No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Georges Ravarani

The applicant was born in 1966. She is currently detained in Forest-Berkendael Prison.

On 22 September 1990 the applicant married B.M., whom she divorced after the events to which the application relates. According to her explanations, since 1983 B.M. had been living with Dr M.S., a man fifteen years his elder, who had taken him in following B.M.’s arrival from Morocco, providing him with a home and paying for his studies.

The applicant and her husband had five children. In 1992, shortly after the birth of her first child, the applicant began suffering from depression and stopped working as a French and history teacher, only returning for a few months in 1993. Dr M.S. certified her unfit for work on account of depression and asthenia. Subsequently, her insurance company’s medical adviser confirmed that she was unfit for work on account of depression. In October 1996 a report by a court-appointed psychiatrist, which was later endorsed by the Employment Tribunal, diagnosed her as suffering from “recurrent endogenous anxiety and depression, with a slightly destabilised basic personality”, rendering her more than 66% unfit for work. The expert concluded as follows:

“... social contact feeds a sense of persecution and interpretative paranoia. The patient is socially withdrawn and has a tendency to retreat into herself. When faced with anxiety-inducing situations, the patient regresses emotionally, retreats into herself and takes refuge in passive-receptive and hypochondriac behaviour. On account of her intrinsic sensitivity, her anxiety may be combined with reactive depression. To conclude, we are confronted with a fragile, sensitive and anxious personality, with feelings of abandonment and phobic and obsessional components, who is likely, in situations of anxiety, to regress emotionally, to withdraw into herself and to develop various manifestations of anxiety, persecution and depression.”

The applicant and B.M. lived in a house which had been bought in their name but paid for by Dr M.S. The applicant’s husband worked part-time as Dr M.S.’s administrative assistant.

On 25 June 2004, on the recommendation of Dr M.S., who was her general practitioner, the applicant consulted a psychiatrist, D.V., who prescribed an antidepressant, sleeping tablets and anti-anxiety medication. Dr D.V., who had suggested that the applicant undergo psychiatric monitoring, saw her again on 4 February 2005, among other occasions, and wrote to M.S. recommending that he prescribe her a new antidepressant, as well as sleeping tablets and anti-anxiety medication. The applicant consulted D.V. once a month between February 2005 and the summer of 2006. The latter noted that the applicant appeared to be “always very tense and suffering from nervous exhaustion, constituting all the hallmarks of rumination” and that she showed “symptoms of social withdrawal and abnormal exhaustion during household tasks”. In the spring of 2006 the applicant reported to D.V. that she felt isolated from her own family. From September 2006 she saw him every three weeks. In December 2006 D.V. successively prescribed the applicant two types of sleeping tablets. On 12 January 2007 she linked her exhaustion to the fact that she could not bear Dr M.S.’s presence, and on that occasion D.V. noted “a feeling of dependence” on M.S. financially, “a feeling of insecurity” and “a feeling towards that person [M.S.] which was one of intrusion, of having an unwelcome person under her roof, and also a great deal of ambivalence”.

Dr D.V. saw the applicant again on 30 January and 9 and 13 February 2007. On the last-mentioned date the applicant wrote him a letter, which read:

“Doctor, I don’t feel very well when I wake up, I have trouble getting out of bed and I have stomach cramps. I have to get up though because I have diarrhoea every morning. I have this big knot. The whole of my left arm is frozen. I feel so sad, deeply sad. I can no longer manage a coffee in the morning. I feel very weak and lacking energy. I am afraid all the time. I am afraid of myself. I am afraid of the future. When I walk down the street, I am afraid. I don’t have the courage. I don’t know where to find the courage and I am tired of it all. I don’t want to believe in a better future. I am at a dead end. I have been to a shop. I went to see if they had a very sharp meat knife. I don’t know how I am going to tell my husband all this, that I don’t feel well and that I have always kept it hidden that I felt so bad about myself and in my head and that I was taking medication. Please do something for me. I am being crushed by a mass of bad feelings. I have never felt so vulnerable. I feel unwell during the night. I often wake up and think. Ms Lhermitte ...”

In February 2007 the applicant mentioned sharp knives to D.V. on one or two occasions. D.V. interpreted this as “an impulse phobia”. He saw her again on Friday 23 February 2007, noting that the applicant remained “extremely preoccupied as well, in the absence of her husband who [had] gone to Morocco again, and [found] herself having to deal alone with her uneasy feelings towards [M.S.]”.

Early in the morning of 27 February 2007, the day before the incident, the applicant went to Dr D.V.’s practice and delivered a second letter which she had just written. The letter read as follows:

“Dr [V.], you don’t have much time. I have not felt well these last few days. I’m having dark thoughts. They are suicidal thoughts which are going to carry me away and I will take my children with me. It’s a daily struggle. My friend [V.G.] is supporting me. There is no solution to my problem. I feel walled up. I feel like a prisoner. I no longer have the strength. I don’t think my husband will save me because whichever way you look at it, he is in a favourable position. He is coming home tomorrow evening but I can’t tell him of all my pain and distress. The family situation cannot be turned around. I have already had suicidal thoughts in the past. I imagine scenarios which are both true and realistic and I know I am capable. This is not a game. Sorry to take up your time! Ms Lhermitte ...”

Later that day, in the early afternoon, the applicant telephoned Dr D.V.’s practice to check that her letter had actually been received.

The applicant’s letters addressed to Dr D.V. dated 13 and 27 February 2007 were not included in the file on the criminal investigation. D.V. later indicated that they had not formed part of the applicant’s medical records.

On 28 February 2007 the applicant left a final letter, together with a bag of jewellery, in the letterbox of her friend and confidante V.G. The letter read as follows:

“My dear friend [V.],

I have cut off my phone and I am now starting to write this letter.

I hope you will not be shocked by what I’m going to write.

You must show it to [Dr D.V.] who will be at Érasme [hospital] on Friday morning at 9. He will be able to help you and explain what you explained to me so kindly when you came to my house. I don’t have the courage to get things moving and I am completely frozen and paralysed with fear because there is no solution to my problem. You have always opened your door to me and my children and have been a ray of sunshine in our life, and I will thank you forever. I have decided to go a long way away with the children forever. One day, you’ll see, we’ll meet again but I don’t regret this final solution.

Please let my sister Mireille ... and my other sister Catherine ... know. Please forgive me. I beg my sisters to forgive me if I have hurt them. I can no longer bear this situation, because my husband is blind and deaf and despite that, he is happy in this situation.

[M.S.] is a bastard who has ruined my life and robbed me of my privacy with my husband and children. I left the hell of my parents’ home only to fall into another hell. ...”

The applicant ended her letter by asking her friend to share her jewellery with her two sisters. She also left a voicemail message on V.G.’s mobile phone – in a voice which the investigating officers later described as “trembling” and “hesitant” – telling V.G. that she had left a letter and a present in her letterbox and asking to be “forgiven”, before saying “goodbye”.

Afterwards, using two knives which she had stolen from a department store, the applicant killed her five children one by one before attempting suicide.

After writing the message “call the police” on a sheet of paper stuck to her front door, she telephoned the emergency services to say that she had killed her five children and to report her suicide attempt. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of the five children with their throats slit.

When the applicant was admitted to the intensive-care unit on the day of the incident, the doctor treating her noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr M.S.

On 1 March 2007 an investigating judge at the Nivelles Court of First Instance charged the applicant with the intentional and premeditated homicide of her five children. The applicant was also placed in pre-trial detention.

Forensic medical reports produced between 12 March and 31 December 2007 concluded that the five homicides had been committed in a relatively short time – about ten minutes in each case – and that, in view of the speed at which the events had occurred, they were the result of a preconceived plan. In addition, toxicological analyses carried out on blood samples taken from the applicant confirmed that she had only been taking a combination of anti-anxiety medication and sleeping tablets, the plasma levels detected being described as subtherapeutic – in other words, very low.

The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother.

A psychiatric assessment was also ordered by the investigating judge, who appointed a panel of three psychiatrists, Drs G., B. and M. The panel of experts examined the applicant and drew up a report dated 30 October 2007, in which they concluded:

“We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether.

The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.”

In an order of 17 June 2008 the Indictments Division (chambre des mises en accusation) of the Brussels Court of Appeal, upholding an order made by the investigating judge on 19 May 2008, committed the applicant to stand trial in the Assize Court for the following offence:

“... in Nivelles, on 28 February 2007,

having knowingly, intentionally and with premeditation, killed the following persons:

- [Y.M.], born on 13 August 1992;

- [N.M.], born on 13 February 1995;

- [My.M.], born on 20 April 1997;

- [Mi.M.], born on 20 May 1999;

- and [Me.M.], born on 9 August 2003.”

The indictment of 19 October 2008, drawn up by the Principal Public Prosecutor, ran to fifty-one pages and gave an account of the precise sequence of events, the steps taken and evidence obtained during the investigation, and the forensic medical reports; a substantial part of it also focused on the applicant’s personal history and family life and the motives and reasons that had prompted her to carry out the killings, particularly in the light of the expert assessments of her psychological and mental state.

The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. At the start of the trial the indictment was read out by the Advocate-General representing the prosecution, and the nature of the offence forming the basis of the charge and any circumstances that might aggravate or mitigate the sentence were likewise indicated.

While giving testimony during the trial in the Assize Court, Dr D.V. mentioned the existence of the two letters dated 13 and 27 February 2007 which the applicant had addressed to him. He produced them in court, thus disclosing them for the first time in the proceedings. In view of this new evidence, the President of the Assize Court duly instructed the panel of three psychiatrists, G., B. and M., who had already been involved at the investigation stage and had already confirmed their findings orally before the Assize Court, to produce a further report.

On 14 December 2008 the panel of three psychiatrists adopted a report in which they expressed a unanimous opinion. They began by noting by way of introduction:

“[The first question, concerning the applicant’s ability to control her actions at the time of the events and at present] is regularly the most difficult and controversial because of the ‘all or nothing’ nature of the answer that has to be given regarding inability to control one’s actions, so much so that some psychiatrists have for that reason declined to produce expert reports in criminal cases. A total loss of control over one’s actions is absolutely clear only in certain cases, such as delusional psychosis (‘dementia’). In other cases, it is more debatable and the personal conviction of the experts will be influenced by the presence of certain indicators. Their conclusions, in concise form, must give precise answers to the questions set out in the instructions. These answers reflect the experts’ personal conviction after carrying out the various written procedures. They are only ever an informed opinion, and not an absolute scientific truth.”

The experts went on to make the following findings in particular:

“The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic states are grounds for emergency hospital admission, or observation, where necessary. ... In the second letter, although in terms of content she unequivocally expresses her anxiety in relation to a suicide where ‘I will take my children with me, because there is no longer any future’, in terms of meaning she is clearly asking for help, apparently foreseeing her inability to control her future actions. ... These documents thus demonstrate beyond doubt that Ms Lhermitte no longer felt capable of controlling her actions ... it has always been clear that there was mental disturbance ... new evidence [warrants] the firm conviction that at the time of the events, Ms Lhermitte was incapable of controlling her actions on account of a severe mental disturbance. ... Ms Lhermitte developed a severe state of anxiety and depression ... [and] a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is momentarily lost. ... Currently ... she remains fragile and there is still a chance, particularly because mourning is impossible, that she will experience a further episode of mental disturbance making her incapable of controlling her actions: the possibility remains that she may attempt suicide ...


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

Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicants are the son (the first applicant), the daughter-in-law (the second applicant) and the wife (the third applicant) of the late Garegin Ghuyumchyan. They were born in 1965, 1973 and 1947 respectively and live in Vanadzor, Armenia. The first and the third applicants are also Garegin Ghuyumchyan’s first heirs, according to the Armenian civil law.

The third applicant and Garegin Ghuyumchyan ran a printing house and a small spirit factory as a family business.

On 19 July 2002 Garegin Ghuyumchyan was charged with bribetaking and made an undertaking not to leave his residence. A truck and a television set belonging to him were seized. It appears that he then hired a defence lawyer.

On 25 September 2002 the investigating authority decided to dismiss the charge against Garegin Ghuyumchyan for lack of evidence, lifted the seizure and cancelled the undertaking. It appears that after the dismissal of the charge, Garegin Ghuyumchyan’s advocate refused to work with him any longer.

In 2004 Garegin Ghuyumchyan and the third applicant sold the family business to a private person.

On 29 October 2004 Garegin Ghuyumchyan instituted proceedings seeking compensation for wrongful prosecution. In particular, he claimed reimbursement for legal and transport costs. He also claimed compensation for the loss of his family business, alleging that as a result of the prosecution he could not run it and had to sell it at a low price.

On 9 January 2006 Garegin Ghuyumchyan supplemented his claim, alleging that as a result of the prosecution the first and the second applicants had had to leave their jobs. The first and the second applicants also joined the proceedings as third parties having additional claims.

On 18 May 2006 the Lori Regional Court granted the claim in part, ordering reimbursement of legal costs and part of the transport costs. As for the rest of the claim, the Regional Court dismissed it on the ground that there was no causal link between the sale of the business and Garegin Ghuyumchyan’s prosecution or between the first and the second applicants’ leaving their jobs and the prosecution.

It appears that on 26 July 2006 Garegin Ghuyumchyan lodged a request with the Chamber of Advocates of Armenia, seeking to receive legal aid.

On 27 July 2006 the Chairman of the Chamber of Advocates of Armenia informed him in a letter that the Advocacy Act did not provide for legal aid for the type of proceedings in which he was involved.

On 17 November 2006 Garegin Ghuyumchyan lodged a complaint with the Lori Regional Prosecutor’s Office alleging that on 4 October 2006 he had been beaten by the Head of the Lori Region of Armenia. The outcome of this complaint is unclear.

On an unspecified date Garegin Ghuyumchyan and the first applicant lodged an appeal against the judgment of the Regional Court.

On 26 January 2007 the Civil Court of Appeal delivered its judgment upholding the judgment of the Regional Court in respect of the reimbursement of part of the travel costs as well as legal fees, but dismissing the rest of the claim.

On 22 June 2007 Garegin Ghuyumchyan lodged an appeal with the Court of Cassation against the judgment of the Court of Appeal.

By a letter of 28 June 2007 the Chief Registrar of the Court of Cassation returned the appeal, informing him that it had not been admitted for examination as it had not been lodged by an advocate licensed to act before the Court of Cassation, pursuant to Article 223 of the Code of Civil Procedure. The applicants alleged before the Court that their family could not afford the services of such an advocate.

On 29 October 2007 Garegin Ghuyumchyan and also the first and the second applicants lodged an introductory letter with the Court in which they complained under Article 6 § 1 that Garegin Ghuyumchyan had been denied access to the Court of Cassation, under Article 6 § 3 (c) that Garegin Ghuyumchyan’s defence lawyer had refused to represent him in the compensatory proceedings and that his request for legal aid had been rejected by the Chamber of Advocates. They also complained under Article 1 of Protocol No. 1 that the domestic courts had failed to grant the compensatory claim in full.

On 3 November 2007 Garegin Ghuyumchyan died of a heart attack.

On 10 May 2008 the applicants lodged their completed application with the Court.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations) (Substantive aspect)

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

The applicant was born in 1955.

On 26 February 2014 the applicant began to serve a three-year prison sentence. He was placed in Zagreb Prison Hospital (“ZPH”).

On 28 February 2014 the applicant applied to a Zagreb County Court judge responsible for the execution of sentences and the head office of the Prisons Administration requesting the suspension of his prison sentence on account of his state of health. He claimed that from 5 to 12 February 2014 he had been hospitalised in Dubrava Hospital in Zagreb because he had suffered a stroke. He also had two brain arteriovenous malformations, one of which had been removed in February 2013 by means of gamma knife radiosurgery, and the three-year high-risk recovery period had not yet ended. He referred to his medical documents, which had established basal ganglia in the ventricular system with a risk of haemorrhage, increased by the stress of the prison conditions. He also claimed that in combination with the epileptic fits from which he suffered, his health issues could be life-threatening.

A medical report drawn up by ZPH on 6 March 2014 confirmed the claims put forward by the applicant in his request and concluded:

“[The prisoner] presents a permanent high risk to himself and the institution in which he is placed. The expert opinion is that two or three years are needed for his brain condition to stabilise after the gamma knife surgery. We consider his request for a stay of his prison term medically justified.”

On 18 April 2014 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. This decision was based entirely on an opinion given by Dr B., an expert in internal medicine and cardiology. Dr B. concluded that the applicant was not suffering from any acute illness and that during his time in ZPH his chronic illness had not worsened. Dr B. also stated that in the event of a sudden deterioration in the applicant’s state of health, he could easily be transferred to an appropriate medical institution. Lastly, he asserted that the applicant’s current medical problems could be appropriately treated at ZPH.

On 25 April 2014 the applicant lodged an appeal, in which he argued that since incarceration his medical condition had been deteriorating constantly, that the ZPH doctors had themselves recommended that his prison sentence be suspended on medical grounds, and that Dr B. could not give a proper opinion on his health since he was not an expert in neurology.

On 8 July 2014 a three-judge panel of Zagreb County Court quashed the first-instance decision and instructed the first-instance court to order an expert opinion from a neurologist.

On 21 August 2014 the same Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. The decision was based mainly on the opinion given by Dr M., an expert in neurology. She concluded that the applicant had not been suffering from any acute illness, that his chronic illness had improved, that he had been receiving good medical care at ZPH, and that it had appropriate staff to meet the needs of the applicant as regards the medical care his condition required.

On 27 August and 4 September 2014 the applicant lodged appeals, in which he contested the qualifications of Dr M. and the validity of her opinion. He argued that she had not answered the question whether ZPH had adequate staff and could otherwise properly treat his medical condition. He further argued that the judge responsible for the execution of sentences had not addressed the contradictions between the findings the ZPH doctors had expressed in their opinion of 6 March 2014 and the reports of the medical experts commissioned by Zagreb County Court. He also asserted that his medical condition could only be properly treated in a specialist medical institution.

Following a suggestion by ZPH that there was no need for the applicant’s further hospitalisation, on 29 September 2014 the head office of the Prisons Administration ordered his transfer to Zagreb Prison. On 2 October 2014 he lodged an appeal, arguing that neither the staff nor equipment at ZPH was satisfactorily suited to carry out proper diagnostic examinations to accurately assess his medical condition. He asked for an urgent transfer to a suitable medical institution where a proper diagnostic examination could be carried out. The applicant’s appeal was dismissed on 14 October 2014 by the Prisons Administration.

On 31 October 2014 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision of 21 August 2014, endorsing its reasoning.

On 19 November 2014, at his request, the applicant was taken to the Sisters of Mercy Hospital in Zagreb so that neurological tests could be carried out. During his transfer in a police van he suffered an epileptic fit and lost consciousness. This was discovered only on arrival at the front entrance of the hospital when officers opened the back door of the van and found him lying on the floor. He spent ten hours at the hospital and was then returned to Zagreb Prison.

On an unspecified date the applicant lodged a constitutional complaint against the decisions concerning his request for the suspension of his prison sentence and the decision concerning his transfer to Zagreb Prison. In addition to the complaints put forward in his previous requests and appeals, the applicant also complained that during his eight months at ZPH he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, a request which they sometimes had not answered in time. Since there had been no lift at ZPH, in order to have access to fresh air he had had to climb the stairs to his cell on the second floor, which had been a risk to his health. He further reiterated that ZPH had no neurology department or even a neurologist, so his condition could not have been properly treated there. Even though specialists from the two civil hospitals where he had been treated prior to his imprisonment had recommended that check-ups be carried out every month, he had not been given them.

The applicant also complained about the conditions in Zagreb Prison. He claimed that he had been placed in a cell with seven other inmates, and that a lack of fresh air in the cell had worsened his condition. There had been a squat toilet in the cell, which had not been completely private and a foul smell had emanated from it. Inmates had had to eat in their cells. There had been no lift, which had prevented him from accessing fresh air.

On 31 December 2014 the applicant lodged another application for the suspension of his prison sentence on health grounds, reiterating his previous arguments. He also complained that since 19 October 2014 he had not had any access to daylight and that any access to fresh air had been prevented by construction of a lift in ZPH.

On 5, 9, 15 and 17 January 2015 the applicant was taken to Rebro Hospital in Zagreb. A report drawn up there on 15 January indicates that there was no need for any urgent measures. It was also established that the applicant had had a high concentration of tramadol (a painkiller) and its metabolites, benzodiazepine (a class of psychoactive drug) and olanzapine (an atypical antipsychotic drug).

The applicant’s constitutional complaint was declared inadmissible by the Constitutional Court on 27 January 2015 on the grounds that the contested judgment had not concerned the merits of his civil rights or obligations or a criminal charge against him, and as such was not amenable to constitutional review.

On 18 March 2015 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request of 31 December 2014. The judge relied on previous expert opinions as well as on a further opinion of Dr S., an expert in neuropsychiatry who confirmed that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, and that ZPH had the appropriate capacity for his treatment in all respects. The County Court further relied on ZPH reports dated 20 and 28 January 2015 stating that the applicant had not been following doctors’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk. There was no comment on the applicant’s complaints concerning lack of access to daylight and fresh air.

On 27 March 2015 the applicant lodged an appeal, reiterating his arguments concerning his health but made no mention of his previous complaints about lack of access to daylight and fresh air. This appeal was dismissed by a three-judge panel of the Zagreb County Court on 21 April 2015.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

On 28 February 1996 the applicants and the debtor (JSP “Tara” Cetinje) reached a court approved settlement before the Cetinje Municipal Court, whereby the debtor undertook to pay the applicants specified amounts in respect of pecuniary and non-pecuniary damage.

The settlement became final on the same date.

The debtor ultimately paid part of the amounts determined in the settlement.

On 26 May 1997 the Podgorica Commercial Court opened insolvency proceedings against the debtor.

On 19 August 1997 the applicants submitted their respective claims based on the settlement.

In the course of the insolvency proceedings the Podgorica Commercial Court acknowledged the applicants’ claims.

On 23 December 2009 the Podgorica Commercial Court terminated (zaključio) the insolvency proceedings against the debtor, but continued the proceedings against the debtor’s estate. This decision was upheld by the Appellate Court on 9 April 2010.

The proceedings are still pending.

On 14 October 2010 the Constitutional Court dismissed the applicants’ constitutional appeal on procedural grounds.

The court settlement in question remains partly unenforced to the present day.

It transpires from the case file that at the time the court settlement was concluded and became final (see paragraphs 4 and 5 above) the debtor was a company predominantly comprised of Statecontrolled capital. The Government neither contested this nor provided any evidence to the contrary.


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms Divna Tordaj, is a Serbian national, who was born in 1938 and lives in Belgrade. She was represented before the Court by Ms B. Zarić, a lawyer practising in Belgrade.

The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, and subsequently by their current Agent, Ms N. Plavšić.

On 13 November 2003 the applicant instituted private prosecution proceedings against P.A. for defamation, claiming that he had falsely accused her of extortion and nuisance in a letter to some local authorities.

On 25 February 2004 the Belgrade Municipal Court ordered the applicant to submit some additional information, which she did on 13 April 2004.

On 9 March 2006 the applicant applied to the criminal court to speed up the proceedings in view of the short limitation period in respect of defamation claims (see paragraph 10 below).

On 14 March 2006 the criminal court responded that the proceedings would become statute-barred in August 2007 and that it would take all necessary measures to prevent that.

On 17 July 2006 a hearing to attempt a friendly settlement was held. The defendant expressed his readiness to make an apology to the applicant, since he had had no intention of insulting her. The applicant did not accept his apology.

On 29 March 2007 the Municipal Court found the defendant guilty of defamation. However, the Belgrade District Court quashed that judgment and remitted the case for a retrial on 28 June 2007.

On 30 August 2007 the Municipal Court discontinued the proceedings as statute-barred. The District Court upheld that decision on 24 October 2007.

In the present case, although the alleged defamation had taken place in 2003, the domestic courts applied the Criminal Code 2005 because its provisions were more lenient for the defendant in respect of punishment. Article 104 of the Code provides that the time-limit for criminal prosecution for defamation expires four years after the commission of the offence.

Since January 2013 defamation has no longer been considered as a criminal offence (OG RS no. 121/2012).

Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) is entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant, Mr Gleb Davidovich Skant, is a Ukrainian national who was born in 1971 and lives in Kharkiv.

The applicant was represented by Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

After 7 p.m. on 18 October 2008 the applicant went out onto the staircase landing in front of his flat to talk to an acquaintance of his, Y.K., a user of injection drugs. According to the applicant, they spoke about computer games. According to Y.K., the applicant asked him to inject him with a syringe which the latter provided. According to a subsequent forensic analysis, the syringe seized from Y.K. contained an illegal drug, but the relevant amount was below the level needed for a prosecution.

In the course of the subsequent investigation it emerged that the residents in the applicant’s block of flats had for some time observed drug use on the staircase landings in the building. Having seen the applicant and Y.K. on the landing, and suspecting them of drug use, O.Ya. – the grandson of a lady who lived two floors above the applicant – contacted his friend D.T., a police officer, and asked him to intervene.

While the applicant and Y.K. were standing on the landing and, according to Y.K., while he was giving the applicant the injection, they were approached by D.T., accompanied by O.Ya. and a certain I.L. D.T. explained that he had brought along the other people as potential witnesses.

According to all those involved in the incident other than the applicant, D.T. identified himself as a police officer and enquired what the applicant was doing. According to the applicant, D.T. did not identify himself. The applicant attempted to open the door to his flat and retreat.

According to the applicant, he was then hit on the head, kicked and punched, and those attacking him also attempted to put a syringe in his pocket. He cried for help. The attackers pushed him to the floor and continued to kick him.

According to all the other people involved in the incident, including Y.K., the applicant resisted D.T. when the latter tried to stop him from retreating into his flat. He started struggling with D.T., but D.T. eventually overpowered him and pushed him to the ground face down. I.L. helped D.T. hold the applicant down.

The applicant cried for help. D.T. called his colleague, officer O.Z., for backup. I.P., a neighbour, subsequently stated that, after hearing cries for help, he went up one floor from his flat and saw the applicant, whom he knew by sight, lying on the ground and being held down by two people while struggling. A third person assisting with the arrest was holding Y.K., who was standing facing the wall. Other than that, nobody was moving. I.P. saw O.Z. arrive and handcuff the applicant.

The applicant and Y.K. were taken out of the building. G.D., a neighbour, saw them on the ground floor and did not see any ill-treatment.

According to the applicant’s submissions to the Court, immediately before putting him in the car, the police officers hit him repeatedly. Y.K. and another neighbour, N.Zh., saw no ill-treatment.

The police officers took the applicant and Y.K. to the Kharkiv Kyivsky District police station in the same car, and took the applicant to the third floor without registering him at the front desk.

According to the applicant, in the car and at the police station the police continued to beat him. They also threatened to continue beating him and rape him once they were in one of the offices at the station. The officers and all the other people present, including Y.K., denied these allegations.

It is undisputed that when the applicant was taken to the third floor of the station, and as D.T. was opening an office door, the applicant either kneed or headbutted him in the face, ran along the corridor to a window and jumped out, breaking the glass with a part of his body, either his head or shoulder. On 24 October 2008 a forensic medical expert recorded that D.T. had a haematoma on his face, diagnosed him with concussion, and stated that the injuries were consistent with D.T.’s account that he had been hit by the applicant.

The applicant was found lying on a lawn and was taken to hospital.

On 24 October 2008 a forensic medical expert recorded that, based on the applicant’s personal examination and hospital records, he had a wound on the crown of his head which had scabbed over, a wound on his right elbow which had scabbed over, redness in his waist area on the right and a circular bruise on his left wrist. He was diagnosed with a closed head trauma, concussion and several fractures. The expert concluded that, other than the wrist bruise, all of the injuries could be explained by the applicant’s jump through the window and fall, and the bruise could be explained by the handcuffing.

On 21 November 2008, in connection with his conduct in the course of his arrest, the Kharkiv Moskovsky District Court convicted the applicant of the administrative offence of disobeying a police officer, and gave him a fine.

On 3 September 2012 the applicant was recognised as a Category 3 disabled person (the least severe category of disability).

On 18 October 2008 an inspection of the scene of the incident at the police station was conducted. A shattered window and shards of glass were discovered, spread over the ground and covering a wide area.

On 20 October 2008 the applicant’s mother lodged a formal complaint regarding the alleged ill-treatment. On 21 October 2008 an investigator of the Kharkiv Kyivsky district prosecutor’s office took a statement from her. The statement was mainly based on the applicant’s account, which she had heard while visiting him in hospital.

On 23 October 2008 the applicant told the investigator that he had been attacked by strangers on the landing of his building. He had hit back and struggled with them for two minutes. They had pushed him to the ground and hit him. They had then hit him in the car on the way to the police station, stopping several times on the way to do so. When they had taken him to the third floor of the police station, somebody had threatened him with rape. He had not been able to bear it, had hit one of the officers, and had jumped out of the window.

On 24 October 2008 the applicant and D.T. underwent forensic medical examinations, in accordance with the investigator’s instructions (see paragraphs 14 and 16 above). Subsequently, the investigator took a number of statements from various witnesses (see, in particular, paragraph 11 above) and the applicant.

On 28 October 2008 a certain Ms T.O. told the investigator that on the night in question she had been collecting empty bottles near the applicant’s building when she had seen, at a distance of about fifteen metres, six strangers take two arrestees to a car. One person, with his hands handcuffed behind his back, had been hit and kicked in the kidneys, neck and head for about ten minutes while he screamed for help. Before putting him in the car one of the assailants had said, “Don’t forget to plant [that thing on him]” (“Что б не забыли подложить”). When she had called the applicant’s mother the next day to tell her about the incident, she had learned that the person she had seen had been the applicant. T.O. said that she was the applicant’s mother’s former classmate, and made other statements indicating that she knew the family well. Neither the applicant nor his mother mentioned in their initial statements (see paragraphs 20-22 above) the events which, according to T.O., had happened in front of the police car.

On 30 October 2008 the investigator refused to institute criminal proceedings, for lack of corpus delicti in the police officers’ actions. On 8 November 2008 the Kharkiv regional prosecutor’s office overruled that decision, instituted criminal proceedings in relation to suspected abuse of power by the police officers, and entrusted the investigation to an investigator at the regional office. On the same day the police officers were questioned, and denied subjecting the applicant to any ill-treatment.

On 15 November 2008 the applicant was recognised as an aggrieved party in those proceedings, and was questioned in that capacity.

In the course of the subsequent criminal investigation, all the witnesses mentioned above and several others were repeatedly interviewed, and several formal confrontations between witnesses and on-site reconstructions were held, with the participation of the applicant and the police officers. In particular, on 6 March 2009 the applicant was questioned about his personal history. He stated that he had previously participated in kickboxing and karate tournaments, and in 1994 had been a karate champion in Ukraine. He also stated that in 2000 he had changed his name from Maksim Vladimirovich Inyutin to Gleb Davidovich Skant, since this was a requirement for converts to Islam. He did not attend any church in particular, but felt closest to the Jehovah’s Witnesses.

The investigator also obtained the opinions of a number of experts. In particular, on 21 April 2009 a psychologist concluded that the applicant’s conduct might have been driven by such pronounced personality traits as an appetite for risk, a heightened sense of injustice, a strong will, and a tendency to become easily insulted. The expert noted that, according to the applicant, he had thought about jumping out of the car on the way to the police station. On 30 June 2009 a panel of medical experts confirmed the findings of the examination of 24 October 2008 (see paragraph 16 above), and concluded that the applicant’s injuries were inconsistent with his account of ill-treatment.

On 30 September 2010 the investigator decided not to bring charges against the individuals who had been involved in the incident (D.T., O.Z., O.Ya. and I.L.), for lack of corpus delicti in their actions, and on 2 October 2010 the investigator decided to discontinue the criminal proceedings, finding that there were no sufficient grounds to bring any charges. The investigator concluded, in particular, that the applicant’s account diverged from the accounts of all witnesses and the medical evidence, while the officers’ accounts did not. As to T.O., her account contradicted the consistent statements of other disinterested parties, and she was the applicant’s mother’s former classmate.

On 24 November 2010 the Kharkiv Chervonozavodsky District Court overruled the decision of 2 October 2010 and sent the case back for further investigation, stating in particular that the investigator had failed to take into account T.O.’s statements.

In the course of the subsequent investigation, the investigator repeatedly attempted to contact the applicant, without success, and then ordered the police to look for him. According to a police report of 7 April 2011, the applicant’s parents and neighbours said that he had moved in with his girlfriend. Although he visited them from time to time, his parents maintained that he had not left an address. They promised to inform the applicant that the investigator was looking for him when they next saw him. The investigator’s efforts to contact the applicant through his lawyers were equally unsuccessful.

On 31 May 2011 the investigator again discontinued the criminal proceedings, coming to the same conclusions, particularly concerning T.O.’s statements. According to the Government, the applicant was notified of that decision on the same day by letter. According to the applicant, he learned of it on 3 June 2013.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


CASE OF IATROPOULOS AND OTHERS v. GREECE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicants were all detained in the Transfers Department of Thessaloniki (Τμήμα Μεταγωγών); they were either in pre-trial detention or serving a prison sentence. Specifically, the first applicant was detained in the Transfers Department of Thessaloniki from 24 January 2013 until 29 April 2013; the second applicant was detained in the Transfers Department of Thessaloniki from 27 November 2012 until 1 March 2013; and the third applicant was detained in the Transfers Department of Thessaloniki from 29 January 2013 until 11 March 2013.

The applicants alleged that the Transfers Department of Thessaloniki had been an entirely inappropriate place in which to spend long periods of detention, as they had done. The cells in which they had been held had measured 40 sq. m and had been designed to accommodate nine detainees. However, the number of detainees accommodated had varied from twelve to twenty-two.

Cells had been insufficiently lit and ventilated, which, in addition to overcrowding and the filthiness of the premises, had affected inmates’ health. The blankets that had been provided had never been washed. The applicants furthermore stressed that there had been insufficient heating and hot water and that they had never been provided with soap.

Detainees had been confined to their cells and had not been allowed to spend time outside, which had affected their psychological health. Recreational activities had not been offered and cells had not been equipped with televisions or radio.

The meals that had been provided to detainees had cost 5.87 euros (EUR) per day and had not sufficed to cover their daily dietary needs, either in terms of quantity or quality.

On 22 February 2013 the applicants lodged a complaint with the public prosecutor, complaining of the conditions of their detention but received no reply.

The Government firstly argued that the applicants had complained in a general way, without providing specific references concerning the actual conditions of their detention.

As regards the premises in which the applicants had been detained, the Government submitted that the Transfers Department of Thessaloniki had been comprised of six cells on the ground floor which had measured 59 sq. m each and had been designed to accommodate ten male detainees. There had been another two cells which had accommodated female detainees. All cells had had in-cell sanitary facilities and had had sufficient light and received sufficient ventilation through large windows.

Cells had accommodated five to fifteen detainees. Most of the detainees had been held in the facility for very short periods of time, as the Transfers Department had been used when transferring detainees from one facility to another or to the court room. As a result, when the number of detainees had exceeded the number that the cells had been designed to accommodate, that had only remained the case until transfers had been completed. In any event, the space available for each inmate had never been less than 4 sq. m.

An external contractor had cleaned the facilities every day and had disinfected the detention areas once a week. Hot water and heating had been available throughout the premises and all sheets and blankets had been regularly cleaned and replaced in the event that they had become worn out.

Food had been provided to detainees by a private catering company and had been of good quality and quantity; the Government submitted examples of the various meals offered, arguing that these had covered all dietary needs and preferences.

The Government pointed out that the applicants had not referred to or adduced any evidence that they had not received any medical treatment that they had needed. On the contrary, according to the police station’s records, the second applicant had been transferred to Papanikolaou Hospital on 29 December 2013 for a medical check-up.


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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1953 and lives in Ercsi.

On 28 February 2007 the applicant filed an action with the Székesfehérvár Labour Court against his former employer, claiming unlawful dismissal. On 6 June 2008 the court found in his favour and obliged the respondent to the action to pay him a severance payment, outstanding wages, a lump sum in compensation, and default interest.

On appeal, on 25 February 2009 the Fejér County Regional Court changed the judgment in part. In June 2009 the respondent filed a petition for review.

In an order of 2 June 2010 the Supreme Court forwarded the respondent’s petition to the applicant and informed him that, within eight days of receiving the order, he could file comments on the respondent’s petition and/or request an oral hearing.

On 7 June 2010 the applicant received the order, and on 14 June 2010 he dispatched his comments on the petition for review. The document was received by the Supreme Court on 17 June 2010.

Meanwhile, on 16 June 2010 the Supreme Court, sitting as a review court, had given a judgment in which it had reversed the previous decisions and dismissed the applicant’s action. The court stated that the applicant had not filed any comments on the petition for review.

The applicant complained and addressed his complaint of 6 December 2010 to the President of the Supreme Court. The Head of the Civil Division informed him that his comments on the petition for review had been belated.


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

The applicant, Mr Daniel Molga, is a Polish national who was born in 1998 and lives in Radom. He was initially represented before the Court by his mother, and subsequently by Mr T. Rowiński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

The applicant’s father, Mr Włodzimierz Molga (“W.M.”), lived with the applicant’s mother, Ms R.L.

The applicant’s father sold clothes at a local market. On 31 August 1998 the Radom District Court convicted him in summary proceedings of the unauthorised use of a registered trademark. It fined him 700 Polish zlotys (PLN, approximately 175 euros (EUR)), convertible to 35 days’ imprisonment in case of default.

On 22 December 1998 the court decided that W.M. could pay the fine in seven monthly instalments, starting from December 1998. According to the court’s records, W.M. paid PLN 600 of his fine. A court bailiff instituted enforcement proceedings to recover the outstanding PLN 100, but to no avail.

On 8 June 2004 the Radom District Court ordered that W.M. serve a term of five days’ imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear.

W.M. was unsuccessfully summoned to surrender himself to a remand centre. On 19 October 2004 the Radom District Court ordered that he be arrested and taken to the remand centre. On 16 November 2004 at about 5 p.m. the police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was taken to Radom Remand Centre to serve his fiveday sentence.

At the remand centre W.M. refused a routine examination by a nurse. He was then examined by a doctor, who cleared his admission. Subsequently, W.M. was placed in a transit cell no. 4. At about 12 noon a prison guard, M.D., noticed that W.M. was lying on the floor with his belt tied around his neck. The other end of the belt was tied to a chair. The guards, M.D. and A.R., and later the nurse tried to resuscitate W.M. He was declared dead at about 12.30 p.m. W.M. was 52 at the time. A prosecutor and the police arrived at the scene later.

On 22 November 2004 the Radom police opened an investigation under the heading of involuntary homicide (Article 155 of the Criminal Code, hereinafter “the CC”). The investigation was later taken over by the Radom District Prosecutor.

On an unspecified date a post-mortem was carried out. In his report, the forensic expert concluded that the direct cause of death had been hanging and that it could be assumed that it had been an act of suicide.

The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to a possible failure to act by the prison guards, the prosecutor questioned M.D., the guard who had been supervising W.M. at the relevant time (see paragraph 8 above). Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M.’s safety had acted beyond reproach. The guards had not breached the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards’ reaction after seeing W.M. lying on the ground. She concluded that the prison guards had not committed an offence.

On 28 February 2005 the Radom District Prosecutor discontinued the investigation after establishing that the actions of the prison guards had not constituted a criminal offence.

On 12 August 2008 the applicant’s mother complained to the Ministry of Justice that she had not been served with the Radom District Prosecutor’s decision to discontinue the investigation.

On 6 October 2008 the Radom District Prosecutor ordered that the applicant’s mother be served with a copy of the decision.

By a letter dated 9 October 2008 the applicant’s mother was informed by the Radom District Prosecutor that she had been formally notified of the opening of the investigation into her partner’s death on 30 November 2004. The letter said that the applicant’s mother had twice been summoned to the Radom police headquarters for an interview, which she had not attended. Subsequently, a police officer had visited her flat but had not been allowed to enter. Further summonses sent to the applicant’s mother had not been answered. On 28 December 2004 the applicant’s mother had gone to police headquarters and had insisted that she did not wish to be contacted in connection with W.M.’s death. Accordingly, the district prosecutor had served the decision to discontinue the investigation on R.L., W.M.’s adult son and the applicant’s half-brother.

On 9 January 2009 the applicant’s mother was served with the prosecutor’s decision to discontinue the investigation. She lodged an appeal against that decision dated 13 January 2009. Her appeal was rejected as submitted out of time. On an unspecified date the applicant’s mother requested the district prosecutor to grant her leave to appeal out of time. On 5 February 2009 the prosecutor refused that request. The applicant appealed. On 7 April 2009 the Radom District Court upheld the prosecutor’s decision. No further appeal lay against this decision. In consequence, the decision to discontinue the investigation of 28 February 2005 became final.

On 12 June 2012 the applicant, represented by his mother, relying on Article 327 § 1 of the Code of Criminal Procedure (hereinafter, “the CCP”), requested that the Radom-Wschód District Prosecutor open de novo (podjęcie na nowo) the investigation into his father’s death. He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts had determined that there existed a causal link between the failures of the prison guards and his father’s suicide (see paragraphs 36-43 below). He pointed out the discrepancy between the findings of the district prosecutor and the civil courts. The applicant’s mother also produced proof of payment of all seven instalments of the fine imposed on W.M.

The investigation was opened de novo on 15 February 2013.

On 28 June 2013 the Radom-Wschód District Prosecutor discontinued the investigation into the alleged failure by the prison guards to fulfil their duties. The allegation was related to their failure to keep the applicant’s father under constant surveillance and to seize his belt, which he had used to commit suicide (Article 231 § 1 in conjunction with Article 155 of the CC, see paragraph 44 below). The prosecutor established that those acts did not constitute a criminal offence.

The prosecutor also discontinued the investigation into alleged negligence by Ms E.W., a clerk at the Radom District Court who had incorrectly credited a payment of PLN 100 by W.M. to another debtor. The prosecutor established that prosecution of the impugned offence had become time-barred.

With regard to the facts, the prosecutor established that during W.M.’s admission to the remand centre on 17 November 2004, the prison guard S.S. had noticed that W.M. had been anxious and tearful. W.M. had contested his imprisonment as unjust. Consequently, the guards S.S. and R.D. had decided to check with Radom District Court as to whether the fine had been paid and were told that that was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. had been agitated and tearful and had declared that he would go on a hunger strike. Having regard to those circumstances, the male nurse had requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. had been taken to a medical room where he was to be examined by a doctor, D.C. W.M. had been anxious, tearful and convinced that he had been wronged by the court and the police. W.M. had refused to be examined or take any medication. He had also declared that he would refuse any food and drink in protest at his imprisonment. W.M. had not revealed any suicidal thoughts. Doctor D.C. had agreed to W.M.’s incarceration but had recommended that he be seen by a psychiatrist at a later date.

At about 11.40 a.m. W.M. had been taken to transit cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon the prison guard M.D. had seen through the peephole that W.M. was lying on the floor. M.D. had entered the cell and noticed that a belt was tied around W.M.’s neck. He had taken the belt off W.M.’s neck and, together with another guard, A.R., had begun resuscitation procedures. At about 12.30 p.m. an emergency services doctor had declared W.M. dead.

The prosecutor also had regard to the findings of the forensic expert. The expert, having carried out a post-mortem, established the presence of a slight strangulation mark on W.M.’s neck and a number of injuries which had likely resulted from his hitting objects while in convulsion. The expert further established that the direct cause of death had been hanging. The result of his examination allowed it to be established that it had been a suicide.

The prosecutor found no evidence pointing to the involvement of third parties in the impugned incident.

The prosecutor took a number of investigative measures aimed at determining whether the prison guards had failed to fulfil their duties. She interviewed the prison guard M.D. He testified that certain objects, such as mobile telephones, penknives and screwdrivers, were taken from prisoners. However, the applicable regulations did not require that belts or laces should also be seized. The prosecutor analysed the applicable regulations and concluded that belts and laces were not regarded as dangerous objects.

With regard to alleged negligence on the part of the prison, the prosecutor established that the actions of the prison guards had not disclosed any failure to fulfil their duties. The prison guards had acted with appropriate diligence in supervising W.M. Not seizing W.M.’s belt in the process of his admission to the remand centre had been in compliance with the relevant regulations. There had been no grounds to suspect that W.M. would make an attempt on his own life despite his strong emotional reaction to his incarceration. The doctor interviewing W.M. had not identified any suicidal tendencies. Furthermore, after seeing W.M. lying unconscious on the floor, the prison guards had reacted appropriately to the situation. In conclusion, the prosecutor found that the actions of the prison guards had not constituted any of the criminal offences prescribed in Articles 231 and 155 of the CC.

On 11 July 2013 the applicant’s mother appealed against the prosecutor’s decision. She argued, inter alia, that the prison guards had failed in their duties by not seizing W.M.’s belt. That, in consequence, had led to his suicide and death.

On 10 October 2013 the Radom District Court dismissed the appeal and upheld the prosecutor’s decision.

The court noted that the applicant’s mother had sought to have the investigation continued and for charges to be brought against specific individuals, eventually leading to their trial and conviction. However, the evidence secured in the investigation had not provided any grounds to accept such a demand.

The court found that the prosecutor had correctly established the facts and had properly assessed the comprehensive evidence obtained in the case. It noted that the prosecutor had carried out a number of investigative measures aimed at determining if there had possibly been negligence on the part of the prison guards. However, no such negligence had been established.

The court found nothing untoward in the manner in which the prison guards had carried out their duties vis-à-vis the applicant’s father. They had ensured, inter alia, that the applicant’s father had been seen by a doctor. There had been no grounds to believe that the applicant’s father would commit suicide, despite his strong emotional reaction to imprisonment. In accordance with the applicable regulations, the prison guards had not been required to seize the applicant’s father’s belt. Furthermore, they had attempted to resuscitate the applicant’s father. In conclusion, the court accepted the prosecutor’s finding that the actions of the prison guards had not amounted to any of the offences prescribed in Articles 231 and 155 of the CC. It noted that the findings of the civil court could not alter that conclusion and lead to attributing criminal responsibility to the prison guards. The court found that the applicant’s mother had not indicated any relevant circumstances which could lead to the prosecutor’s decision being overturned.

The court also accepted the prosecutor’s decision to discontinue the investigation with regard to the court clerk.

On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. His mother acted on his behalf since the applicant was a minor. He sought PLN 1,000,000 (approximately EUR 250,000) in compensation and a monthly allowance of PLN 3,000 (approximately EUR 750) in connection with his father’s death. The applicant argued that the State Treasury was liable for his father’s death on account of gross negligence by the prison guards who had failed to ensure his father’s safety. In his view, the belt had been a dangerous object and should definitely have been seized by the prison guards.

On 30 September 2010 the Radom Regional Court dismissed the applicant’s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and that therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M.’s death and the actions of the prison guards.

The Regional Court established that W.M. had been agitated during his admission to the remand centre but considered that to be a standard reaction. The prison guards had checked with Radom District Court and, despite W.M.’s claims to the contrary, it had confirmed that one instalment of W.M.’s fine had not been paid. During his medical examination, W.M. had informed the doctor that he had left children at home unsupervised but he had not revealed any suicidal thoughts. The doctor had concluded that W.M. could be admitted to the remand centre and that there was no need for an immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M.’s medical history or circumstances related to the offence which would have indicated that he needed to be put under particularly close supervision or that his belt should have been seized.

The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable under Article 417 § 1 of the Civil Code and awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). The court dismissed the remainder of the applicant’s appeal.

The Court of Appeal noted that under Article 108 § 1 of the Code of Execution of Criminal Sentences, the administration of a penal institution had a duty to ensure prisoners’’s behaviour could not be considered as simple agitation. His behaviour had suggested a nervous breakdown caused by a feeling of injustice as W.M. had been convinced that he had paid the fine in full. For example, the prison guard M.S. had stated in his report that W.M. had displayed disturbing behaviour (hitting the bed with his fist), had been tearful, anxious and agitated, and had declared that he would go on a hunger strike.

The Court of Appeal found that since W.M.’s behaviour had been very different from the norm and that a psychiatric consultation had been recommended for him, then the prison guards should have taken all the necessary steps to ensure his safety. They should have seized any object presenting a risk to his life or health, including his belt or, alternatively, should have put him under constant supervision. Such actions would have prevented W.M.’s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M.’s death.

With regard to the claim for compensation, the Court of Appeal noted that under Article 446 § 3 of the Civil Code it could award an appropriate level of compensation to relatives of a deceased if their situation significantly deteriorated as a result of the person’s death. A significant deterioration in a claimant’s situation depended on the degree of adverse material and immaterial consequences resulting from the death of a relative. The Court of Appeal found that the amount of compensation sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old had certainly been a particularly acute loss which had limited his prospects in life and had amounted to a loss of natural support. Having regard to those and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000 (approximately EUR 18,000).

The amount of monthly allowance sought by the applicant was also inflated, the court found. The size should not be higher than the amount W.M. would have contributed as a father. Having regard to W.M.’s financial situation prior to his death, the court found that a monthly allowance of PLN 500 (approximately EUR 125) was reasonable and commensurate with the applicant’s justified needs.

The applicant lodged a cassation appeal, contesting the amounts of compensation and monthly allowance as too low. The State Treasury also lodged a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant’s cassation appeal for examination and refused to admit that of the applicant.

On 22 February 2012 the Supreme Court quashed the Court of Appeal’s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant’s plea that the claim was time-barred. However, it upheld the Court of Appeal’s findings in respect of the prison guards’ failure to ensure the safety of the applicant’s father (see paragraphs 37-38 above).

On 31 May 2012 the Lublin Court of Appeal gave a judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant’s appeal. The court examined the defendant’s plea based on the limitation period. To that end the court heard the applicant’s mother. It established that in April 2012 the applicant’s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It had only been after the applicant’s mother had complained to the Ministry of Justice that she had been served with the decision to discontinue the investigation on 9 January 2009 (see paragraph 16 above). Accordingly, the three-year limitation period should start to run on the latter date. As the claim had been brought on 11 January 2010 (see paragraph 33 above), the defendant’s plea had to be dismissed.

Article 77 § 1 of the Constitution refers to the State’s civil liability in the following way:

“Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.”

In a judgment (no. SK 18/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 § 1 of the Constitution. It held, inter alia, that:

“In accordance with Article 77 § 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act was subjectively culpable (subiektywnie zawinione). ...

Having regard to the conditions for [State] liability laid down in Article 77 § 1 of the Constitution previously analysed, there is no doubt that ‘the personal culpability of a state official’ does not form part of the list of conditions necessary for liability on the part of the public authorities.”

Article 417 § 1 of the Civil Code, as applicable from 1 September 2004, provides as follows:

“The State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

Article 155 of the Criminal Code provides as follows:

“Anyone who unintentionally causes the death of another person shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

Article 231 § 1 of the Criminal Code reads as follows:

“A public official who, by overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a sentence of imprisonment of up to three years.”


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1939 and lives in Remeteszőlős.

Between 31 August 2002 and 16 April 2013 – that is, for ten years and eight months – his action for division of matrimonial property and related issues was pending before the Budapest XX/XXI/XXIII District Court, the Budapest High Court and the Kúria.

He complained of the excessive length of the proceedings.


CASE OF NUSRET KAYA AND OTHERS v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for family life);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque

The applicants were born in 1972, 1965, 1966, 1974 and 1976 respectively.

When their application was lodged the applicants were being held at the E-type prison of Muş.

During their previous detention in another prison – the H-type prison of Erzurum – they had applied to the sentence-execution judge of Erzurum seeking the lifting of the restrictions that the prison authorities imposed, according to them, by preventing them from using the Kurdish language in their telephone conversations.

On 29 May 2006, based on the case file, the sentence-execution judge of Erzurum dismissed their application. In his reasoning he began by stating that, while Article 22 of the Constitution and Article 8 of the European Convention on Human Rights protected the freedom of correspondence, those two Articles also provided for limitations of such freedom on grounds such as national security and public order. He further mentioned that Law no. 5275 on the enforcement of sentences and preventive measures (“Law no. 5275”) provided that telephone conversations had to be conducted under the conditions and according to the principles laid down in the Rules on the enforcement of sentences and preventive measures (“the Rules”). He noted that the prison authorities had not yet received any reply to their request for it to be ascertained, under Rule 88/2 (p) of the Rules, whether or not the individuals with whom the applicants wished to speak understood Turkish. He pointed out in this connection that the question remained to be clarified and that the applicants’ action thus concerned the general practice of the prison authorities which, in his view, was not in breach of the law. He concluded that the prison authorities had acted in conformity with Law no. 5275 and Rule 88/2 (p).

On 11 May 2006 the applicants requested that this decision be set aside.

On 12 July 2006, based on the case file, the Erzurum Assize Court dismissed the applicants’ action to have the decision set aside, finding that the sentence-execution judge had not acted in breach of the procedure or of the law.

At the time when they lodged their applications, the applicants were being held at the F-type prison of Bolu.

While in that prison, they applied on 5 May 2008 to the sentence-execution judge of Bolu seeking the lifting of the restrictions that, according to them, the prison authorities imposed by preventing them from using the Kurdish language in their telephone conversations.

On 13 May 2008, based on the case file, the sentence-execution judge of Bolu dismissed the application, finding that the practice of the prison authorities was in conformity with both the procedure and the law. In his decision, he noted that the rules on telephone conversations between convicted and remand prisoners and their relatives had been revoked on 17 February 2007. He indicated that those rules did not contain any provision about the handling of a request concerning a telephone conversation in a language other than Turkish. He explained that Law no. 5275 had come into force and that Rule 88 laid down new principles that had to be taken into account. He set out all the conditions provided for in Rule 88 as regards the supervision of telephone conversations in prisons, particularly the principle that telephone conversations had to be conducted in Turkish, with the exception of those cases in which the convicted prisoner and/or the person telephoned or telephoning did not understand that language. He pointed out that, in such cases, the Rules required the inmate to indicate on the telephone-call form that the other person did not understand Turkish. He added that, when the prison authorities found it necessary, research would be carried out – at the inmate’s expense – to verify the information given on the form, following which the inmate could be authorised to speak in Kurdish. He further stated that the inmate was required to begin a telephone conversation by stating his or her forename and surname, then to ask the other person to give his or her forename, surname and telephone number. In the judge’s view, that obligation meant that, save in certain situations, telephone conversations had to be conducted in Turkish.

On 26 May 2008 Mr Yurtsever applied to have that decision set aside. He argued that his mother tongue was Kurdish and that it was therefore understandable for him to use that language to speak to his mother on the telephone. He also stated that this had been the case for the past five years. Lastly, he complained about the fact that the cost of verifying the information was charged to the requesting inmate.

On 27 May 2008 Mr Bozçalı also applied to have the sentence-execution judge’s decision set aside, arguing that to communicate, correspond and live in accordance with one’s cultural identity was a fundamental right.

On 12 June 2008, on the basis of the case file, the Bolu Assize Court dismissed the applicants’ action. It found that the prison authorities and the sentence-execution judge had not acted in breach of the procedure or of the law.

When he lodged his application, the applicant was being held at the F-type prison in Bolu.

While in that prison, on 30 May 2008, he complained to the sentence-execution judge of Bolu that he was obliged to use Turkish when speaking to his relatives on the telephone and that the prison authorities refused to allow him to use the Kurdish language in those conversations.

On 10 June 2008, on the basis of the case file, the sentence-execution judge of Bolu rejected the application, finding that the practice of the prison authorities was in conformity with both the procedure and the law. In his decision, he noted that the rules on telephone conversations between convicted and remand prisoners and their relatives had been revoked on 17 February 2007. He indicated that those rules did not contain any provision about the handling of a request concerning a telephone conversation in a language other than Turkish. He explained that Law no. 5275 had come into force and that Rule 88 laid down new principles that had to be taken into account. He set out all the conditions provided for in that Rule as regards the supervision of telephone conversations in prisons, particularly the principle that telephone conversations had to be conducted in Turkish, with the exception of those cases in which the convicted prisoner and/or the person telephoned or telephoning did not understand that language. He pointed out that, in such cases, the Rules required the inmate to indicate on the telephone-call form that the other person did not understand Turkish. He added that, when the prison authorities found it necessary, research would be carried out – at the inmate’s expense – to verify the information given on the form, following which the inmate could be authorised to speak in Kurdish. He further stated that the inmate was required to begin a telephone conversation by stating his or her forename and surname, then to ask the other person to give his or her forename, surname and telephone number. In the judge’s view, that obligation meant that, save in certain situations, telephone conversations had to be conducted in Turkish.

On 20 June 2008 the applicant applied to have that decision set aside.

On 4 July 2008 the Bolu Assize Court dismissed the applicant’s action, finding that the prison authorities and the sentence-execution judge had not acted in breach of the procedure or of the law.


No violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicant was born in 1969 and lives in Timişoara.

In 2004 the applicant lodged a civil action against her employer, a private company, C.G.H.T. (“the company”), seeking the revocation of its decision of 17 October 2003 to dismiss her, and claiming various salary entitlements.

On 29 April 2004 the Timiș County Court dismissed her action as illfounded. The applicant appealed.

In a final judgment of 29 September 2004 (“the judgment”), the Timișoara Court of Appeal allowed the applicant’s appeal. It ordered the company to revoke its dismissal decision and to pay the applicant pecuniary damages in the form of all her salary entitlements from 17 October 2003 until the pronouncement of the final judgment, updated and index-linked. The domestic court also awarded the applicant the costs and expenses incurred in the proceedings.

On 15 November 2004 the Timiș County Court validated the judgment (învestire cu formulă executorie), pursuant to Article 374 of the Romanian Code of Civil Procedure (hereinafter “the RCCP”), as in force at the time (see paragraph 37 below).

The applicant instituted enforcement proceedings on 21 January 2005, requesting the bailiffs’ office M.S.R. & S.A.I. (“the bailiff”) to enforce the judgment.

On 26 January 2005 the bailiff issued a notice of payment (somație) and served it on the company.

According to a report of 11 February 2005 issued by the bailiff, the bailiff and the applicant’s lawyer visited the company’s premises. As the company’s legal representative was not present, the bailiff granted the company a further five days in which to execute the final judgment of their own accord.

However, the company refused to fulfil its obligations. Moreover, it lodged a complaint seeking to have the enforcement proceedings annulled, pursuant to Article 399 of the RCCP, as in force at the time (see paragraph 39 below). During those proceedings and at the company’s request, on 24 February 2005 the Timișoara District Court ordered the suspension of the enforcement proceedings until a final judgment was given; the suspension was made subject to payment of a deposit of 4,000,000 Romanian lei (ROL), namely approximately 90 euros (EUR).

In response, on 16 May 2005 the applicant brought urgent proceedings seeking to have the impugned suspension lifted. She argued that the matter was urgent because she needed to obtain the salary entitlements that would allow her to provide for herself and her infant.

In a judgment of 18 May 2005 the Timișoara District Court dismissed the applicant’s request, holding that she had not proved the existence of any imminent damage, so as to justify the urgency of the request.

On 2 June 2005 the Timișoara District Court allowed the company’s complaint against the enforcement proceedings. The court held that the procedural requirements had not been thoroughly complied with in so far as the bailiff had failed to serve the company with a copy of the enforceable judgment.

The applicant lodged an appeal on points of law against the court’s judgment. On 6 October 2005 the Timiș County Court dismissed the applicant’s appeal on points of law as ungrounded. The first-instance judgment thus became final.

The company lodged another request seeking to obtain the annulment of the restriction order (anularea măsurii de poprire) issued by the bailiff in respect of its bank accounts. On 21 April 2005 the Timișoara District Court allowed the request, in so far as the restriction order had been issued subsequent to the suspension of the enforcement proceedings ordered by the court (see paragraph 13 above).

In the meantime, on 29 June 2005, the bailiff issued another notice of payment. On 4 July 2005 it was posted, together with the enforceable judgment, at the company’s main entrance.

On 2 November 2005 the bailiff received a letter from the applicant, in which she enquired whether the company had complied with the outstanding judgment. The bailiff replied in the negative on 4 November 2005.

In so far as this was the last exchange of information between the applicant and the bailiff concerning the impugned enforcement procedure, and in view of the obligations imposed by law on the creditor, who was required to play a constantly active role throughout the enforcement procedure, on 28 May 2007 the bailiff issued an official report, noting that, under Article 389 of the RCCP as in force at the time, the procedure had become time-barred (“perimarea executării”; see paragraph 38 below). It is not clear whether that report was communicated to the applicant or not.

On 5 May 2005 the applicant lodged a complaint before the Timișoara District Court seeking to obtain a court order for immediate enforcement of the judgment, pursuant to Article 5803 of the RCCP as in force at the time (see paragraph 40 below).

In a decision of 18 August 2005 the Timișoara District Court allowed the applicant’s complaint and ordered the company to pay a coercive fine of ROL 500,000 per day until it fulfilled its obligations.

An appeal by the company against that decision was allowed on 16 December 2005 by the Timiş County Court. The court held that the coercive fine had the nature of a civil penalty aimed at securing the enforcement of a personal obligation which could not be otherwise executed, as provided for by Article 5803. However, the payment of the company’s debt could be enforced with the assistance of a bailiff; therefore the applicant’s complaint was ill-founded.

On 12 July 2005 the applicant complained to the Minister of Justice about the outcome of the judgment of 2 June 2005 (see paragraph 16 above). The complaint was lodged under the provisions of Law no. 303/2004, defining the framework for judges’ disciplinary and criminal responsibility and the specific authorities empowered to initiate such proceedings.

On 24 August 2005 the applicant’s complaint was forwarded to the Timișoara Court of Appeal. On 5 September 2005 the Timișoara Court of Appeal noted that the impugned proceedings had been terminated by a judgment that was final and therefore not subject to appeal.

In 2005 the applicant complained to different State authorities that the company’s representatives had failed to execute the judgment. She relied on Articles 277, 278 and 280 of the Labour Code and Article 83 of Law no. 168/1999 regarding the resolution of labour disputes (see paragraphs 43-44 below).

On 5 December 2006 a criminal investigation was initiated against M.D., the company’s administrator, for refusal to execute the judgment.

On 4 February 2008 the prosecutor’s office at the Timișoara District Court decided to discontinue the proceedings against M.D. and fined him RON 1,000, namely approximately EUR 250. The prosecutor investigating the case found that M.D.’s actions could not be classified as an offence.

A complaint lodged by the applicant against that decision was dismissed on 8 April 2008 by the senior prosecutor at the Timişoara District Court.

On 2 June 2008 both the applicant and M.D. appealed against the prosecutors’ decisions before the Timişoara District Court. The court dismissed both appeals on 17 October 2008. It held that the applicant’s appeal had been lodged outside the time-limit. With regard to M.D.’s appeal, it reiterated that even though he had not executed the judgment, his actions could not be classified as an offence and, therefore, the administrative fine had been fair.

In a final judgment of 28 January 2009 the Timiş County Court dismissed appeals on points of law lodged by the applicant and M.D.

On 5 August 2014 the company’s two shareholders decided that the company should be liquidated (dizolvare), in accordance with the provisions of Law no. 31/1990 on trading companies. At their request, the Companies Registration Office (Oficiul Registrului Comerţului) decided on 7 August 2014 to publish the shareholders’ decision in the Romanian Official Journal. The decision was published on 26 August 2014, in accordance with the provisions of Emergency Government Ordinance no. 116/2009 regulating the registration of specific acts in the companies register (see paragraph 48 below).

It was noted in an accounting report drawn up on 30 August 2014 that the company’s only creditors were the two shareholders.

On 10 October 2014 one of the shareholders asked the Companies Registration Office to strike the company off the register. The request was granted on the same day, and the Companies Registration Office decided that the decision would be published in the Romanian Official Journal.

No appeal was lodged against the decisions taken by the Companies Registration Office in respect of the company.