At the hearing, he again applied for recognition as a refugee.

In view of his request, on 25 June 2014 the Csongrád County Police Department suspended the alien administration procedure. On the same day the Office of Immigration and Nationality commenced asylum proceedings. At the ensuing hearing the applicant said that he had intended to go to the United Kingdom, but since Hungary seemed to be a safe country he had requested asylum there. He stated again that he had had to leave Iran because he was homosexual and that criminal proceedings had been instituted against him for this reason, attracting very severe penalties.

After the hearing, the asylum authority, a department of the Office of Immigration and Nationality, ordered that the applicant be detained (menekültügyi őrizet), with effect from 7 p.m. on 25 June 2014, in Debrecen, relying on section 31/A (1) a) and c) of Act no. LXXX of 2007 on Asylum (the “Asylum Act”). In its decision the asylum authority observed that the applicant’s identity and nationality had not been clarified. It held that there were grounds for the presumption that if left at large, he would delay or frustrate the asylum proceedings and would present a risk of absconding, given that he had arrived unlawfully in Hungary and had no connections in the country or resources to subsist on. According to section 31/A (6) of the Asylum Act, the maximum length of asylum detention when ordered by the asylum authority is 72 hours. On the basis of section 31/C (3) of the Asylum Act and section 36/C (1) of the relevant Government Decree (see in paragraph 22 below), the applicant could have submitted an objection to the ordering of his asylum detention.

On 26 June 2014 the asylum authority applied to the Debrecen District Court for an extension of the asylum detention for a maximum of 60 days. The asylum authority pointed out in its application that Iranian asylum seekers tended to frustrate the procedure and leave for unknown places. To justify its application, it referred to the fact that the applicant’s stay in Hungary was unlawful, that he had no connection to the country, and that he lacked any resources to subsist on.

On 27 June 2014 the court appointed a legal representative for the applicant; on the same date – that is, before the expiry of the 72-hour period referred to in paragraph 10 above – it held a hearing. The hearing lasted from 9.40 to 9.45 a.m. In its ensuing decision the court dismissed the applicant’s application to be released and extended the asylum detention by a maximum of 60 days. It noted that the applicant’s identity was unclear, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means to subsist on. Without referring to other individual circumstances or the applicant’s sexual orientation, the court held that less stringent measures – such as an obligation to check in regularly with the authorities, to stay at a designated place of residence, or to pay asylum bail (menekültügyi óvadék) – were not suitable in the case to secure the applicant’s availability to the authorities.

On 8 and 11 July 2014 the applicant applied to the asylum authority to be released from detention or transferred to an open facility. In its reply, the asylum authority informed the applicant that an asylum hearing would be held in a few days: he would have the opportunity to prove his citizenship there. Because of this consideration, the asylum authority did not forward these requests to any other authority.

At the asylum hearing held on 18 July 2014 the applicant made the same statements as before. Referring to his sexual orientation, he explained that it was difficult for him to cope with the asylum detention for fear of harassment. At the hearing he provided the asylum authority with relevant and up-to-date information relating to his country of origin.

On 25 July 2014 the asylum authority stated that the applicant’s asylum request was neither inadmissible nor manifestly ill-founded and thus it ordered the examination of the case on the merits.

On 11 August 2014 the asylum authority again sought extension of the asylum detention by another maximum of 60 days, relying on section 31/A (1) a) and c) of the Asylum Act. In its application, the asylum authority did not give any detailed explanation as to why no other, less stringent measures could be applied in the case.

In her submission of 12 August 2014 to the asylum authority, the applicant’s legal-aid lawyer requested the termination of the asylum detention and the designation of a place of residence for the applicant with measures securing his availability during the proceedings. In her submission of the same day to the Debrecen District Court, the lawyer asked the court to hear the applicant and not to extend the asylum detention.

On 13 August 2014 the court appointed another legal representative for the applicant. On 19 August 2014 the court heard the applicant and dismissed the application for extension of the asylum detention. Relying on section 31/A (1) a) of the Asylum Act, the District Court stated that the delay caused by the acts of the authority for which the asylum seeker could not be held responsible did not provide grounds for the extension of the detention. Referring to section 31/A (1) c), the court further stated that the asylum authority had not given any specific reasoning for the view it had taken, namely that the applicant would abscond and frustrate the asylum proceedings.

On 22 August 2014 the asylum authority terminated the asylum detention and ordered a designated place of residence for the applicant in Debrecen with measures securing his availability during the proceedings.

On 31 October 2014 the applicant was recognised as a refugee. His asylum detention lasted from 25 June 2014 to 22 August 2014.


CASE OF SARBYANOVA-PASHALIYSKA AND PASHALIYSKA V. BULGARIA

No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicants are the wife and daughter of Mr Ivan Mirchev Pashaliysky, who was killed on 2 June 2000 in an office situated in a hotel in Sofia. He died as a result of suffering severe trauma to his brain, chest, torso and limbs, which led to irreversible damage to several of his vital organs. The trauma was caused by a number of kicks and punches and blows inflicted with different objects.

On the day of the incident a private security guard was called to the office premises where Mr Pashaliysky was later found dead in order to investigate a brawl reportedly happening there. The security guard knocked on the office entrance door and an individual, S.V., opened it. The security guard caught a brief glimpse of Mr Pashaliysky lying helpless on the floor with blood on his face. S.V. was holding a long oval-shaped object. Having been told by S.V. that there was no problem, the security guard left.

It would appear that earlier that day, using the telephone of the office in question, S.V. had called Ch.M., a friend and business partner of Mr Pashaliysky, threatening to kill them both if Ch.M. failed to deliver an undisclosed sum of money to S.V. without delay.

The incident was reported to the police by an investigator, who had been tipped off earlier the same day. The police arrested S.V. that night. Traces of the crime having been discovered on S.V.’s hands and clothes, an investigator charged him on 3 June 2000 with murder. On 5 June 2000 a prosecutor indicted S.V. for the murder of Ivan Mirchev Pashaliysky, which had been committed three days earlier.

A prosecutor from the Sofia city public prosecutor’s office found on 20 April 2001 that there were reasons for amending the indictment by applying a law providing for a heavier penalty. She also found that not all available evidence had been collected. In particular, no expert DNA analysis had been carried out on the material found under the victim’s nails; several key witnesses had not been questioned about the reasons for their presence in the office in which the victim had been killed on the day in question and about the reason for the return to the office of one of them during the evening of the same day; no confrontation had been held between two of those witnesses, despite several discrepancies between their respective statements; and no information had been collected about the state in which the police officers had found the accused at the time of his arrest. On 20 April 2001 the prosecutor returned the case to the investigating authorities for further investigative measures, giving specific instructions aimed at the remedying of the deficiencies in the investigation.

The case was returned on three other occasions (on 17 July 2001, 18 July 2003 and on 2 October 2003) for further investigative steps, which the prosecutor listed specifically.

The case file was sent to the Sofia City Court on an unspecified date in November 2003. Both applicants were named as private prosecutors and the second applicant, at her request, also as a civil party seeking nonpecuniary damages.

At the start of the trial the defendant’s lawyer claimed that the indictment was defective because it did not contain a clear description of the offence with which the defendant had been charged; the lawyer sought, without success, the return of the case for further investigation. A number of hearings took place during the trial. The proceedings before the Sofia City Court ended on 11 June 2007, when the court sentenced S.V. to fifteen years’ imprisonment and ordered him to pay damages to the second applicant.

Both S.V. and the applicants lodged appeals with the Sofia Court of Appeal. S.V. submitted in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been. Most importantly, S.V. claimed that the indictment had been entirely silent about the manner in which he was considered to have killed the victim, there being no description of the circumstances in which the victim was killed. Referring to interpretative decision no. 2 of 2002 of the Supreme Court of Cassation (see paragraph 21 below), he claimed that these procedural flaws were fundamental and that the court should have returned the case to the investigation stage.

On 18 July 2008 the Sofia Court of Appeal accepted that the indictment had not contained a description of how the accused had killed the victim and that this had been a fundamental procedural defect which had prevented the defendant from effectively exercising his rights. The court then quashed the first-instance court sentence and returned the case to the pre-trial stage so that the procedural flaw in question could be redressed.

On 16 August 2008 the prosecution indicted S.V. anew for the murder of Mr. Pashaliysky and the first-instance court, the Sofia City Court, opened fresh proceedings against him. The first two scheduled hearings were postponed because the defendant’s lawyer failed to appear. On 11 February 2009 the court recognised the second applicant as a civil party seeking non-pecuniary damages but refused to name both applicants as private prosecutors. After an appeal by the applicants that refusal was quashed on 13 March 2009 by the Sofia Court of Appeal. The witnesses were then heard again in the course of the trial so that the applicants could exercise their rights as private prosecutors.

Sixteen hearings took place thereafter, at which the applicants made numerous requests for evidence to be gathered and witnesses to be heard. Subsequently, the presiding judge was elected President of the Supreme Administrative Court as a result of which the trial stage was started anew. A new presiding judge was appointed, yet no further hearing was scheduled for about a year. The applicants complained about the delay to the Inspectorate of the Supreme Judicial Council, asking that disciplinary sanctions be imposed on the new presiding judge. The Inspectorate replied on 21 February 2012. It acknowledged that the criminal proceedings in the case had lasted eleven years and recognised that this was incompatible with the requirement of a reasonable length of proceedings. It nonetheless held that the judge in question could not be sanctioned, given that the duration of the other cases that she had heard had not exceeded an acceptable length.

On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew once again.

On 9 December 2013 the proceedings before the first-instance court ended. The Sofia City Court found S.V. guilty of murder and sentenced him to twelve years’ imprisonment. The first-instance court also ruled that S.V. had to pay some 50,000 euros (EUR) in damages to the second applicant as a civil party. After an appeal by S.V. the Sofia Court of Appeal carried out a thorough analysis of the witness statements given at first instance, of the record of the examination of the murder scene conducted on the day after the killing, of the search and seizure measures, and of the conclusions of the numerous expert reports, the autopsy, etc. Following this, on 22 December 2014 the appellate court upheld the guilty verdict and sentence, but lowered the amount in damages to be paid to the second applicant to around EUR 8,000. Following a cassation appeal by S.V. the Supreme Court of Cassation upheld the appellate court’s judgment in its entirety in a final judgment of 2 November 2015.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in 1987 and lives in Bursa.

On 26 April 2006 the applicant was dismissed from the Air Force non-commissioned officer vocational high school due to non-compliance with admission pre-conditions. On 22 June 2006 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the dismissal decision.

On 23 May 2007 the Supreme Military Administrative Court rejected the applicant’s request, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant. This decision was served on the applicant on 5 June 2007.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Mr Mykola Spyrydonovych Kashchuk, is a Ukrainian national who was born in 1955. His present place of residence is unknown. He was represented before the Court by Mr V.A. Struts, a lawyer practising in Mykolayiv.

The Ukrainian Government (“the Government”) were represented, most recently, by their Acting Agent Ms Olga Davydchuk.

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

The events relate to a house owned by the applicant in Zaliznychne village in the Mykolayiv region, where he lived with his wife and their two daughters (born in 1978 and 1985).

In February 1996 the village suffered extensive groundwater flooding.

In April 1996 (the exact date is illegible in the available documents) a technical survey of the applicant’s house was carried out. As stated in the survey report, the building was made of beaten earth walls and was constructed shortly after 1945. It had no foundations and measured twentythree square metres, of which nineteen square metres were living area. The building lacked basic amenities such as a lavatory, water supply, sewage system, gas supply or telecommunications. While the maximum habitable life of such buildings was up to thirty years, the applicant’s house had been in use for more than fifty years. Following the flood, its floors were covered with water (about forty-five centimetres deep) and the walls were damp. It was not deemed feasible to carry out repairs and demolition was deemed to be the only option.

On 26 April 1996 the Executive Committee of the Mykolayiv City Council (“the Mykolayiv Council”) issued an order “On measures for eliminating the consequences of the natural disaster in Zaliznychne village”. It noted that thirty-seven residential buildings had remained flooded with groundwater since February 1996. Twenty-seven of them were at risk of collapsing. A commission of experts was appointed to assess the situation and draw up recommendations for further measures.

On 18 June 1996 the commission issued its report. The applicant’s house was among those assessed as “having practically exhausted their capacity for use as a result of the groundwater flooding”. The commission noted that measures for lowering the level of the groundwater had been unsuccessful, that the condition of the houses was deteriorating and that they could collapse at any moment. Its conclusion was that the houses were dilapidated, uninhabitable and should be demolished.

On 28 June 1996 the Mykolayiv Council approved the above report, as well as a list of dilapidated and uninhabitable houses, including the one belonging to the applicant. It recommended that the local authorities dealing with housing issues, together with local companies, resettle the people concerned to hostels on a temporary basis.

The local authorities further recommended to the applicant that he turn to his employer, the Equator plant, for help in solving his housing problem.

On 30 August 1996 the Mykolayiv Council delivered a decision on the resettlement of the residents of the flooded houses, including the applicant’s family, to hostels. It guaranteed that within three years they would receive new accommodation, subject to applicable benefits and the available funding. The Equator plant was directed to resettle the applicant’s family.

On 16 September 1996 Equator’s administration and its trade unions proposed that the applicant’s family move temporarily to a flat at either 44a or 46a V. Street. The applicant declined the offer on the grounds of the poor condition of the buildings in question.

On 17 June and 31 October 1997 the Mykolayiv Council and the mayor’s office, respectively, wrote to the applicant in reply to his complaints about the failure to provide him with free accommodation, saying that he had declined the proposal of temporary resettlement to a flat at 46a V. Street for no good reason. Furthermore, the local authorities had provided the applicant’s daughter with a two-room flat, with partial amenities, for temporary resettlement.

On 27 November 1997 the applicant made a written statement to his employer that he was refusing the proposed accommodation at 44a V. Street owing to its poor condition.

On 1 June 1999 the Equator’s administration replied to his repeated requests for accommodation by writing to him that in January 1998 the housing fund of the plant had been transferred to the Mykolayiv city municipal property agency, apart from two buildings (44a and 46a V. Street). The building at 46a V. Street was indeed in a very poor, even critically bad, condition. As regards the building at 44a V. Street, the applicant had twice been offered a flat there, but had declined the offer. According to the information provided by the Government, the flat in question measured about fifty-five square metres, of which the living area was thirty-four square metres. However, according to the applicant, the only accommodation he was offered had been a small room without any amenities (see below).

On 23 June 1999 the applicant wrote to the Equator’s administration that the only offer he had actually received concerned a room measuring about ten square metres, without any amenities, at 46a V. Street. He emphasised, however, that he would have also declined any offer to be resettled in the building at 44a V. Street, where the conditions were equally poor.

On 20 September 2000 a technical survey of the buildings at 44a and 46a V. Street was carried out. Since their construction in 1947, they had not been refurbished and their general condition was considered as being very poor.

In May 2001 the applicant found out that he was number 147 on the plant’s general waiting list for accommodation. He complained about that to the Mykolayiv Council, which replied on 6 July 2001 that that was an error, that it should be corrected and that he was indeed entitled to be on the priority waiting list, pursuant to the decision of 28 June 1996.

On 27 August 2001 Equator’s administration moved the applicant from the general waiting list to the priority list, where he was at number 36.

On 22 February 2002 Mykolayiv Council wrote to the applicant that he was number 35 on its housing waiting list. All the families on the list before him continued to live in uninhabitable conditions and the applicant had to wait his turn.

On 22 May 2002 the applicant brought a civil claim against the Equator plant and the Mykolayiv Council, seeking the allocation of free accommodation for his family (by that time consisting of six people as the applicant’s elder daughter had married and given birth to a girl in 2001), as well as compensation in respect of non-pecuniary damage.

On 19 September and 20 December 2002 the Equator’s administration and the Mykolayiv Council removed the applicant from their housing waiting lists.

On 9 January 2003 the Zavodskyy District Court of Mykolayiv (“the Zavodskyy Court”) found against the applicant. It noted that he had declined two offers of resettlement. Furthermore, he had inherited some real estate in 1990, of which he had not informed the authorities. As a result, Equator’s administration and the Mykolayiv Council had rightly taken him off their housing waiting lists.

The applicant appealed. He submitted, in particular, that the property he had inherited consisted of less than six square metres and could not be regarded as alternative accommodation for his family. To corroborate his statement, he provided an expert’s technical survey.

On 1 April 2003 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 9 January 2003 and remitted the case for fresh examination at first instance. It noted that the applicant’s claim concerned the allocation of free accommodation, rather than his exclusion from the housing waiting lists.

On 24 November 2003 the Zavodskyy Court allowed the applicant’s claim in part. It considered it established that his house had become uninhabitable as a result of a natural disaster. Accordingly, the court held that the applicant was entitled to free accommodation, pursuant to Article 46 of the Housing Code (see paragraph 32 below). The applicant was also awarded compensation in respect of non-pecuniary damage (1,000 Ukrainian hryvnias, which was then equivalent to about 150 euros, from each of the two defendants).

On 5 February 2004 the Court of Appeal quashed the first-instance court’s judgment following appeals by the defendants and adopted a new judgment which in the main dismissed the applicant’s claim. With reference to the decisions of Mykolayiv Council of 28 June and 30 August 1996 (see paragraphs 9 and 11 above), the Court of Appeal noted that the applicant’s house had been among those inspected by a technical commission following the flood and that Equator’s administration had been responsible for resettling his family. It considered that the case file did not contain any evidence proving that the applicant’s house had become uninhabitable as a result of a natural disaster and therefore concluded that Article 46 of the Housing Code was not applicable. However, the applicant was to be restored to the priority housing list, in accordance with Article 45 of the code, given that his house was uninhabitable. This restoration, according to the Court of Appeal, constituted sufficient compensation in respect of non-pecuniary damage.

The applicant appealed against the judgment on points of law. He insisted that his house had become uninhabitable as a consequence of the flood.

On 11 April 2006 the Supreme Court rejected the applicant’s cassation appeal, giving a concise reasoning that it had not discerned any violations of the law.

Article 5 stipulates that the State’s housing stock comprises that of local councils of people’s deputies (житловий фонд місцевих Рад) and that of ministries, state committees and institutions (відомчий житловий фонд).

Article 45 contains a non-exhaustive list of categories of people whose living conditions need to be improved and who are therefore entitled to free accommodation being placed on a priority housing list (першочергове надання жилих приміщень). As further set out in Article 60, approval of the rules of keeping records about people belonging to those categories was the responsibility of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions.

Article 46 provides for categories of people entitled to free accommodation without being on a housing list (позачергове надання жилих приміщень), including “citizens whose dwelling has become uninhabitable as a result of a natural disaster”. The Article further states that such people shall be included on a separate waiting list. No time-limits are set down for the allocation of dwellings to such people.

Article 48 of the Housing Code states, in particular, that the minimum size of residential premises should comply with standards laid down by the Cabinet of Ministers and the Trade Union Federation.

According to Article 50, residential premises should comply with the relevant sanitary and technical standards.

Article 52 governs the allocation of flats from the institutional housing stock (відомчий житловий фонд). In particular, flats are allocated by a joint decision of the authorities and the trade union branches of the companies, institutions and establishments concerned, which either submit their decision to the relevant municipal council for approval or, in some cases, simply inform the council. On the basis of that decision, the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat (ордер), which constitutes the sole legal basis for taking possession of the allocated dwelling (Article 58).

“Rules of keeping records about people in need of improved living conditions and the allocation of free accommodation for them ...” (Правила обліку громадян, які потребують поліпшення житлових умов, і надання їм жилих приміщень ...), which were approved by Resolution of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions no. 470 of 11 December 1984 (with further amendments), also contain several provisions of relevance.

More specifically, point 44 contains a list of categories of people on housing waiting lists who must be provided with free accommodation as a matter of priority. One such category concerns “people living in dilapidated buildings not subject to major repairs” (§ 14). Furthermore, point 46 (§ 1) reiterates the provisions of Article 46 of the Housing Code (see above).


CASE OF FILIMONOV AND FAZLUTDINOV v. RUSSIA

Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions.


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants, Ms Suzana Orel (“the first applicant”), Mr Mislav Orel (“the second applicant”) and Mr Silvio Orel (“the third applicant”) are Croatian nationals who were born in 1966, 1995 and 1997 respectively and live in Zagreb. They were represented before the Court, first by Ms L. Kušan, an advocate practising in Ivanić-Grad, and subsequently by Ms N. Owens from the law firm Owens and Houška, 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 first applicant married a certain Mr H.A. in 1993. The second and third applicants were born of the marriage. H.A. and the applicants lived in the first applicant’s flat in Zagreb until 2002.

On 3 November 2002 H.A. went to work and never returned home. After a couple of days, the first applicant found out that he had moved to the United States of America.

By a judgment of 28 January 2003 the Zagreb Municipal Court (Općinski sud u Zagrebu) granted the divorce of the first applicant from H.A., who was ordered to pay 400 United States dollars (USD) of child support a month for the maintenance of the second and third applicants (hereafter “the child support” or “the maintenance”). The judgment became final and enforceable on 17 February 2003.

In the period between January 2003 and 31 May 2006 H.A. paid the child support irregularly. In that period, he paid a total of USD 7,600. He stopped paying the maintenance in June 2006. He does not own any property in Croatia.

On 14 October 2004 the first applicant lodged a criminal complaint against H.A. with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), accusing him of non-compliance with maintenance obligations (povreda dužnosti uzdržavanja), a criminal offence defined in Article 209 of the Criminal Code (see paragraph 38 below).

On 3 June 2005 the State Attorney’s Office indicted H.A., thereby instituting criminal proceedings against him before the Zagreb Municipal Court.

On 21 October 2005 the State Attorney’s Office dropped the charges, whereupon, three days later, the Zagreb Municipal Court discontinued the proceedings.

On 30 April 2008 the first applicant lodged another criminal complaint against H.A. with the same State Attorney’s Office, on the same grounds as before.

On 28 August 2008 the State Attorney’s Office indicted H.A., thereby instituting criminal proceedings against him before the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu). The court conducted a trial in absentia.

By a judgment of 27 September 2010 the court found H.A. guilty as charged. It imposed a suspended sentence of seventeen months’ imprisonment with a four-year probation period, with the additional condition of regular payment of future child support instalments as they became due, and payment of USD 25,400 of maintenance arrears to the applicants.

Upon an appeal by the State Attorney, on 28 September 2011 the Zagreb County Court (Županijski sud u Zagrebu) amended the sentence by setting a two-year time-limit for the payment of maintenance arrears.

On 4 October 2011 the first applicant informed the Zagreb Municipal Criminal Court that H.A. had not been paying the child support instalments as they were becoming due, nor had he paid the arrears.

For those reasons, on 6 February 2012 she applied for revocation of the suspension of the sentence (prijedlog za opoziv uvjetne osude) to the same court.

At a hearing held on 16 May 2012 the first applicant informed the court that H.A.’s address in Glendale (Arizona) mentioned in the judgment of 27 September 2010 (see paragraph 13 above) was not correct and that his address was difficult to establish. She provided the court however with the address of his employer and his mother.

The notice of the next hearing, scheduled for 10 September 2012, was sent via regular post, more specifically by registered mail, to the address of H.A.’s employer in the United States.

At the hearing held on 10 September 2012 the court established that the service was not valid because the notice, which had been returned by H.A.’s employer, had not been signed by H.A.

On the same day the court asked the Croatian embassy in the United States to supply H.A.’s address.

On 9 October 2012 the embassy replied that, like the court, it was only aware of H.A.’s old address in Glendale (Arizona) and that it had been unable to identify his new address.

The court then scheduled the next hearing for 15 July 2013, and on 7 November 2012 asked the Ministry of Justice to request, by means of letters rogatory, the relevant United States authorities to serve notice of the hearing on H.A.

On 8 March 2013 the Ministry of Justice forwarded to the court a letter from the Ministry of Foreign and European Affairs, in which it was stated that the Croatian embassy in the United States had no funds in its budget for service abroad and thus could not pay the USD 90 requested by the United States’ authorities for personal service.

The hearing scheduled for 15 July 2013 was adjourned. Before the hearing the law clerk (sudski savjetnik) assigned to the case informed the first applicant that the summons could not be served on H.A. by letters rogatory because the Croatian embassy in the United States did not have funds to pay for the service (see the preceding paragraph). According to the applicant the law clerk also advised her to lodge another criminal complaint against H.A. for another count of the same offence (which would eventually result in his unconditional conviction). The next hearing was scheduled for 21 March 2014.

At the hearing held on 21 March 2014 the judge hearing the case informed the first applicant that the summons had to be served on a party living abroad via diplomatic service and that service via regular post by registered mail at his employer’s address was not valid. The first applicant replied that the message she had received from H.A. on 10 January 2014 on her Facebook page suggested that he had received the summons sent by regular post.

It would appear that these proceedings are still pending.

Meanwhile, by a decision of 9 October 2013 the president of the Zagreb Municipal Criminal Court dismissed a request of 28 August 2013 by the applicants for the protection of the right to a hearing within a reasonable time, finding no violation of that right. He held that the length of the proceedings complained of was primarily attributable to objective factors, namely the difficulties associated with service of process on H.A., who lived in the United States. On 9 December 2013 the president of the Zagreb County Court dismissed an appeal by the applicants and upheld the first-instance decision.

In 2009 the first applicant, relying on section 352 of the Family Act, instituted administrative proceedings before the Zagreb Social Welfare Centre (Centar za socijalnu skrb Zagreb – Ured Trešnjevka, hereafter “the local social welfare centre”) seeking substitute maintenance for the second and third applicants.

By a decision of 5 March 2009 the local social welfare centre granted the first applicant’s request and awarded her substitute maintenance in the monthly amount of 532.51 Croatian kunas (HRK) for the second applicant and HRK 484.20 for the third applicant. The decision specified that these amounts would be paid in the period from 22 January 2009 until H.A. started paying the child support, and until 21 January 2012 at the latest.

On 4 December 2006 the first applicant wrote to the Croatian consulate in Los Angeles asking for assistance in instituting relevant proceedings in the United States with a view to recovering child support payments. In her letter she mentioned that she had contacted an attorney in the United States who, given her indigence, had asked for “too much money” for his services without any guarantees that the proceedings would be successful. It would appear that she received no reply.

On 11 May 2012 the applicant sent an email to the Croatian embassy in Washington D.C. asking for assistance in identifying H.A.’s address.

The embassy replied on the same day, informing her first that in response to her earlier request (see paragraph 30 above) it had contacted the relevant United States authorities, who had in turn informed it that foreign court judgments concerning maintenance could be recognised only if there was a bilateral agreement between the United States and the country concerned. No such agreement existed between the United States and Croatia (see paragraphs 42-45 below).

The embassy also informed the applicant that it had no database of contact details of Croatian nationals living in the United States. Moreover, each time it had asked the United States authorities to provide such information in the context of requests for international legal assistance, those authorities had informed it that they had no such data either, and that in any event they would not be able to disclose them because of the personal data protection laws.

The embassy further informed the first applicant that the results of its web search indicated that a person with the same last name as H.A. lived in Glendale (Arizona), and provided the address. It also suggested that she ask the court in the above proceedings for revocation of the suspended sentence to try serving the summons at that address. Lastly, the embassy gave the applicant the contact details of a private investigator who could assist her in identifying H.A.’s address.

The original text of section 352 of the Family Act (Obiteljski zakon, Official Gazette no. 163/03), which was in force between 22 July 2003 and 31 December 2007, read as follows:

“If a parent who is bound to contribute to the support of his or her child by a final judicial decision or settlement concluded before the social welfare centre does not comply with his or her obligations for more than three months, the social welfare centre shall, at the initiative of the other parent or of its own motion, if it considers that this could endanger the child’s standard of living, take measures to provide funds for substitute child support until the parent bound to [do so] again starts to comply with his or her obligation.”

Section 352 of the Family Act was amended by the 2007 Amendments to the Family Act (Zakon o izmjenama i dopunama Obiteljskog zakona, Official Gazette no. 107/07 – the 2007 Amendments), which entered into force on 1 January 2008. The text of section 352, as amended by the 2007 Amendments, read as follows:

“(1) If a parent who is bound to contribute to the support of his or her child by a final judicial decision, the provisional measure ... or settlement concluded before a court or a social welfare centre, does not comply with his or her obligations for more than six consecutive months, or does not pay at least six monthly instalments within a period of seven months, the social welfare centre shall, at the initiative of the other parent or of its own motion, issue a decision on substitute child support and in accordance with it shall pay child support until the parent bound to [do so] again starts to comply with his or her obligation, but for no longer than three years.

(2) The right to substitute child support shall be recognised from the date the application [to that effect] was lodged [by the other parent], or from the date [the social welfare centre] instituted the proceedings of its own motion.

(3) The substitute child support shall be established at 50% of the amount of [the minimal child support] specified in section 232(4) of this Act [which sets it at 17%, 20% or 22% of the minimum wage, depending on the age of the child].

(4) An appeal against a decision on substitute child support does not suspend its enforcement.”

Section 61 of the 2007 Amendments provided as follows:

“(1) If before the entry into force of [these Amendments] a first-instance decision has been adopted in proceedings concerning maintenance by the court or the social welfare centre the [earlier version of] the Family Act, shall [continue] to apply to the subsequent [stages of] the proceedings.

(2) If after the entry into force of [these Amendments] the first-instance decision referred to in paragraph 1 of this section was quashed or set aside [these Amendments] shall apply to the subsequent proceedings.”

The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), which was in force from 1 January 1998 to 31 December 2012, reads as follows:

“Regardless of the grounds for revocation, a suspended sentence may be revoked no later than one year after the expiry of the probation period.”

“(1) Anyone who, by avoiding employment or by changing jobs, domicile or place of residence, by alienation of assets, or otherwise, avoids providing maintenance for a person he or she is bound to support by virtue of an enforceable decision or in-court settlement, or who refuses to comply with such an obligation, shall be punished by a fine or imprisonment not exceeding one year.

(2) If the obligation referred to in paragraph 1 of this section concerns child support, the perpetrator shall be punished by imprisonment of from three months to three years.

(3) When imposing a suspended sentence, the court may set as a condition [of the sentence being suspended], that the perpetrator pays maintenance arrears and in the future regularly complies with maintenance obligations.”

The relevant provision of the Criminal Procedure Act (Zakon o kaznenom postupku, Official Gazette no. 152/08 with subsequent amendments), which has been in force since 1 September 2011, reads as follows:

“(1) Where a suspended sentence stipulates that a sentence will be executed if the convicted person does not return the pecuniary gain, pay the compensation for the damage, or does not meet other obligations, and the convicted person has failed to comply with those obligations within the set time-limit, the first-instance court shall conduct proceedings for revocation of the suspended sentence at the request of an authorised prosecutor or the injured party.

(2) The judge assigned for such a purpose shall examine the convicted person, if available, and take the steps necessary to establish the facts and collect evidence relevant to the decision.

(3) Thereafter, the presiding judge shall schedule a session of the panel of which he or she shall inform the prosecutor, the convicted person and the injured party. If they have been duly notified, failure of the parties, including the injured party, to attend shall not prevent the panel from holding the session.

(4) If the court finds that the convicted person has not complied with the obligation imposed upon him or her by the judgment, it shall issue a judgment revoking the suspended sentence and ordering the execution of the imposed sentence, or it shall set a new time-limit for compliance with the obligation, or replace that obligation with another or relieve the convicted person of the obligation. If the court finds that there are no grounds to take any of these decisions, it shall discontinue the proceedings for revocation of a suspended sentence by [means of] a decision [to that effect].

(5) If it is subsequently established that the convicted person committed a criminal offence during the probation period for which he or she was sentenced to a sentence for which the suspended sentence should or could have been revoked under the Criminal Code, and the court which sentenced omitted to decide on that, the first-instance court which imposed the suspended sentence shall issue a judgment revoking the suspended sentence and ordering execution of the imposed sentence. If the court finds that there are no grounds for revocation of a suspended sentence, it shall discontinue those proceedings by [means of] a decision [to that effect].

(6) ...

(7) ...”

The relevant provisions of the Croatian Nationals’ Travel Documents Act (Zakon o putnim ispravama hrvatskih državljana, Official Gazette no. 77/99 with subsequent amendments), which has been in force since 1 January 2000, read as follows:

“Applications for travel documents shall be refused in respect of those applicants in respect of whom there is a reasonable suspicion that they:

would avoid complying with [their] outstanding pecuniary obligations arising from marriage or parental responsibility, or with tax obligations or other statutory pecuniary obligations for which there is an enforcement title – at the request of the competent court.

“Travel documents shall be seized by the relevant authority, diplomatic mission or consular office on the grounds referred to in section 41(1) and (2) of this Act ...

A decision on seizure of a travel document, referred to in paragraph 1 of this section, shall be delivered by the administrative authority in charge of the issuance of travel documents.

An appeal against the decision referred to in paragraph 3 of this section shall not postpone its enforcement.”

Article 27 paragraph 4 of the United Nations Convention on the Rights of the Child of 2 September 1990, which Convention entered into force in respect of Croatia on 12 October 1992, read as follows:

“4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.”

Croatia has, since 20 September 1993, been a party to the Convention on the Recovery Abroad of Maintenance of 1956, which is a United Nations treaty which allows individuals to enforce judicial decisions regarding child support and alimony extraterritorially. It can be used only if the person seeking maintenance and the person paying maintenance are both resident in States that have ratified that Convention.

Croatia is not a party to the Hague Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children of 1958, or to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 1973.

The United States of America is not a party to any of the above-mentioned conventions.

As a member State of the European Union Croatia is also bound by the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007, which entered into force on 1 January 2013, and to which the European Union acceded on 1 August 2014. The United States of America signed that Convention on 23 November 2007 but has not yet ratified it.

As a member State of the European Union Croatia is also bound by the Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);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 13 - Right to an effective remedy (Article 13 - Effective remedy)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits

In 1996 the applicant and his wife started a family business which involved, among other things, the replication of digital data and the sale of blank data storage devices. They used a flat on P. Street in Kyiv owned by the applicant’s mother as their office, in which they had copying equipment set up.

On 20 August 2002 several police officers from the Kyiv Economic Crime Unit (“KECU”) inspected the applicant’s office at P. Street in his and his wife’s presence.

On the same date the KECU officers also inspected the applicant’s garage and his car.

After the inspection the police seized seven computers, sixty-six optical disc recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed disc covers. The seizure was documented on three standardised forms (one for each site inspected), which included the following pre-filled printed text:

“Beginning of the inspection: _______ [time, date]

End of the inspection: _________ [time, date]

I (we), ______ of the KECU on the premises of ______ [site] ... inspected and seized from _________ [name, address, place of work of the person whose possessions were subject to seizure] the following ________ [list of seized items].

The seized items will be stored with the KECU pending resolution of the matter on the merits.

This Deed has been completed in duplicate and read out. ...”

It appears from the forms that the inspection of the office started at 7.30 p.m. and ended at 7.30 a.m. the following morning, 21 August 2002. Other sites were inspected at the same time – the car from 7.30 p.m. until 1.34 a.m. and the garage between10.25 and 11.45 p.m.

According to the applicant, for the whole night the police officers questioned him, his wife and the members of their extended family who were on the premises. The questions related to the applicant’s family business and the observance of copyright law in the business’s use of software and in its replicating activities.

On 22 August 2002 a report was published on the Ministry of Interior’s website, which stated that the Kyiv Police had:

“... identified a criminal group of two [individuals]. These two [individuals] organised an entire underground production [facility] in their office. With the help of computer equipment they replicated CD-ROMs containing various programs and games ...”

The report also featured a photograph of the applicant’s wife without a caption and listed the seized items, declaring their estimated value as 117,000 Ukrainian hryvnias (UAH).

On 15 November 2002 investigator O.K. from the Investigative Department of the Kyiv Police instituted criminal proceedings concerning “the suspected breach of copyright” under Article 176 of the Criminal Code of Ukraine, without naming any suspected offenders. In his decision, he referred to the search of the office of the applicant and his wife and the seizure of their belongings on 20 August 2002. He further noted that they had been found not to have a license agreement with the law firm S., the official representative of the Microsoft Corporation, whose software they had used in their business, thereby causing damage to the software copyright owner.

On 20 November 2002 O.K. declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case.

On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereinafter “the District Court”) issued search warrants in respect of the applicant’s and his wife’s flats, noting that they were suspected of breaching criminal legislation concerning copyright protection.

On 23 November 2002 these flats were searched pursuant to the warrants. It appears from the case file that no items were seized.

As follows from the applicant’s submissions, after these searches and several interviews, the proceedings stagnated, with the police never pressing any charges against the applicant or any other person.

On numerous occasions the applicant asked the police and the prosecutor’s office to order the return of his seized property. On various dates (in particular 24 February 2003, 11 August 2003 and 13 May 2005) the respective authorities rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case, that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that, more generally, in accordance with Article 81 of the Code of Criminal Procedure 1960 (“the CCP”), the fate of the items had to be determined upon the final resolution of the case.

On 27 September 2004 the Kyiv prosecutor’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time-barred. They noted, in particular, that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted.

On 25 February 2005 the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti, noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant.

On 4 April 2004 the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which, in his view, concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally. There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products.

In March 2006 the criminal proceedings were still pending. No investigative measures concerning the applicant had been ordered. His property remained in the control of the police as physical evidence in the case.

In their subsequent submissions – the last correspondence from the applicant’s lawyer and the Government was received in March and June 2013 respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items.

On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website (see paragraph 11 above), seeking the retraction of the information contained therein.

On 27 October 2003 the District Court allowed the claim.

It follows from the case file that this judgment was not appealed against and became final.

On 22 August 2003 the prosecutor’s office rejected the applicant’s request for criminal proceedings to be instituted against three KECU officers who had taken part in the search of his office, car and garage and had seized his property. It was noted in the relevant decision, in particular, that the police officers had not “searched” but “inspected” the applicant’s office and other sites. The inspection had been lawful, as it had been carried out in the police officers’ competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of the Law of Ukraine “On operational and investigative activities” and with the applicant’s and his wife’s consent.

On 13 October and 4 December 2003 respectively the Pecherskyy District Court and Kyiv City Court of Appeal (“the Court of Appeal”) rejected appeals by the applicant against that decision.

On an unspecified date the applicant instituted civil proceedings in the Shevchenkivskyy District Court in Kyiv to reclaim his computer equipment, optical discs and other property seized by the police.

On 10 October 2003 the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police (see paragraphs 13-23 above).

In April 2003 the applicant lodged a complaint against the Investigative Department of the Kyiv Police with the District Court. Initially referring to Article 248 of the Code of Civil Procedure 1963 in force at the material time, he alleged, in particular, that the inspection of his office and search and seizure of his property in August 2002, as well as the institution of criminal proceedings on 15 November 2002 had been unlawful.

In court the applicant reformulated his claims. Referring to Article 234 of the CCP (see paragraph 46 below) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright. He requested that the investigator’s decision of 15 November 2002 (see paragraph 13 above) be set aside. In this respect the applicant submitted, in particular, that on 20 and 21 August 2002 KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions. The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings; that, in breach of the applicable law, the measures had been taken at night-time; that the same people had been appointed as lay witnesses for all three sites, which had been inspected all at the same time; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities. The proceedings at issue had been instituted in bad faith, to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU.

On 26 June 2003 the District Court found that Article 234 of the CCP (not Article 248 of the Code of Civil Procedure 1963) was the appropriate provision for examining the applicant’s allegations. It rejected them, finding that the applicant lacked standing to bring the proceedings. In particular, the disputed criminal case had been instituted “into the matter” rather than “against the applicant” (see paragraph 46 below quoting Article 98 of the Code of Criminal Procedure), who had neither been a formal suspect nor a defendant in the proceedings at issue. He could not therefore claim that his rights had been breached by the institution of the proceedings. As regards his complaints concerning the allegedly unlawful actions of the police, in accordance with Article 234 of the Code of Criminal Procedure, these complaints could be brought only within the framework of the above-mentioned criminal case and fell to be examined by the court which would try that case, during either the preliminary hearing or trial.

The applicant appealed, stating in particular that he had been a de facto suspect in the proceedings at issue. As he had been denied formal status as a suspect, he could not defend himself properly. In addition, as the proceedings had been artificially protracted, he had been deprived of the opportunity to reclaim his seized property pending resolution of the case.

On 17 September 2003 the Court of Appeal quashed the District Court’s decision and decided to discontinue the proceedings. Like the lower court, it considered that the applicant had no standing to bring the proceedings at issue and, more generally, that the actions of the police authority complained of could only be challenged before the court examining the criminal case, after the relevant investigation had been completed and the case transferred to the court for examination. In these circumstances, rather than rejecting the applicant’s complaints on the merits, the proceedings had to be discontinued.

The applicant appealed on points of law.

On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case to the lower courts for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had found that the provisions of Article 234 of the CCP, which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings, were unconstitutional (see paragraph 47 below). The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions, decisions or inaction on the part of investigative authorities, which could result in irreparable or grave damage to an individual’s constitutional rights if their judicial review were to be delayed. The Supreme Court further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular, with regard to the search of his premises and the seizure and retention of his belongings. It stated that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful actions on their part.

On 14 October 2004 the District Court allowed the applicant’s complaint and revoked the decision of 15 November 2002. Regard being had to the grounds for taking that decision, the proceedings should have been instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” without indicating a specific defendant had been artificial and had restricted the applicant’s procedural rights. The police officers’ actions which had led to the institution of the proceedings had been tainted by procedural breaches, regard being had, in particular, to the unjustified inspection of the premises at night-time in the absence of the flat owner (the applicant’s mother ), as well as various other procedural violations.

On 3 November 2004 the Kyiv prosecutor’s office appealed against that decision.

On 24 December 2004 the Court of Appeal quashed the District Court’s decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation. By assessing the lawfulness of the investigative actions, the District Court had in fact touched upon the admissibility of evidence, a matter which could only be examined in the course of a criminal trial. It further found that by instituting the criminal proceedings “into the matter” rather than “against the applicant”, the police had not caused irreparable damage to the applicant’s constitutional rights such as would necessitate the setting aside of their decision by way of judicial proceedings. Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecution authorities.

The applicant appealed on points of law, alleging in particular that the Court of Appeal had breached procedural rules in admitting the appeal of the prosecutor’s office.

On 25 July 2005 Justice V.P. of the Supreme Court refused to consider the applicant’s request for leave to appeal on points of law, stating that the Supreme Court lacked jurisdiction over the decisions taken by the Court of Appeal in the relevant matters, unless they concerned the termination of proceedings.


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

The applicant was born in 1960 and at the time of lodging his application he was serving his prison sentence in the Bolu F-type prison.

On 3 December 2007 the applicant wrote a letter to the Ministry of Justice, in which he had praised the imprisoned leader of the PKK, Abdullah Öcalan by using the honorific “sayın”, meaning esteemed.

Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicant was found guilty of breaching prison order by the Bolu F- type Prison Disciplinary Board (referred hereafter as “the Board”).

On 12 December 2007 the applicant was sentenced to 11 days’ solitary confinement on the orders of the Board, on account of his statements in the above mentioned letter.

On 25 December 2007 the Bolu Enforcement Judge rejected the applicant`s objection.

On 15 January 2008 the Bolu Assize Court upheld the judgment of 25 December 2007.