CASE OF INDEPENDENT NEWSPAPERS (IRELAND) LIMITED v. IRELAND

Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant company is the publisher of an Irish daily newspaper, the Herald. At the time of the events giving rise to this case, the title of the newspaper was the Evening Herald.

Between 30 November and 17 December 2004, the Evening Herald, published a series of articles about the awarding of Government contracts to a public relations consultant, Ms L. The articles pointed out that she was a supporter of, and well acquainted with, a prominent political figure, Mr C., both of them coming from the same city. She had been hired as a consultant by the Office of Public Works beginning in November 2001, when Mr C. was the minister with responsibility for this department of Government. When he was appointed in mid-2002 to the more senior political post of Minister for the Environment, Heritage and Local Government, Ms L. was then hired as a consultant by that Government Department, and was still working for it at the time the articles appeared.

The Evening Herald called into question the manner in which the tendering procedure had been conducted, the qualifications of Ms L. for the work involved, the high level of remuneration she received, as well as the amount of work that was in fact done by Ms L. It referred to eight trips abroad on which Ms L. had been part of the ministerial entourage, in particular a trip to New York to attend a United Nations conference. The newspaper stated several times that the relevant United Nations department could find no trace of Mr C. having taken part in the conference, even though his Department maintained that he had attended it. A later article stated that the United Nations did in fact have a record of the Minister’s attendance.

The story was developed in eleven articles published over a period of two weeks in nine editions of the newspaper. It became headline news and formed the subject-matter of an editorial decrying apparent favouritism in the award of Government contracts and calling for an inquiry.

The articles referred to rumours of an intimate relationship between Mr C., who was at that time separated from his wife, and Ms L., who was married with two teenage children. There were also references to Ms L.’s attractive appearance and her lifestyle. Various photographs were included, including one that showed the two standing side by side in evening wear as if a couple. This image was obtained by altering the original photo, which contained four people. One of the front page articles was accompanied by a large photomontage containing the same image of Ms L. in evening wear, but modified to suggest that the skirt had a slit that reached almost to her hip. The montage showed her standing very close to the Minister, whose image had been taken from another photo, with the New York skyline behind them. The headline read “The Minister, [Ms L.] and the Mystery Meeting”.

The Supreme Court found that the articles complained of amounted to a serious and sustained attack on Ms. L.’s business and personal integrity and were part of a sustained campaign building up over a period of just two weeks. She had been accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts and at the end of that period, she had gone from a person who would not have been known to the general public at all to someone who was notorious (see further paragraphs 2333 below).

The issue of the contracts awarded to Ms L. was taken up by other parts of the Irish media, and led to questions in the Irish parliament (Dáil Éireann). A report issued in 2005 at the request of the then Prime Minister (Taoiseach) found that while there had been certain shortcomings in the way that the contracts had been awarded and in the monitoring and recording of the work done, there had not been any specific infringement of the relevant norms, guidelines or practices.

Ms L. sued the applicant company for defamation. The case was heard before a jury in the High Court over seven days in June 2009. The two issues put to the jury were whether the articles, as a whole, including the accompanying photographs, meant that Ms L. had an extra-marital affair with Mr C., and whether the last article in the series meant that Ms L. had travelled to New York at Government expense in the company of Mr C. for a United Nations conference, but that she had not in fact attended it.

In accordance with Irish law (see paragraphs 38-42 below for further details), the jury was directed that if it found in favour of Ms L. on either issue, or both, it should assess damages.

In his charge to the jury, the trial judge explained that in an action for defamation, damages serve three functions: to afford consolation for the distress caused by the defamatory statement; to repair the harm to reputation, including business reputation; and to vindicate the person’s reputation. He stated that the jurors could take account of Ms L.’s standing in society and in the business community, the nature of the libel (the insinuations that she had betrayed husband and family and that she had misused public funds), the mode and extent of publication (carried repeatedly in a widely-read daily newspaper), the absence of an apology, and the fact that the applicant company pleaded the defences of justification and fair comment throughout the trial. If the jury were to make an award, it must be appropriate and fair to both parties. The rules governing the trial judge’s directions to the jury are known as the Barrett rules, laid down by the Supreme Court in 1986 (see paragraph 39 below).

The trial judge did not give any specific guideline to the jury regarding the appropriate level of compensation, stressed the limited nature of the guidelines he could provide and indicated, in broad terms, that, when assessing damages the jury must bear in mind reality, the current times, the cost of living and the value of money. He added a cautionary note:

“On one famous occasion I told a jury that the plaintiff, if he won, hadn’t won the [national lottery] and they immediately awarded a million euro. Now, that wasn’t what I meant when I was saying that to them.”

He explained that the law did not permit him to suggest a figure or a range of figures to the jury:

“The amount of damages, ladies and gentlemen, is a matter for you, should you choose to award them. I can’t suggest a figure to you, I am not permitted to suggest a figure to you. I can’t give you a range of figures, I am not permitted to give you a range of figures. I can give you what help I can, and I will, in coming to an appropriate figure for damages. But, ultimately, the figure is yours.”

He warned the jurors not to be “overcome by feelings of generosity and give [Ms L.] a ridiculously large amount of money”. Any award must be of an appropriate amount. He continued his charge to the jury as follows:

“... [T]hat appropriate figure must also take into consideration the Defendant. You must also be fair to the Defendant too ...[Y]ou must consider the Defendant as well because your decision must be a fair decision and must be fair to both parties. ... You must come to a figure that is an appropriate figure and that is, I fully realise, ... not an easy thing to do. I would like to be able to tell you what other figures have been given in the recent past in similar cases, but I can’t do that and I mustn’t do that. If any of you think you remember newspaper headlines over the past twelve months or so of damages awarded in cases, every case is different. Put those out of your mind completely ... It is this case and what is appropriate in this case that is important and you have to reach that decision yourself and without as much help as I would like to be able to give you, but I am not permitted to give you.”

After the jury had retired, the plaintiff’s counsel requested the trial judge to retract the reference to the lottery, as he feared it would be understood by the jury as a warning to keep any award significantly lower than one million euros. He contended that no figure should have been suggested. Counsel for the applicant company disagreed, taking the view that the jury would have clearly understood the trial judge’s remark was not to make any suggestion about the appropriate level of damages in the instant case. The trial judge declined to revisit this aspect of his charge to the jury as it could cause confusion in jurors’ minds, who might think that in withdrawing the reference the trial judge might have been suggesting less or more than that figure. He observed to counsel:

“I do find myself in difficulties because of the Supreme Court’s ruling [in the De Rossa case] in that I can’t even indicate to a jury upper and lower in the most general terms, which I would like to be able to do because I think it would save a lot of trouble and I can’t do it because of the decision of the Supreme Court.”

He concluded the exchange with counsel on this matter as follows:

“I did think that I had traversed the question of damages and, each successive case I do, I get more long-winded about it because I started with very short charges and I used to be very surprised, one way or another, at the amounts juries brought in.”

On the first issue the jury found that the newspaper had alleged an extra-marital affair between the plaintiff and Mr C. On the second issue, it found that the meaning of the article was not defamatory.

The jury assessed damages at EUR 1,872,000 and the trial judge gave judgment in this amount. He granted a stay on payment pending appeal, with the proviso that the applicant company make an interim payment of EUR 750,000 to Ms L., with an additional EUR 100,000 in legal costs. These payments were made, the Supreme Court having refused on 27 July 2009 to set aside the High Court’s order on interim payment.

The applicant company accepted the jury’s decision that it had defamed Ms L. The Evening Herald published an apology to her in its edition of 19 January 2010. It appealed the amount of damages, arguing that no reasonable jury could have made such an award, that it was disproportionate to the damage caused and amounted to an unlawful interference with the applicant company’s rights under the Constitution and the Convention. In its subsequent submissions to this Court on just satisfaction, it considered that a much lower sum – EUR 175,000 – would have been sufficient compensation in the circumstances.

In the event that the Supreme Court set aside the award of damages on appeal, Ms L. sought to have the matter remitted to the High Court for a fresh assessment by a new jury. In its notice of appeal, the applicant company also sought an order directing a retrial on the issue of damages. It appears from the case file that, in its subsequent submissions before the Supreme Court, in the event that the latter set aside the High Court award, it argued that the Supreme Court should itself decide the amount of compensation.

The Supreme Court gave its ruling on 19 December 2014. All three judges found that the award to Ms L. was excessive and must be set aside. The majority decided to substitute its own assessment of damages (EUR 1.25 million), while the other judge took the view that the case should be re-tried before a different jury. As this would not happen, he indicated that he would have assessed damages at EUR 1 million.

The judgment of the majority was given by Dunne J., with whom Murray J. concurred. She noted that the case did not come within the current law on defamation (the Defamation Act 2009, see paragraphs 51-53 below), but had to be decided in accordance with the previous law. Under that regime, the trial judge was limited in the directions that could be given to a jury regarding the appropriate level of damages. It had not been suggested that the trial judge had committed any error in his charge to the jury on the question of damages. Rather, the complaint was that the award was so disproportionately high that it should be set aside. She referred to the relevant Supreme Court case-law, which held that it was the duty of the trial judge to direct the jury that damages must be confined to an amount that will fairly and reasonably compensate the plaintiff for injured feelings and loss of standing. Furthermore, as a fundamental principle of the law of compensatory damages, the award must be reasonable and fair and bear a due correspondence with the injury suffered; a disproportionately high award would be set aside. She rejected the applicant’s argument that larger libel awards should be subjected to more searching scrutiny on appeal than had been customary in the past. Nor did she accept that the relevant legal test should be whether a reasonable jury would have thought such an award necessary to compensate the plaintiff and to re-establish her reputation. She stated:

“If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to [in previous case-law].

Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.”

She further recalled the need for the law to reflect a due balancing of the constitutional right to freedom of expression against the constitutional protection of every citizen’s good name, which, as stated in case-law, brought the concept of proportionality into constitutional jurisprudence. Referring to this Court’s judgment in Independent News and Media and Independent Newspapers Ireland Limited v. Ireland (no. 55120/00, ECHR 2005V (extracts)), she observed that it did not alter or reconfigure Irish law in respect of awards of damages in defamation. She stated:

She reviewed the terms used by the trial judge in his charge to the jury. He had told them they could consider the plaintiff’s position in the business community. They could also consider the nature of the libel, which contained the suggestion that she was immoral, had been unfaithful to her husband and had betrayed her family. The mode and extent of publication were relevant, as were the absence of an apology and the company’s decision to stand over the articles to the end.

Dunne J. then considered the applicant company’s argument that the amount of damages awarded against it should be compared to awards that had been set aside as excessive in previous defamation cases. She agreed that the comparison might provide some assistance in assessing the gravity of the libel. But she also underlined the need for caution, given the wide variety of factual circumstances of such cases and also the passage of time since previous appellate decisions. As for comparison with personal injury awards, she recalled the different function of damages in the two types of case. In defamation, the function of damages was both to compensate the injury to reputation and to vindicate the person’s good name, a consideration which was not relevant in personal injuries cases.

The judge then set out the relevant factors for considering the proportionality of the damages awarded to Ms L. The first was the gravity of the libel. The more closely the libel touched the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of their personality – as was the case here – the more serious it was likely to be. She described the libel as a serious and sustained attack on the business and personal integrity of Ms L. It could be fairly compared with a previous case involving the defamatory allegation against a prominent businessman of bribing a Government minister in order to obtain a licence to operate a radio station (the O’Brien case, summarised in Independent News and Media judgment at §§ 54-63). It could not, however, be regarded as being in the category of the gravest and most serious libels to come before the courts, as was the libel in the De Rossa case (the case that led to the Independent News and Media case, it having been alleged that Mr De Rossa personally supported anti-Semitism and violent communist oppression). But the libel of Ms L. was nonetheless a very serious one. The allegation of adultery must have been a course of real hurt and distress to her.

The next factor was the extent of publication. Ms L. had cited eleven articles concerning her. There had been some more articles focussing on the role of the Minister. It was a sustained campaign over a number of days. The newspaper had a daily circulation throughout the State of 90,000 copies; its readership would be higher still. Ms L. had gone from being unknown to the public to being notorious. The publication had therefore been particularly widespread and extensive.

The third factor was the conduct of the defendant. It had run a defence of justification that the jury had rejected. It had not offered any apology to Ms L. before the verdict, which was a point the jury could have taken into account. The articles had been accompanied by photographs that had been cropped and manipulated to lend force to the implication that Ms L. got her contracts by virtue of the fact that she was having an affair with the Minister. That too could have been taken into consideration by the jury.

The fourth factor was the impact of the defamation on Ms L. The articles had attacked her moral character and her professional reputation. They had implied that she was unfaithful to her husband and had played a part in the break-up of Mr C.’s marriage. They had conveyed the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Her ability to do the work she was hired for had been called into question. A new business initiative she was involved in ended when the partner had withdrawn following the publication of the articles, and her consultancy work for the Government had come to an end. Ms L. had given evidence of her own personal hurt and distress at the articles, and described the impact on her husband and sons, one of whom had had to change school in his final year while he was preparing to sit important public examinations. Ms L. had received personal abuse in her hometown. Overall, the articles had had a profound effect on her in every aspect of her family and professional life, which was a consideration that was also relevant to the jury’s award.

She then assessed the sum awarded in damages:

“The award of damages in this case in the sum of €1,872,000 is a very large award by any standard. ... Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. L. The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts ... [T]he award made to Ms. L in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.”

She continued:

“I am conscious of the firm instructions of Ms. L to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.”

The other, partly-dissenting judgment was given by McKechnie J. He stated that the issue was whether the award was reasonable and fair and bore a due correspondence with the injury suffered, which was essentially a matter of proportionality. He rejected the suggestion that the jury should be informed of awards made in personal injury actions. The nature and purpose of the two types of damages were inherently different. As for comparison with previous defamation awards, he opposed this for practical reasons. Even with the greatest of care, he did not see how cross referencing to a previous award could aid in determining the compensation to be paid to a particular plaintiff in respect of a particular publication for a particular injury. At most, he could accept that some benefit could be obtained if the comparison was applied within the same or similar class of defamatory remarks.

He observed that since the jury represented the community, and defamation was rooted in community values, jury awards in defamation cases enjoyed an eminence and distinction significantly higher than other types of award, including jury awards in non-defamation cases. This point was supported by numerous dicta of the Supreme Court. He said:

“... Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia, to the uniqueness of the jury’s representative function in this particular judicial process. ... Therefore, an award will not be disturbed easily or second guessed purely to fine tune it.”

He analysed the libel in detail and also concluded that the award was not proportionate, failing to reflect the necessary objective relationship between wrongdoing and harm. Although he considered that the issue of damages should be submitted for consideration by a fresh jury, in the light of the majority’s decision to set aside the jury verdict and substitute its own award, he offered his own view on the appropriate level of damages, placing it at one million euros.

The applicant company duly paid an additional EUR 500,000 in compensation to Ms L. On 26 February 2015, the Supreme Court ordered that the applicant company should bear the legal costs incurred by Ms L. in the appellate proceedings. According to the applicant company, this came to EUR 240,448.16.


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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1957 and lives in Stavropol.

The applicant is the founder, sole owner and director of a limited liability company, Akvilon (общество с ограниченной ответственностью «Аквилон»). Prior to the events described below, the company had been engaged in the grocery retail trade.

On 30 November 2001 Akvilon purchased 5 tonnes of granulated sugar in 100 sacks on condition of delayed payment with a view to reselling it to Mr P. and Mr Pr. The two men made an oral agreement with the company to pay 55,000 Russian roubles (RUB – approximately 2,000 euros (EUR)) in cash immediately upon receipt of the sugar.

On the same date Mr V., the applicant’s husband and a deputy director of Akvilon, transferred the sugar to Mr P. and Mr Pr., who then left under the pretext that they had to fetch more cash in order to be able to pay. Shortly thereafter, Mr V. complained to the Nevinnomyssk Department of the Interior (Управление внутренних дел г. Невинномысска) of the misappropriation by Mr P. and Mr Pr. of the sugar belonging to Akvilon.

On 30 November 2001 criminal proceedings were instituted on suspicion of aggravated fraud in connection with the incident. The case was assigned to an investigator, Mr S., who granted the status of victim of a crime to the Akvilon company.

Later that day, the investigator in charge found the five tonnes of sugar in garages belonging to Mr P. and Mr Pr., in the amounts of 1.5 tonnes and 3.5 tonnes respectively. The two men admitted that they had no documents confirming that they had obtained the sugar legitimately, but insisted that they had paid the necessary amount in cash to a certain Ms Ya., who had promised to deliver the money to Akvilon and had then disappeared. The investigator acknowledged Mr P. and Mr Pr. as witnesses in the case and, without formally attaching the sugar, left it with them for safe storage. Both men gave written undertakings to store the sugar until a court decision was given on the matter.

On 20 December 2001, following a complaint by Akvilon, the Nevinnomyssk prosecutor’s office ordered the investigator, Mr S., to formally attach the sugar, to seize it from Mr P. and Mr Pr. and to deposit it with a neutral person for safe storage.

On 11 January 2002 the investigator ordered the attachment and seizure of the sugar from the garages belonging to Mr P. and Mr Pr., and its transfer to a third party for safe storage. On 15 January 2002 the order was executed and the attached sugar was included in the list of exhibits in the case.

By a decision of 22 February 2002 the investigator, Mr S., declared Mr V., who acted as a representative of the Akvilon company, a civil claimant in the criminal case.

On 6 August 2002, on the instructions of the prosecutor’s office of the Stavropol Region, the investigating authorities transferred the sugar to the Akvilon company for safe storage.

In late 2002 the criminal case was transferred to another investigator.

By two decisions of 24 March 2003 the investigator in charge lifted the attachment order on the sugar and ordered that it be excluded from the list of exhibits in the case. The decisions stated that the investigation had established that, despite their written undertakings to store the sugar, Mr P. and Mr Pr. had sold it to third persons in December 2001. They had then, on 8 January 2002, purchased another lot of sugar in the amount of 1.5 and 3.5 tonnes respectively, which had subsequently been attached and included in the list of exhibits by Mr S. The decisions concluded that the sugar in question was not the object of the crime in the present case, and therefore its attachment should be lifted. It is unclear what happened to the sugar thereafter.

On 31 March 2003 the Nevinnomyssk Department of the Interior decided not to institute criminal proceedings against Mr P. and Mr Pr. in connection with the fact that they had sold the sugar in breach of their written undertakings given to Mr S. The decision stated that the undertakings had not been legally binding, since when they had been given, the sugar had not been formally attached and included in the list of exhibits, and therefore there had been no legal grounds for Mr P. and Mr Pr. to refrain from selling it.

By a decision of 18 April 2003 the investigator in charge ordered the withdrawal of Akvilon’s victim status. The decision stated that it had been established during the investigation that on 30 November 2001 the Akvilon company had dispatched the sugar to the garages belonging to Mr P. and Mr Pr. The two men had then delivered the stipulated amount in cash to a certain Ms Ya., who had negotiated the deal between them and Akvilon and had disappeared once in receipt of the money. The decision concluded that in view of the fact that it was Mr P. and Mr Pr.’s money which had been stolen in the present case, rather than Akvilon’s sugar, it was the former and not the company who were victims of the crime.

On 6 March 2007 a deputy prosecutor of the Stavropolskiy Region ordered that Akvilon again be granted the status of victim of a crime.

On 29 March 2007 the criminal proceedings instituted in connection with misappropriation of Akvilon’s property were suspended owing to the absence of those responsible.

In 2002 Mr P. and Mr Pr. lodged a civil claim against the Akvilon company, seeking to have their title to, respectively, 1.5 and 3.5 tonnes of sugar attached by the investigating authorities acknowledged, the attachment order lifted and the sugar returned to them.

By a decision of 17 April 2003 the Nevinnomyssk Town Court (“the Town Court”) discontinued the proceedings in so far as they had been brought by Mr Pr. on the grounds that he was officially registered as a businessman, and that therefore his dispute with Akvilon fell within the competence of a commercial court. It does not appear that this decision was appealed against or that Mr Pr. attempted to pursue the proceedings any further.

As regards Mr P.’s claim, after several rounds of proceedings, the Town Court granted it in a judgment of 21 May 2004. The court confirmed Mr P.’s title to 1.5 tonnes of sugar, referring to the fact that he had purchased it on 8 January 2002. The court further established that the sugar belonging to Mr P. had been attached by the investigator, Mr S., and transferred to a third party and then to Akvilon for safe storage and that by the investigating authorities’ decision of 24 March 2003 the attachment order had been lifted. The court thus concluded that Akvilon was under an obligation to return 1.5 tonnes of sugar to Mr P., who was its rightful owner. The judgment was not appealed against, and no enforcement proceedings were ever instituted.

Throughout the investigation into the incident of 30 November 2001 the applicant lodged numerous complaints with the supervising prosecutors alleging negligence on the part of the investigator, Mr S. In particular, she complained of his failure timeously to attach the sugar belonging to Akvilon and his decision to transfer it for safe storage to Mr P. and Mr Pr., individuals whom Akvilon had accused of fraud, with the result that the sugar had been lost and Akvilon had suffered pecuniary damage.

In letters sent to the applicant in the period of 2002-04, the Nevinnomyssk prosecutor’s office and the main investigating division of the Department of the Interior of the Stavropol Region stated, inter alia, that the investigator, Mr S., had indeed breached certain requirements of the criminal procedure legislation. They went on to say that he had been subjected to disciplinary sanctions in that connection, but that there were no grounds to bring criminal proceedings against him.

Between April and July 2004 the Nevinnomyssk prosecutor’s office took a number of similar decisions to dispense with criminal proceedings against Mr S. They stated, in essence, that although formally there were elements of an offence punishable under Article 293 of the Russian Criminal Code (professional negligence) in Mr S.’s actions, that Article provided for criminal liability only if the damage caused by such negligence attained a minimum of RUB 100,000, whereas the pecuniary damage alleged by Akvilon had been lower than that amount.

In 2003 Akvilon initiated proceedings before the Commercial Court of the Stavropol Region against the Nevinnomyssk Department of the Interior, the Department of the Interior of the Stavropol Region and the Russian Ministry of the Interior. The company complained that the negligent actions on the part of the investigator, Mr S., during the investigation into the incident of 30 November 2001 had resulted in the loss of five tonnes of sugar belonging to the company. His actions had caused pecuniary damage to the company and had been detrimental to its business reputation, given that it had purchased the sugar on condition of delayed payment, which it had then been unable to fulfil. The company indicated that the pecuniary damage it had suffered to that date amounted to RUB 96,312, taking into account the current price of sugar. It also sought compensation for damage to its business reputation.

After several rounds of proceedings, in a judgment of 22 October 2004 the Commercial Court of the Stavropol Region dismissed the company’s claims in their entirety. It noted that it had not been proven that the investigator, Mr S., had been negligent in performing his duties, given that it had been decided to dispense with criminal proceedings against him in that connection, and that therefore there was no causal link between his actions and the pecuniary damage alleged by the claimant company. The court also stated that since Mr S. had not disseminated any defamatory statements concerning Akvilon, there were no grounds to grant its claim for compensation for damage to its business reputation.

On 30 November 2004 the Appellate Instance of the Commercial Court of the Stavropol Region quashed the first-instance judgment in so far as the applicant’s claim for pecuniary damage was concerned, stating that the lower court finding as to the absence of a causal link between the pecuniary damage sustained by Akvilon and Mr S.’s actions had been incorrect. The appellate court noted that the first-instance court had not taken into account that criminal proceedings against Mr S. in connection with the negligent performance of his duties had not been instituted only on the formal ground that the pecuniary damage inflicted on the claimant company by his actions had been below the statutory limit established in Article 293 of the Russian Criminal Code. The appellate court further found it established that “it was on account of the unlawful actions of investigator S., who had transferred five tonnes of sugar belonging to the Akvilon company to other persons, that [the company] had been deprived not only of its property but also of the right to claim compensation for damage in the context of the criminal proceedings, as the investigator in charge had withdrawn the status of victim [from the company]”. The appellate court considered it established that the company had proven the circumstances in which it had sustained pecuniary losses in the amount of RUB 96,312, and awarded the company the full amount claimed in respect of pecuniary damage, as well as RUB 8,619.42 for costs and expenses to be recovered from the Russian Ministry of the Interior at the expense of the Federal Treasury. The appellate court further upheld the judgment of 22 October 2004 in so far as it rejected the company’s claim concerning compensation for damage to its business reputation.

On 10 March 2005 the Federal Commercial Court of the NorthCaucasus Circuit, acting as a cassation instance, upheld the appeal decision of 30 November 2004. The court, however, reduced the award to RUB 55,000, noting that that sum represented the pecuniary losses sustained by Akvilon in 2001 (see paragraph 7 above).

On 19 May 2005 the Supreme Commercial Court of Russia refused leave to apply for a supervisory review of the case.

On 15 December 2004, following the decision of the Appellate Instance of the Commercial Court of the Stavropol Region of 30 November 2004, Akvilon was issued with a writ of execution and the enforcement proceedings were commenced.

In a decision of 12 July 2005 the Appellate Instance of the Commercial Court of the Stavropol Region noted that on 10 March 2005 the Federal Commercial Court of the North-Caucasus Circuit had reduced the award in respect of non-pecuniary damage from RUB 96,312 to RUB 55,000 and ordered that the recovery of the amount of RUB 41,312 be discontinued.

That decision was sent to the Russian Ministry of Finance, which then returned the writ of execution and the decision remained unenforced.

On 23 October 2006, at the request of Akvilon, the Commercial Court of the Stavropol Region issued it with another writ of execution for the amount of RUB 55,000 awarded in respect of pecuniary damage and RUB 8,916.42 awarded in respect of costs and expenses.

On 25 October 2006 the new writ was sent to the Ministry of Finance for enforcement.

On 4 July 2007 the Russian Ministry of Finance transferred the full amount due to Akvilon’s bank account.


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

The relevant details of the two applications are set out in the appended table.

In both applications, the applicant complained of inadequate conditions of detention.


CASE OF ALBERGAS AND ARLAUSKAS v. LITHUANIA

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

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The first applicant was born in 1949 and lives in Vilnius. The second applicant was born in 1955 and according to the most recently available data, also lives in Vilnius.

In 1994 the Vilnius City municipality assigned a plot of land measuring 0.08 hectares to the first applicant for the construction of an individual house. At the same time similar plots were assigned to other private persons. In accordance with the provisions of the domestic law in force and because of his status as a deportee’s family member, the first applicant was entitled to acquire the plot of land.

On 5 September 1995 the first applicant and the Vilnius Region Administration signed a contract by which he purchased the plot of land from the State. He paid 422 Lithuanian litai (LTL; approximately 122 euros (EUR)) and 423 “single-use investment vouchers” (investiciniai čekiai).

Subsequently, the first applicant registered the plot of land in his name in the land registry.

In 10 April 1997 the first applicant sold the plot for LTL 6,000 (about EUR 1,740) to the second applicant, who then registered the plot of land in his own name.

On an unspecified date the second applicant brought a claim before the courts against a private person, R.A., alleging that his right to peaceful enjoyment of his possession had been breached. The second applicant claimed that he had been unable to use his land because R.A., who lived next to the plot of land, had unlawfully put a fence around it.

R.A. lodged a counterclaim against both applicants, requesting the annulment of the land sale contracts of 1995 and 1997 (see paragraphs 7 and 9 above), together with the decisions of the authorities. R.A. claimed restoration in natura of her ownership rights to the disputed plot of land, as it was part of her father’s land which had been nationalised by the Soviet authorities. R.A. had requested the restoration of her property rights in 1991, and in 1999 her rights had been restored in natura, but only to a part of her father’s plot of land.

The courts at two instances granted the second applicant’s claim and dismissed R.A.’s counterclaim, noting that under the Law on the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property (įstatymas “Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų”; hereinafter “Law on Restitution I”) in 1994, R.A. had been entitled to restitution in natura of not more than 0.2 hectares of land. The local authorities had taken this circumstance into consideration when assigning the plot of land to the first applicant. The fact that under the new Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas; hereinafter “Law on Restitution II”) in force after 1 July 1997 R.A. was entitled to restoration in natura of up to 1 hectare of land was not considered as meaning that the decisions adopted by the local authorities in 1994-95 were automatically invalid.

R.A. appealed against those court decisions to the cassation court. By a final decision of 27 November 2002 the Supreme Court overturned the decisions of the lower courts. By applying the principle of priority for former owners’ rights that had been developed in the civil case P. Roževičienė v. Panevėžio miesto valdyba and others, no. 3K-3-384/1999, the Supreme Court concluded that the local authorities in 1994-95 had not been allowed to sell plots of land to third persons before ownership rights had been restored. The court also indicated that the applicants had acted in “bad faith” (nesąžiningai) when purchasing the disputed plot of land; however, the court decision did not substantiate the first applicant’s “bad faith”. As concerns the second applicant’s “bad faith”, the Supreme Court assumed that he had known about the third persons’ rights to the land.

By the above-mentioned decision of the Supreme Court the contracts of 1995 and 1997, together with the decision of 1994 to assign the disputed plot, were annulled and the plot was returned to the State. The first applicant had to return LTL 6,000 to the second applicant, the amount which he had received from the latter for the plot. The State had to return LTL 422 to the first applicant; none of the “single-use investment vouchers” were returned to him, as they no longer had any pecuniary value at the time of the Supreme Court’s decision.

Alleging that they had incurred a loss following the decision of the Supreme Court, the applicants applied to the National Land Service (Nacionalinė žemės tarnyba) in 2004 with requests to be assigned a new plot of land of the same size and value. Their requests were dismissed.

The applicants applied to the administrative courts. They argued that they had acquired the plot of land in good faith. The applicants had been deprived of the property by a decision of the Supreme Court, and the sums that had been awarded had not adequately compensated for the damage sustained. In particular, the first applicant alleged that the court had not awarded the full value of the property, given that part of the price had been paid in “single-use investment vouchers”. To compensate for their loss, the applicants asked to be assigned a new plot of land.

On 1 October 2004 the Vilnius Regional Administrative Court dismissed the claim. On 19 January 2005 the Supreme Administrative Court upheld that decision. The courts noted that the provisions of the domestic law under which the first applicant had been assigned the plot of land were no longer in force. As concerned the second applicant, he was not eligible under the domestic law to be assigned a plot of land either.

On 15 August 2005 the first applicant complied with the Supreme Court’s decision of 27 November 2002 and paid the second applicant LTL 6,000.

The applicants subsequently applied to the civil courts with a claim for damages against the Vilnius City municipality.

On 29 September 2005 the Vilnius City First District Court dismissed the applicants’ claim having reiterated that the applicants had purchased the plot of land in “bad faith”. It appears that the applicants did not appeal against that decision.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - award (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant was born in 1969 and lives in Zurich.

The applicant is a Polish national. He married M.S., another Polish national, in 1994. Shortly afterwards they moved to Switzerland where the applicant works as a software specialist. In 1998 their son P. was born and in 2002 their daughter J.

In autumn 2007 the applicant began an affair with H.

In February 2008 the applicant and M.S. decided to separate and he moved to another flat. However, the applicant’s flat was located opposite the flat of his family and he kept regular contacts with his children.

On 24 September 2008 M.S. filed a petition for divorce with the Kraków Regional Court. M.S. applied for an interim order granting her temporary custody over P. and J. for the duration of the divorce proceedings. She had also informed the court that she would be in Kraków between 4 and 28 October 2008.

On 4 October 2008 M.S. took the children to Poland for school holidays. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates.

On 15 October 2008 the Regional Court granted the request of M.S. for an interim custody order. The applicant was neither informed of nor summoned to the court session concerning this order.

Subsequently, on 24 October 2008 the applicant lodged a request for return of his children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 20-30 below).

On 12 November 2008 the applicant requested the Kraków Regional Court to stay the execution of the interim custody order of 15 October 2008. He also appealed against that order.

On 11 December 2008 the Kraków Regional Court dismissed the applicant’s request for stay of the execution of the interim order and instead stayed the divorce proceedings. The court referred to the pending proceedings under the Hague Convention (see below). The applicant’s appeal against this decision and against the interim custody order was dismissed by the Kraków Court of Appeal on 26 February 2009.

On 3 March 2010 the Kraków Regional Court gave an interim order and determined the applicant’s contacts with P. and J. for the duration of the divorce proceedings.

On 6 May 2011 the Kraków Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted an expert report to the Kraków Regional Court. According to the report, M.S. should continue to exercise custody of the children as she had always been more involved in their upbringing. Moreover, the experts considered that another separation from a parent and another change of environment would be detrimental to the children. They further noted that the applicant should be allowed to have contacts with his children outside the territory of Poland as long as there was no risk of destabilisation of their situation. He should have the right to spend with them half of summer vacation, holidays and weekends and to visit them 1-2 times a month.

On 24 July 2012 the Kraków Regional Court dissolved the applicant’s marriage. It found that the applicant had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by M.S., whereas the parental rights of the applicant were limited to decisions regarding the children’s upbringing, health and education. He was authorised to have contacts with P. and J. two afternoons per week and two weekends per month. He was further ordered to pay child maintenance and alimony.

The applicant appealed. He argued, in particular, that, due to the fact that he resided in Switzerland, his visiting rights during holidays and summer vacation should have been regulated by the court.

On 15 March 2013 the Kraków Court of Appeal dismissed the applicant’s appeal and upheld the first instance’s judgment.

On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention. It was transmitted to the Administrative Division of the Kraków Regional Court on 25 November 2008.

Subsequently, in a letter of 13 March 2009 the Swiss Central Authority confirmed that the applicant and M.S. had exercised joint custody over P. and J. The authority expressed the view that since the Swiss authorities had not been aware of any decision of Swiss courts or authorities limiting the applicant’s custody rights, the fact that the children stayed in Poland after 20 October 2008 without their father’s consent constituted a wrongful removal under Article 3 of the Hague Convention.

Meanwhile in Kraków, on 9 December 2008 a local assessment (wywiad środowiskowy) was conducted at the home of M.S. by a courtappointed guardian with a view to establishing the children’s situation. The report confirmed that the children’s living conditions with their mother were very good and that they continued their education in private schools.

On 17 December 2008 the Kraków District Court held the first hearing in the proceedings under the Hague Convention. The court also gave an interim order and allowed the applicant to visit the children on that day in the afternoon.

On 5 January 2009 the court requested a psychologist to prepare a report concerning the children’s mental and emotional maturity and their capacity to express views on the matter of their return to Switzerland.

On 9 January 2009 another hearing took place.

On 21 January 2009 the expert submitted his report to the court.

On 27 January 2009 the District Court allowed the applicant another exceptional contact with his children. They were to stay with him from 30 January until 1 February 2009. However, the applicant was not allowed to leave Poland with the children.

On 11 February 2009 the Kraków District Court gave a decision and refused to grant the applicant’s request for the children’s return to Switzerland. The court referred to the applicant’s and M.S.’s consistent testimonies and the information included in the divorce file.

The court established that on 4 October 2008 M.S. had come to Poland together with P. and J. and the applicant had consented to this trip. On 20 October 2008 M.S. had not returned to Switzerland and stayed in Poland together with the children. The applicant had not accepted this decision.

The court subsequently stressed that in the proceedings under the Hague Convention it should be firstly established whether wrongful removal or retention took place. It further held that in the case at issue there had been no wrongful removal since the applicant had agreed to P and J’s trip to Poland on the 4 October 2008. With reference to the fact that M.S. failed to return on 20 October 2008 (the date agreed with the applicant), the court noted that she had been granted temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father’s consent. Consequently, M.S. could have decided to stay in Poland also after 20 October 2008 and there had been no wrongful retention in the case.

The court also considered that the interim custody order was not contrary to Article 16 of the Hague Convention, since the applicant’s request for return of his children had been received by the Kraków Regional Court only on 25 November 2008 while the custody order had been delivered on 15 October 2008.

Lastly, the court held that the refusal to grant the request for return was not contrary to Article 17 of the Hague Convention, since that provision concerned custody decisions delivered after the removal of a child.

On 24 March 2009 the applicant lodged an appeal against the firstinstance decision. He argued that the contested decision was in breach of Article 3 of the Hague Convention. He further argued that Article 17 of that Convention was also breached as the first-instance court had relied on a decision which was merely of a temporary character, whereas this provision expressly prohibited to refuse an application for return on the basis that a decision on custody was given in the country to which children were abducted.

On 2 June 2009 the Kraków Regional Court dismissed the applicant’s appeal. The court first refused to accept as evidence the document from the Swiss Central Authority since that document failed to refer to the interim custody order of 15 October 2008. It its decision, the Kraków Regional Court referred in particular to the events leading to the breakdown of the applicant’s marriage. It also noted that when M.S. had discovered that the applicant’s new partner had been pregnant, she had decided to institute divorce proceedings. However, she had been informed by a Swiss lawyer that in view of the applicant’s lack of consent to a divorce, she could only have filed a petition in Switzerland after two years of separation. For these reasons she had decided to file a petition for divorce with the Polish courts. The court further noted that on 4 October 2008 M.S. had arrived in Kraków with her children in order to spend two weeks of school holidays there, after having obtained the applicant’s consent for their trip. The court further stressed that M.S. decided to stay in Poland permanently only when she was granted temporary custody. Consequently, in the court’s opinion the removal of the children was not a wrongful removal within the meaning of Article 3 of the Hague Convention.

The decision was served on the applicant on 28 July 2009. It is final.


CASE OF SHERSTNEVA AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal 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;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

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

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 criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 43076/07, the applicant also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home)

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

The first applicant was born in 1978. At the time of the events he was a district police officer in the Kalyninskyy district police in Horlivka. As of February 2014, he has been serving a prison sentence in Menska prison no. 91. The second applicant is his wife who was born in 1984. She lives in Horlivka with her mother, the third applicant, who was born in 1951. The fourth applicant, the mother of the first applicant, was born in 1948 and died on 5 December 2010. The first applicant expressed wish to pursue his mother’s complaints on her behalf.

At the night from 18 to 19 June 2008, shortly after midnight, the second applicant had a conflict with a police officer, M., who was a colleague of her husband.

The second applicant’s account of the events was as follows. When walking in the street with a friend, B., she heard somebody running after them. That person pushed her on the shoulder. Having turned, she saw M., whom she knew. He was wearing plain clothes and appeared to be heavily drunk. When she asked him what the matter was, M. shouted that he would subject her to a body search, without explanation. He snatched her bag from her. Having searched its contents, he threw it on the ground. Then M. grabbed the second applicant by the neck and started strangling her. In reply to her protests, he noted that the local prosecutor was there next to him and that it was pointless to complain. He hit the second applicant twice in the head with something heavy, which, in her opinion, could have been a mobile phone. At that moment the first applicant telephoned his wife’s friend B., who was then with her, to find out whether everything was fine (as his wife had not returned home at the expected time and was not answering his telephone calls). Having found out about the incident, the first applicant went there. M. threatened him in a rude manner with dismissal. He let the second applicant go only after two other police officers in plain clothes, who happened to be there, approached them.

The second applicant’s friend B. supported the above version of events. However, eventually she specified that M. had not been strangling the second applicant, but had simply held her and not let her leave.

M.’s version of the events was as follows. He was walking in the street with an acquaintance, P., a businessman, after the celebration of the professional holiday of police inspectors. They met two colleagues of M. and stopped to talk with them. Two women passed by. M. thought that one of them was a certain T., who was under administrative supervision and was not supposed to be out of her home so late. He went to ask her what she was doing there. However, having approached her, he realised that he had been mistaken. He recognised the second applicant and apologised for his mistake. The second applicant, who appeared to be heavily drunk, started insulting and pushing him. M. submitted that he had not touched her. As regards the possible origin of her injuries, he noted that she had had serious incidents in the past with her husband and that those injuries might have been inflicted by him. As regards the fact that the plastic bag that she had had in her hands had been torn, he explained it by her intense gesticulating.

M.’s version was supported by the statements of his friend P. and the two police officers, who had been there.

Having come home, the second applicant called an ambulance. She was diagnosed with several bruises on her neck and situational neurosis. She explained that she had been strangled by a police officer. In the presence of an ambulance paramedic, the second applicant called the police. According to the Government, she did not mention that M. was a law-enforcement official. The second applicant contested that submission.

In the morning on 19 June 2008 the second applicant was examined by a neuropathologist who diagnosed her with concussion and bruises on her neck, and prescribed outpatient medical treatment.

On 28 June 2008 the Kalyninskyy police issued a ruling refusing to institute criminal proceedings in respect of the second applicant’s complaint. It noted that she had complained to the police at 1.05 a.m. on 19 June 2008 of having been hit by an acquaintance. As further stated in the ruling, it had been impossible to question her, as she had never been at home when visited by the police.

On 9 July 2008 the second applicant complained about the incident to the Horlivka town prosecutor’s office (“the Horlivka prosecutor’s office”). She requested that the investigation not be entrusted to the Kalyninskyy district prosecutor’s office (“the Kalyninskyy prosecutor’s office”), given that one of its officials had allegedly been with M. at the time of the events and that M. had referred to that fact as a guarantee of his impunity (see paragraph 8 above). The second applicant submitted that there had been no attempts by the authorities to contact them with a view to hearing their version of the events.

On 15 July 2008 the Horlivka prosecutor’s office forwarded her complaint to the Kalyninskyy prosecutor.

On 25 July 2008 the second applicant gave a written account of the incident to the Kalyninskyy prosecutor’s office. On the same date that authority quashed the refusal of 28 June 2008. It noted that the investigation had wrongly been entrusted to the Kalyninskyy police despite the fact that the second applicant’s complaint concerned her alleged ill-treatment by one of its officers.

On 28 July 2008 the police officer who had been on duty during the night from 18 to 19 June 2008 was disciplined for not having followed up the second applicant’s call (see paragraph 12 above).

On 1 August 2008 the Kalyninskyy prosecutor’s office refused to initiate criminal proceedings against M. under Article 365 § 2 of the Criminal Code (exceeding individual power by engaging in violent or degrading treatment of a victim), having held that there were no constituent elements of a crime discernible in his actions. The prosecutor noted that the second applicant’s allegation was supported by the statements of her husband and her friend. However, there were also statements of M. and the witnesses from his side, who denied any ill-treatment of the second applicant. The prosecutor therefore found her allegation to be unsubstantiated. It was also noted in the ruling that at the time of the events M. had been wearing civilian clothes and had not been acting as a law-enforcement official. Lastly, it was observed that the second applicant had ignored numerous summonses for questioning.

On 4 August 2008 the Kalyninskyy prosecutor’s office annulled its refusal of 1 August 2008 as premature. It noted, in particular, that not all the relevant facts had been established. Furthermore, there had been no forensic medical expert examination of the second applicant.

On 14 August 2008 the second applicant underwent such an examination, which documented no visible injuries. Having analysed her medical file, the expert concluded that she had sustained a bruise on her neck and a craniocerebral injury which led to concussion. Those injuries, assessed as insignificant, had resulted from “contact with blunt objects” at the time indicated by the second applicant.

On the same day the Kalyninskyy prosecutor’s office once again refused to open a criminal case against M. for lack of the constituent elements of a crime in his actions. It relied, in particular, on the witnesses’ statements, according to which M. had not ill-treated the second applicant. Furthermore, the prosecutor noted that M. had not acted in his official capacity and that the injuries sustained by the second applicant had been insignificant.

On 5 September 2008 a senior official of the same prosecutor’s office annulled the above ruling as premature. He noted, in particular, that an additional forensic medical examination was required with a view to verifying the second applicant’s allegation that she had been hit in the head with a mobile phone.

On 15 September 2008 the prosecutor ordered such an examination of the second applicant with a view to answering the following questions: (1) how exactly could her injuries have been inflicted; (2) whether there were marks on her head possibly resulting from blows with a mobile phone; (3) whether she could have sustained the injuries in question in the circumstances as she alleged; and (4) when exactly she had sustained the injuries in question.

On 9 October 2008 a forensic medical expert examination report was issued. It answered the above questions as follows: (1) the craniocerebral injury and the bruise on the neck had resulted from contact with blunt objects; (2) neither the examination of the second applicant nor the evaluation of the medical file had established any injuries to her head (apparently, implying visible injuries); (3) the second applicant’s injuries could have been inflicted on her in the circumstances described; and (4) according to the medical documents, the second applicant could have sustained the injuries on 19 June 2008.

On 19 November 2008 the Kalyninskyy prosecutor’s office delivered yet another ruling refusing to open a criminal case in respect of the second applicant’s complaints. Having relied on the forensic medical examination reports and the witnesses’ statements, the prosecutor stated that her allegation had not been sufficiently corroborated.

On 20 April 2009 the Donetsk regional prosecutor’s office (“the regional prosecutor’s office”) annulled the above ruling as premature and based on an incomplete investigation.

On 5 May 2009 the Kalyninskyy prosecutor’s office again refused to institute criminal proceedings against M. It was stated in the ruling that the forensic medical expert evaluations of 14 August and 9 October 2008 refuted the second applicant’s allegations. Furthermore, the prosecutor noted that the second applicant had refused to give her account during the additional investigation.

The second applicant challenged the above refusal before the Prosecutor General’s Office (“the PGO”) on at least three occasions (on 20 July and 8 October 2009 and on 4 January 2010). Her complaints were forwarded to the regional prosecutor’s office.

On 21 February 2010 the regional prosecutor’s office wrote to her that it agreed with the lower prosecution authority’s decision. As further stated in the letter, it was open for her to challenge that decision before the courts if she so wished.

In May 2008 the first applicant underwent knee surgery. From 8 August to 2 September 2008 he underwent a follow-up course of outpatient medical treatment in Horlivka Hospital.

On an unspecified date (illegible in the available copy) the Kalyninskyy prosecutor’s office sent a summons to the first applicant at his registered residence (his mother’s home), instructing him to come to the prosecutor’s office on 5 September 2008. It is not clear whether it was issued in the context of the criminal investigation in respect of the complaints by the first applicant’s wife (see above) or whether it was rather related to the subsequent criminal proceedings against him.

On 10 September 2008 the Kalyninskyy prosecutor’s office opened a criminal case against the first applicant on suspicion of abuse of power and forgery committed in his capacity as a law-enforcement official in January 2008. More specifically, on 14 March 2008 the local court had informed the prosecutor of some factual inaccuracies in a report on an administrative (minor) offence, which had been drawn up by the first applicant. The latter was suspected of having forged that report.

On the same date the Kalyninskyy prosecutor’s office informed the first applicant of the above decision by a letter sent to the address where he was de facto living with his wife (separately from their parents). It was also noted in the letter that he had to come to the prosecutor’s office to receive a copy of the decision and for questioning.

Still on the same date, 10 September 2008, the prosecutor ordered the Kalyninskyy police to ensure the first applicant’s presence for investigative measures. On 12 September 2008 the police informed the investigator that it was impossible to comply with the above order given that the first applicant had been found neither at the address of his usual residence nor at his mother’s flat. When they had also gone to enquire about his whereabouts with his parents-in-law, the third applicant “had attacked them hysterically”, which made the police believe that the first applicant might be hiding there.

On 13 September 2008 a judge of the Kalyninskyy Court ordered the first applicant’s arrest with a view to bringing him before the court to examine the issue of a preventive measure in his regard.

On 19 September 2008 the first applicant was declared wanted by the police.

On the same date he wrote to the regional prosecutor’s office that, following the incident with his wife, the Kalyninskyy police had been threatening him and his family with his dismissal, criminal prosecution, or even a fatal accident. He therefore sought that the Kalyninskyy prosecutor withdraw from the case. He also submitted that he was scared even to go to the hospital as some suspicious-looking persons had been loitering near his home. The first applicant indicated as his address that of his mother.

On 22 September 2008 the investigator visited the first applicant’s mother (the fourth applicant) at her home and asked her whether she knew where the first applicant was. She stated that he had been living separately from her for about two years and that she was not aware of his whereabouts.

On 24 September 2008 she sent to the investigator the first applicant’s request of 23 September 2008 to admit her to the proceedings as his representative and to give her a copy of the ruling of 10 September 2008 initiating the criminal investigation against him. In substantiation of that request, the first applicant stated that he was restricted in his movement following knee surgery.

On 29 September 2008 the chief of medicine of Horlivka Hospital informed the investigator, in reply to the latter’s enquiry, that the last time the first applicant had come to the hospital had been 15 September 2008 and that the hospital administration did not know how he could be reached.

On 1 October 2008 the internal security unit of the Kalyninskyy police wrote to the prosecutor that it had information that the first applicant had been secretly visiting the flats of his parents and parents-in-law.

On 3 October 2008 the Kalyninskyy prosecutor wrote to the first applicant at his mother’s address, indicating that the latter could not be admitted in the proceedings as his representative at such an early stage. The prosecutor indicated that the first applicant was on the wanted list and that he needed to show up to receive copies of the rulings in respect of the institution of the criminal proceedings against him and for his questioning.

On 31 October 2008 the Kalyninskyy prosecutor sent another letter to the first applicant, informing him that another criminal case had been opened against him on that date on suspicion of abuse of power by a law-enforcement official and forgery in office and that he had to come to the prosecutor’s office to get a copy of that decision and for questioning.

During the period from October 2008 to January 2010 further eight criminal cases were opened against the first applicant on additional counts of abuse of office, as well as on suspicion of bribe-taking. He was suspected of having committed those offences in order to report better results to his superiors and thus be entitled to additional remuneration and promotions. The first applicant was informed of each such decision by a letter sent to his mother’s address.

On 25 March 2009 the first applicant complained to the PGO that his numerous requests for the Kalyninskyy prosecutor to withdraw had been ignored. He further submitted that he required protection measures as “a person who had reported a crime”. Lastly, the first applicant requested that the prosecutor annul the decision on placing him on the wanted list “so that [he] could defend himself against the criminal charges and continue [his] medical treatment”.

On 13 May and 26 June 2009 the regional prosecutor’s office wrote to the first applicant that his complaints had been dismissed as unsubstantiated.

On 29 June 2009 the first applicant was arrested at the address where he lived with his wife. The investigator relied on Articles 106 and 115 of the Code of Criminal Procedure (hereinafter “the CCP”, see paragraph 78 below) and substantiated the arrest as follows: the first applicant had been on the wanted list since 19 September 2008, had impeded the establishment of the truth and had committed serious criminal offences. It was also noted in the arrest report that the first applicant was suspected of offences under Articles 364 § 3 (abuse of power or office by a law-enforcement official), 366 § 1 (forgery in office) and 368 § 2 (bribe-taking) of the Criminal Code. The investigator drew up a report on the explanation to the first applicant of his procedural rights. The first applicant refused to sign it. He also refused to make any submissions as regards the charges against him.

On 30 June 2009 the Kalyninskyy Court extended the term of the first applicant’s arrest to ten days on the grounds that the case file lacked information about his character. That ruling was not amenable to appeal.

On 3 July 2009 the same court ordered the first applicant’s pre-trial detention as a preventive measure, “having regard to the seriousness and circumstances of the crimes committed and the character of [the first applicant]”, without further details.

On 6 July 2009 the first applicant appealed. He submitted that his remand in custody was not based on sufficient and relevant reasons. He noted that he had been arrested at his home, where he had been living for over two years, and that he had not absconded. He noted that the reasoning in support of his pre-trial detention had been overly formalistic. Thus, although the court had referred to his character, it had failed to specify what exactly in his character had justified his detention as the most appropriate preventive measure.

On 21 July 2009 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the ruling of 3 July 2009 and released the first applicant subject to an undertaking not to leave the town. It found that the first-instance court had not given reasons as to the necessity to choose the strictest preventive measure.

On 17 November 2011 the Kalyninskyy Court found the first applicant guilty of fraud, abuse of power in his capacity of a law-enforcement official, forgery causing grave consequences, and bribe-taking, and sentenced him to seven years’ imprisonment with a ban to occupy posts in law-enforcement authorities, and confiscation of his personal property.

On 6 March 2012 the Court of Appeal quashed the judgment in the part concerning the forgery charge and remitted it to the first-instance court for a fresh examination. It upheld the judgment in the remaining part, having slightly reclassified some of the charges and having reduced the term of the first applicant’s imprisonment to six years.

On 9 October 2012 the Kalyninskyy Court again found the applicant guilty of forgery causing grave consequences and sentenced him to four years’ imprisonment. The final sentence was six years’ imprisonment, as the most severe of the applicant’s punishments absorbed the more lenient one. In the absence of any appeals, the judgment became final.

On 1 August 2013 the Higher Specialised Court for Civil and Criminal Matters quashed the appellate court’s ruling of 6 March 2012 in the part concerning the first applicant’s conviction (the part concerning the remittal of the case to the first-instance court remained in force) and remitted the case for fresh appellate examination.

On 3 December 2013 the appellate court upheld the judgment of 17 November 2011 in so far as it concerned the first applicant’s conviction for abuse of power in his capacity as a law-enforcement official and his sentencing to six years’ imprisonment. As regards the other charges (with the exception of that dealt with by the judgment of 9 October 2012 – see paragraph 55 above), they were slightly reclassified and the first applicant had the penalty in respect of that part removed.

The case file does not contain any further information as regards the criminal proceedings against the first applicant.

On 10 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the first applicant’s registered residence (the flat of the fourth applicant). It was stated in the application that on 27 January 2008 the first applicant had drawn up a report on an administrative (minor) offence in respect of unauthorised street trading by a private individual. As subsequently established, the information in that report had not been accurate, which had led to the institution of criminal proceedings against the first applicant on suspicion of abuse of power and forgery. The investigator considered that “some items and documents relevant for establishing the truth” in the case could be found in the first applicant’s residence.

On 11 September 2008 the Kalyninskyy Court in a final ruling, allowed the above application, having reiterated the investigator’s reasoning and description of the search’s scope. It relied on Article 177 of the CCP (follow the references in paragraph 78 below).

On 12 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the second applicant’s registered residence (the flat of the third applicant). The text of the application was identical to that submitted on 10 September 2008 (see paragraph 59 above).

On the same day the police knocked at the third applicant’s door. She and her husband were at home, but did not let the police in.

The third applicant’s account of the events of 12 September 2008 is as follows. A group of nine to ten persons, including police officers and some suspicious-looking persons, came to her flat. They knocked at the entrance door in a violent manner, demanding to be let in. The third applicant’s husband went out and asked them for a search warrant or another document authorising their actions, but no such document was produced. The police threatened the third applicant and her husband that they would break in and that they would find a pretext to criminally prosecute the entire family. They stayed on the stairs and in the yard and shouted for about three hours.

According to the Government’s version, three police officers went to the third applicant’s flat. They informed her about the criminal proceedings against the first applicant and enquired as to his whereabouts. As she and her husband refused to cooperate, the police left.

On 13 September 2008 the Kalyninskyy Court allowed the investigator’s application of 12 September 2008 (see paragraph 61 above). Its ruling was identical to that delivered on 11 September 2008 (see paragraph 60 above).

On the same day the police carried out a search at the flat of the third applicant. According to her, they broke the entrance door using an electric saw. The third applicant further alleged that the police had not shown a search warrant to her. Two attesting witnesses were present. According to the third applicant, they were acquaintances of the police officers.

As indicated in the search report, it lasted from 5.20 p.m. to 7.04 p.m. The police seized a number of documents related to the first applicant’s work. Furthermore, they seized a mobile telephone, which did not have a SIM card, together with its box. Lastly, they found and seized a package appearing to contain cannabis. According to the third applicant, it had been planted by the police.

On 16 September 2008 the police conducted a search of the flat of the fourth applicant. They discovered and seized some documents which were deemed to be related to the criminal investigation in respect of the first applicant. According to the first and fourth applicants, those documents had been brought there by the police themselves the previous day. The fourth applicant submitted that the officers, whom she knew as colleagues of her son, had explained to her that, following an attack on their police station, they had not had a safe place to store the documents, which had been intended in any event for handing over to the first applicant.

On 23 September 2008 an expert established that the package discovered in the third applicant’s flat on 13 September 2008 contained cannabis. On 2 October 2008 the Kalyninskyy police refused to institute criminal proceedings in that regard, having held that it had been impossible to establish to whom the cannabis might have belonged.

On 7 October 2008 the Kalyninskyy Court allowed another application to search the first applicant’s registered residence (the flat of the fourth applicant) given that the investigator had information that the first applicant might be hiding there.

On 11 February 2009 the police conducted a search of the fourth applicant’s flat on the basis of the court ruling of 7 October 2008. As indicated in the search report, the police were searching for “items, valuables and documents related to the criminal activity of [the first applicant]”. The search did not discover anything of interest for the investigation.

The third and fourth applicants requested many times that the Kalyninskyy Court provide them with copies of the rulings authorising the searches of their flats. The president of the court replied that the searches had been carried out in compliance with the CCP and that sending a copy of the respective court rulings was not provided for by the legislation.

The third and fourth applicants also complained many times to the prosecution authorities of the unlawfulness of the searches. They submitted, in particular, that the police had been rude and intrusive, that the attesting witnesses had not been independent, and that it was not clear what the police had actually been looking for.

On 23 December 2008 the Horlivka prosecutor’s office refused to open a criminal case in respect of the police officers involved in the operation of 12 September and the searches of 13 and 16 September 2008, with the generally couched reasoning that there had been no violations of law. It appears that the applicants were unaware of that decision.

On 17 June 2009, following complaints by the third and fourth applicants, the Kalyninskyy prosecutor’s office refused to institute criminal proceedings against the judge of the Kalyninskyy Court in respect of the rulings authorising the searches of their flats.

On 20 November 2009 the third applicant got acquainted with the ruling of the Kalyninskyy Court of 13 September 2008 (see paragraph 65 above). It is not known whether, and if so when, the fourth applicant got access to the respective rulings of 11 September and 7 October 2008 (see paragraphs 60 and 70 above).

On 5 June 2006 a local heating company initiated civil proceedings against the first and fourth applicants, who had their registered domicile at the same address, for debt recovery. The domestic courts found against the applicants. On 19 May 2008 the Supreme Court refused to examine an appeal on points of law by the first and fourth applicants on the grounds that they had not paid the court fees.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych

The applicant is a Ukrainian national who was born in 1972. He is currently serving a prison sentence in Berdychiv.

On 27 October 2004 the body of Ms V. was found on a deserted street in Simferopol. V. had suffered numerous knife wounds.

On 28 October 2004 the police obtained an expert opinion that a fingerprint found on the cover of V.’s notebook could possibly belong to the applicant (whose fingerprints were stored in the police database). The police also discovered that some of V.’s belongings, including a mobile telephone and one earring, were missing.

On 29 October 2004 several officers from the Simferopol Kyivsky District Police arrived at the applicant’s home (some 120 kilometres away from Simferopol), inspected it, seized some of the applicant’s clothes and took him to the police station in Simferopol.

No formal record of the applicant’s arrest was drawn up.

On 29 and 30 October 2004 the applicant was questioned as a witness about V.’s murder and the theft of her belongings.

On 30 October 2004 he confessed that on 27 October 2004 he had come to Simferopol from his village to enjoy himself and had decided to murder a passer-by in order to steal her belongings. He had stolen V.’s mobile telephone, which he had lost on his way back home, and had killed her with a kitchen knife he had been carrying with him.

On 31 October 2004 the applicant was questioned as a suspect. Before the questioning session, the applicant was informed that he was suspected of having committed the murder of V. within the meaning of Article 115 § 1 of the Criminal Code of 2001 and that as a suspect he had right to legal assistance, which he waived in writing.

On the same date the applicant underwent a medical expert assessment, according to which he had not sustained any injuries in the period from 29 to 31 October 2004.

Again on the same date an undertaking not to abscond was selected as the preventive measure to be used in the applicant’s respect.

According to the applicant, it was not until 1 November 2004 that he was released from custody under the undertaking not to abscond.

During the afternoon of 1 November 2004 the applicant was arrested in Simferopol on charges of breaching the public order (through swearing, spitting and vagrancy) and detained for ten days as an administrative punishment, pursuant to a decision of the Simferopol Zaliznychnyy District Court.

On 4, 9 and 10 November 2004 the applicant, held in administrative detention, was further questioned concerning the murder and robbery. Before each of the questioning sessions the applicant signed waivers of his right to legal representation.

On 11 November 2004 the Simferopol Kyivsky District Court remanded the applicant in custody as a preventive measure in connection with the criminal proceedings against him.

On 16 November 2004 lawyer E. was admitted to the proceedings to represent the applicant. However, according to the applicant, the lawyer did not visit him until 26 December 2004 and no questioning of the applicant took place in his presence.

On 12 January 2005 the charges against the applicant were reclassified in law from those of simple murder within the meaning of Article 115 § 1 of the Criminal Code of 2001 to those of murder for profit (an aggravated form of murder) under Article 115 § 2 of the Code.

On 10 February 2005 a new lawyer, R., was admitted to the proceedings to replace lawyer E.

On 28 February 2005 the applicant was indicted with having robbed V. and having murdered her for profit within the meaning of Article 115 § 2 of the Criminal Code. On the same date he was questioned for the first time as an accused in the presence of lawyer R. During the questioning session, the applicant retracted his initial confessions and pleaded innocent. He maintained that he had not left his village on the day of V.’s murder and had previously confessed to the murder under pressure from the police, who had detained him unlawfully, threatened and ill-treated him.

On the same date the prosecutor’s office refused to institute criminal proceedings into the alleged breaches of the applicant’s rights, having found that there was no case to answer, and declared the case in respect of V.’s murder and robbery ready for trial.

On 5 April 2005 the Court of Appeal of the Autonomous Republic of Crimea (hereafter “the ARC Court”), acting as a first-instance court, convicted the applicant of armed robbery and murder for profit and sentenced him to fifteen years’ imprisonment.

On an unspecified date the ARC Court also issued a separate ruling noting that there was no record of the applicant’s arrest on 29 October 2004.

The applicant appealed in cassation against his conviction. He alleged that his confessions given in October and November 2004 should have been excluded from the body of evidence for having been taken in breach of applicable procedural guarantees. In particular, those statements had been taken during the applicant’s unlawful detention. He maintained that he had been held at the police station between 29 October and 1 November 2004 without any procedural records having been drawn up. On 1 November 2004 the applicant had been released. However, almost immediately afterwards he had been arrested under the false pretext of breaching the public order and subsequently detained. This tactical move had enabled the police to question him at any time and, in the absence of a lawyer, apply pressure on him to obtain self-incriminating statements to best suit their purposes.

The applicant next stated that the above-mentioned confessions had been obtained in breach of his right to legal representation. In particular, while he had been brought to the police station specifically in connection with the suspicion that he had killed V., initially he had only been questioned as a witness. Furthermore, the applicant had been initially charged with simple murder under Article 115 § 1 of the Criminal Code, a charge which enabled a suspect to waive his right to a lawyer. In the meantime, the scope of the accusation had clearly been pointing to “murder for profit”. This charge fell within the ambit of Article 115 § 2 of the Criminal Code, which could result in a life sentence and so entailed mandatory legal representation of a defendant and allowed no waivers of this right. The investigation had purposefully delayed reclassifying the charges in order to exert unlawful pressure and extract confessions from the unrepresented applicant.

The applicant also maintained that without his initial confessions the prosecution would have collapsed, as the other evidence had been contradictory and patchy.

On 21 July 2005 the Supreme Court of Ukraine quashed the applicant’s conviction and remitted the case for additional investigation. It noted, in particular, that the trial court should have verified more carefully whether the applicant’s confessional statements had been admissible evidence. In particular, as appeared from the case file, these statements had been obtained during the applicant’s detention between 29 October and 10 November 2004. Part of this detention was covered by an administrative detention decision and part was not covered by any records. In these circumstances, the applicant’s allegations concerning the ulterior motives in detaining him should have been carefully investigated. The Supreme Court also found that the evidence of the applicant’s involvement in the crime had been contradictory and needed to be reassessed, with various discrepancies being reconciled.

On 18 November 2005 the ARC Court again found the applicant guilty of armed robbery and murder for profit under Article 115 § 2 of the Criminal Code. It relied on various pieces of physical, forensic, and witness evidence, as well as on the applicant’s confessions given at the beginning of the investigation. The court concluded that there were no reasons to exclude these confessions from the body of evidence. In particular, according to the medical evidence, no injuries had been inflicted upon the applicant by the police and there was no other evidence of his ill-treatment. The court further found that on 29 October 2004 the applicant had been taken to the police station in connection with the suspicion that he had committed a crime of violence and had duly been questioned first as a witness and then as a suspect. It also noted that the applicant, informed of his rights as a suspect, had voluntarily waived his right to legal representation. As at the material time the applicant had been suspected of simple murder, which could not lead to a life sentence, such a waiver had been compatible with applicable law. The ARC Court then sentenced the applicant to fifteen years’ imprisonment.

On 16 March 2006 the Supreme Court of Ukraine dismissed a further cassation appeal brought by the applicant and upheld the ARC Court’s judgment of 18 November 2005.


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

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1939 and lives in Bratislava.

The applicant brought an action before the Trnava District Court (Okresný súd) on 6 July 2007 arguing that an individual (“the defendant”) had unlawfully seized a lorry belonging to her and that he was retaining it without good title. Accordingly, she asked the court to order the defendant to return the vehicle to her.

On 2 March 2009 the defendant filed his observations in reply, explaining in detail the history and legal status of the vehicle.

The District Court heard the case on 10 August, 23 September and 28 October 2009. The applicant’s lawyer was present at all of these hearings, as was the applicant herself, except for the first one. In addition, on 26 October 2009, the applicant consulted the court’s case file on her own initiative.

At the conclusion of the last-mentioned hearing, the District Court pronounced its judgment dismissing the action. In doing so, it found that the applicant had failed to show that she had lawfully acquired title to the vehicle and concluded that the defendant had lawfully acquired it by way of purchase from the receiver appointed to act in connection with the insolvency of the vehicle’s previous owner, a legal entity with which the applicant had been involved.

The applicant lodged an appeal (odvolanie) contesting en bloc the District Court’s assessment of the facts and the interpretation and application of the relevant law.

In response to a specific written request by the District Court dated 21 January 2010, she objected to having her appeal decided without a public hearing.

On 5 February 2010 the defendant filed his observations in reply to the appeal, contesting its procedural, substantive and factual grounds and again querying the legal status and history of the vehicle.

According to a written record and minutes submitted by the Government, on 20 October 2010 a notice was displayed on the official noticeboard of the Trnava Regional Court (Krajský súd) stating that the applicant’s appeal would be decided in chambers on 27 October 2010 and the Regional Court’s judgment was publicly pronounced on that date.

By that judgment, the Regional Court dismissed the applicant’s appeal, endorsing the findings of the first-instance court and finding that, in her appeal, the applicant had not submitted any relevant new information to refute those findings. No hearing of the appeal was held. In the written version of the judgment, no mention is made of the defendant’s observations.

On 15 December 2010 the applicant lodged an appeal on points of law (dovolanie). She relied on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) (“the CCP”), under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them.

She also invoked Article 6 § 1 of the Convention and argued, inter alia, (i) that the Court of Appeal had ruled on her appeal without having held a public hearing, despite her objection to such a course of action; (ii) that the defendant’s observations in reply to her appeal had not been communicated to her; and (iii) that the Court of Appeal had not only failed to summon her to a public pronouncement of its judgment but had, indeed, failed to pronounce that judgment publicly at all.

On 20 April 2011 the Supreme Court (Najvyšší súd) declared the applicant’s appeal inadmissible without examining the merits of the case. It held no hearing and decided in chambers.

The Supreme Court referred to Article 214 of the CCP under which ‒ as applicable at the relevant time ‒ an appeal could be decided without a hearing unless (i) evidence had to be re-examined or new evidence had to be taken, (ii) the first-instance court had not held a hearing; or (iii) a hearing was called for in view of an issue of significant public interest.

The Supreme Court observed that none of these criteria had arisen, in view of which there had been no need for the Regional Court to hold a hearing of the applicant’s appeal.

The Supreme Court further observed that, under the case-law of the Constitutional Court, a failure by a court to communicate to one party a submission made by the other party would normally constitute a violation of the principles of equality of arms and adversarial proceedings. However, there was no such consequence if the court concerned did not base its decision on the non-communicated submission.

The Supreme Court also noted that, although there was no statutory duty to communicate to an appellant observations made in reply to the appeal in question, if the appeal was to be determined without holding a hearing, then the observations normally “should” be communicated to the appellant. The Supreme Court added that, however, such observations “should” be communicated to the appellant only if they had a conclusive influence on the decision of the Court of Appeal.

In that regard, referring to the contents of the case file, the Supreme Court held that the observations made by the defendant in reply to the applicant’s appeal had had no impact at all on the Regional Court’s decision and concluded that, consequently, the failure to communicate those observations to the applicant was irrelevant in legal terms.

The Supreme Court also referred to Article 156 of the CCP, pursuant to which a judgment must always be pronounced publicly (paragraph 1) and, in matters decided without a hearing, the time and place of the pronouncement must be announced on the official notice board of the given court no less than five days before the pronouncement (paragraph 3). The Supreme Court further referred to the contents of the case file and, in particular, to the minutes concerning the public pronouncement of the contested judgment, on the basis of which it concluded that, in the case at hand, the parties had properly been notified of the public delivery of the judgment, that the judgment had properly been pronounced, and that all of the applicable rules had been complied with.

In sum, the Supreme Court concluded that none of the applicant’s arguments constituted any ground for admitting her appeal on points of law for examination on the merits.

On 26 June 2011 the applicant lodged a complaint against the ordinary courts’ decisions with the Constitutional Court (Ústavný súd). She relied, inter alia, on Article 127 of the Constitution (individual complaint) and Article 6 § 1 of the Convention, advancing essentially the same arguments as in her appeal on points of law.

On 7 July 2011 the Constitutional Court declared the complaint inadmissible. It held no hearing and decided in chambers, citing extensively from the Supreme Court’s decision and finding no constitutionally relevant flaw in it.

The Constitutional Court’s decision was served on the applicant on 21 September 2011.