Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Ms Dana Ruxanda Atudorei, is a Romanian national who was born in 1984 and lives in Bucharest.

In her initial letter to the Court, the applicant stated that from an early age she had been subjected to repeated physical and psychological abuse by her family. Her parents, especially her mother, had been aggressive towards her both verbally and physically, had refused to allow her to go anywhere unsupervised and had taken her to a psychologist because she had not achieved the highest possible marks when she was in second grade. In addition, her parents’ abuse had continued after they discovered that she had been attending weekly yoga classes organised by the Movement for Spiritual Integration into the Absolute (Mişcarea pentru Integrare Spirituală în Absolut – “MISA”).

According to some reports, including an Amnesty International report of 27 May 1997 (AI Index EUR 39/03/97), from 1995 there had been several accounts of alleged police abuse of individuals who practised yoga and who were members of MISA. The reports noted that the authorities seemed to condone public intolerance of MISA as they perceived the leader of the organisation as an individual who urged his sympathisers to leave their way of life in order to pursue a communal life and to practice sexual perversion.

In March 2004 a large-scale negative press campaign and police operation targeted MISA. The leader and some members of the organisation faced criminal investigation for the alleged sexual corruption of minors. MISA’s leader left the country for Sweden. In 2005 the Swedish authorities refused an extradition request by the Romanian authorities.

On 30 July 2003 the applicant, who was of full legal age, was hospitalised in the Socola Psychiatric Hospital. According to her, she was taken to the said hospital by her parents against her will after they had discovered that she was attending yoga classes.

The medical reports produced by the said hospital stated that it was the first time the patient had been admitted to the Socola Hospital, and that she had been admitted at her mother’s request because of anxious and negative behaviour, irritability, a tendency to cry easily and depression, which were a reaction to psychological trauma, in particular a conflict with her parents. She was diagnosed with reactive depression and anxiety. The applicant’s condition had improved after group psychotherapy. She had been recommended medical treatment, psychotherapy and been advised to avoid psychotraumatic situations.

Her hospitalisation ended on 8 August 2003.

On 19 January 2005 the applicant travelled to her hometown, Bârlad, accompanied by M.A., her fiancé, in order to obtain a copy of her birth certificate, which she needed inter alia for her marriage to M.A.

While she was in the building housing the register office (Oficiul de Stare Civilă), her family appeared and surrounded her.

According to the applicant, her mother convinced her to go outside and talk to them before applying for her birth certificate. Once outside the building, her family became aggressive. After they pushed M.A. to the ground, they forced her into a vehicle and drove her to her grandparents’ house. Once there, her family took away her regular clothes and replaced them with old clothes and slippers. They also took away her money and identity papers. In addition, she was kept indoors continuously, supervised, threatened and psychologically pressured by them.

On 21 January 2005 Dr F., a general practitioner, referred the applicant to a psychiatric hospital with a diagnosis of schizo-paranoid behavioural disorder (tulburare de comportament de tip schizoparanoidă). There is no evidence in the file if Dr F. assessed the applicant prior to the drafting of the referral note, or on how the diagnosis was established.

On 3 February 2005 the applicant’s parents took her to the Nifon Unit of the Săpoca Psychiatric Hospital. According to the hospital’s public webpage, it is located in a forest 25 kilometres from the town of Buzău and can be reached only by private car or minibus.

On the same date, the applicant’s mother signed an informed consent form provided by the hospital on behalf of the applicant, acknowledging that she had read, understood and had time to consider all the information in the leaflet entitled “Information on Clozapin (Leponex) for patients and their families” (Informații despre Clozapin pentru pacienți si familii), that all her questions had been answered adequately and she had clarified any unknown words with the doctor or a member of the medical team, and that she was willing to accept the risks of the treatment.

The applicant’s mother was admitted to the hospital together with the applicant and remained there for the first five weeks of the latter’s hospitalisation.

According to a clinical observation paper on the applicant produced by the Săpoca Psychiatric Hospital, she had been hospitalised on the basis of Dr F.’s referral and diagnosis. The diagnosis on the day of hospitalisation had been “evolving borderline [disorder]” (borderline ȋn evoluție). That diagnosis remained unchanged during her hospitalisation and on the day of her discharge. During her hospitalisation the applicant was given psychotropic drug treatment which included Leponex. Her condition and progress were regularly monitored. She repeatedly suffered from, inter alia, constipation, lack of insight, lack of communication and drowsiness. She also presented a risk of orthostatic hypertension, which was monitored. In addition, on 4 March 2005 she “mentioned discharge” (aminteşte despre externare).

On 11 March 2005 the Vaslui Police Department informed M.A. that, inter alia, the applicant had been admitted to a specialised medical clinic for treatment and that the doctors had prohibited any contact with her during the full course of treatment.

On 16 March 2005 the applicant signed a written statement to the effect that she refused to allow the disclosure of the information in her observation paper.

The applicant was discharged from hospital on 1 April 2005.

On 24 August 2005, following an enquiry by Dr F., Dr I. agreed that the applicant was fit to enrol at a university.

On 16 October 2010 the management of the Săpoca Psychiatric Hospital informed the Government that according to Dr I. the applicant’s hospitalisation had been voluntary. On account of the applicant’s clinical condition, the informed consent form had been signed by the applicant’s mother on her behalf. The applicant could have left the hospital at any time. The hospital was located in the middle of a forest but had no fence or guards. The applicant had had access to two mobile phones and two landline phones. She had not been guarded at any time during her hospitalisation because the Nifon Unit of the Săpoca Psychiatric Hospital was not designed for forced hospitalisation and was used only for voluntary hospitalisations. The informed consent form signed by the applicant’s mother had amounted to an agreement to both hospitalisation and treatment because at that time, that is, on 3 February 2005, a standardised informed consent form had not been required. The hospital had applied the full procedure for non-voluntary hospitalisation as per the rules of enforcement contained in Law no. 487 of 11 July 2002 on mental health and the protection of people with mental disorders (“Law no. 487/2002”) from 2006, when that legislation was enacted.

On 19 January 2005 M.A. brought criminal proceedings against the applicant’s parents and brother, for unlawful deprivation of liberty.

The preliminary criminal investigation was assigned to police officer G.C.

On 20 January 2005 the applicant’s father gave a statement to the police officer. He mentioned that the applicant had refused to join them in returning home. Nonetheless, disregarding her refusal, they had taken her to her grandparents’ house and then had her hospitalised. They had taken those measures because they considered that it was their duty to help their daughter in view of the negative reports they had heard about MISA.

On 16 March 2005 police officer G.C. recommended, on the basis of the available evidence, that the Bârlad prosecutor’s office should not initiate criminal proceedings. The police officer had established that in 2003 the applicant had left her parents’ home and had started attending yoga classes organised by MISA. Subsequently, she had abandoned her studies and ceased to communicate with her family except for a few telephone conversations and a publicly televised argument. According to her parents, they had a family history of mental illness affecting consent. In this context, after discovering the applicant’s visit to her home town they had tried to talk to her outside the register office, but M.A. opposed. After a skirmish, the applicant’s mother had taken her to the family car in order to continue the discussion. M.A. had attempted to stop the car and had subsequently fallen to the ground. According to the staff members of the register office the applicant’s parents had not acted against her will. From 19 January to 3 February 2005 the applicant had lived with her maternal grandparents and had then been hospitalised in the Săpoca Psychiatric Hospital. An attempt had been made to question the applicant while she was there, but this had not been possible because she had been administered psychotropic medication.

By a decision of 13 April 2005, the Bârlad prosecutor’s office, in particular prosecutor N.C., relying on the facts established by police officer G.C., decided not to initiate criminal proceedings against the applicant’s parents and brother on the ground that no offence had been committed.

The applicant’s fiancé challenged that decision before the hierarchically superior prosecutor. He argued that the criminal investigation had been superficial because, inter alia, the authorities had failed to take a statement from the applicant, establish the type of medical treatment administered to her, and ascertain whether she had been taken away by her parents against her will.

By a final decision of 23 May 2005, the Bârlad prosecutor’s office, in particular the head prosecutor R.F., dismissed M.A.’s challenge as illfounded. It held that it had not been possible to take a statement from the applicant because she had been in a situation and state which prevented her from engaging in conversation as a result of psychotropic medication she had been administered, which had a negative psychopathological effect. Moreover, it would have been immoral to find that the applicant’s parents had unlawfully deprived her of her freedom given that she had been unable to express her own will because she was constantly accompanied by MISA members and was not allowed to attend meetings alone. M.A. was sixteen years older than the applicant and he had not been able to prove that he was her fiancé. He had initially informed an employee at the mayor’s office that he was the applicant’s boyfriend, and had stated that he was her fiancé only after a telephone conversation with a third party, and only in order to justify his own interests in respect of the applicant. It had been natural for the applicant’s parents to attempt to bring their daughter back home by any means necessary and to try to ensure her physical and emotional recovery, given that they had seen the press campaign concerning what happened to young women at the MISA premises. According to her parents, they had made considerable efforts to recover the applicant physically, while psychologically it had been clear that she was unable to express herself as long as MISA members accompanied her everywhere, including to family meetings. As to the medical treatment the applicant had been administered, the parties would have to ask the doctor who had treated her. The applicant’s fiancé appealed against that decision before the domestic courts.

By a judgment of 21 October 2005, the Bârlad District Court dismissed the applicant’s fiancé’s appeal. It held that he had refused to substantiate his action before the court. Moreover, there was no evidence in the file that the applicant’s parents had unlawfully deprived her of her freedom.

There is no evidence in the case-file that the applicant’s fiancé lodged any appeal on points of law (recurs) against that judgment.

On 1 April 2005 the applicant was released from hospital and taken by her parents to her grandparents’ house. According to the applicant, during her stay there she was kept under supervision and isolated from the outside world.

On 23 May 2005 the applicant brought criminal proceedings against her parents, alleging, inter alia, that they had forcibly detained her and that she had been unable to leave the house. She urged the authorities to do everything necessary to help her leave, given that she was of age and wanted to live her own life.

By a decision of 27 September 2005, the Bârlad prosecutor’s office, dismissed the applicant’s complaint on the ground that her parents’ actions did not disclose any elements of an offence. It noted that the applicant’s parents had been worried because she was a MISA member, and that was why they had taken her to her grandmother’s home and then to a psychiatric hospital. According to the applicant’s statement following her questioning, she had not been forcibly detained by her parents but they had helped to get her admitted to a psychiatric hospital. There is no evidence in the file that the applicant challenged the above-mentioned decision before the domestic courts.

According to the applicant, on 10 October 2005, helped by friends and her fiancé, she managed to leave her grandparents’ house. Afterwards she settled in Bucharest and on 5 November 2005 she married M.A.

On 3 August 2005 the applicant brought disciplinary proceedings before the Buzău Disciplinary Commission against Dr I. in respect of her forced placement in the Nifon Unit of the Săpoca Psychiatric Hospital and the medical treatment that she had received there.

On 13 December 2005 and 3 October 2007, Dr P., the applicant’s private psychiatrist, issued two medical certificates stating that she was psychologically healthy. The certificates noted that the applicant had been monitored by Dr P. since 15 October 2005 and that during that time she had not received any treatment and had shown no signs of a psychological condition.

On 1 March 2006 the Buzău Disciplinary Commission dismissed the applicant’s complaint. The applicant challenged the decision before the Higher Disciplinary Commission (Comisia superioară de disciplină a Colegiului Medicilor din România).

On 20 April 2007 the Higher Disciplinary Commission quashed the Buzău Disciplinary Commission’s decision of 1 March 2006, finding that Dr I. had acted in breach of the rules of good medical practice, and gave him a warning (avertisment). It held that according to the available evidence the applicant and her parents had been in a state of conflict and she had been opposed to her hospitalisation. Consequently, the doctor had been required to examine the patient’s clinical situation and the circumstances she was facing. Regardless of his decision, the doctor had to protect the patient. If he had assessed the patient’s clinical condition as amounting to an imminent risk for her or others, or if failure to hospitalise her would have aggravated her condition, non-voluntary hospitalisation would have been required even if the patient objected to her hospitalisation. However, there was no evidence that the relevant procedure had been initiated.

At the same time, only medical reasons could justify a decision to hospitalise. However, the observation sheet produced by the hospital mentioned as one of the reasons for hospitalisation – none of them of a psychotic intensity to suggest a psychotic development in the borderline disorder – that the patient had joined counter-cultural informal groups (agregă ȋn grupuri informale disculturale). Moreover, the observation sheet did not contain a full psychological assessment. Consequently, the treatment with Laponex had not been justified.

Furthermore, the Buzău Disciplinary Commission’s arguments that the hospitalisation had not been forced because the patient could have left the hospital, and that Dr I. had a professional duty to examine the patient and to prescribe adequate treatment, could not be taken into consideration. The doctor’s conduct had to be in accordance with the law, which stated that the treatment had to be discussed with the patient and that the patient’s consent had to be sought prior to treatment. The aforementioned conditions became less important only in the circumstances of forced hospitalisation. However, it did not appear that a forced hospitalisation procedure had been initiated in the applicant’s case.

Leponex treatment was to be used exclusively in the advanced stages of schizophrenia or in cases of severe borderline personality disorder involving frequent relapses and self-harm, if no other medication proved to offer a satisfactory improvement in the patient’s condition. The use of that medication in the applicant’s case from the early stages of her treatment had been unusual. In some cases the medication could cause agranulacytosis (a low white blood cells count which favours fevers and infections). Consequently, doctors who prescribed it were required to comply strictly with the necessary safety measures. However, in the applicant’s case there was no evidence that the required weekly blood tests had been carried out.

Furthermore, the necessary tests for establishing whether she was suffering from a borderline personality disorder had not been conducted at all.

On 14 December 2005 the applicant brought criminal proceedings for unlawful deprivation of liberty between 19 January and 10 October 2005, serious bodily harm, and cooperation with a view to committing an offence, against her family, police officer G.C. and Dr I. She argued that the culprits had cooperated in order to unlawfully deprive her of her liberty, to hospitalise her against her will and to damage her health as a result of the medical treatment she received in the hospital.

On 1 June 2006 the Bacău prosecutor’s office questioned the applicant. She stated, inter alia, that on arrival at the hospital she had informed the nurse who had told her that she was being hospitalised that she opposed the measure. She had subsequently been taken to Dr I.’s office, where she had had a short conversation with him and she had expressly informed him that she did not wish to remain in the hospital. The doctor had informed her that her general practitioner had referred her to the hospital, and he forced her to take medication, which had made her drowsy and numb. Afterwards she had been taken out of the doctor’s office and one of the nurses had asked her to sign a document which she was unable to read owing to her situation. The nurse had not informed her of the document’s content. Although she had signed the document automatically, she had only later been told that she had signed her hospitalisation papers.

The applicant further stated that during her hospitalisation she had been constantly supervised by her mother. In addition, she had received inappropriate medication and had constantly felt ill. In particular, she had suffered nausea, headaches, drowsiness, constipation, urinary incontinence, excess salivation, low immunity, loss of motor control and loss of insight. She had also gained fifteen kilos and had developed anaemia as a result of suffering haemorrhages.

She also stated that during her hospitalisation she had informed police officer G.C. that she had been hospitalised against her will, and because he had refused to act on that information she had refused to grant him access to her medical file. In July 2005 the same police officer had visited her at her grandparents’ house to question her after her fiancé had brought criminal proceedings against some of her family members. On that occasion the police officer had dictated the content of her statement and had omitted some of the facts presented by her.

On 21 June 2006, the applicant informed the Bacău prosecutor’s office that she had joined the criminal proceedings as a civil party.

On 28 November 2006, the Bacău prosecutor’s office decided not to initiate criminal proceedings against G.C. on the ground that no offence had been committed, ordered that the criminal investigation be continued in respect of the applicant’s family members, and referred the case to the Moineşti prosecutor’s office. It noted that police officer G.C. had visited the applicant at the hospital in order to take a statement from her. While initially Dr I. had denied G.C. access to the applicant because of her medical condition, in the following days he had agreed to allow him to speak to her. The prosecutor’s office also noted that according to G.C. the applicant had refused to provide a statement or to allow him to copy her medical observation papers, and had not informed him that she had been hospitalised against her will. Lastly, it noted that there was no evidence to suggest that police officer G.C. had been informed that the applicant had been deprived of her liberty when he questioned her at her grandparents’ home in July 2005. The applicant challenged the decision before the hierarchically superior prosecutor.

By a decision of 5 February 2007, the head prosecutor at the Bacău prosecutor’s office allowed the applicant’s challenge, quashed the decision of 28 November 2006 and ordered that the investigation be reopened. The head prosecutor considered that the applicant and the defence witnesses indicated by her should be heard. In addition, the medical documents concerning the applicant’s state of health, the reasons for her hospitalisation and her medical recovery were to be attached to the investigation file.

On 8 May 2007, the Bacău prosecutor’s office decided not to initiate criminal proceedings against police officer G.C., the applicant’s family members or Dr I. on the ground that no offence had been committed. It held that according to the medical report of 21 March 2005 produced by the Psychiatric Centre of the Nifon Unit, the applicant had been suffering from a schizo-paranoid behavioural disorder which had required her hospitalisation in a specialised medical facility for treatment and medical supervision. Her family’s actions had been caused by the applicant joining MISA, and they had only been attempting to provide her with the opportunity to continue her treatment. The applicant challenged that decision before the hierarchically superior prosecutor.

By a final decision of 13 June 2007, the head prosecutor of the Bacău prosecutor’s office dismissed the applicant’s challenge and upheld the decision of 8 May 2007. The applicant appealed against the decision before the domestic courts. She argued that after the investigation of the case had been reopened on 5 February 2007, the authorities had failed to gather any additional evidence, in particular to hear witnesses, to determine the circumstances of her confinement, and to examine the medical treatment she had received, which had affected her health.

By a judgment of 16 November 2007, the Bacău County Court dismissed the applicant’s appeal and upheld the decision of the prosecutor’s office. It held that no offence of cooperating in order to commit an unlawful act could have been committed given that it could not be concluded that the alleged perpetrators had met one another other than by chance, or that they had made detailed plans to commit an offence. In addition, the available evidence did not confirm the existence of an offence of serious bodily harm. There were no medical reports supporting the allegations of trauma, and the medical report of 21 March 2005 produced by the Psychiatric Centre of the Nifon Unit had stated that the applicant was suffering from a schizoparanoid behavioural disorder which required her hospitalisation in a specialised medical facility for treatment and medical supervision. Lastly, the available evidence did not confirm the existence of an offence of unlawful deprivation of liberty either. On the basis of the witness statements, it could not be concluded that on 19 January 2005 the applicant’s family had acted against her will. The applicant had also failed to inform officer G.C. that her family had deprived her of her liberty either at the hospital or at her grandparents’ home. Consequently, given the absence of clear and concrete evidence of guilt, the alleged perpetrators’ right to the presumption of innocence could not be rebutted.

The court further dismissed the applicant’s argument that after the re-opening of the criminal investigation no further evidence had been added to the file, on the grounds that she had been heard by the prosecutor’s office and that she had not requested the hearing of witnesses or additional evidence. The applicant’s argument that the authorities had failed to review the circumstances of her confinement and the medical treatment she had received was also dismissed on the ground that the medical documents attached to the file had stated her diagnosis and the doctor’s recommendation of hospitalisation, treatment and medical supervision.

The applicant lodged an appeal on points of law (recurs) against that judgment.

By a final judgment of 14 February 2008, the Bacău Court of Appeal dismissed the applicant’s appeal on points of law on the ground that the available evidence did not clearly and unequivocally prove the guilt of the alleged perpetrators. The judgment was drafted on 20 February 2008 and appears to have been made available to the applicant on 18 June 2008.

On 27 February 2007, following the referral of the Bacău prosecutor’s office of 28 November 2006 (see paragraph 51 above), the Moinești prosecutor’s office decided not to institute criminal proceedings against the applicant’s family members, Dr I., and police officer G.C., on the ground that no offences had been committed. It noted, inter alia, that the applicant had been committed to hospital with a diagnosis of paranoid behavioural disorder. Moreover, her condition required continuous outpatient medical care for an undetermined period of time. The applicant challenged the decision before the hierarchically superior prosecutor.

On 7 June 2007 the head prosecutor of the Moinești prosecutor’s office declined to examine the applicant’s challenge on the ground that the prosecutor who had delivered the decision of 27 February 2007 was his wife, and he referred the case to the Bacău prosecutor’s office.

By a final decision of 15 June 2007, the Bacău prosecutor’s office dismissed the applicant’s challenge on the ground that it had already examined the issues raised by it in its decision of 8 May 2007. The applicant appealed against the decision before the domestic courts. She argued that the authorities investigating her case had failed to gather all available evidence, or hear all parties to the proceedings, and that the decision of the Bacău prosecutor’s office had concerned a different person and different offences.

By a judgment of 22 November 2007, the Moineşti District Court allowed the applicant’s appeal, quashed the decision, ordered the Moineşti prosecutor’s office to continue its investigation of the case, to gather the evidence requested by the parties and to question the parties, the staff members of the hospital, and the neighbours of the grandmother in whose house the applicant had been held. It held that the previous decisions by the prosecutor’s offices had addressed the applicant’s complaints in respect of only some of the parties concerned. In addition, the medical report of 21 March 2005 had been contradicted by the conclusions of the Higher Disciplinary Commission’s decision. Further, according to the applicant’s psychiatrist, from 15 October 2005 the applicant had not received any treatment and had not shown any symptoms of illness.

The Moineşti prosecutor’s office and the defendants appealed on points of law. The prosecutor’s office argued that the statements that had been taken by the Bacău prosecutor’s office were relevant on account of the hierarchical relationship between the two prosecutors’ offices, and therefore the re-questioning of the applicant and of the perpetrators had no longer been required. In addition, the applicant had failed to identify the witnesses she wished to have questioned. The questioning of all medical staff had no legal basis and the court had not identified which of the neighbours of the applicant’s grandmother should have been questioned, or the scope of such questioning. Moreover, the applicant had failed to prove that any offences had actually been committed, had not submitted any medical report attesting to a bodily injury, and had herself acknowledged that she had signed the hospitalisation papers automatically, and that during her stay at her grandparents’ home she had had access to a visiting room (vorbitor) and thus had been able to communicate with others. Furthermore, according to the Higher Disciplinary Commission the hospitalisation of a patient was possible against his or her will. The same body had concluded that the applicant’s hospitalisation had been voluntary. Lastly, the psychiatrist had been disciplined on account of the inappropriate treatment administered to the applicant and not because the applicant had not been suffering from of 14 February 2008.

By a final judgment of 11 April 2008, the Bacău County Court declared the Prosecutor Office’s appeal on points of law inadmissible on procedural grounds, allowed the defendants’ appeal on points of law, quashed the judgment of the lower court, and dismissed the applicant’s appeal against the decision of 15 June 2007. It held that thed during the sets of proceedings which had ended with the final decision of 23 May 2005 and the final judgment of 14 February 2008, and that the applicant had not adduced any new information or evidence in order to justify the opening of criminal proceedings in respect of the same acts and persons.

On 30 January 2006 the applicant brought criminal proceedings for abuse of office and aiding and abetting an offender against prosecutors R.F. and N.C. The applicant complained about the quality of the prosecutors’ investigations.

On 14 May 2008 the prosecutor’s office attached to the Court of Cassation decided, on the basis of the available evidence, not to initiate criminal proceedings against the two prosecutors on the ground that no offence had been committed. It held that although insufficiently reasoned, the examination of the merits of the case by the Bârlad prosecutor’s office had been accurate. In addition, it noted that those events which had taken place after 19 January 2005 had not been known at the time and therefore had not been investigated. Consequently, it referred the case to the Bârlad prosecutor’s office in order for it to investigate the applicant’s parents for the alleged deprivation of the applicant’s liberty in the period between 19 January and 10 October 2005. The applicant challenged the decision before the hierarchically superior prosecutor.

By a final decision of 25 June 2008, the head prosecutor of the prosecutor’s office attached to the Court of Cassation dismissed the applicant’s challenge as ill-founded. The applicant appealed against that decision before the domestic courts.

By a decision of 11 November 2008, the Bârlad prosecutor’s office dismissed the applicant’s action concerning the alleged deprivation of her liberty by her parents in the period between 19 January and 10 October 2005. It held that the applicant’s complaint had already been dismissed in the final judgments of 14 February and 11 April 2008 in accordance with the relevant rules of criminal procedure, and in the absence of any new relevant information the criminal proceedings could not be reopened or reinitiated. There is no evidence in the file that the applicant appealed against that decision before the domestic courts.

By a judgment of 21 January 2009, the Court of Cassation dismissed the applicant’s appeal against the decision of 25 June 2008 as ill-founded. It held that there was no evidence suggesting that the prosecutors had committed an offence, or that the decisions taken by them had been unlawful. The applicant appealed on points of law against that judgment.

By a final judgment of 6 July 2009, the Court of Cassation dismissed the appeal as time-barred.

The applicant submitted to the Court a large number of press articles, photographs and transcripts of television talk-shows concerning the conduct of the leader of MISA, the criminal investigation against him, the applicant’s conflict with her parents, and the measures and efforts undertaken by her parents to reconnect with her.

By a decision of 13 April 2006 the Romanian Council for Combating Discrimination dismissed the applicant’s complaint that the actions of her parents and Dr I. had amounted to discrimination on the basis of her beliefs. It held that the facts of the applicant’s case did not indicate discrimination. There is no evidence in the file that the applicant challenged that decision before the domestic courts.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1965 and lives in Tržišče.

The applicant is a former rally driver who won several national titles and was still actively competing at the time of the events in the case. His company runs a car repair shop which is also authorised to remodel cars intended to be used for competition.

On 17 December 2002 the Novo mesto District Court, at the request of the police, issued a warrant to search the applicant’s premises on the basis of a suspicion that he had exchanged the chassis numbers of two cars in order to be able to register the second one, bought in Austria, and smuggle it through the State border without paying customs duties. He was also suspected of the criminal offences of forgery, certifying false documents as genuine and smuggling. The search warrant included an authorisation for the seizure of items subject to the warrant. On the same day the police conducted a search of the applicant’s car repair shop and seized a Fiat Punto racing car, the car’s registration papers and other documents.

The applicant requested the return of the car several times because he needed it for future competitions from which he could not withdraw owing to contractual obligations towards his sponsors. He also insisted that he had not committed any of the offences he was suspected of.

On 14 February 2003 the Novo mesto District Public Prosecutor lodged a request for a criminal investigation against the applicant in respect of the above-mentioned offences (see paragraph 7). On 19 March 2003 the Novo mesto District Court approved the request.

On 28 March 2003 the applicant paid 74,600 euros (EUR) to lease another racing car, a Fiat Punto 1.6 kit car, for the entire 2003 season. On the same day he competed in a hill climb race with the leased car. He also competed with it in hill climb races on 19 April 2003, 30 May 2003, 23 August 2003 and 13 September 2003 and in rallies on 16 May 2003, 4 July 2003, 5 September 2003, 3 October 2003 and 17 October 2003.

On 19 May 2003 the Novo mesto District Public Prosecutor dropped the prosecution (odstopil od pregona) of the smuggling charge and consequently, on 20 June 2003, the Novo mesto District Court discontinued the criminal investigation of that crime. It referred the proceedings related to forgery and the certification of false documents as true to the Trebnje Local Court (see paragraphs 25 and 26 below).

On 26 May 2003 customs offences proceedings were instituted against the applicant.

On 27 May 2003 the Customs Office issued a seizure order in respect of the same car on suspicion that the applicant had in December 2002 avoided paying duties when importing the car into Slovenia.

On 2 June 2003 the car was transferred from the Novo mesto District Court to the customs authorities.

On an unknown date the applicant lodged a request for an assessment of customs duties under the regular customs proceedings.

On 24 June 2003 the Customs Office issued a declaratory note (ugotovitveni zapisnik), finding that according to information from the police the applicant had bought a Fiat Punto 1.2 in December 2002 and had registered it in Slovenia. The car’s number plates and the metallic plate with the chassis number had then been put on the Fiat Punto 1.6 kit car. That car had been brought onto the territory of Slovenia without any customs duty being paid for it. The note also stated that the duties arose because the applicant had imported the car without paying the duties required by law. As it could not determine the date the debt had been incurred, it based its findings on the regulations in place on 23 May 2003, when the Department for Investigative Matters had found that custom duties for the car had not been paid. It calculated the amount on the basis of documents submitted by the applicant. In the note, the market value of the vehicle was set at EUR 34,000. The customs duties, VAT and vehicle tax were 5,472,143 Slovenian tolars (approximately EUR 22,000).

On 4 July 2003 the decision on the amount of customs duties to be paid by the applicant was issued.

On 7 July 2003 the applicant paid the customs duties and the car was returned to him. He submitted in writing at the same time that he had only paid the customs duties to prevent further losses.

By 19 January 2004 the applicant had obtained all the necessary permits for the car and was able to register it as a special vehicle.

On 30 June 2004 the proceedings for customs offences were discontinued because prosecution had in the meantime become time-barred.

On 14 March 2005 the applicant instituted proceedings against the Republic of Slovenia before the Ljubljana District Court, claiming compensation for the pecuniary losses sustained due to the seizure of his car in the criminal proceedings. He claimed EUR 74,600, the amount he had paid to lease another car.

On 6 September 2005 the Ljubljana District Court dismissed the claim. It held, inter alia, that the seizure of the car had not been unlawful and that the criminal proceedings related to forgery and the certification of false documents as true were still pending. The applicant appealed.

On 8 March 2006 the Ljubljana Higher Court dismissed the applicant’s appeal.

On 20 April 2006 the applicant lodged an appeal on points of law. He later withdrew it because the civil proceedings had been reopened (see paragraph 29 below).

On 16 April 2007 the Trebnje Local Court held that the search warrant of 17 December 2002 had not complied with section 214 of the Criminal Procedure Act because it had lacked evidence of reasonable grounds for suspicion (utemeljeni sum). In particular, basic data such as from whom, when and where the information used as evidence had been collected, was missing. That meant the seizure order had been issued and the car seized on the basis of an unlawful warrant. The court, basing its decision on the exclusionary rule, ordered that all the evidence collected on the basis of the unlawful seizure, including the reports and testimony of experts, should be excluded from the file.

At a hearing held on 23 April 2007 the District Public Prosecutor withdrew the charges against the applicant. On the same day the Trebnje Local Court dismissed the charges of forgery and the certification of false documents.

Following the dismissal of the charges by the Trebnje Local Court (see paragraph 26 above), the applicant on 15 May 2007 applied to reopen the civil proceedings. He alleged that the decisions on the unlawfulness of the search warrant and the discontinuation of the criminal proceedings had to be considered as new evidence which could influence the outcome of the proceedings.

On 21 August 2007 the Ljubljana District Court dismissed the applicant’s application to reopen the proceedings. After a successful appeal, the proceedings were reopened on 2 April 2008.

The applicant on 2 September 2008 withdrew his appeal on points of law after the reopening of the civil proceedings.

In the reopened proceedings the parties submitted the following arguments. The representative of the State argued, inter alia, that the customs duties on the car in question had not been paid and that therefore it could not have been used any way. Once the applicant had paid the duties his debt had been cleared and the car had been able to enter the domestic market. They also argued that the customs proceedings had not taken an unduly long time as they had lasted only from 27 May 2003 to 7 July 2003. The applicant argued, inter alia, that the order which had led to the seizure of the car had been unlawful and that it therefore gave rise to a liability on the part of the State for any damage resulting from it. He also submitted that the Customs Office’s seizure order had been issued only on 27 May 2003 and was thus irrelevant to the question of liability for damage. The applicant also noted that he had not been found guilty in any of the proceedings and had not done anything wrong. He stated that the car that had been seized had been remodelled in his own repair shop and that he had not yet finished the remodelling or necessary paperwork by the time of the seizure. Such a process included obtaining new approval papers and the registration of the vehicle as a special vehicle. He pointed out that he had finished that process and obtained all the necessary documents once the car had been returned to him.

On 10 February 2009 the Ljubljana District Court rejected the applicant’s claim, which it examined under Article 26 of the Constitution and Articles 131 and 148 of the Code of Obligations. The Court found that there was no dispute about the fact that the car had been seized in criminal proceedings. The court noted that it was not bound by the findings of the criminal court that the seizure had been unlawful, but, basing its conclusion on its own assessment, it concluded that the seizure had been ordered on the basis of gossip and newspaper article and that all the other information relating to the alleged offences had been obtained on the basis of the unwarranted seizure. The search warrant had been general and lacking in precision and therefore could not be subjected to any scrutiny. On the basis of such considerations it found that the seizure had not complied with the requirements set out in the Criminal Procedure Act (see paragraph 38 below) and had therefore been unlawful. However, the court found that the causal link between the unlawful seizure and the damage incurred by the applicant had been broken because the applicant would in any event have been unable to use the car for several reasons. Firstly, the applicant, as a professional driver and owner of the repair shop, should have known that any remodelling of the car required a new technical inspection and registration, which the applicant had not done before the seizure. Secondly, no customs duties had been paid on parts that had been imported and then used in the car. The seized car, which had thus not been properly registered or imported in compliance with customs regulations, could not have been used in traffic and the applicant could not have raced with it. The applicant was ordered to pay the opposing party’s costs of EUR 3,462.19.

The applicant lodged an appeal. He argued that he had not been given the opportunity to be heard in respect of the alleged break in the causal link. He noted that, in any case, the car had been seized while it had still been in the process of remodelling and that he had intended to register it at the end of the process. He had only been able to complete that process later, after the car had been returned to him. He also referred to the fact that subsequently he had not encountered any problems in obtaining the necessary certificates in order to register the car.

On 8 July 2009 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that the applicant had never claimed or proved that the car parts had been imported in accordance with customs regulations. The Ljubljana District Court had been right in holding that the applicant would not have been able to use the car owing to the illegal importation of the car parts and the incorrect registration procedure.

The applicant lodged an appeal on points of law (revizija), challenging the conclusions of the court in respect of the break in the causal link and arguing that the loss had already been incurred before the issue of customs duties had arose. He further argued that no customs offence decision had been issued against him and that a car that was not registered for use in normal traffic could still be used in competitions.

On 17 December 2009 the Supreme Court dismissed the applicant’s appeal on points of law, confirming that the link in causality had been broken because the applicant had imported some of the car parts in violation of customs regulations.

In the above proceedings before the Ljubljana District Court, Ljubljana Higher Court and the Supreme Court, the applicant paid EUR 3,570.38 in total for court fees.

The applicant lodged a constitutional appeal, arguing that the seizure of his car had been unlawful and that he had therefore been unable to use the car for racing. He argued that by virtue of the courts’ decisions, in particular their position on the causal link, his human rights, including his right to compensation under Article 26 of the Constitution, and the principle of the rule of law had been violated. The constitutional appeal was dismissed by the Constitutional Court on 17 October 2011 by reference to the second paragraph of section 55.b of the Constitutional Court Act (see paragraph 41 below).


Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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.


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Helsinki.

The applicant is a photographer and journalist for the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was being held in protest against the on-going Asia-Europe meeting (ASEM) in Helsinki. The demonstration was an exceptionally large one in the Finnish context and all media followed it closely.

Before the demonstration took place, on 30 August 2006, the Helsinki Police Department was alerted by the Finnish Security Intelligence that the upcoming “Smash ASEM” demonstration would be a hostile one and would not aim to highlight any clear political message. The Police Department did not manage to establish contact with the organisers of the demonstration.

The demonstration was to start at 6 p.m. on 9 September 2006. A separate area was reserved for the representatives of the media so that they could freely and safely observe the situation and take photographs on the demonstration place.

At the start of the demonstration, bottles, stones and jars filled with paint were thrown at public and policemen. Some demonstrators kicked and hit police officers. The police announced several times over loudspeakers that a peaceful demonstration was allowed on the spot but that the crowd was not allowed to demonstrate by marching. The crowd tried to break through the police defence line. Relying on all the information in their possession, the police decided to interrupt the demonstration which had now turned violent. The police announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. This announcement was repeated several times. Hundreds of people then left voluntarily.

After the escalation of violence, the police considered that the event had turned into a riot and decided to seal off the demonstration area. First only a few people were allowed to leave the area. Then the police established several exit routes and people were allowed to leave. When leaving, they were asked to show ID and their belongings were checked.

However, the core group of around 20 people remained in one of the demonstration spots, including the applicant and a former Member of Parliament, all of whom had been asked to leave the scene, failing which they would be arrested. According to the applicant, he thought that this request only applied to the demonstrators. He claims that sometime later he indicated to the police that he was a representative of the media. He further claims that he was wearing his press badge and that a police officer accepted this. After having called his colleague, the applicant decided to stay until the situation was over. A short time later the police arrested the demonstrators. When leaving the scene the applicant was also arrested. The police arrested altogether 121 persons in the context of the demonstration.

The applicant was detained from 9 September at 9.26 p.m. until 10 September at 3.05 p.m., that is, 17.5 hours.

On 23 May 2007 the public prosecutor brought charges against the applicant for disobeying the police (niskoittelu poliisia vastaan, tredska mot polis) under Chapter 16, section 4, subsection 1, of the Penal Code.

On 17 December 2007 the Helsinki District Court (käräjäoikeus, tingsrätten) found the applicant guilty of disobeying the police but did not impose any penalty on him. The court found it established that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. It appeared from the witness statements given before the court that the applicant had not told or indicated the arresting police officer that he was a journalist. According to the arresting officer, this fact only became known to him when the relevant magazine appeared. It appeared also from the witness statements that two other photographers, who had been in the sealed-off area, had been able to leave the scene without consequences just before the applicant was arrested. The court found it further established that the police orders had been clear and that they had clearly concerned everybody. The court balanced the Article 10 right against other interests, finding that the police had had the right to ask the applicant, among others, including the former Member of Parliament, to leave the scene. The interference with the applicant’s right to exercise his freedom of expression had thus been based on law, and it had fulfilled the legitimate aim of preventing disorder. The interference had been necessary in a democratic society in order to put an end to a violent situation. However, relying on Chapter 6, section 12, of the Penal Code, no penalty was imposed as the offence was excusable. The court found that the applicant who, as a journalist, was confronted with contradictory expectations, stemming from obligations imposed on the one hand by the police and on the other by his employer.

By letter dated 23 January 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), claiming that the District Court should have dismissed the charges against him. He argued that his arrest and the fact that he was found guilty were against the Constitution and Article 10 of the Convention. The applicant was a journalist and that he had not participated in the demonstration or caused any disorder. The District Court had not reasoned why his arrest and conviction were “necessary in a democratic society” and had thereby failed to justify the interference.

On 30 April 2009 the Court of Appeal rejected the applicant’s appeal without giving any further reasons.

By letter dated 24 June 2009 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.

On 1 September 2009 the Supreme Court refused the applicant leave to appeal.


CASE OF ALEXANDRESCU AND OTHERS v. ROMANIA

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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The facts of the cases, as submitted by the parties, are similar to those presented in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and in Bosnigeanu and Others v. Romania (nos. 56861/08 and 33 others, §§ 5-15, 4 November 2014). They belong within the same historical context and relate to the same domestic criminal proceedings as those at issue in the above-mentioned case.

Between 21 and 23 December 1989, the applicants took part in the anti-communist demonstrations in Bucharest which led to the fall of the communist regime.

In 1990, following the overthrow of the communist regime, the military prosecutor’s office opened a criminal investigation in respect of the December 1989 armed crackdown on the anti-communist demonstration in Bucharest.

According to the documents submitted to the Court by the parties, all the applicants were interviewed at the military prosecutor’s office as witnesses in connection with the use of violence against civilian demonstrators. Subsequently, they lodged criminal complaints and joined the criminal proceedings as civil parties, citing the psychological suffering they had experienced following the violent crackdown on the anticommunist demonstration. It appears from the medical certificates issued between April 2008 and February 2009 and submitted by the applicants to the domestic criminal investigation file that they did not present any medical symptoms when they were examined following their involvement in the tragic events. Nevertheless, it could not be ruled out that they suffered psychological trauma at the time of the events in question.

The criminal investigation appears to be still pending before the prosecuting authorities. The most important procedural steps were summarised in Association “21 December 1989” and Others, cited above (§§ 12-41). Subsequent developments in the investigation are as follows.

On 18 October 2010 the military prosecutor’s office at the High Court of Cassation and Justice decided not to institute criminal proceedings with regard to the acts committed by the military, finding that the applicants’ complaints were partly statute-barred and partly ill-founded. The investigation into crimes committed by civilians, members of the Patriotic Guards, members of militia and prison staff was severed from the case file and jurisdiction was relinquished in favour of the prosecuting authorities at the High Court of Cassation and Justice.

On 15 April 2011 the chief prosecutor at the military prosecutor’s office set aside the decision of 18 October 2010 on the grounds that the investigation had not yet been finalised and not all victims and perpetrators had yet been identified.

On 18 April 2011 the military prosecutor’s office relinquished jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice on the ground that the investigation concerned both civilians and military.

On 9 March 2012 – following the opening to the public in 2010 of the classified information in the criminal investigation file – the case was reregistered with a view to an investigation in the light of the recently available data.

This investigation appears to be still pending before the domestic authorities.

The main facts of these cases concerning the crackdown on antigovernment demonstrations between 13 to 15 June 1990 are similar to those presented in Mocanu and Others v. Romania [GC] (nos. 10865/09, 45886/07 and 32431/08, §§ 14-49, 55-72, 78-110, and 137-168, ECHR 2014 (extracts)).

Between 13 and 15 June 1990 a violent crackdown took place against demonstrators who were occupying University Square and other areas of Bucharest and protesting against the newly installed government. The armed intervention of military forces, followed by the arrival of thousands of miners transported to Bucharest (mainly from the Jiu Valley mining region) to take part in the crackdown on the demonstrators, resulted in more than a thousand civilian casualties, of whom a hundred were killed and several hundred injured or arrested. The applicants in the abovementioned cases participated in the events, during which they allegedly suffered injuries. No relevant medical documents were appended to the case file.

Separate criminal investigations into the crimes committed during the violent repression of the demonstrations were opened in 1990 by several prosecutors’ offices in Bucharest under different files. Subsequently, these cases were joined and, in 1997, jurisdiction over them was relinquished in favour of the military prosecutor’s office at the High Court of Cassation and Justice. During the military prosecutor’s investigations, several decisions were adopted in which decisions were reversed, charges were disjoined and jurisdiction relinquished to other domestic authorities. The applicants joined the domestic criminal proceedings as civil parties.

A decision not to bring a prosecution was adopted on 17 June 2009. An appeal lodged against that decision was dismissed on 3 September 2009 by the head prosecutor of the relevant section of the prosecutor’s office at the High Court of Cassation and Justice. Those decisions have been upheld in several judgments of the High Court of Cassation and Justice.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

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

The applicants were born in 1945, 1981, 1971 and 1972 respectively and live in Yerevan.

The applicant Levon Ghasabyan (hereafter, the first applicant) owned a flat which measured 57 sq. m. and was situated at 25 Byuzand Street, Yerevan. The remaining three applicants – the first applicant’s family members who resided in the same flat – allege that they enjoyed a right of use in respect of that flat.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects.

On 1 December 2004 the first applicant’s flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was estimated at 23,640 United States dollars (USD).

By a letter of 14 January 2005 the Agency informed the first applicant that his flat was subject to expropriation and that it had been valued at USD 23,640, and offered him this amount as compensation. An additional sum of USD 14,827.01 was offered to him as a financial incentive if he signed an agreement within five days.

By a letter of 18 January 2005 the first applicant expressed his consent to sign an agreement but disagreed with the amount of compensation offered.

On 20 January 2005 the Agency lodged a claim against the first applicant, seeking to oblige him to sign an agreement on the taking of his flat for State needs and to have him and his family members evicted.

On 3 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the first applicant to sign an agreement for the total amount of USD 23,640 and that he and his family members be evicted.

On 15 March 2005 the first applicant lodged an appeal. The remaining three applicants allege that they unsuccessfully sought to be recognised as parties to the proceedings, despite the fact that they enjoyed a right of use in respect of the flat in question and the fact that their eviction was ordered by the District Court.

On 12 April 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal and dismissed that of the first applicant.

On 27 April 2005 the applicants jointly lodged an appeal.

On 26 May 2005 the Court of Cassation examined the appeal only in its part concerning the first applicant and decided to dismiss it.

On an unspecified date the awarded sum was paid to the applicants.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Noel Young, is a British national born in 1976. He is currently detained at HMP Frankland. He is represented by Mr C. MarshFinch, counsel, of the Creed Lane Law Group.

The applicant and five others (including his wife and sister) were charged with conspiracy to defraud and money laundering offences arising out of the importation into the United Kingdom of high value motor vehicles. On the first day of the trial the applicant pleaded guilty to one count of conspiracy to defraud Her Majesty’s Customs and Excise (HMCE) by evading the liability to pay VAT on imported vehicles between 1 April 2003 and 2 February 2005 and to a further count of concealing criminal property during the same period. Guilty pleas from his codefendants followed the next day. On 9 June 2006 the applicant was sentenced to twenty-eight months’ imprisonment on each count.

The prosecution’s case was that the applicant had been the organiser of, and driving force behind, a scheme to import high-value motor vehicles from other European Union countries and to sell them on while evading VAT. The scheme worked as follows. On first registration in the United Kingdom the imported vehicles became subject to VAT. However, the vehicles were registered by the applicant using false or fraudulently obtained documentation and false names. The vehicles, once falsely registered, would be sold on. The purchasers of the vehicle would pay VAT to the applicant, which – as a result of the false registration – would not be passed on to HMCE. The applicant and his co-conspirators would thus profit from the sale of the vehicles and the VAT they had not passed on to HMCE. Bank accounts were opened through which the proceeds of the conspiracy were channelled.

The conspiracy was said by the prosecution to cover a large number of motor vehicles but for the purposes of the criminal trial it limited the number of vehicles upon which it would rely to prove its case.

Thus, when the applicant entered his guilty pleas he did so on the basis that he was party to a conspiracy to evade liability for the payment of VAT on the importation and registration of fifteen motor vehicles. These fifteen vehicles were particularised in a written document recording the factual basis upon which the applicant had pleaded guilty. It was the applicant’s case, as set out in that written “basis of plea”, that in pursuit of the conspiracy he had passed money through his own and other people’s bank accounts and that he had taken advantage of his wife and sister by using their bank accounts to pass monies related to the sale and purchase of specific vehicles.

That basis of plea was accepted by the court and the prosecution for the purposes of sentencing. However, it was not accepted by the prosecution for the purpose of the intended confiscation proceedings which were to follow the criminal trial.

Those confiscation proceedings started in the Crown Court on 4 March 2008. The judge heard evidence over eight days. The prosecution relied on a schedule which set out the value of (and the VAT payable on) the vehicles the applicant had dealt with in pursuance of the conspiracy. A further schedule set out details of lodgements into six bank accounts which were either in the name of the applicant or were known to have been used by him in furtherance of the conspiracy. The applicant himself gave evidence over two days.

The judge gave his ruling on 18 April 2008. He noted that the applicant had admitted that all the vehicles referred to by the prosecution (more than two hundred vehicles) had “passed through his hands” when he was engaged in the buying and selling of them. The applicant maintained, however, that he had only received a commission of between GBP 500 and GBP 100 per vehicle from others on whose behalf he had acted. The applicant said that he had not acted dishonestly in relation to the motor vehicles. This was despite his guilty pleas and the fact that, prior to being sentenced, he had written a letter to the judge stating that he had taken a leading role in the conspiracy and expressing his regret for committing the offences.

The judge rejected the applicant’s account and concluded that “he was the driving force, organiser, architect and brain behind this conspiracy ... [and] that he ran it for the purposes of making vast profit”. The judge also found that the applicant was “a manipulative, deceitful person who cannot distinguish fact from fiction and will lie to anyone at any time if he perceives that it is to his advantage and that it will suit his own ends”. Examples were given by the judge, including the fact that the applicant had lied at the sentencing stage of proceedings by telling the court that he had a young child when he did not and acquiring assets – including his house – under false names. The judge concluded:

“...I regret to say that in my judgment the [applicant] is the sort of man who cannot lie straight in bed at night. Indeed, in my judgment, he would not recognise the truth if it stood up and bit him.”

The judge proceeded to calculate the amount of benefit that the applicant had obtained from his criminal conduct, as required under the 2002 Act (“the benefit figure”).

He arrived at a benefit figure of more than GBP 10.5 million. This was based on:

the value of the motor vehicles which were the subject of the indictment and the VAT evaded (more than GBP 2.8 million);

the value of other motor vehicles transferred to the applicant and the VAT evaded (more than GBP 5.1 million);

credits into known bank accounts (over GBP 1.9 million);

other vehicles seized (almost GBP 300,000);

personal assets, including the applicant’s home, jewellery and a GBP 36,000 watch (more than GBP 223,000 when added together); and

three further vehicles (GBP 150,000).

The judge then determined the recoverable amount. By section 7 of the 2002 Act the recoverable amount was equal to the benefit from the criminal conduct unless the defendant could show that the available amount was less than the benefit amount.

In determining the recoverable amount the judge first identified that the realisable assets in the applicant’s possession were worth over GBP 446,000 (based on his motor vehicles, half a share in his home, his jewellery, watch and other items recovered from the home). The judge declared himself satisfied that the applicant also had appreciable and significant hidden assets and that he had provided the court with no assistance whatsoever in identifying them. However, the judge said that he would stand back and take a broad view to try to assess justly the value of the property that the applicant had failed to disclose. He put that value at GBP 6.5 million. Adding that to the realisable assets, the judge determined the recoverable amount to be GBP 6.9 million. He accordingly made a confiscation order for that sum. The applicant was ordered to pay the sum within six months, failing which he would be given a sentence in default of ten years’ imprisonment.

The applicant appealed against the confiscation order to the Court of Appeal. His main ground of appeal was that, in arriving at the benefit figure, the judge and the prosecution had double counted. They had done so by taking into account the value of each individual vehicle upon which VAT had been evaded. The approach they had taken meant that the benefit figure included the initial price for which each vehicle had been bought, the value of the vehicle itself, the value of the sale of the vehicle, and the amount of VAT evaded on that particular vehicle. However, the charge had been evading VAT so the only benefit was the VAT amounts proven to have been evaded.

The Court of Appeal heard the following explanation from the prosecution. They had been very aware of the dangers of double accounting when assessing the benefit arising from transactions relating to the vehicles. Initially the benefit figure they had arrived at was in the region of GBP 64 million. This was recognised as unjust and the figures ultimately relied upon by the prosecution and accepted by the judge included only the value of the vehicle transferred to the applicant and the VAT relating to it. As to the bank accounts where the proceeds had been channelled, in order to avoid complexity and to adopt a pragmatic approach, the prosecution had ignored all transactions under GBP 5,000. Moreover, the prosecution relied only upon lodgements into known bank accounts of the applicant, disregarding, for instance, a transfer of GBP 250,000 out of a bank account in the Isle of Man.

As to the recoverable amount that had been set by the judge, namely GBP 6.9 million, the prosecution reminded the Court of Appeal that the judge had rejected the evidence given by the applicant and found that there was significant evidence of the applicant dealing with assets in different names. The prosecution had invited the judge not to treat the benefit figure as the recoverable amount but to take a pragmatic approach based on an assessment of the evidence and the justice of the case. In the event, the judge had determined the recoverable amount to be approximately twothirds of the benefit figure.

Having heard the applicant’s and the prosecution’s submissions, the Court of Appeal was satisfied that neither the approach of the judge nor the conclusion he reached was susceptible to proper criticism and dismissed the appeal.

The Court of Appeal also heard submissions from the applicant’s counsel that the confiscation proceedings had been unfair because some of the judge’s comments during the hearing would have indicated to a reasonable onlooker that the applicant had not received a fair hearing because of the court’s annoyance at having been misled in relation to his personal circumstances at the time of sentencing. It was not suggested that the judge was intentionally biased but that subconsciously he might not have given the applicant a sufficiently fair hearing. However, having considered the transcript of the hearing and the judge’s ruling, the Court of Appeal was satisfied that there had been no unfairness.

On 16 June 2011 the applicant sought leave from the Court of Appeal to appeal to the Supreme Court. By letter of 3 August 2011 the applicant was notified that on 29 July 2011 the Court of Appeal had granted leave to appeal. However, on 9 September 2011 the applicant was notified that the previous directions had been given in error and that the Court of Appeal had in fact not given leave to appeal. A hearing was set for 10.30 a.m. on 25 October 2011 for the Court of Appeal to formally hand down its decision to refuse leave to appeal to the Supreme Court. The applicant asked to be able to make representations at that hearing. When his counsel arrived at 10.15 a.m. on that date he was informed that the court had decided to sit early and had delivered its decision. There was therefore nothing more that could be done.

Confiscation proceedings are governed by the Proceeds of Crime Act 2002 (“the 2002 Act”). Section 6(4) sets out the approach to be followed by the court:

“(a) it must decide whether the defendant has a criminal lifestyle;

(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”

Section 6(5) provides that where the court decides that the defendant has benefited from the conduct referred to, it must decide the recoverable amount and make a confiscation order requiring him to pay that amount. Section 6(7) requires any question arising under subsections (4) or (5) to be decided on the balance of probabilities.

Section 10 provides for the making of four assumptions for the purpose of deciding whether a defendant has benefited from his general criminal conduct and deciding his benefit from that conduct. Where relevant, it provides:

“(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of —

(a) deciding whether he has benefited from his general criminal conduct, and

(b) deciding his benefit from the conduct.

(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him —

(a) as a result of his general criminal conduct, and

(b) at the earliest time he appears to have held it.

(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him —

(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6) But the court must not make a required assumption in relation to particular property or expenditure if —

(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice if the assumption were made.”

The “relevant day” referred to in subsections (2) and (4) is normally the day six years before proceedings were started against the defendant (section 10(8)). Thus, any property transferred to the defendant at any time in the six years before his conviction will be assumed to have been obtained by him as a result of his general criminal conduct.

Section 7 provides guidance on fixing the recoverable amount:

“(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.

(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is–

(a) the available amount, or

(b) a nominal amount, if the available amount is nil.”

Under section 76(4), a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Section 76(7) provides that if a person benefits from conduct, his benefit is the value of the property obtained.

Section 33 of the Criminal Appeal Act 1968 provides:

“Right of appeal to [Supreme Court]

(1) An appeal lies to the Supreme Court at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court ...

(2) The appeal lies only with the leave of the Court of Appeal or the [the Supreme Court]; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the [the Supreme Court] (as the case may be) that the point is one which ought to be considered by [the Supreme Court].

(3) Except as provided for by this part of this Act ... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal.”

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime 1990 entered into force in September 2003. It aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).


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

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

The applicant was born in 1957 and lives in Buivydiškės, Vilnius Region.

In 1991 the Lithuanian Parliament enacted the Law on Land Reform which provided that residents of rural areas had the right to acquire land for individual farming (asmeninio ūkio žemė) from the State, in accordance with the requirements set out in the relevant legal instruments (see “Relevant domestic law” below).

On 2 May 1992 the applicant’s husband submitted a request to the Zujūnai District Land Council of the Vilnius Region to buy from the State two hectares of land for individual farming in the village of Zujūnai.

On 29 October 1993 the Government adopted a decision establishing, inter alia, the order of allocation of land for individual farming. The decision instructed regional and municipal authorities to delimit plots of land to be assigned for individual farming and to prepare the necessary documents for their allocation to individual claimants.

On 17 October 1994, in court proceedings instituted by the Government, the Vilnius Region District Court ordered the Buivydiškės District Council of the Vilnius Region to implement the aforementioned decision of the Government.

On 16 March 1995 the Buivydiškės District Council adopted a decision on the allocation of 1,520 hectares of land for individual farming in the Vilnius Region. The decision provided a list of individuals who were entitled to buy plots of land from the State. It indicated the amount of land to which each listed individual was entitled but did not specify actual plots. The applicant was included in that list and entitled to buy two hectares of land.

On 20 June 1995 the Convention entered into force in respect of Lithuania.

On 25 September 2000 the Vilnius County Administration (hereinafter “the VCA”) approved the land allocation plan (žemės reformos žemėtvarkos projektas) for the Buivydiškės cadastral area (this area comprised several villages in the Vilnius Region). The VCA approved the delimitation of plots of land in that territory (patvirtino suformuotų žemės sklypų plotus bei ribas) and instructed Matininkai, a surveyor company, to prepare the necessary documents in order to allocate the plots to individual claimants and to formalise their rights of land ownership or use.

In January 2001 the applicant and her husband submitted a request to the VCA to consider as valid their previous request of 2 May 1992 (see paragraph 7 above) and to allocate a plot of land in the village of Zujūnai to them, for the nominal price of 1,884 Lithuanian litai (LTL, approximately 546 euros (EUR)).

On 28 January 2002 the VCA approved a list of individuals who were using land for individual farming in the Buivydiškės cadastral area. The applicant was included on the list as using two hectares of land in the village of Buivydiškės. However, as submitted by the applicant and not disputed by the Government, the applicant had not been using this land since no land had been provided to her at that time.

In June 2002 the VCA decided that it was necessary to amend the land allocation plan of the Buivydiškės cadastral area in order to take into account requests for restitution in natura which had been submitted in respect of land there. It ordered Matininkai to amend the delimitation and allocation of plots accordingly and to prepare all the necessary documents by 15 October 2002.

In July 2002, April 2004, April and November 2006 and February 2007 the applicant and her husband petitioned the VCA and the National Land Service (hereinafter “the NLS”), stating that they had still not received the land to which they were entitled, and requesting that such land be provided to them without further delay. They were informed that the preparation of the land allocation plan in the area was ongoing.

In 2006 the applicant and her husband lodged a claim against the VCA before the Vilnius Regional Administrative Court. They complained that the two hectares of land assigned to them in 1995 had still not been provided, that they had been unable to receive any information from the VCA about the ongoing land reform in the Vilnius Region, and that they had not been given the opportunity to participate in the planning of the reform, unlike other residents of the region. They requested that the court oblige the VCA to enforce the decision of the Buivydiškės District Council of 16 March 1995 (see paragraph 10 above) without further delay.

On 13 October 2006 the Vilnius Regional Administrative Court dismissed the claim. However, on 5 May 2007 the Supreme Administrative Court upheld the applicant’s appeal and annulled the judgment of the first-instance court. The Supreme Administrative Court noted that the applicant had been entitled to buy two hectares of land by the decision of 16 March 1995 and that she had been included on the list of land users in January 2002 (see paragraphs 10 and 14 above), so on these grounds the VCA was obliged to allocate a specific plot of land to the applicant. The court ordered the VCA to carry out the necessary administrative procedures to identify and delimit a plot of land for the applicant (atlikti administracines procedūras, susijusias su žemės sklypo suprojektavimu bei jo ribų nustatymu). However, the Supreme Administrative Court denied the applicant’s request to set a precise deadline for the VCA to carry out said actions, noting that no such deadlines were provided in the legislation and that there was no objective possibility to do so due to the complexity of the land reform.

In May and June 2007 the bailiff in charge of the enforcement of the Supreme Administrative Court’s judgment submitted several notices to the VCA, urging it to enforce the judgment immediately.

On 5 June 2007 the VCA approved an amended land allocation plan of the Buivydiškės cadastral area. It ordered Arlitanus, a surveyor company, to mark the delimited plots (paženklinti vietoje) and to prepare the necessary documents for formalising individual rights of ownership or use.

In June and July 2007 the applicant and her husband submitted several requests to the VCA and the NLS, inquiring about the enforcement of the judgment of 5 May 2007 and requesting information about the implementation of the land reform in the Buivydiškės cadastral area.

On 26 July 2007 the VCA informed the applicant that it had instructed Arlitanus to identify a specific plot of two hectares for the applicant from the stock of available State land by 1 August 2007.

In August and October 2007 the applicant submitted complaints to the VCA concerning the continuing non-enforcement of the Supreme Administrative Court’s judgment. She did not receive any response.

In August 2007 the applicant asked the Supreme Administrative Court to clarify its judgment of 5 May 2007 and to set a concrete deadline for the VCA to enforce it. However, the court denied the applicant’s request, noting that it was not authorised to clarify its previous judgments in a way that would alter their content.

In October 2007 the VCA again amended the land allocation plan of the Buivydiškės cadastral area and instructed Arlitanus to complete the planning by 1 March 2008.

In November 2007 the applicant submitted two requests to the VCA, asking to be provided with a plot of land by the end of the year and requesting information as to whether she had been included in the amended land allocation plan as a candidate to receive land. The following month the VCA informed the applicant that the planning in the Buivydiškės cadastral area had to be completed by 1 March 2008 and that the applicant would be included as a candidate of the seventh priority rank to receive land there.

In December 2007 the NLS urged the VCA to examine why the list of candidates to receive land in the Buivydiškės cadastral area had not been compiled in time with a view to ensuring the enforcement of the Supreme Administrative Court’s judgment of 5 May 2007.

In April 2008 the VCA again amended the land allocation plan in the Buivydiškės cadastral area. It instructed Arlitanus to complete the list of candidates to receive land in that territory by 30 May 2008 and to complete the planning by 1 December 2008.

That same month the applicant and her husband requested that the Supreme Administrative Court order interim measures against the VCA to prevent it from distributing land in the Buivydiškės cadastral area to candidates of the eighth and lower priority ranks. The court dismissed their request, noting that interim measures could only be ordered before the court’s judgment is adopted, while after its adoption the VCA was already under an obligation to enforce the judgment and thus interim measures were unnecessary.

On 30 May 2008 the Supreme Administrative Court granted the applicant’s request and clarified its judgment of 5 May 2007. The court held that the VCA was under the obligation to include the applicant on the list of candidates to be provided with land in the Buivydiškės cadastral area by 30 June 2008 and to carry out the remaining administrative procedures necessary for the allocation of a specific plot of land of two hectares to the applicant within three months of the completion of the land allocation plan of the Buivydiškės cadastral area.

In August 2008 the applicant asked the VCA to inform her whether the Supreme Administrative Court’s judgment of 30 May 2008 had been enforced. She also requested that they provide her with the list of candidates to receive land in the Buivydiškės cadastral area. She did not receive any response.

In October 2008 the VCA approved the amended land allocation plan of the Buivydiškės cadastral area and the list of candidates to receive plots of land in that territory. The applicant was not included on that list.

Later that month the VCA approved the list of individuals in the eldership (seniūnija) of Zujūnai who were not using the land which had been assigned to them for individual farming. The list indicated that the applicant had been assigned two hectares of land and that she had not been using them. As submitted by the Government, the purpose of that list was to determine the location of the plots to be allocated – those individuals who were not using any specific land would be provided with plots from the State stock of vacant land.

In December 2008 the VCA informed the applicant and her husband that the land allocation plan of the Buivydiškės cadastral area was again being amended, and that the list of candidates to receive land in that territory would be compiled after the completion of the planning when the available land has been identified. The VCA noted that the applicant had been included in the preliminary list as a candidate of the seventh priority rank.

In March 2009 the bailiff urged the VCA to immediately enforce the Supreme Administrative Court’s judgment of 30 May 2008. In May 2009 the bailiff concluded that the judgment had not been enforced. In July 2009 the Vilnius City First District Court satisfied the bailiff’s request and ordered the VCA to pay a fine of LTL 400 (EUR 115) for non-enforcement of the court’s judgment, as well as to enforce that judgment within three months. However, in December 2009 the Vilnius Regional Court annulled the first-instance decision, noting that the VCA had already included the applicant on the list of candidates to receive a plot of land (see paragraph 36 below), which meant that the judgment of the Supreme Administrative Court had been partly enforced and thus there were no grounds to order a fine.

On 9 August 2009 the VCA approved the list of candidates to receive land in the eldership of Zujūnai, in the Buivydiškės cadastral area. The applicant was included in this list as a candidate of the seventh priority rank.

The VCA further amended the land allocation plan in the Buivydiškės cadastral area several times in May to July 2009 and February to June 2010, setting new deadlines for the surveyor company to complete the planning.

In June 2010 the bailiff asked the VCA to provide information as to whether the land allocation plan had been completed and whether the necessary administrative procedures had been carried out to provide the applicant with a plot of two hectares. In October 2010 the bailiff declared that the Supreme Administrative Court’s judgment had not been enforced and decided to discontinue the enforcement proceedings. The applicant appealed against the bailiff’s decision and in March 2011 the Vilnius City First District Court allowed the appeal and ordered the bailiff to continue the enforcement. That judgment was subsequently upheld by the Vilnius Regional Court.

In July 2010, after an administrative reform, the VCA was abolished and its obligations were transferred to the NLS.

In November 2010, during a meeting between Arlitanus and candidates of the seventh priority rank, the applicant was offered two plots of land, amounting to a total of two hectares. She accepted the offer.

In June 2012 the NLS approved the plan of the Buivydiškės cadastral area prepared by Arlitanus, which delimited plots of land to be allocated to candidates of the first-to-fourth priority ranks.

On 20 May 2013 the NLS held a meeting of candidates of the seventh priority rank. The applicant was offered four plots of land (different from the two which had been previously offered to her – see paragraph 40 above) amounting to a total of two hectares. She confirmed that she was aware of any applicable restrictions on the use of those plots and agreed to the offer.

On the same day the applicant submitted a complaint to the NLS, stating that the four plots offered to her were too far from her home, that they could not be reached by road and that they were swampland (užpelkėję), and therefore unsuitable for farming. She requested that the NLS give her the plots of land which were offered to her in November 2010 (see paragraph 40 above) or other plots of equivalent quality. However, a few days later the applicant notified the NLS that she would accept the four offered plots.

On 31 December 2014 the NLS approved the land allocation plan of the Buivydiškės cadastral area and a list of over twenty individuals who had been allocated specific plots of land. The list indicated that the applicant had been assigned the four plots of land offered to her on 20 May 2013 (see paragraphs 42 and 43 above).

In April 2015 the State Land Fund identified that one of the four plots assigned to the applicant included 0.55 hectares of forestland. As a result, that part of the plot could not be transferred to the applicant and had to be returned to the State.

That same month the State Land Fund assessed the value of the four plots (after excluding the 0.55 hectares of forestland). It calculated that their total nominal value, assessed in accordance with the Rules of Land Valuation adopted by the Government in 1999 (see “Relevant domestic law” below), was EUR 627, whereas their total market value was EUR 20,410.

In May 2015 the NLS informed the applicant that the preliminary market value of the four plots was EUR 26,740, and that she would subsequently be informed of the final price.

In June 2015 the NLS amended the land allocation plan for the eldership of Zujūnai, indicating that the total area which had been allocated to the applicant amounted to 1.45 hectares.

In September 2015 the NLS informed the applicant that she had to pay a fee of EUR 157 for registering the four plots in the property register, and that that fee would be subsequently refunded to her in the price of the land.

In October 2015 the Government informed the Court that the NLS had identified the remaining vacant State land in the Buivydiškės cadastral area and that the applicant would be included as a candidate to receive 0.55 hectares of farmland in a future land plan. In November 2015 the Government further informed the Court that the NLS had prepared draft agreements to enable the applicant to purchase the aforementioned four plots amounting to 1.45 hectares.

In July 2007 the applicant and her husband submitted a complaint against the VCA to the Vilnius Regional Commission of Administrative Disputes (hereinafter – “the Commission”). They complained that they had not received any response to their repeated requests for information, sent in June and July 2007 (see paragraph 21 above). The Commission partly upheld the complaint and ordered the VCA to respond within five days to two requests submitted in June 2007.

On 25 September 2007 the applicant and her husband submitted a complaint to the Vilnius Regional Administrative Court, requesting that it order the VCA to comply with the Commission’s decision. They also claimed non-pecuniary damages resulting from the VCA’s deliberate refusal to fulfil its obligations.

On 12 December 2007 the Vilnius Regional Administrative Court dismissed the complaint. However, on 20 November 2008 the Supreme Administrative Court quashed the first-instance judgment and ordered the VCA to provide the applicant and her husband with a satisfactory response to their request of June 2007. The court also noted that the applicant and her husband had repeatedly asked the VCA for information about the implementation of the land reform and about the plot assigned to them, that they had petitioned several State institutions (see paragraphs 54-57 below), and that the lengthy non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007, as well as the VCA’s evasiveness concerning their requests, had caused them inconvenience and negative feelings. Thus, the court awarded the applicant and her husband non-pecuniary damages of LTL 1,500 (EUR 430) each.

In April 2006 the applicant and her husband submitted a complaint to the Parliamentary Ombudsperson, stating that they still had not been given the land assigned to them in 1995. In June 2007 the Ombudsperson concluded that the complaint was well-founded, and recommended the Ministry of Agriculture provide assistance to the VCA in enforcing the decision of the Buivydiškės District Council of 16 March 1995.

In November 2007 the applicant’s husband again petitioned the Ombudsperson, stating that her previous recommendation had not been implemented. He noted that the Ministry of Agriculture had passed on the Ombudsperson’s conclusion to the NLS, but the latter institution had stated that it was not allowed to influence the decisions of county administrations. The applicant’s husband also complained that he and the applicant still had not been included on the list of candidates to receive land in the Buivydiškės cadastral area and that the land in that territory was being distributed to candidates of lower priority ranks.

That same month a group of residents of Buivydiškės, including the applicant’s husband, submitted a complaint to the parliamentary subcommittee on the rule of law, complaining about the actions of the VCA in the implementation of the land reform. The residents claimed that the only individuals who had received land in the Buivydiškės cadastral area had been employees of local institutions and that the land was not being distributed in compliance with the approved priority ranks.

Later that month the applicant’s husband also petitioned the Ministry of Agriculture, asking what assistance had been provided to the VCA following the Parliamentary Ombudsperson’s recommendation (see paragraph 54 above).

In August 2007 the applicant and her husband requested that the police of the Vilnius Region launch a criminal investigation into the actions of the VCA. They alleged that the VCA had deliberately refused to enforce the Supreme Administrative Court’s judgment of 5 May 2007 (piktybiškai nevykdė teismo sprendimo), in violation of Articles 228, 229 and 294 of the Criminal Code, and that the land in the Buivydiškės cadastral area had been distributed to civil servants working at the VCA and its subordinate institutions, contrary to approved land allocation plans.

Subsequently the applicant and her husband requested that the district prosecutor of the Vilnius Region suspend any further actions of the VCA concerning the allocation of land in the Buivydiškės cadastral area, but their request was denied.

In December 2007 the district prosecutor of the Vilnius Region decided to discontinue the criminal investigation into the VCA, concluding that no crime had been committed. The applicant and her husband appealed against that decision. The Prosecutor General satisfied their appeal and ordered a different prosecutor in the Vilnius Region to continue the investigation.

In March and April 2008 the applicant and her husband submitted written testimonies to the district prosecutor and were recognised as victims.

In June 2009 the district prosecutor decided to discontinue the criminal investigation against the VCA on the grounds that no crime had been committed. The prosecutor held that the land reform in the Buivydiškės cadastral area had been prolonged due to reasons outside the control of the VCA, such as requests of former owners of land to receive restitution in natura. The decision also stated that the preparation of the land plan was ongoing and the applicant had been included in the preliminary list of candidates. Lastly, the prosecutor did not find any evidence that the land had been unlawfully distributed to candidates of lower priority ranks.