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

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva

The applicant was born in 1941 and lives in Kadzidło.

The applicant’s parents owned land within the administrative borders of Warsaw. It was expropriated by way of an administrative decision issued on an unspecified date under the provisions of the Decree on Ownership and Use of Land in Warsaw of 26 October 1945. In February 1949 the applicant’s legal predecessor requested to be granted a right of perpetual use (użytkowanie wieczyste) for another plot of land situated in Warsaw as compensation provided for by the provisions of the 1945 Decree. His request was dismissed by way of an administrative decision given in 1961 and ultimately upheld in 1968.

A judicial decision given in 1975 confirmed that the applicant was his parents’ general heir.

On 16 July 1993 the applicant requested that the decision given in 1961 be declared null and void.

On 20 September 1994 the Minister of Construction and Land Planning (Minister of Gospodarki Przestrzennej and Budownictwa) gave a decision. It noted that in 1961 the authorities had failed to examine whether the substantive conditions for granting the owners the right of perpetual use of the land specified in section 7 of the 1945 Decree (see paragraph 46 below) had been met at that time. He declared, referring to Article 156 § 1 item 2 of the Code of Administrative Procedure (CAP) (see paragraph 39 below), that decision null and void in so far as it related to the part of the land concerned which was used as family gardens. In so far as this decision related to the part of the land which had already been used for construction purposes, he considered that the contested decision had given rise to irrevocable legal consequences within the meaning of Article 156 § 2 of the CAP (see paragraph 41 below). Therefore under Article 158 § 2 he could merely declare that it had been issued contrary to law within the meaning of this provision.

The municipality of Warsaw did not lodge an appeal against this decision. It accordingly became final within thirty days after its service on the applicant.

The applicant instituted three separate sets of proceedings, seeking compensation for damage caused by the expropriation decision.

On 10 October 1994 the applicant, referring to the decision of 20 September 1994, requested the authorities to re-examine the original motion submitted in 1949 to be granted a right of perpetual use in respect of the land covered by the part of the expropriation decision declared null and void (see paragraph 7 above). On 28 October 1994 the Land Planning Division (Wydział Gospodarki Przestrzennej) of the Warsaw City Hall requested the Warsaw-Mokotów Town Hall to provide certain information concerning the land concerned.

On 3 March 1995 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in his case.

On 7 September 1995 the Minister of Minister of Construction and Land Planning stayed the compensation proceedings instituted by the applicant under Article 160 of the Code of Administrative Procedure (see paragraphs 29-33 below). He observed that the decision given on 20 September 1994 (see paragraph 7 above) made it necessary in law to reexamine the former owners’ request for grant of the right to perpetual use submitted in 1949 and that it created a compensation claim for the applicant. It referred to the applicant as “the claim’s owner” (właściciel roszczenia).

In March and May 1996 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in the case.

On 25 November 1996 the Supreme Administrative Court gave a decision obliging the Mayor of Warsaw to whom the case had meanwhile been transmitted to give a decision on the merits of the case within one month.

On 24 February 1997 the Mayor of Warsaw refused to allow the application submitted in 1949 and joined by the applicant (see paragraph 5 above). The applicant appealed.

On 19 July 1997 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) set the first-instance decision aside and remitted the case.

On 31 December 1997 the Mayor again refused to allow the applicant’s application. The applicant appealed. On 21 January 1999 the Board of Appeal set the first-instance decision aside and remitted the case. An exchange of correspondence between the applicant and the authorities ensued.

In January 2004 the Mayor of Warsaw informed the applicant that he had instituted proceedings with a view to having the decision given in 1994 that created for the applicant an entitlement to compensation (see paragraphs 7 and 12 above) declared null and void. In September 2004 the Minister of Construction refused to grant the Mayor’s application, finding that the contested decision was lawful.

On 13 December 2004 the Warsaw Town Hall (Urząd m. st. Warszawy) informed the applicant that the Mayor could not give a decision on the merits of the case unless the applicant indicated, by way of an initial request to obtain a construction permit, how he intended to use the land in question.

In September 2006 the applicant complained about the authorities’ failure to give a decision on the merits of the case. On 15 November 2006 the Board of Appeal obliged the Mayor to issue a decision by the end of February 2007.

On 15 March 2007 the applicant again complained about the administrative authorities’ failure to examine his case within a reasonable time.

On 24 April 2007 the Mayor refused to allow the applicant’s application. The applicant appealed. On 30 July 2007 the Board of Appeal quashed the decision, finding that it was unlawful both on procedural and substantive grounds, and remitted the case.

On 15 January 2008 the applicant again complained about the administrative authorities’ failure to give a decision. On 29 August 2008 the Board of Appeal found in a decision that his complaint was ill-founded as the file of the case had been forwarded to the civil court and the administrative authorities could not deal with the case. The applicant lodged an appeal against this decision with the Supreme Administrative Court.

On 28 October 2010 the Supreme Administrative Court obliged the Mayor of Warsaw to give a decision on the merits of the case within a twomonth time-limit.

On 3 June 2011 and on an unspecified later date the applicant complained to the Warsaw Regional Administrative Court about the Mayor’s failure to give a decision on the case in compliance with the judgment of that court obliging her to do so. On 14 July 2011 and 27 September 2012, respectively, the Warsaw Regional Administrative Court rejected his complaints for failure to comply with the applicable procedural requirements. It noted that the applicant was obliged, under Article 154 para. 1 on the Law of Proceedings before Administrative Courts, to call upon the Mayor to comply with the judgment obliging her to give a decision prior to lodging another complaint about her inactivity with the administrative court.

On 22 June 2011 the Mayor of Warsaw stayed the proceedings, pending a physical delimitation of the land concerned by a land surveyor. The applicant appealed against this decision.

On 13 September 2012 the applicant called upon the Mayor, under Article 154 para. 1 of the Law of Proceedings before Administrative Courts, to give a decision in compliance with the judgment of 28 October 2010. There was no reply to his request.

The proceedings are pending.

On 10 October 1994 the applicant instituted proceedings under the then applicable Article 160 of the Code of Administrative Procedure, seeking compensation for damage allegedly caused by the unlawful decision given in 1961.

On 7 September 1995 the Minister of Construction stayed the proceedings, considering that the outcome of the use of land proceedings described above (see paragraphs 10 – 28 above) was decisive for the proceedings under Article 160 of the Code of Administrative Procedure (see paragraph 12 above). The applicant appealed.

On 17 April 1997 the Supreme Administrative Court allowed the applicant’s appeal against the decision to stay the proceedings, holding that the other set of proceedings had no incidence on the issue of compensation for damage caused by the original expropriation decision.

In September 1997 the applicant complained about the Minister’s inactivity.

Ultimately in 2001 the President of Housing and Urban Development Office (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) refused to award compensation to the applicant.

In June 2001 the applicant and other legal successors of the former owners of the land expropriated in 1961 lodged a claim with the Warsaw Regional Court for compensation for damage caused by that decision.

By a judgment of 9 December 2008 the Warsaw Regional Court awarded compensation to the applicant and other plaintiffs. The State Treasury represented by the General Attorney Office (Prokuratoria Generalna) appealed.

On 8 July 2009 the Warsaw Court of Appeal allowed the appeal, amended the contested judgment and dismissed the plaintiffs’ claim.

On 14 October 2010 the Supreme Court refused to entertain the applicant’s cassation appeal.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant, Mr Christian Meyer, is a German national who was born in 1951 and lives in Berlin. He was represented before the Court by Mr S. von Raumer, a lawyer practising in Berlin.

The German Government (“the Government”) were represented by their Agents, Ms K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

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

The housing estate company “Gemeinnützige Siedlungsgesellschaft Kleinmachnow GmbH” (GSK), subsequent to its foundation in 1927, acquired a large area of land just outside Berlin. The aim of the company was to develop and divide up the land and sell it to prospective dwellers. The sale of the first plots of land began in 1930. The Jewish entrepreneur A.S., a German national, personally held 50% of GSK’s shares and owned – directly or indirectly – 58.8% of the shares in another company holding the other 50% of the shares in GSK.

In 1933, after the National Socialist Party came to power, A.S. was forced to leave Germany and to hand over, inter alia, his shares in GSK, amounting to 79.4% of all shares, to representatives of the new regime. By 1943 almost all of the total of about 1500 plots had been sold by GSK.

After 1949 the community of Kleinmachnow became part of the former German Democratic Republic (GDR). No mechanism for restitution of land property was available to A.S. at that time.

In 1950 A.S. obtained the reassignment of his shares in West Germany, although at that time GSK no longer owned any property of significance.

In 1990, upon Germany’s reunification, the Resolution of Outstanding Property Issues Act (Property Act, Gesetz zur Regelung offener Vermögensfragen/Vermögensgesetz,) was introduced and subsequently amended several times, offering the possibility of restitution claims regarding property situated on the territory of the former GDR (see relevant domestic law and practice, paragraphs 19-22 below).

In 1995 the Conference on Jewish Material Claims against Germany, Inc. (Jewish Claims Conference - JCC) specified a global application for restitution under the Property Act with the aim of regaining 79.4% of the ownership of a large number of plots of land formerly owned by GSK. The application was made under Section 2 § 1, third sentence, of the Property Act (see paragraph 20 below). A.S.’s heirs had not asserted their potential claims.

On 20 August 1997 the JCC transferred all rights concerning the relevant plots of land to the applicant.

On 12 March 1999 the competent Brandenburg Office for the Settlement of Open Property Issues (Landesamt für offene Vermögensfragen) rejected the applicant’s restitution and compensation requests, which had originally been filed by the JCC.

The applicant brought 1,388 cases before the Potsdam Administrative Court. Some of these concerned restitution, others compensation claims since the plots of land concerned had undisputedly been acquired in good faith by third parties after 8 May 1945 and restitution was thus ruled out by law, to protect the new owners. One of the restitution cases was chosen as a pilot case. The corresponding plot had been sold in 1934 and was never resold. Ownership had been passed on by inheritance.

On 18 August 2005 the Administrative Court dismissed the applicant’s action in the pilot case. It held that the JCC counted as the legal successor of A.S. and had lawfully ceded the relevant rights to the applicant. Notwithstanding, a restitution claim was ruled out by section 3 § 1, eleventh sentence, of the Property Act, because the plots had previously been owned by a housing estate enterprise (“Siedlungsunternehmen”). The Administrative Court accepted the applicant’s argument that he was treated differently to other groups of victims in the past, because the users or owners who had acquired property before 8 May 1945 had never been protected. Furthermore, other companies which had divided up land into plots but did not qualify for the narrow definition of “housing estate enterprise” were entitled to restitution. However, the Administrative Court considered that the State had a wide margin of appreciation as to how victims of the National Socialist regime should be compensated, and could not find that section 3 § 1, eleventh sentence, of the Property Act violated Article 3 of the Basic Law (see paragraph 18 below).

On 21 June 2007 the Federal Administrative Court rejected the applicant’s appeal on points of law, mainly endorsing the Administrative Court’s findings. It further held that section 3 § 1, eleventh sentence, of the Property Act did not infringe Article 14 of the Basic Law (see paragraph 17 below) since the applicant’s legal predecessor had not previously acquired property rights. It referred to a previous ruling, delivered on 7 March 2007 (see paragraph 24 below), stating that the relevant 1992 version of the Property Act had not afforded compensation rights to shareholders of a company owning real estate, but only to the owner company itself. Making reference to the spirit and purpose of the amendment in 1997 the Federal Administrative Court, in the instant case, took the view that shareholders’ compensation claims had been made possible for the first time in 1997 by amending section 3 § 1, fourth sentence, of the Property Act (see paragraph 22 below). Even assuming that the applicant’s legal predecessor had already been entitled to compensation claims when the 1997 amendment came into force, the legislator had struck a fair balance between the interests concerned.

On 16 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (case no. 1 BvR 2275/07). It shared the Federal Administrative Court’s view that section 3 § 1, eleventh sentence, of the Property Act did not infringe the applicant’s right under Article 3 of the Basic Law.

It further came to the conclusion that the applicant’s right to property under Article 14 of the Basic Law was not violated either. With regard to the legal situation before 1997, the Federal Constitutional Court pointed out that it was subject to legal debate whether not only companies but also their shareholders had been entitled to immediate restitution claims to property which had been detached from the company in the past. While some legal authors and the Federal Administrative Court, in a judgment of 26 June 1997, saw this entitlement already guaranteed in the 1992 version of the Property Act, the Federal Administrative Court, in a judgment of 7 March 2007, thereby supported by other legal authors, took the view that shareholders were given this right to immediate restitution only in 1997. The Federal Constitutional Court considered that the determination of whether a claim existed was the responsibility of the lower courts (Fachgerichte) and that the change of case-law was neither arbitrary nor unreasonable. Although the reasons given by the Federal Administrative Court in this regard had been very short and without further illustration of the amendment’s spirit and purpose, it had to be observed that a considerable number of legal authors agreed to its interpretation and for these reasons alone it could not be viewed as untenable (“unter keinem denkbaren Aspekt mehr rechtlich vertretbar”).

On 2 February 2010 the Potsdam Administrative Court dismissed the applicant’s action in 225 restitution cases which had remained pending. On the same day, in a separate judgment, it also dismissed his action in 489 cases in which the applicant had filed for compensation. On 23 March 2010 the Administrative Court found against the applicant in another 26 compensation cases. In all three judgments the Administrative Court, in its reasoning on the merits, merely referred to its own judgment and the decision of the Federal courts in the pilot case (see paragraphs 13-15 above).

Article 14 of the Basic Law reads as follows:

“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute regarding the amount of compensation, recourse may be had to the ordinary courts.”

Article 3 § 1 of the Basic Law reads as follows:

“All persons shall be equal before the law.”

The Property Act of 1990 (Vermögensgesetz) provides that persons whose property was unlawfully expropriated during the time of the GDR are in principle entitled to restitution, unless the property was purchased in good faith by a third party. In such cases, the former owners have a right to financial compensation.

Section 1 § 6 extends the applicability of the Property Act in favour of persons persecuted on racial, political, religious or ideological grounds during the time of National Socialist rule and who, in this context, lost their property by expropriation or sales under duress. Section 2 § 1, third sentence, provides that where Jewish beneficiaries do not assert a claim, the JCC acts as legal successor in respect to the claim.

In 1992 a fourth sentence was added to section 3 § 1, which, at the given time, provided as far as relevant:

“If assets, of which an enterprise has been deprived, which are to be returned or have already been returned according to section 1 § 6 ... do not belong to the enterprise’s property any more, the beneficiary may claim, by the means of individual restitution, that he or she be granted ownership of these objects in fractional shares equivalent to the stakes of which he or she was deprived; ...”

(“Gehören Vermögensgegenstände, die mit einem nach § 1 Abs. 6 ... zurückzugebenden oder einem bereits zurückgegebenen Unternehmen entzogen ... worden sind, nicht mehr zum Vermögen des Unternehmens, so kann der Berechtigte verlangen, dass ihm an diesen Gegenständen im Wege der Einzelrestitution in Höhe der ihm entzogenen Beteiligung Bruchteilseigentum eingeräumt wird; ...”)

According to the written motivation to the bill, this amendment was made to avoid enterprises expropriated between 1933 and 1945 being returned only after having been stripped of their assets (see German Federal Parliament documents (BTDrucks), no. 12/2480, p. 40).

The Federal Parliament (Bundestag) passed further amendments to the Property Act which came into force on 24 July 1997.

Section 3 § 1, fourth sentence, was supplemented by, inter alia, another half sentence, which – as far as relevant – provides:

“...such claim shall also exist if the subject-matter of the act of deprivation according to section 1 § 6 was a direct or indirect stake in an enterprise...”

(“...dieser Anspruch besteht auch, wenn eine unmittelbare oder mittelbare Beteiligung an einem Unternehmen Gegenstand der Schädigung nach § 1 Abs. 6 ist...”)

Likewise, a new eleventh sentence was introduced which ruled out the application of the fourth sentence, inter alia, with regard to real estate property used for housing purposes sold for market prices to natural persons by a “housing estate enterprise” (“Siedlungsunternehmen”) before 8 May 1945.

In its judgment of 26 June 1997 (case no. 7 C 53/96), the Federal Administrative Court held that the 1992 version of section 3 § 1, fourth sentence, of the Property Act already enabled direct claims by company shareholders. While it found that the wording of the provision was unclear, it referred to the purpose of the law, in particular that those who had lost property due to persecution by the National Socialist regime, with the property remaining on the territory of the former GDR, should receive compensation equal to that awarded to property owners under Western Allied law after World War II. It took the view that comprehensive compensation for the so-called “aryanisation” of Jewish companies was only possible by granting immediate restitution claims.

On 7 March 2007 the Federal Administrative Court found in another judgment (case no. 8 C 26/05) that until 1997, shareholders of companies subject to National Socialist persecution could not have acquired claims protected under Article 14 of the Basic Law. It held that the typical National Socialist method of depriving Jewish shareholders of their property had not been addressed in the 1992 version of the law. Taking as its basis the purpose of the amendment of 24 July 1997 and the unclear wording in the 1992 version of the law, the court concluded that the new provision entitled shareholders of such companies to restitution claims for the first time. It also found that if a right had already existed in 1992 which had been taken away by the new legislation, the legislator had managed to find a fair balance between the rights involved. The Federal Administrative Court did not make a reference to its judgment of 26 June 1997 (see paragraph 23 above).


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano

The applicant is a company limited by shares registered under Hungarian law. It has its seat in Budapest.

On 31 May 2000 a property claim was brought against the applicant requesting it to pay mandate fees in the amount of 275 million Hungarian forints (HUF) (approximately 1,057,000 euros (EUR) at the time).

On 6 June 2000 the Budapest Regional Court ordered the applicant, under section 187(1) of Act no. LIII of 1994 on Court Execution, to deposit on the bailiff’s trust account a security in the amount of HUF 275 million. The applicant appealed against the decision but this was to no avail. The money was deposited on the bailiff’s trust account on 27 March 2001.

Under the law, such deposits yield no interest.

The applicant requested to have the money released arguing that its financial situation was satisfactory, there was no need for such a deposit and that this measure contradicted the principle of economic rationality.

The applicant’s request was dismissed on 8 May 2001. The Supreme Court as second-instance court upheld the decision on 8 November 2001. The applicant’s subsequent requests to have the money released, in exchange for other securities offered, were also turned down.

After remittals on 27 November 2002 and 8 June 2007, on 16 October 2008 the Regional Court adopted a judgment, partly found for the plaintiff and ordered the applicant to pay HUF 137,280,000 (EUR 514,000 at the actual rate) plus interest accrued as of 6 January 2000. On 16 October 2009 and 29 April 2010, respectively, the Budapest Court of Appeal and the Kúria upheld this judgment.

Although the plaintiff succeeded only partly in the litigation, the amount actually payable by the applicant exceeded the amount of the entire deposit. This outcome was the consequence of the fact that whilst the applicant was ordered to pay accrued interest on the money due to the plaintiff in the amount of approximately HUF 189,500,000 (EUR 700,000 at the actual rate), its own money deposited on the bailiff’s trust account had yielded no interest. Ultimately, the applicant had to surrender the whole deposit and pay about another HUF 90 million (EUR 330,000).

The applicant challenged the impugned provisions of Act no. LIII of 1994 on Court Execution before the Constitutional Court; but its constitutional complaint was dismissed on 7 June 2011. This court held that ‘interest’ as such was consideration for the ‘use’ of another person’s money; however, the authorities had not in any way ‘used’ the deposited amount. Furthermore, the Constitution did not provide any safeguards against the depreciation of an asset, including a deposit of money subject to inflation, and that such depreciation for economical or other reasons did not amount to a deprivation of property.


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

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1966 and lives in Komló.

On 19 February 2003 the applicant was interrogated as suspect of forgery of private documents.

The Public Prosecutor preferred a bill of indictment on 8 October 2004. Subsequently, on 27 June 2005 the Public Prosecutor extended the charges against the applicant with charge of fraud.

In the ensuing criminal proceedings on 23 March 2010 the Komló District Court acquitted the applicant in respect of fraud and found him guilty in forgery of private documents.

On appeal of the Public Prosecutor, the Baranya County Court reversed the judgment and acquitted the applicant in respect of all charges on 20 May 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1974 and is currently serving a prison sentence in medical penal institution LIU-58, Sverdlovsk Region.

On 23 April 2005 the applicant was arrested on suspicion of murder. He was taken to the police station, where he was allegedly ill-treated by police officers and confessed to murder.

On 24 April 2005 the applicant was subjected to a forensic medical examination, which recorded two bruises under his left and right eyes measuring 1 x 2 cm, an abrasion on the middle finger of the left hand measuring 0.5 x 0.8 cm, and an abrasion on the back of the right forearm measuring 0.2 x 2 cm. The expert concluded that the bruises under the eyes could have been inflicted three to five days prior to the examination, and the abrasions of the upper limbs could have appeared one to two days prior to the examination.

On the same day the record of the applicant’s arrest was drawn up. The applicant was questioned as a suspect and, allegedly for fear of further beatings, confirmed his previous confession. He was placed in a temporary detention unit. The unit’s medical records show that the applicant had a bruise under his left eye when admitted. They further indicate that the applicant was otherwise in good health.

On 26 April 2005 the applicant complained of chest pain. An ambulance was called, and he was found to have a bruised breastbone.

On 29 April 2005 the applicant was allegedly beaten again by the police officers in an attempt to make him confirm his previous statements to the investigator.

On 5 May 2005 the applicant again complained of chest pain. He was taken to Ozersk Town Hospital. An X-ray examination showed a breastbone fracture.

On 6 May 2005 the applicant was transferred to remand prison IZ74/3, Chelyabinsk. The facility doctor who examined the applicant on admission entered the breastbone fracture diagnosis of 5 May 2005 in the applicant’s medical records.

On 10 November 2005 Ozersk Town Court, Chelyabinsk Region, convicted the applicant, under Article 111 § 4 of the Criminal Code, of intentional infliction of grievous bodily harm on V., causing his death by reckless conduct. The applicant was sentenced to eleven years’ imprisonment. The applicant was represented by a legal-aid lawyer at the trial.

The applicant appealed. He asked the appeal court to allow him to attend the appeal hearing in his case, and also expressed the wish to be represented by a lawyer.

On 27 April 2006 Chelyabinsk Regional Court upheld the judgment on appeal. The applicant was present at the appeal hearing. He was, however, unrepresented.

On 16 March 2011 the Presidium of Chelyabinsk Regional Court granted an application for supervisory review by the Chelyabinsk Region Prosecutor and quashed the appeal decision of 27 April 2006. The Presidium found that the applicant’s right to legal representation had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court.

On 21 April 2011 Chelyabinsk Regional Court held a new appeal hearing in the applicant’s criminal case, with the applicant taking part (by video link) and in the presence of his legal-aid lawyer. The Regional Court upheld the applicant’s conviction on appeal and reduced his sentence to ten years and six months’ imprisonment.

Meanwhile, in December 2005 the applicant complained of illtreatment to the Ozersk Town Prosecutor’s Office.

On 26 January 2006 investigator Ch. of the Prosecutor’s Office, relying on Article 24 § 1 (2) of the Code of Criminal Procedure, refused to institute criminal proceedings against the police officers complained against, for lack of evidence that a crime had been committed. The investigator relied on statements by police officer P. denying that the applicant had been assaulted, extracts from the medical records of the temporary detention unit showing the entries of 24 April, 26 April and 5 May 2005, the applicant’s statements of 2 May 2005 in which he alleged that the bruises had been inflicted during a fight with some teenagers in April 2005, and references to the applicant’s failure to mention the alleged ill-treatment during the examination of the issue of his detention, when he was questioned as a suspect, or when charges were brought against him.

On 24 March 2006 the Ozersk Town Prosecutor quashed that decision and ordered an additional pre-investigation inquiry.

On 27 March, 17 April and 29 June 2006 and 21 June 2007 the investigator again refused to open a criminal case in connection with the applicant’s allegations of ill-treatment. However, on 13 April and 26 June 2006 and 9 June and 2 July 2007 respectively the supervising prosecutor quashed those decisions as unfounded and ordered additional preinvestigation inquiries.

On 6 July 2007 chief investigator P. of the Ozersk Town Prosecutor’s Office refused for the sixth time to order the institution of criminal proceedings, and concluded that the applicant had sustained his injuries prior to his arrest. This decision was based on the following evidence:

- the applicant’s explanations of June 2006 (see paragraph 23 below);

- explanations by the chief of police Mo., police officers P. and Sh., and the deputy chief of police Yar., who denied having subjected the applicant to any violence;

- explanations by prosecutor’s assistant B. and investigator Ma.;

- explanations by officers of the temporary detention unit Kh., G. and Akh.;

- extracts from the temporary detention unit’s logbooks, including its medical logbook;

- the X-ray examinations logbook of Ozersk Town Hospital;

- the report of the applicant’s forensic medical examination;

- explanations by ambulance doctor S., who examined the applicant at the temporary detention unit on 26 April 2005, and by hospital doctor B., who examined the applicant at the hospital on 5 May 2005;

- the applicant’s statements of 24 April-2 May 2005 taken from his criminal file, to the effect that he had received the injuries prior to the arrest during a fight with some teenagers and that he had no complaints against the police officers or the officers of the temporary detention unit in connection with those injuries;

- explanations by forensic medical expert Mos.;

- documents from the applicant’s criminal file, including the records of his questioning of 24 April, 29 April and 19 July 2005, in which the applicant submitted that he had attacked V. (the victim of the crime of which the applicant had been convicted) in self-defence;

- the applicant’s statements made during the trial and his complaints to the prosecutor and the investigator to the effect that he had sustained his breastbone fracture as a result of acts of violence by V.

It followed from the applicant’s explanations, in particular, that in early April 2005 he had had a fight with some unidentified teenagers, as a result of which he had received a bruise under his left eye. On 21 April 2005 V. had kicked the applicant twice in the chest area and twice in the face, as a result of which he had had a bruise under his right eye and felt pain in his chest. On 23 April 2005 the applicant was arrested and taken to the police station, where one police officer hit him with something heavy on the nape of the neck and another kicked him in the chest area, as a result of which the applicant felt pain in his chest. On 24 April 2005 one of the police officers hit him on the head at least twice with a 1.5-litre plastic bottle filled with water, which did not result in any injuries. On 29 April 2005 in the investigations office of the temporary detention unit one of the police officers had knocked the applicant to the floor and kicked him at least three or four times on the left side and twice in the stomach and chest. These actions did not lead to any injuries. The applicant could not clarify whether his breastbone fracture had been the result of the actions of V. or of the police officers.

On 8 November 2007 the Ozersk Town Prosecutor found the decision of 6 July 2007 lawful and justified.

On 19 March 2008 Ozersk Town Court, Chelyabinsk Region, found the pre-investigation inquiry into the applicant’s allegations to be complete and unbiased, and the decisions of 6 July and 8 November 2007 lawful and justified.

On 24 June 2008 Chelyabinsk Regional Court upheld the decision of 19 March 2008 on appeal.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1967 and lives in Wrocław.

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

The applicant is a film director, historian, and author of press articles often commenting on current issues. The Government contested that the applicant could be considered a journalist.

On 20 April 2007 the applicant participated in a debate on a regional radio station, Polskie Radio Wrocław. During the debate he stated as follows:

“... among the informers (informator) of the [communist-era] secret political police is Professor [J.M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.”

On the same day the applicant called Mr J.M. an “informant” (konfident) on television. The matter was widely commented on in the media.

On 17 May 2007 a special commission set up at Wrocław University to examine the problem of covert surveillance of academics issued a statement in the case of Mr J.M. The statement included a list of documents concerning Mr J.M., which had been found in the archives. The commission concluded that those documents had not led it to the unequivocal conclusion that Mr J.M. had been a collaborator with the secret police.

On 24 May 2007 Mr J.M. brought a civil action for protection of his personal rights against the applicant.

On 3 July 2008 the Warsaw Regional Court allowed the action. It ordered the applicant to pay 20,000 Polish zlotys (PLN) to a charity and to reimburse the claimant PLN 5,800 for the costs of the proceedings. The applicant was also ordered to publish an apology for having damaged the claimant’s good name in six national and regional newspapers, on three national TV channels and on Radio Wrocław. The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the communist-era secret services. The main question to be considered was whether such statements could be considered true.

The court noted that Mr J.M. was a distinguished linguist and wellknown person in Poland. He was a member of the Polish Language Council and for many years had been presenting a programme on television. The court established that between 1975 and 1984 Mr J.M. had been summoned by agents of the secret services on five occasions for interviews in connection with applications he had made for passports and returns from stays abroad. This was not contested by the claimant, who had himself made this information public. In 1978 Mr J.M. had been formally registered as a secret collaborator (a “TW”). Other notes from the Institute of National Remembrance (“IPN”) archives indicated that until 1989 a two-volume file on the claimant had existed; however, the file could no longer be found at the Wrocław branch of the IPN.

The court noted that the case of Mr J.M. had been examined by a special commission set up at Wrocław University to examine the problem of covert surveillance of academics, but that the commission had been unable to reach any unequivocal conclusions.

The trial court heard the applicant and the claimant as well as a number of witnesses: historians (specialists on lustration), former agents of the secret services assigned to recruiting collaborators at Warsaw University, and employees of the IPN. Some of them testified that many files on secret collaborators had been destroyed when the regime fell in 1989. A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for many years even though he or she had not actually been collaborating.

The director of the Wrocław branch of the IPN testified that he had heard of an instance of fictitious registration of somebody as a TW. However the probability of such a situation was very low. He also declared that on the basis of the available documents, he would not have concluded that the claimant had been a communist police informant. Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions. A third historian stated that the claimant had been a “real agent of the security service”. A fourth historian testified that the internal files of the secret services were reliable; the regime would only falsify documents for external purposes. The same witness considered that on the basis of the information available to him, he would also have concluded that Mr J.M. had been an intentional and secret collaborator with the communist-era secret services.

Two other witnesses, former agents of the secret services, were unable to remember whether they had recruited Mr J.M. as a secret collaborator.

The applicant submitted that once he had discovered that Mr J.M. was on the list of secret collaborators with the secret services it had been his duty to inform the public about it. His intention had not been to offend the claimant. He had acted in the general interest, taking part in a public debate on matters of considerable importance to society. Moreover, his assertion had been provoked by public statements made by the claimant, who had questioned the importance of lustration. The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services. The information provided by him - that J.M. had been a collaborator - had therefore been truthful and given in the public interest.

Nevertheless, the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available. The court referred to the definition of collaboration contained in the 1997 Lustration Act and reiterated that collaboration had to be intentional, secret and consist of passing on information. It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator.

The applicant lodged an appeal against the judgment. He argued that the registration of Mr J.M. as a secret collaborator by the services, in light of generally known facts, had allowed him to conclude that he had been a collaborator. Mr J.M. had remained registered as a TW for eleven years, his files had been destroyed, and the secret services had not been known for falsifying their internal files. According to historians, in 1989 the services had only destroyed the files of important collaborators. The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration.

On 29 October 2008 the Wrocław Court of Appeal dismissed the appeal. It further ordered the applicant to pay the claimant PLN 2,000 as reimbursement of the costs of the appellate proceedings. The court accepted all the findings of the first-instance court regarding the facts of the case. It considered that when personal rights had been breached by a statement of alleged facts, the illegality of such action could be excluded only if the statement contained truthful information. Acting in the general interest did not exclude responsibility for making untrue statements. In the present case there was no evidence, in the form of either documents or witness statements, proving that Mr J.M. had indeed actively collaborated with the secret services. Therefore, in the light of the material collected in the case, the court concluded that the applicant had not proved the veracity of his statements. Furthermore, the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence.

The applicant lodged a cassation appeal against the judgment and requested that a hearing be held.

At the hearing, held on 10 September 2009, the Supreme Court announced the judgment and gave an oral summary of the reasons. It dismissed the applicant’s cassation appeal but amended the text of the apology and limited its reach to one national daily newspaper and Radio Wrocław. The applicant was ordered to reimburse the claimant a further PLN 2,000 for the costs of the cassation proceedings.

The text of the apology to be published by the applicant was as follows:

“I apologise to Professor J.M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”.

Following the announcement of the judgment the applicant’s lawyer requested the court to prepare written reasons and to deliver them to him. The Supreme Court’s judgment with reasons, fifteen pages long, was received by the applicant’s lawyer on 30 November 2009.

In analysing the interplay between two competing rights – the right to freedom of expression and the right to protect one’s good name – the court referred to a resolution of the Supreme Court (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114). According to the conclusion of this resolution a journalist’s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled. Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to the applicant’s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct. Making false allegations was illegal, whereas the question of due diligence would be taken into account only when assessing the fault of the defendant.

The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true. Following the approach taken in the case thus far, the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law. Breaching someone’s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M.


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

The applicant was born in 1934 and lives in Stari Mikanovci.

The applicant was an employee of the State’s railway company, Hrvatske željeznice. He suffered a work-related accident and became unable to work.

On 26 April 1977 the Osijek County Court (Okružni sud u Osijeku) awarded the applicant a lump sum in compensation and ordered the defendant – Hrvatske željeznice – to pay him monthly payments in respect of the difference between his disability pension and the salary he would have been earning were it not for his inability to work.

On 5 May 1988 the Vukovar Municipal Court (Općinski sud u Vukovaru) increased the above-mentioned monthly payments. At the same time, it established that the applicant’s inability to work was only 50% due to the above-mentioned accident, and 50% due to a pre-existing illness.

On 24 December 1990 the applicant instituted civil proceedings against Hrvatske željeznice, seeking that the above-mentioned monthly payments be increased on the grounds of changed circumstances.

The defendant did not oppose an increase in the monthly payments, but disputed the amount requested.

The Vukovar Municipal Court commissioned a report from an accounting expert, and on 13 February 1991 the expert witness submitted his report.

At a hearing held on 20 February 1991 the expert witness gave oral evidence.

On 24 April 1991 the first-instance court allowed the applicant’s claim in part, but on 16 August 1991 the Vukovar County Court (Županijski sud u Vukovaru) quashed the first-instance judgment in part, because it found that the first-instance court had failed to correctly establish the facts. It remitted the case for fresh consideration and ordered the first-instance court to establish, in terms of a percentage, how much the applicant’s inability to work was due to his pre-existing illness.

In the resumed proceedings, the first-instance court commissioned a report from an accounting expert and ordered the applicant to pay costs in advance in the sum of 696.55 Croatian kunas (HRK).

On 5 June 2003 the expert witness submitted his report and the defendant objected to the expert’s findings.

On 15 October 2003 the expert witness submitted his observations in reply to the defendant’s objection.

At a hearing on 28 November 2003 the court heard oral evidence from the expert witness. He stated that he could not precisely determine individual amounts until the Croatian Pension Fund adjusted the applicant’s pension.

On 22 December 2003, after the Croatian Pension Fund had adjusted the applicant’s pension, the expert witness submitted an additional report.

At a hearing on 23 January 2004 the expert witness again gave oral evidence.

On the same date, on the basis of the expert witness’s report, the first-instance court issued a judgment allowing the applicant’s claim in part.

On 3 May 2005 the Vukovar County Court quashed the judgment of 23 January 2004 for substantial violation of the civil procedure rules and ordered a fresh consideration of the case. It held that the first-instance court had failed to take into account the fact: that the first-instance judgment of 24 April 1991 had become final as regards an amount of 63.80 former Yugoslav dinars (YUD) per month payable for the period from 1 January 1991 onwards; the applicant had turned 60 on 15 August 1994; and he should have lodged an application for his disability pension to be recalculated as an old-age pension.

At a hearing held on 15 September 2005 the first-instance court commissioned a further report from an accounting expert, in accordance with the instruction given by the second-instance court. Specifically, it ordered the expert witness, in calculating the monthly amount, to take into account the amount of 63.80 dinars which had already been awarded, as well as the fact that the defendant was 50% responsible for the damage at issue, and to establish whether the applicant had used his right to have his disability pension recalculated as an old-age pension when he had turned 60.

Meanwhile, the defendant split into four companies, and the firstinstance court ordered the applicant to correct his claim by accurately identifying the defendant.

On 2 November 2007 the first-instance court declared the claim inadmissible, because it held that the applicant had failed to properly correct the claim.

Upon an appeal by the applicant, on 9 September 2008 the Vukovar County Court quashed the first-instance decision, because it held that the applicant had already identified the defendant.

In the resumed proceedings, at a hearing held on 22 December 2008 the first-instance court commissioned a report from an accounting expert in accordance with the second-instance court’s instruction given in its judgment of 3 May 2005, and ordered the applicant to pay the related costs in the amount of HRK 2,578 in advance.

On 15 January 2009 and 3 February 2009 the applicant asked for an exemption from paying the costs of the expert witness, claiming that, given his financial situation, and the fact that his pension was HRK 2,313 per month and his wife was unemployed and without any income, he was unable to pay those costs without putting his own and his wife’s subsistence at risk. He asked for those costs to be covered by the first-instance court’s funds, a possibility provided for by the Civil Procedure Act. He submitted a certificate from the Croatian Pension Fund concerning his pension and certificates demonstrating his and his wife’s income.

At a hearing on 3 February 2009 the applicant reiterated all the arguments and repeated that he had not been able to pay for the costs of the expert report. He asked the court to allow his claim as specified in his submissions of 16 February 2007. Neither party put forward any new evidence. The court set aside its decision of 22 December 2008 regarding a further report from an accounting expert, because the applicant had failed to pay for the costs, and concluded the hearing.

On 16 February 2009, relying on the rules regulating the burden of proof, the first-instance court issued a judgment dismissing the applicant’s claim. It held that, owing to his failure to pay for the costs of the expert report, the court had not been able to establish the exact amount of the monthly payments. In its reasoning, the first-instance court stated that the Vukovar County Court, in its decision of 11 November 2008, had awarded the applicant HRK 20,000 for the violation of his right to a trial within a reasonable time, and that he could have paid for the costs of the expert witness with that money.

The applicant lodged an appeal, claiming that the amount awarded to him for the violation of his right to a trial within a reasonable time had been paid to him on 13 March 2009, namely after the first-instance judgment had already been delivered.

On 4 February 2010 the second-instance court upheld the firstinstance judgment. In addition, it held that the applicant failed to demonstrate when the State had deposited the amount of HRK 20,000 on a bank account of his representative.

The applicant then lodged an appeal on points of law (revizija), which the Supreme Court declared inadmissible on 10 January 2011.

The applicant then lodged a constitutional complaint with the Constitutional Court, and on 11 July 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in 1972 and lives in Șopârlița.

On 30 June 2013 the applicant’s sister called the emergency services and reported that the applicant was causing a disturbance in respect of his family (a făcut scandal ȋn familie). Two police officers from the Bobiceşti police, C.B. and M.D.B., were dispatched to the applicant’s home.

Once they arrived at the applicant’s home, the police officers proceeded to handcuff him in order to take him to the police station, because they claimed that he was aggressive towards them. The officers immobilised him and pushed him to the ground with his face down, even though he was not resisting arrest. They handcuffed him with his hands behind his back, dragged him towards a police car, and banged his head against a metal gate owned by a neighbour, M.V.

The Government acknowledged that the police officers had put the applicant to the ground and had forcibly handcuffed him. They stated, however, that the applicant’s allegations of ill-treatment and of being thrown against a metal gate by the police officers were contradicted by the available evidence. The evidence proved that his injuries were not caused deliberately by the police officers.

On 30 June 2013 one of the police officers who had been dispatched to the applicant’s home produced a contravention report, and fined the applicant 1,000 Romanian lei (RON – approximately 230 euros (EUR)). According to the report, the applicant had offended his father, had been inebriated, and had admitted his actions. The report was signed by the applicant.

From 1 to 3 July 2013 the applicant was in BagdasarArseni Emergency Hospital in Bucharest. According to a medical report produced upon his discharge from hospital, he was diagnosed with a cervical spine injury and a minor cranial cerebral trauma.

On 3 July 2013 the applicant’s father lodged a criminal complaint against police officers C.B. and M.D.B., on the grounds that they had physically abused his son. On 12 September 2013 the applicant took up (şia ȋnsuşit) the criminal complaint lodged by his father against the police officers.

On 14 August 2013 the Olt prosecutor’s office interviewed the applicant’s father with regard toHe stated, inter alia, that his son had not been suffering from a psychological illness. On the day of the incident the applicant had been inebriated and had made a scene, but he had not hurt either of his parents. Neither parent had called the police, and the applicant’s father was unaware of who could have done so. The police officers had produced a contravention report in the applicant’s name and had asked him to sign the report without informing him why. The applicant had complied and had signed the contravention report. Subsequently, he had agreed to accompany the police officers to the hospital, but had informed them that he needed to go inside the house to get dressed. The police officers had stopped him from entering the house, pushed him to the ground with his face down, and handcuffed him. Afterwards, they had dragged him away and banged his head against a metal gate owned by M.V. When they had put the applicant in the ambulance he had had blood on his face, and they had left him in the ambulance face down and wearing handcuffs. The following day, Dr B. from the psychiatric unit of Slatina Emergency Hospital had informed him (the applicant’s father) that his son had been seriously beaten, and that he had been transferred to a different hospital because he had suffered a cervical spine injury.

On 12 September 2013 the Olt prosecutor’s office interviewed the applicant. In his statement, inter alia, he asked the investigating authorities to also interview his mother and N.B. with regard to the incident. He also stated that he had signed the contravention report produced by the two police officers, even though he had not been informed by them about its content. One of the police officers had travelled with him in the ambulance. That officer had refused to remove his handcuffs and had punched him in the face.

On the same date the Olt prosecutor’s office interviewed both the applicant’s mother and N.B. His mother stated, inter alia, that the police officers had not allowed her son to get dressed, had chased him through the courtyard, and had tripped him. After he had fallen to the ground they had twisted his hands behind his back and handcuffed him. Because the applicant had been agitated after he had been handcuffed, and had refused to accompany the police officers, they had repeatedly banged his head against the gate owned by M.V. One of the police officers had travelled with the applicant in the ambulance and had continued to beat him until he had been asked by the medical staff in the ambulance to stop the violence.

N.B. stated, inter alia, that he had been on the street on the day of the incident and had seen two police officers handcuff the applicant. Afterwards, they had grabbed him by his hands and had banged his head repeatedly on the gate owned by M.V. N.B. further stated that he had worked with the applicant, and he had not been suffering from any psychological condition or drinking alcohol.

On an unspecified date in 2013 the Olt prosecutor’s office asked the Olt County Forensic Medical Service to examine the available medical documents and produce a forensic expert report in the case. The prosecutor’s office asked the forensic service to determine: the applicant’s injuries and their cause; the number of days of medical care needed for healing; if there was a direct link between the applicant’s injuries and their cause; and if the injuries could also have been caused by something other than intentional force.

On 31 October 2013 the Olt County Forensic Medical Service examined the applicant and the available medical documents.

On 18 November 2013 the Olt County Forensic Medical Service produced a forensic expert report. It noted that on the day of the incident the applicant had been transferred by ambulance to Slatina Emergency Hospital because he had been extremely agitated and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of pain in his cervical spine area, and of paralysis of his right hand. He had been examined and had been diagnosed with a cervical spine injury. The interdisciplinary medical examination carried out by, inter alia, a neurologist, a surgeon and an orthopaedist had not identified any signs of trauma. Eventually, the applicant had been admitted to a specialist hospital and had been operated on in relation to the cervical spine injury.

The forensic report concluded that the applicant’s injury could have been caused on 30 June 2013. Most probably, the injury had been caused by a forced rotation movement of the neck when the applicant had been immobilised and handcuffed. No signs of trauma specific to intentional force had been identified on the applicant’s head, body or limbs during the interdisciplinary examinations carried out after his admissions to Slatina Emergency Hospital and Bagdasar-Arseni Emergency Hospital. The applicant had needed seventy to eighty days of medical care from the moment of his injury.

On 10 January 2014 a prosecutor attached to the Olt prosecutor’s office decided not to open a criminal investigation against the two police officers for abusive behaviour, on the grounds that their actions had lacked the elements of an offence. The prosecutor held that a third party had called the emergency services at the applicant’s sister’s request, because the applicant, who had a history of psychological problems and who had been drunk, had been aggressive and had endangered his own life and safety and that of his family. Once police officers C.B. and M.D.B. had arrived at the scene of the incident, they had asked the applicant to calm down and accompany them to the police station. The applicant had refused the police officers’ demand, and had become aggressive and had verbally abused them.

The prosecutor further held that the applicant’s father had confirmed the fact that the applicant had been drunk at the time of the incident. However, his statements that his son had not been aggressive and that he had been unaware of the identity of the person who had called the emergency services had not been confirmed by the rest of the evidence adduced in the file. Moreover, in such a case, it would have been highly unlikely that an individual would call the emergency services for no reason. According to the prosecutor, those arguments were also supported by the fact that, in the medical report produced by the psychiatric unit of Slatina Emergency Hospital, where the applicant had been taken after the incident, it was stated that the applicant was suffering from a polymorphic personality disorder, which was aggravated by alcohol consumption. Also, his father had acknowledged that the applicant would generally act normally when he was sober, but transformed into a verbally and physically aggressive person once he drank alcohol.

The prosecutor also held that the applicant was known in his village as a violent and aggressive person with psychological problems. He had been investigated in relation to several other criminal files concerning alleged violent acts committed against the members of his family, and for theft, but the investigations had been discontinued after his parents had withdrawn their complaints.

The prosecutor noted that, according to the reports describing the police officers’ intervention and the use of force and handcuffs, once the officers had arrived at the applicant’s home they had realised that he was drunk, and they had been forced to immobilise him and take him to Slatina Emergency Hospital. Also, according to the available medical documents, the applicant had been transferred to the hospital by ambulance, he had been extremely agitated, and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of a cervical spine injury, which had eventually required surgical treatment. In addition, according to the information provided by the psychiatric unit of Slatina Emergency Hospital, since 1998 the applicant had repeatedly been admitted to the unit for similar reasons.

The prosecutor held that the conclusions of the forensic expert report produced on 18 November 2013 contradicted N.B.’s and the applicant’s parents’ testimonies that the applicant’s head had repeatedly been banged against M.V.’s gate by the police officers.

By referring to Article 34 §§ 1 and 2 of Law no. 218/2002, but expressly citing the relevant provisions of Article 33 §§ 1 and 2 of the same aforementioned Law, the prosecutor further held that, given the available evidence, the police officers had not injured the applicant deliberately. His injuries could have been the result of a forced rotation of his neck, which could have happened at the moment when he had been immobilised by the officers. Also, the police officers had stated that they had not hurt the applicant, and had confirmed that he had been drunk, and that he had been transported and admitted to hospital.

The applicant challenged the decision of 10 January 2014 before a more senior prosecutor.

On 29 January 2014 a more senior prosecutor attached to the Olt prosecutor’s office dismissed the applicant’s challenge as ill-founded, and upheld the decision of 10 January 2014.

The applicant appealed against the decision of 29 January 2014 before the Slatina District Court. In his written submissions he argued that the forensic expert report produced in the case was incomplete and superficial. The report had failed to determine if his injury would have been possible considering the physical characteristics of the parties involved in the incident and the standard procedure which had to be followed in cases of handcuffing. Also, the report had not explained how the forced rotation of his neck had happened, as he would not have made such a painful movement instinctively. In addition, the prosecutor’s office had wrongfully dismissed his parents’ and N.B.’s testimonies, as those witnesses had confirmed the police violence, and the forensic report had acknowledged that his injury had most probably been caused as a result of the forced rotation of his neck. Consequently, the applicant argued that the available forensic expert report had to be complemented by another report (completat), and that the second report had to be submitted for the approval of a higher review commission.

The applicant further argued that none of the circumstances set out in sections 1 and 2 of Article 34 of Law no. 218/2002 had applied in his case. Also, even assuming that he had resisted immobilisation, as claimed by the authorities, the handcuffing measure could only have been taken against him if there had been a reasonable suspicion that his behaviour could endanger the police officers’ physical integrity or lives. Even assuming that such a situation had existed, the police officers had still had a lawful duty to use their handcuffs without seriously injuring him.

Lastly, the applicant contended that the prosecuting authorities’ conclusion that the police officers had not hurt him intentionally had been illfounded, given that the officers had indirectly acted with intent. In particular, they had foreseen the result of their actions, and even if they had not intended that result, they had accepted that it was a possibility.

On 12 March 2014 the Slatina District Court referred the case to the Balş District Court for examination.

By a final judgment of 9 April 2014 the Balş District Court, sitting in private as a pre-trial chamber judge, and without the parties being present, dismissed the applicant’s appeal against the more senior prosecutor’s decision and upheld that decision. It noted that it had notified the parties about the date of the hearing, but they had failed to submit written observations. The court held that the Olt prosecutor’s office had correctly established that officers C.B. and M.D.B. had not committed the offence of abusive behaviour. Also, the available forensic report did not need to be complemented by an additional report or submitted for approval. The forensic report had examined extensively the available medical evidence, and had concluded that no evidence of trauma as a result of deliberate force had been identified on the applicant’s head, body or limbs during the multidisciplinary examinations.

The court further held that, according to the available medical evidence, the applicant had been in an extreme state of psychomotor agitation, and the cranial X-ray had not shown any post-traumatic injury of the skull. Consequently, the court considered that the existence of a minor cranial cerebral trauma had not contradicted the conclusions of the forensic medical report, which had taken that trauma’s presence into account.

The court also considered that it had been unnecessary for the forensic expert report to explain how the forced rotation of the applicant’s neck had happened, given that the victim would not have made such movements instinctively, because he had been drunk and extremely agitated at the time of the incident, and his behaviour could not have been compared with the normal behaviour of another person.

The court further considered that the prosecutor had correctly dismissed the testimonies in the case, given that, according to the forensic expert report, no trauma as a result of deliberate force had been identified, and the forensic pathologist had had the opportunity to consider the possibility of the applicant’s head being banged repeatedly against a metal gate.

The court held that it was true that the police officers had had a duty to use their handcuffs without seriously injuring the applicant. However, the applicant’s injuries had not been the direct result of the police officers’ actions. They had occurred in circumstances where he had been drunk, violent and extremely agitated, and therefore the police officers could not have controlled their actions towards him.

The court also held that the violent actions towards the applicant had been carried out by the police officers within the framework of their work duties. In addition, the actions had been lawfully justified in order to alleviate the danger the applicant had represented to society and himself, given that he had been drunk, agitated and aggressive, and had been suffering from an organic personality disorder as a result of drinking alcohol. The police officers had not acted with the intent of hitting or hurting the applicant. His injuries had been the result of his immobilisation and handcuffing measures to stop his aggressive actions and transport him to the hospital. Therefore, the police officers’ actions had been justified.

On 22 October 2014 the applicant underwent a medical examination at a private medical establishment, the Medical Civil Association for the Brain. According to a medical report produced by that establishment, the applicant had an organic personality disorder with “polymorphic decompensation” (decompensare polimorfă). The report noted that the applicant’s symptoms included a moderate intrapsychological tension, concentration difficulties, mixed insomnia and a low resilience to frustration and annoyances. It further noted, inter alia, that the applicant had repeatedly been admitted to psychiatric hospitals, had poor social and family support, and persistent symptoms for which he was receiving treatment.

On 6 January 2015 the applicant underwent a medical examination at Schitu-Greci Psychiatric Hospital, because he was suffering from psychomotor agitation, a conflicted personality disorder, headaches, dizziness and mixed insomnia. According to a medical report produced by the hospital, he was diagnosed with an organic personality disorder and received treatment for his condition. The report also noted that alcohol and coffee consumption, as well as conflict, amounted to risk factors in relation to the applicant’s medical condition.

On 26 May 2015 a neurologist attached to BagdasarArseni Emergency Hospital in Bucharest produced a medical report in respect of the applicant’s medical condition, following his operation for his cervical spine injury. According to the report, inter alia, the applicant continued to experience movement difficulties. Consequently, the report considered it appropriate that the applicant’s ability to work be assessed by a local expert commission, with a view to his potential retirement.

On 8 June 2015 the Caracal branch of an office specialising in expert medical assessment of a person’s ability to work, which was attached to the Olt Retirement Agency, acknowledged that the applicant was suffering from a serious functional deficiency and had completely lost his ability to work.


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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in 1970. He is currently serving a life sentence in Dnipropetrovsk.

On 23 June 2005 O.K., a young woman, was found hanged on a tree in a forested area near a bus station. It was also discovered that her mobile phone, earrings and ring were missing and that she had had sexual intercourse shortly before her death.

At about 2 p.m. on 27 June 2005, officers of the Apostolovskiy District Police took the applicant to the police station for questioning in connection with the investigation into O.K.’s death.

On the same day, the applicant signed a confession statement according to which on the afternoon of 22 June 2005 he had met O.K. at a bus station and asked her to have sex with him in the nearby forest. O.K. had agreed to his proposal and volunteered her ring and earrings after intercourse. As the applicant was leaving, she had threatened to complain that she had been raped and robbed. In order to get away, the applicant had grabbed her by the neck; O.K., still alive, had lost consciousness and he had taken her mobile phone and left the scene.

According to the applicant, between 27 and 28 June 2005 he remained in police custody without any record being drawn up or his relatives being notified.

On 28 June 2005 the applicant was questioned by an investigating officer of the Apostolovskiy District Prosecutor’s Office and gave further details of his encounter with O.K. He stated that after she had lost consciousness he had taken the cord from her umbrella, tied it round her neck and hung her on the tree. The applicant’s statements were recorded on a form headed “Explanation”, which did not refer to any criminal proceedings against him, but stated that the applicant had been informed of his right under Article 63 of the Constitution not to incriminate himself.

At an unspecified time on the same date an investigating officer of the District Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion that he had committed a non-aggravated murder within the meaning of Article 115 § 1 of the Criminal Code of Ukraine and notified the applicant of his right to legal assistance. He further drafted an arrest report according to which the applicant had been arrested as a suspect at 6.15 p.m. on that date at the premises of the prosecutor’s office.

After the applicant’s arrest he was assigned a legal-aid lawyer, M., and was officially questioned as a suspect in her presence from 6.35 p.m. until 8.50 p.m. During the questioning, the applicant largely reiterated his previous statements.

On the same date the applicant surrendered a gold ring to the police, which, as subsequently confirmed by her relatives, had belonged to O.K. O.K.’s former phone was also either seized from the applicant’s home or surrendered by him.

On 1 July 2005 the Dnipropetrovsk Apostolovskiy District Court ordered the applicant’s remand in custody as a preventive measure. It appears from the case-file materials that that decision was not appealed against.

On 2 July 2005 the applicant, questioned in M.’s presence, provided further details concerning his sexual encounter with O.K. He also stated that all his confessions had been voluntary and no pressure had been applied by the authorities to make him confess. Feeling remorse for his crimes, he wounded himself with a pen top in an attempt to cut his veins and commit suicide, but his cellmate intervened.

On 5 July 2005 M. was replaced by Sh., another legal-aid lawyer.

On the same date the applicant was taken to the site of the crime and participated in a reconstruction of the crime scene in Sh.’s presence.

On 6 July 2005 the applicant was examined by a medical expert, who found that he had a wound on the inner side of his left elbow, inflicted on or about 1 July 2005. The expert further recorded that, according to the applicant, the wound was self-inflicted and he had not been ill-treated by the authorities either during his arrest or in detention.

On 7 July 2005 the applicant was indicted of non-aggravated murder. On the same date he was questioned as an accused in the presence of Sh. and confirmed his previous statements.

On 12 August 2005 the applicant was placed in a psychiatric hospital for an assessment of his mental state, where he stayed until 9 September 2005. According to him, during that period of time he was administered psychotropic drugs.

On 23 September 2005 the charges against the applicant were reclassified as aggravated murder, within the meaning of Article 115 paragraph 2, rape, and robbery.

On 26 September 2005 a new lawyer, N., hired by the applicant’s family, was admitted to the proceedings to replace the legal-aid lawyer Sh. On the same date the applicant, when questioned in presence of N., claimed he was innocent and refused to provide any further explanations.

In the autumn of 2005 the applicant was committed for trial at the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.

During the trial the applicant pleaded not guilty. He maintained that on 27 June 2005 he had confessed to murdering O.K. as a result of psychological and physical ill-treatment by police officers; in fact, he had never met O.K. On 22 June 2005 he had purchased a mobile phone, a ring and earrings from a stranger on the street.

On 16 December 2005 the Regional Court found the applicant guilty of rape, theft, robbery and aggravated murder. It referred to various sources of evidence, including the applicant’s confession statements given on 27 June 2005 and during the further course of the investigation, witness statements, forensic assessments, and DNA evidence. The court dismissed the applicant’s allegations of ill-treatment as unsubstantiated and sentenced him to life imprisonment.

On 21 December 2005 the applicant received a copy of the Regional Court’s judgment of 16 December 2005.

On 10 January 2006 the applicant submitted a cassation appeal against that judgment. He maintained his innocence and alleged that on 27 June 2005 he had been beaten and given electric shocks by the police officers to break his moral resistance and make him confess to the murder, and that they had also threatened to plant narcotics on his wife if he refused to cooperate.

Subsequently (on 8 February, 2, 6 and 9 March 2006), the applicant submitted supplementary pleadings in which he challenged the validity of the various sources of evidence relied on for his conviction. He also complained that he had not been provided with an opportunity to contact his relatives or with access to a lawyer before his first questioning, and that he had been administered psychotropic drugs during his psychiatric assessment. He also maintained that N., the lawyer hired by his family, had performed his duties in bad faith. In particular, he had hardly visited the applicant and had completely failed to participate in the cassation proceedings.

On 20 January 2006 the applicant received a rectified copy of the judgment of 16 December 2005, as the previous copy had been found to contain some technical errors.

On 17 February 2006 the applicant filed an application with the Supreme Court requesting it to ensure his personal presence at the cassation hearing.

On 6, 14 and 28 March 2006 the applicant lodged further requests to be present at the hearing. He also requested the Supreme Court to summon his first lawyer, M., for the hearing and noted that he had never refused her services and did not know why she had been excluded from the proceedings.

On 27 March 2006 the Supreme Court rejected the applicant’s request to be present at the hearing, finding that it had been lodged outside the one-month statutory time-limit.

On 14 April 2006 the applicant re-lodged the request to be present at the hearing, stating that he had obtained the final copy of the judgment only on 20 January 2006 and had lodged his request within one month of that date.

On 18 April 2006 the Supreme Court held a hearing in the applicant’s case. The hearing was not attended by either the applicant or a lawyer on his behalf.

On the same date the Supreme Court dismissed the applicant’s cassation appeal and upheld the previous judgment. It noted, in particular, that there was no evidence that the applicant had been subjected to illtreatment or that his right to defence had been breached in a way incompatible with his right to a fair trial. It further noted that the case file contained sufficient evidence of the applicant’s guilt, including his own confession statements given in the presence of his lawyers. According to the text of the judgment, the prosecutor, who had been present at the hearing, had requested that the applicant’s appeal be dismissed and the first-instance court’s judgment be upheld.

On various dates after his conviction, the applicant unsuccessfully complained to various authorities, including the prosecutor’s office and the Advocate Qualification Commission, about his alleged ill-treatment, the poor performance of his lawyer N., and other alleged breaches of his procedural rights.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1954 and until his arrest lived in St Petersburg. He is currently serving his sentence in a correctional colony in the Arkhangelsk Region.

The applicant was arrested on 31 July 2010 on suspicion of aggravated kidnapping, extortion and conspiracy. He remained in detention throughout the investigation and trial.

On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a highsecurity correctional colony with the release to be followed by a yearlong restriction of liberty.

On 8 November 2012 the Supreme Court of Russia upheld the conviction on appeal.

The parties provided the Court with the applicant’s medical documents, including his clinical records, discharge summaries, and expert opinions.

The medical records show that the applicant had a long history of cerebral diseases as a result of having sustained a head injury in 1997 that developed into traumatic cystic arachnoiditis. Two years later he underwent a tomography examination which confirmed the presence of a growing liquor cyst located in the right frontotemporal part of the brain. The cyst impacted on his acoustic and visual nerves. The examination also revealed moderate internal hydrocephalus. In the recommendations written on 11 May 2000, the applicant’s doctor noted that a nuclear magnetic resonance examination, an electroencephalography examination and a liquor analysis were required to properly diagnose the applicant’s condition. He further observed that, in the absence of any treatment, it would be reasonable to perform urgent cerebral bypass surgery in order to prevent the applicant from going irreversibly blind. Nothing in the medical documents submitted suggests that the applicant had had any recourse to specific medical assistance or examinations regarding his cerebral problems during the ten years preceding his arrest.

After the arrest the applicant was taken to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no. IZ-47/1”). On admission to that facility the resident prison doctor performed a general medical check-up of the applicant, having noted in the medical file that he had a brain cyst. The doctor concluded that the applicant was “somatically healthy” and was therefore fit to remain in the conditions provided by the detention facility.

On 23 September and 26 October 2010 the applicant was seen by a neurologist. In the absence of any medical documents the prison doctor was only able to perform a visual examination of the applicant. He diagnosed the applicant with hydrocephalus and recommended that an X-ray examination of the skull be carried out to make the correct diagnosis.

In January 2011 the applicant’s medical file was supplemented with his old clinical records from a civilian hospital and the prison doctor examined him anew, paying regard to the additional medical information. He confirmed the diagnosis made in 2000 and recommended a consultation with an ophthalmologist. The applicant was prescribed drug therapy for a month.

An ophthalmologist diagnosed the applicant with angiopathy.

In February 2011 the applicant was diagnosed with tuberculosis. He was immediately transferred to prison hospital no. 2 in St Petersburg, where the disease was successfully treated. The applicant was discharged from hospital with the doctors’ attestation of his full recovery from the infection.

On 8 April 2011 the applicant was sent to Gaaza prison hospital in St Petersburg for an in-depth medical examination. He underwent a large variety of diagnostic procedures, including a magnetic resonance tomography of the brain and cervical vertebrae performed in a Russian civilian hospital, the Mariinskiy Hospital of St Petersburg. The tests showed that the applicant had a liquor cyst in the right frontotemporal part of the brain and that he suffered from vicarious hydrocephalus of mixed genesis and encephalopathy at the initial stage. In addition, doctors were able to establish that the applicant’s cervical vertebrae had several herniated disks and perineural cysts.

Following completion of the diagnostic cycle, the applicant was released from the hospital and sent back to the detention facility. Discharge summaries issued on 15 April 2011 contained a recommendation of supervision by a prison doctor and regular consultations with a neurologist.

In September 2011 the applicant complained about headaches to the attending prison doctor. In response it was recommended that he undergo an additional neurological medical examination in Gaaza prison hospital. However, the hospital refused to admit him because it did not employ a suitably qualified medical specialist, such as a brain surgeon.

In October 2011 the applicant’s lawyer contacted Dr K. from the neurosurgical department of the Scientific Research Institute for Emergency Treatment, who agreed to study the applicant’s clinical records and give his opinion about the state of the applicant’s health at a court hearing on 4 October 2011, where he saw the applicant for the first time. At the hearing the doctor stated that the computer tomography performed on the applicant in 2000 had indicated a brain oedema at the base of the skull. He insisted that any change of the applicant’s lifestyle could induce complications related to the brain oedema and also seizures. Surgery was required to treat the cyst. However, Dr K. concluded that the applicant’s spinal problems were even more serious, as they could leave the applicant entirely paralysed. Nevertheless, the doctor noted that surgery would be only required if the applicant’s health were to deteriorate. The doctor recommended chondroprotective therapy and cerebral bypass surgery for the applicant. He was also to wear a cervical collar.

The applicant also provided the Court with a certificate issued in November 2011 by Dr T., the head of the hospital where the applicant had received medical treatment in 1997-1998. Dr T. argued that the applicant’s condition called for permanent medical supervision by a neurologist and neurosurgeon so that the applicant could be subjected to urgent surgical intervention should the need arise. In Dr T.’s opinion, a detention facility was ill equipped to guarantee such supervision. The applicant also argued that his transfer to a northerly region in which to serve out his sentence had run contrary to the recommendations of his doctor and might have resulted in serious complications of his illness. Finally, he alleged that he lacked effective remedies whereby to complain about the poor quality of his medical treatment.

On 1 December 2011 in response to a request from the applicant’s lawyer, a medical expert commission assessed the applicant’s health and checked for the existence of medical grounds warranting his release from detention. The commission observed that the applicant had received outpatient treatment and that he had no focal brain injuries, epileptic seizures or significant limitations of his day-to-day activity. Taking account of the results of his dynamic medical examinations, the doctors concluded that the applicant was in satisfactory health and that there were no medical grounds warranting his release from detention.

On 5 April 2012 Dr K. visually examined the applicant. No recommendations were made.

On 4 December 2012 the applicant was examined by a neurologist to whom he complained about headaches, vomiting and vertigo. The doctor recommended drug therapy based on vasobral, piracetam, and vinpocetine. The following visit in January 2013 by the neurologist resulted in a modification of the drug regimen.

On 20 February 2013 a prison doctor approved the applicant’s transfer to a correctional colony, finding him fit to make the journey.

The applicant arrived on 4 March 2013 at correctional colony no. IK42/4 in the Astrakhan Region (“colony no. IK-42/4”), where he was seen by the colony doctor, who noted that the applicant had been suffering from brain cyst. At the end of April 2013 the doctor recommended the applicant’s transfer to a hospital for further assessment. No urgency was warranted.

On 25 July 2013 Dr K. drafted another report, assessing the applicant’s condition on the basis of his medical records and the results of his examination on 5 April 2012. Dr K. concluded that his recommendations had not been complied with and that the applicant’s cyst had increased. He stressed that the appropriate treatment could only be ensured in a specialised medical institution, not least because the requisite dynamic monitoring of the applicant’s condition using computer and magnetic resonance tomography examinations needed to be performed every eight months. Lastly, the doctor emphasised that the applicant’s detention in a northerly region could lead to a further deterioration in his health by inducing epileptic seizures and brain ischemia, thus putting his life at risk.

On 8 August 2013 the authorities transferred the applicant to a prison hospital in the Arkhangelsk Region. Following a number of tests, a medical panel declared that the applicant was not suffering from any disability. The applicant was discharged from the hospital with the recommendation that he be re-admitted for further treatment in June 2014.

The last two entries in the applicant’s clinical records are illegible. The parties did not provide the Court with any additional information on the state of his health.


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

George Nicolaou;Ledi Bianku;Nona Tsotsoria

The applicant was born in 1966 and lives in Kraków.

On an unspecified date the applicant became a party to proceedings for division of joint property.

On 18 December 1995 the Kraków–Śródmieście District Court (Sąd Rejonowy) gave a severance order and decided to examine the applicant’s motion in separate proceedings.

From that date the proceedings have been pending before the firstinstance court.

The applicant lodged three complaints under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).

In his complaint of 26 November 2008 he sought a finding that the length of the proceedings had been excessive and claimed 10,000 Polish zlotys (PLN) in compensation.

On 2 February 2009 the Kraków Regional Court (Sąd Okręgowy) examined the complaint. It found that the length of the proceedings had been partly attributable to the parties who had requested adjournment of three hearings. One hearing was adjourned due to the absence of one of the parties’ lawyers. The court also considered that the impugned proceedings had been complex. At the same time, however, it found some periods of inactivity on the part of the Kraków District Court, acknowledged that the proceedings had indeed been lengthy and granted the applicant PLN 1,000 which it considered “adequate in view of the periods of inactivity found.”

On 7 July 2010 the Kraków Regional Court allowed another applicant’s complaint under the 2004 Act. The court held that the length of the proceedings had been excessive and awarded the applicant PLN 2,000 in compensation.

In 2012 the applicant again lodged a complaint under the 2004 Act. He sought a finding that the length of the proceedings had been excessive and claimed PLN 20,000 in compensation.

On 14 August 2012 the Kraków Regional Court held that the length of the proceedings had been excessive and awarded the applicant PLN 2,000 in compensation. In the Regional Court’s view the trial court had failed to act in an effective and diligent manner, in particular in the light of the overall length of the proceedings in issue.


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

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

In 1998 the applicant’s property rights to a previously nationalised part of his late father’s land near Vilnius were restored. On 5 June 2002 the Vilnius Region Administration restored his rights – restitution in natura – to the remainder of the land measuring 0.53 hectares, situated in the village of Gineitiškės. This plot of land was then entered in the land registry in the applicant’s name.

In January 2005, having discovered that the decision of 5 June 2002 was based on erroneous data prepared by a State-hired land surveyor and had possibly breached the rights of other former landowners, the General Prosecutor’s Office instituted administrative proceedings to have the applicant’s title to the plot annulled. The applicant was a third party to those proceedings and argued that the restoration process had been lawful, without, however, raising the question of an adequate compensation in the event that his title to the plot was extinguished. Shortly before the initiation of the case, the Vilnius Region Administration had admitted that its decision had been unlawful and had informed the applicant that it needed to rectify the error; however, it appears that the latter had disagreed.

On 8 September 2005 the Vilnius Regional Administrative Court dismissed the prosecutor’s complaint. However, on 12 December 2005 the Supreme Administrative Court remitted the case for re-examination.

On 20 April 2006 the Vilnius Regional Administrative Court granted the claim and annulled the decision of 5 June 2002. Finally, on 15 January 2007 the Supreme Administrative Court upheld the decision of the lower court. The courts established that the original plot of land to which the applicant had ownership rights was actually situated in another, albeit nearby, area of Gilužiai village. Thus, the return of the plot in 2002 was declared unlawful as it breached the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property.

Following the courts’ decisions, the plot of land was taken away from the applicant and returned to the State. No compensation was awarded to the applicant. However, he reserved the right to have his ownership rights restored.

By a decision of 2 February 2009 the Vilnius Region Administration restored the applicant’s ownership rights in natura by granting a new plot of land measuring 0.53 hectares in Gilužiai village.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants, whose names and years of birth are tabulated in Appendix I, took part in the cleaning-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled, becoming entitled to various social benefits.

On various dates the applicants successfully sued the authorities for inflation adjustment of these benefits. The judgments became final.

On various dates the Presidia of Regional Courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments, considering that the lower courts misapplied the material law.

Some of the judgments remained unenforced until the date of their quashing or were enforced with delay.