Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved

András Baka;Egidijus Kūris;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1952 and lives in Budapest.

On 22 June 2009, after seventeen years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year’s service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015.

In that capacity, the applicant not only performed managerial tasks but also had a judicial role, presiding over deliberations on uniformity issues and guiding decisions. He was also President of the National Council of Justice. This second function was added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Act LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice.

On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union unanimously elected the applicant President of the Network for a two-year term (from 2011 to 2013).

In April 2010 the alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union, hereinafter “Fidesz”) and the Christian Democratic People’s Party (“the KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional reform. Thereafter, the applicant spoke up several times in order to express his views on the integrity and independence of the judiciary. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on four issues: the Nullification Bill; the retirement age of judges; the amendments to the Code of Criminal Procedure; and the new Organisation and Administration of the Courts Bill.

Firstly, the Nullification Bill (subsequently Act XVI of 2011) sought to redress convictions relating to the crowd dispersion in autumn 2006. The applicant criticised the manner in which that goal would be achieved, namely by reopening final judgments and annulling through legislation certain judicial decisions. On 12 February 2011 the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view:

“the Bill ordering the annulment of some judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to freely assess evidence. This is a serious constitutional problem. ... the judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”.

On 8 March 2011, the day after the adoption of the Bill, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded to the critiques of the judiciary in a press conference, where he declared: “The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”.

Secondly, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy to the general retirement age of sixty-two) in Article 26 (2) of the Fundamental Law of Hungary, on 7 April 2011 court presidents, including the applicant, addressed a letter to different actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by that proposal. Their concern was that by abolishing the possibility for judges to remain in office until the age of seventy, the proposed rule would force one tenth of Hungarian judges (274 persons) to end their careers unexpectedly in 2012. In the morning of 11 April 2011 (the day of the vote on the proposals for amendment), the applicant addressed a letter to the Prime Minister in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He added as follows:

“It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.”

The same day, Parliament adopted the above-mentioned proposal (see Relevant domestic law below).

On 14 April 2011 the plenary session of the Supreme Court, the applicant in his capacity as President of the National Council of Justice, as well as the presidents of regional and county courts addressed a communiqué to the Hungarian and European Union public, pleading for the autonomy and independence of the judiciary and criticizing the new mandatory retirement age for judges. The relevant extracts from the communiqué read as follows:

“According to the proposal, the mandatory retirement age of judges will be reduced by eight years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervising) will be terminated the same day, without any transition period, due to the fact that they will have turned 62. By the 31 December 2012 a further 46 judges will have to terminate their career. As a consequence of this decision the timeliness of judicial proceedings will significantly deteriorate (reassignment of nearly 40 000 cases will be necessary, which may even cause several years’ delay in the judicial proceedings of tens of thousands of clients). The administration of courts will be seriously hindered since the replacement of dozens of retiring judges is extremely difficult.

The multiple effect of the forced pensioning off, without any real justification, of highly qualified judges, who have several years of experience and practice, and most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice and who devoted their life to the judicial vocation.

It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no chance to contest this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court.

Such an unjustified step insinuates a political motivation. ”

Thirdly, on 14 June 2011, Bill T/3522 on the amendment of certain legislation concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant’s request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to Members of Parliament. As no substantive changes were made to the Bill (enacted on 4 July 2011 as Act LXXXIX of 2011), the applicant decided to challenge the Act before the Constitutional Court on grounds of unconstitutionality and violation of obligations enshrined in international treaties, making use of that prerogative for the first time in Hungarian history. The Constitutional Court, in its decision no. 166/2011.(XII.20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General’s right to establish court competence by derogation from default statutory rules).

Lastly, the applicant expressed his views in a parliamentary debate on two new Cardinal Bills: the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time president of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the president of the Supreme Court (renamed with the historical appellation “Kúria”). On 26 October 2011, the applicant addressed a detailed analysis of the Bills to Parliament, taking account of the comments received from judges throughout the country. He also decided to express his opinion directly before Parliament, in accordance with Article 45 § 1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the fact that the draft legislation did not address the structural problems of the judiciary, but left them to the discretion of the chief executive of an external administration (the president of the new National Judicial Office), to whom excessive and, in Europe, unprecedented powers were being conferred without adequate accountability.

The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court).

On 19 October 2011, in an interview on ATV, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the Supreme Court’s name would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”. Some months earlier, on 14 April 2011, during a debate on the Fundamental Law, another Fidesz politician, Gergely Gulyás, MP, had declared on Inforádió that the President of the Supreme Court would remain the same and that only the name of the institution would change.

On 19 November 2011, Gergely Gulyás submitted a Bill (no. T/4996) to Parliament proposing an amendment to the 1949 Constitution. The amendment sought to provide that Parliament would elect the president of the Kúria by 31 December 2011 at the latest.

On 20 November 2011, MPs János Lázár and Péter Harrach, Fidesz and KDNP party leaders respectively, submitted a Bill (no. T/5005) to Parliament on the transitional provisions of the Fundamental Law of Hungary. Under section 11 the legal successor of the Supreme Court and the National Council of Justice would be the Kúria for the administration of justice, and the President of the National Judicial Office for the administration of the courts. Pursuant to section 11(2) of the Transitional Provisions of the Fundamental Law of Hungary Bill, the mandates of the President of the Supreme Court as well as of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stipulated that it provided comprehensive regulation of the succession of the Supreme Court, the National Council of Justice and their President. The successor (body or person) would be different according to the different nature of the separated functions. Having regard to the modifications of the court system, the Bill provided that the mandates of the President of the Supreme Court currently in office, as well as that of the President and members of the National Council of Justice, would be terminated upon the entry into force of the Fundamental Law.

In order to bring other legislation into line on this issue, on 23 November 2011 a Fidesz MP, Ferenc Papcsák, submitted an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. The amendment sought to terminate the mandates of the members and President of the National Council of Justice as well as those of the President and Vice-President of the Supreme Court upon the entry into force of the Fundamental Law.

On 28 November 2011 Parliament enacted both the Organisation and Administration of the Courts Bill (as Act CLXI of 2011) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX of 2011), the content of which is described above. The Transitional Provisions of the Fundamental Law of Hungary Bill was adopted without amendment on 30 December 2011 and published (as Transitional Provisions of the Fundamental Law of Hungary) in the Official Gazette on 31 December 2011. The date of the entry into force of the Fundamental Law was scheduled for 1 January 2012.

The applicant’s mandate was terminated on 1 January 2012, three and a half years before its normal date of expiry.

In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November 2011, see paragraph 22 above) entered into force on 2 December 2011. On 9 November 2011, the Organisation and Administration of the Courts Bill was amended with the introduction of a new criterion for the election of the new president of the Kúria. It provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term, having served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see Relevant domestic law below). On 9 December 2011, the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria and Tünde Handó as President of the National Judicial Office. On 13 December 2011, Parliament elected those candidates in accordance with the proposal of the President of the Republic.

The applicant is serving as a judge of the new Kúria (civil section). According to the internal regulation on press contacts at the Kúria, he is no longer entitled to express his opinions freely, as the giving of interviews is subject to prior consent by the President of the Kúria.

The premature termination of the applicant’s mandate has also had pecuniary consequences. Firstly, he has lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court is entitled throughout the period of the fixed presidential term. Secondly, outgoing presidents of the Supreme Court had the statutory right to certain benefits (an allowance for six months following the termination of his or her mandate, an office and a secretariat with two employees for two years, a pension supplement for life) of which the applicant was also deprived. The Remuneration and Allowances Act 2000 dealing, inter alia, with the entitlements of the President of the Supreme Court, was repealed as from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011, in force from 1 January 2012) supplemented this abrogation and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), if he or she had reached retirement age at the time of the entry of force of the Act and had requested the allowance.

Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit.

On 12 December 2011, EU Justice Commissioner Viviane Reding wrote a letter to the Hungarian authorities raising concerns on the issue of the retirement age of judges. An annex to the letter also raised the issues of the President of the new National Judicial Office and the transformation of the Supreme Court into the Kúria, in particular the early termination of the applicant’s mandate as President of the Supreme Court before the end of the regular term. The Hungarian authorities answered and the European Commission, on 11 January 2012, issued a statement on the situation of Hungary.

On 17 January 2012, the Commission decided to open “accelerated” infringement proceedings against Hungary on, inter alia, the independence of the judiciary. As regards the new mandatory retirement age for judges (and prosecutors), the Commission stated that EU rules on equal treatment in employment (Directive 2000/78/EC) prohibited discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification was needed if a government were to decide to reduce the retirement age for one group of people and not for others. The Commission did not find any objective justification for treating judges and prosecutors differently from other groups, notably at a time when retirement ages across Europe were being progressively increased. The Commission also asked Hungary for more information regarding the new legislation on the organisation of the courts. In its press release IP/12/24, the Commission stated as follows:

“[u]nder the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. ... In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011. In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court.”

On 7 March 2012, the Commission decided to send Hungary a reasoned opinion on the measures regarding the retirement age of judges and an administrative letter asking for further clarifications regarding the independence of the judiciary, in particular in relation to the powers attributed to the President of the National Judicial Office (powers to designate a court in a given case and the transfer of judges without consent).

On 7 June 2012, the European Commission referred the case to the Court of Justice of the European Union (case C-286/12). On 6 November 2012, the Court of Justice declared that by adopting a national scheme requiring the compulsory retirement of judges, prosecutors and notaries when they reach the age of sixty-two – giving rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – Hungary had failed to fulfil its obligations under Council Directive 2000/78/EC of 27 November 2000, which established a general framework for equal treatment in employment and occupation. The court observed that the categories of persons concerned by the provisions at issue benefited, until their entry into force, from a derogation allowing them to remain in office until the age of seventy, which gave rise, in those persons, to a well-founded expectation that they would be able to remain in office until that age. However, the provisions at issue abruptly and significantly lowered the age-limit for compulsory retirement, without introducing transitional measures to protect the legitimate expectations of the persons concerned.


CASE OF LÓPEZ RIBALDA  AND OTHERS v. SPAIN

Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

At the time of the events the applicants were all working as cashiers for M.S.A., a Spanish family-owned supermarket chain.

At the beginning of February 2009 the applicants’ employer noticed some irregularities between the supermarket stock levels and what was actually sold on a daily basis. In particular, the shop supervisor identified losses in excess of EUR 7,780 in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June 2009.

In order to investigate and put an end to the economic losses, on 15 June 2009 the employer installed surveillance cameras consisting of both visible and hidden cameras. The purpose of the visible cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible employee thefts and they were zoomed in on the checkout counters, which covered the area behind the cash desk. The company gave its workers prior notice of the installation of the visible cameras. Neither they nor the company’s staff committee were informed of the hidden cameras.

On 25 and 29 June 2009 all the workers suspected of theft were called to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of the union representative and the company’s legal representative.

Hereafter and for the sake of clarity, the applicants will be referred to as the first, second, third, fourth and fifth applicants (see the attached Annex).

On 25 and 29 June 2009 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to their letters of dismissal, the security cameras had caught them scanning items from the grocery baskets of customers and co-workers and afterwards cancelling the purchases. Security cameras had also caught them allowing customers and co-workers to leave the store with merchandise that had not been paid for.

On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no.1 (hereinafter “the Employment Tribunal”). The same day the second applicant brought similar proceedings before the Employment Tribunal in a joint application with the third, fourth and fifth applicants (see paragraph 20 below).

In the framework of the proceedings both applicants objected to the use of the covert video surveillance, arguing that it had breached their right to protection of their privacy.

On 20 January 2010 the Employment Tribunal issued two judgments ruling against the applicants, declaring both dismissals fair. The main evidence supporting the fairness of their dismissals was the recordings resulting from the covert surveillance, as well as the witness statements of co-workers dismissed for their involvement in the thefts, the shop manager, the union representative and the company’s legal representative.

The Employment Tribunal found in both judgments – as regards these two applicants in particular – that the use of covert video surveillance in the workplace without prior notice had been in accordance with Article 20 of the Labour Regulations (Estatuto de los Trabajadores), which allowed an employer to use monitoring and surveillance measures which he or she deemed appropriate to verify that an employee was fulfilling his or her employment duties, as long as the employer respected “human dignity”. This had been confirmed by the Constitutional Court in several judgments (see, among other authorities, judgment no. 186/2000 of 10 July 2000). According to the Constitutional Court’s case-law, an employer’s right to adopt organisational arrangements and act as a disciplinary authority had to be weighed against an employee’s fundamental right to privacy recognised under Article 18 of the Constitution. In cases where there were substantiated suspicions of theft, special circumstances justified interference with an employee’s right to privacy, which was considered to be appropriate to the legitimate aim pursued, necessary and proportionate. Following this case-law, the Employment Tribunal, having regard to the evidence before it, found that the employer had had sufficient grounds to conclude that the applicants’ conduct amounted to a “breach of contractual good faith and abuse of trust” and thus declared both dismissals fair in conformity with Article 54.2.d of the Labour Regulations.

The applicants appealed before the High Court of Justice of Catalonia on 16 and 22 March 2010 respectively. On 28 January and 24 February 2011 the court upheld both first-instance judgments, referring to the Constitutional Court’s case-law and endorsing the Employment Tribunal’s finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desks. While acknowledging that it was possible that the employer could face an administrative sanction for not informing its employees and the staff committee in advance of the installation of the cameras, that fact alone had no relevance from a constitutional point of view, since from that perspective the covert video surveillance had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate. Consequently, their dismissals had been justified on the same grounds as already stated by the Employment Tribunal.

The applicants brought cassation appeals, which were declared inadmissible on 5 October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, due to the “non-existence of a violation of a fundamental right”.

On 25 and 29 June 2006 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to the employer, the security cameras had caught the third applicant scanning items from the grocery baskets of customers and co-workers and afterwards voiding the receipts. Security cameras had also caught her allowing customers or co-workers to leave the store with merchandise that had not been paid for. As regards the fourth and fifth applicants, security cameras had caught them stealing goods with the help of their co-workers, such as the second applicant.

On the days that they were dismissed all three applicants signed a document called a “settlement agreement” (acuerdo transaccional), by which they committed themselves not to bring proceedings against their employer for unfair dismissal, while the employer committed itself not to bring criminal charges against them for theft. In the meetings at least one union representative and the company’s legal representative were also present.

Despite the settlement agreements, on 22 July 2009 the applicants, together with the second applicant (see paragraph 12 above), brought proceedings for unfair dismissal before the Employment Tribunal. According to the applicants, the settlement agreements had to be declared void. They claimed that the consent they had given was not valid, since they had been under duress at the time they had signed the settlement agreements (a company representative had allegedly threatened to bring criminal proceedings against them if they did not sign the agreements). They also argued that the evidence derived from the covert video surveillance had been obtained illegally.

On 20 January 2010 the Employment Tribunal ruled against the applicants and declared the dismissals fair. It carefully analysed the settlement agreements signed by the applicants. In particular, it addressed their allegation of invalid consent, finding that there was no evidence proving the existence of any kind of duress or intention to commit a crime (dolo) at the time the applicants had signed the settlement agreements. The court concluded that the applicants had signed the settlement agreements freely and voluntarily with the clear purpose of avoiding criminal proceedings for the alleged thefts they had been accused of (and to which they had already confessed). Further evidence as to the lack of any threat or coercion was the fact that other employees in the same situation as the applicants (such as the first and second applicants) had refused to sign the settlement agreements. Accordingly, the settlement agreements were declared valid under Article 1.809 of the Civil Code and, consequently, the Employment Tribunal ruled against the third, fourth and fifth applicants. As the signing of the settlement agreements rendered their dismissals fair, the use and analysis of the impugned videos as evidence in the proceedings was deemed unnecessary.

The applicants appealed before the High Court of Justice of Catalonia on 16 March 2010. On 24 February 2011 it upheld the first-instance judgment and endorsed the Employment Tribunal’s finding that the settlement agreement signed by the applicants was valid. The court also analysed, for the sake of clarity, the legality of the covert video surveillance. Referring to the Constitutional Court’s case-law, it confirmed that the defendant party had been authorised to carry out the covert video surveillance on the applicants.

The applicants brought a joint cassation appeal, which was declared inadmissible on 7 February 2012. Ultimately, they lodged a joint amparo appeal with the Constitutional Court, alleging a violation of Articles 18 and 24 of the Constitution. It was declared inadmissible on 18 July 2012 due to the “non-existence of a violation of a fundamental right”.


André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant, Mr Hussain Ali, is a Canadian national, who was born in 1961 and lives in Canada. He was represented before the Court by Mr A. Baramidze, who withdrew from the case on 1 November 2012, Mr H. von Sachsen-Altenburg, and Mr I. Kandashvili, lawyers practicing in Tbilisi.

The Georgian Government (“the Government”) were represented by their successive former Agents, most recently Mr L. Meskhoradze of the Ministry of Justice.

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

On 16 August 2001 the applicant entered into a share-purchase agreement (“the SPA”) with LLC Georgian Tobacco Manufacturing-BVI, a company incorporated under the laws of the British Virgin Islands (“the BVI company”). By the terms of the SPA, the applicant acquired, for 450,000 United States dollars (USD), a 90% stake in LLC Georgian Tobacco Manufacturing (hereinafter “the tobacco company”), a company co-founded by the BVI company and incorporated under Georgian law. The remaining 10% of the shares were owned by Mr A.Ts. (“the minority shareholder”).

The applicant and Mr Y.A.L., a duly authorised representative of the BVI company, both arrived in Tbilisi in the early morning of 16 August 2001 with the specific purpose of signing the SPA. At Tbilisi Airport they were welcomed by Mr H.S., a friend of the applicant, Mr T.M., a lawyer then authorised to act on behalf of the tobacco company and subsequently implicated in the unconfirmed allegations of and criminal proceedings related to the fabrication of a power of attorney on the applicant’s behalf (see paragraphs 39-61 below), and Ms E.Sh., a notary public registered in Tbilisi (“the first notary public”).

Without leaving the airport building, the applicant and Mr Y.A.L. signed the SPA which was then certified by the first notary public. In addition, the notary certified a power of attorney by which Mr Y.A.L. was authorised to represent the applicant and to sign official documents on his behalf.

On 20 December 2001, a certain Mr A.Y. ceded to the applicant his claim against the tobacco company with a value of USD 2,818,083 (approximately 1,958,335 euros (EUR)). The contract did not stipulate any obligations on the applicant’s behalf in exchange for the said cession.

On 6 September 2004 Mr A.Y. (see paragraph 7 above) instituted proceedings against the applicant before the Isani-Samgori District Court, indicating Mr T.M. (see paragraph 5 above) as the applicant’s representative.

Mr A.Y. claimed that on 20 December 2001 he had entered into an agreement with the applicant according to which the former had ceded to the latter a claim to the tobacco company with a value of USD 2,818,083 (EUR 1,958,335). He further asserted that in exchange for the cession, the applicant should have paid him “a certain amount of money” by December 2002. Owing to the applicant’s alleged failure to perform that obligation, Mr A.Y. demanded the annulment of the agreement of 20 December 2001 and the restoration of the situation existing before the alleged breach of the contractual duty.

At the main hearing of 16 September 2004 Mr T.M. (“the applicant’s alleged representative”) presented a power of attorney authorising him to represent the applicant (“the power of attorney”). The document was dated 16 August 2001 and indicated the handwritten name “Hussain Ali” together with the alleged signature of the applicant. It was certified by a notary public, Ms K.Ch (“the second notary public”).

During the hearing of 16 September 2004, Mr A.Y. raised the value of his claim to USD 8,000,000 (EUR 5,559,586). Neither the revised nor the original claim contained any reference to supporting documentation. The applicant’s alleged representative acknowledged the debt allegedly owed by the applicant to Mr A.Y. At the suggestion of Judge B., the parties agreed to settle the case. As per the friendly settlement agreement, the applicant’s alleged representative agreed to transfer the ownership of 90% of the shares in the tobacco company to Mr A.Y. The settlement was endorsed by the Isani-Samgori District Court in a decision of 16 September 2004 (“the decision of 16 September 2004”).

Judge B. issued a writ of enforcement immediately, despite the statutory appeal period of twelve days and on 17 September 2004 Mr A.Y. was listed in the Companies Register as the owner of 90% of the shares in the tobacco company.

On 18 September 2004 a purchase agreement was concluded between Mr A.Y. and the minority shareholder of the tobacco company (see paragraph 4 above) whereby the latter acquired the former’s shares in the tobacco company by means of cancelling an outstanding debt stemming from a contract concluded between them on 13 April 1994. The minority shareholder consequently became the 100% shareholder of the tobacco company.

The property in question became the subject of various subsequent transactions among third parties. In mid-February 2007 the applicant obtained an extract from the Companies Register revealing that the minority shareholder had sold 100% of shares in the tobacco company to a certain Coppela Ventures Ltd, a company registered in the British Virgin Islands.

On 6 October 2004 the applicant lodged an interlocutory complaint against the decision of 16 September 2004 on account of not having been summoned to the hearing and having been represented by an unauthorised person based on a forged power of attorney. He argued that he had become aware of the dispute only on 1 October 2004.

On 11 October 2004 the complaint was declared inadmissible by Judge B. The judge noted that there was no need to summon a party if a duly authorised representative were present. Additionally, the decision had become res judicata and no interlocutory appeal lay against it.

On 26 October 2004 the examination of the applicant’s appeal against the decision of 11 October 2004 was stayed on account of the non-payment of the court fees and he was asked to correct the error.

On 2 December 2004 the appeal was left unexamined owing to the failure to pay the court fees. The applicant lodged an interlocutory appeal against that decision arguing that he had given the necessary sum to his representative who, for an unknown reason, had apparently failed to proceed with the payment. It does not appear that the applicant instituted criminal proceedings against the representative on that account. The applicant requested that the decision of 2 December 2004 be quashed and that the examination of his complaint continue.

As a result of several interlocutory appeals and decisions, on 28 March 2005 the Supreme Court remitted the case to the appellate court to consider the admissibility of the applicant’s interlocutory appeal against the 2 December 2004 decision (see paragraph 18 above).

On 31 May 2005 the appellate court considered the interlocutory appeal lodged against its 2 December 2004 decision and found it inadmissible. The court noted that the applicant had failed to pay the court fees at the time his appeal was lodged; nor had he done so after receiving the court’s notice and a deadline to correct the procedural error. The reason advanced by the applicant to justify the failure, namely that he had personally paid the sum to the representative, who had allegedly failed to execute the payment, was not considered a valid justification for the procedural shortcoming.

On 3 November 2005 in a final decision the Supreme Court rejected the applicant’s complaint against the decision of 31 May 2005 as inadmissible. It reasoned that the applicant had not alleged a violation of procedural rules by the lower courts in rejecting his interlocutory appeal and that his argument concerning the alleged misappropriation of the court fees by his representative was not valid grounds to set the domestic courts’ decisions aside.

On 5 January 2005 the applicant lodged an application with the Isani-Samgori District Court to have the final decision of 16 September 2004 quashed and the proceedings reopened owing to the court’s failure to ensure the attendance of a party, as provided by Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”) (see paragraph 66 below). Relying on a private forensic report dated 4 December 2004 he further argued that the power of attorney presented by Mr T.M. had been forged.

On 10 January 2005 the first-instance court found the application inadmissible. It reasoned, among others, that the application to have the decision of 16 September 2004 quashed had been time-barred. It referred to the one-month time-limit under Article 426 § 1 of the CCP, which had started to run after the applicant had become aware of the grounds for his application. The court found that, in view of the applicant’s interlocutory proceedings on the matter instituted on 6 October 2004 (see paragraph 15 above), he had become aware of such grounds well before the lodging of his application on 5 January 2005.

On 4 February 2005 the applicant’s interlocutory complaint against the decision of 10 January 2005 was declared inadmissible.

On 23 May 2005 the Tbilisi Regional Court, sitting as a court of final instance, upheld the lower court’s findings and declared the application inadmissible as time-barred.

On 19 October 2004 the applicant lodged an application with the Tbilisi Regional Court for the annulment of the purchase agreement of 18 September 2004 by which Mr A.Y. had sold a 90% interest in the tobacco company to the minority shareholder in exchange for having his outstanding debt cancelled (see paragraph 13 above). He argued that Mr A.Y. had not been authorised to manage the property, which he had got hold of illegally, and that the impugned agreement had been based on a fraudulent power of attorney.

After a series of decisions on procedure, jurisdiction, and postponements, the court of first instance dismissed the application on 31 July 2008. It found that the criminal proceedings which had been terminated on 28 December 2006 (see paragraph 57 below) had not confirmed the forging of the impugned power of attorney. That decision of the prosecuting authorities had been upheld by the first-instance and appellate courts on 9 February and 9 March 2007 respectively (see paragraphs 60-61 below). Accordingly, the purchase agreement had been concluded by the lawful owner of the property [Mr A.Y.], rendering the applicant’s complaint unfounded. The applicant appealed on 23 September 2008.

On 3 October 2008 the applicant was asked by the appellate court to indicate the value of his claim and to pay the court fees accordingly. The latter requested that the value be designated as indeterminate. The appellate court indicated to the applicant that the interest underlying the impugned contract was determined and the court fees amounted to 4% of that sum, capped at 5,000 Georgian laris (GEL).

Eventually, on 5 December 2008, after sending the applicant a final warning concerning the consequences of non-payment of the court fees to the amount of GEL 5,000, and in the absence of further information from the applicant, the Tbilisi Court of Appeal left the appeal unexamined.

On 22 December 2005 and 9 November 2006 the applicant lodged two applications for damages against Mr T.M., Ms K.Ch., Mr A.Y., Mr D.L. (the latter’s lawyer), and the minority shareholder (Mr A.Ts.), as well as the tobacco company. It appears from the case-file and the applicant’s submissions before the Court, that these were subsequently abandoned in favour of his third application (see paragraphs 31-35 below).

On 22 December 2006, the applicant lodged a third application for damages in respect of pecuniary and non-pecuniary damage caused by criminal activities. The claim was based on the verdict of 13 April 2006 reached as a result of the plea-bargain agreement between Mr T.M. and Ms K.Ch. (see paragraph 53 below). The applicant applied for an exemption from the court fees under Article 46 § 1 (c) of the CCP (see paragraph 66 below).

On 4 February 2009 the Tbilisi City Court dismissed the application of 22 December 2006 owing to the absence of a final conviction in a criminal case, as the criminal proceedings had been reopened (see paragraphs 54-61 below).

On 4 May 2009 the Court of Appeal upheld the lower court’s decision on the same grounds.

On 6 July 2009 the Supreme Court asked the applicant to pay the court fees to have his appeal on points of law considered. On 15 July 2009 the applicant submitted to the court a statement claiming exemption from the court fees under Article 46 § 1 (c) of the CCP (see paragraph 66 below).

On 22 July 2009 the Supreme Court ruled that the applicant was not entitled to the exemption owing to the absence of a final conviction in a criminal case and ordered the applicant to pay the fees within the following ten days. It does not appear that the applicant attempted to either comply with that decision or challenge it. His appeal on points of law was therefore left unexamined owing to the failure to pay the court fees.

On 24 August 2006 the applicant applied to the Tbilisi City Court, asking it to quash the decision of 16 September 2004 and to reopen the civil proceedings under Article 423 §§ 1 (a) and (c) and 2 of the CCP (see paragraph 66 below) in view of newly discovered circumstances. As such, the applicant referred to the final judgment of 13 April 2006, reached as a result of the plea-bargain agreement between Mr T.M. and Ms K.Ch. in relation to the falsification of the power of attorney of 16 August 2001 that had enabled Mr T.M. to cede the applicant’s property on 16 September 2004 (see paragraph 53 below).

On 6 October 2008 the Tbilisi City Court dismissed the applicant’s application. It referred to the relevant criminal proceedings on the matter and reasoned that the decision to close the criminal case had become final on 9 March 2007 (see paragraph 61 below). Accordingly, considering the absence of a crime confirmed by a final judgment, the grounds to reopen the case under Article 423 §§ 1 (a) and (c) did not exist.

On 21 January 2009 the Tbilisi Court of Appeal upheld, in a final decision, the lower court’s finding on the same grounds.

On 26 November 2004 the applicant lodged a criminal complaint with the finance police, the agency responsible for investigating financial crimes, and the Prosecutor General’s Office (“the PGO”). He reported that he had never given Mr T.M. any authority to represent him and that the power of attorney presented to the Isani-Samgori District Court on 16 September 2004 had been forged.

On 27 November 2004 the finance police opened a criminal case concerning the allegation of fraud and misappropriation of the applicant’s shares in the tobacco company. Various witnesses were questioned in the course of the preliminary investigation.

During the proceedings, several forensic reports were commissioned by the applicant, the investigating authorities, and the defendants concerning the validity of the power of attorney. Specifically, four forensic reports were carried out by State experts on the initiative of the investigating authorities, one alternative forensic report was implemented by a private expert institution at the request of the defendant, and another alternative expert report was carried out on the applicant’s initiative. The respective findings are set out below.

On 30 June 2005 an expert of the Ministry of the Interior issued an opinion (“the first State forensic report”), according to which neither the handwritten name “Hussain Ali” nor the signature made in the name of the applicant on the power of attorney of 16 August 2001 belonged to the applicant.

On 1 July 2005 an expert of the Ministry of Justice confirmed (“the second State forensic report”) the findings of the first forensic report. On the same day, the applicant was recognised as a victim and a civil claimant in the criminal case. The second notary public, Ms K.Ch., was charged and remanded. Mr T.M. was charged as well, but, as his whereabouts were unknown, he was declared wanted by the prosecution.

Between 19 and 23 August 2005 an alternative expert examination was carried out on Ms K.Ch.’s request. The private expert concluded (“the first alternative forensic report”) that whilst the signature did not belong to the applicant, the handwritten name “Hussain Ali” did.

On 25 August 2005 the investigator of the finance police in charge of the criminal case ordered another graphological examination of the signature by a panel of experts from the Ministry of Justice and the Ministry of the Interior in view of the findings reached by a private expert in the first alternative forensic report (see paragraph 44 above).

On 8 September 2005 the forensic examination was conducted by the panel of experts (see paragraph 45 above). The experts assessed the authenticity of signatures on the impugned power of attorney and the notary public’s related registry records retrieved from her office. They concluded (“the third State forensic report”) that whilst the signature did not belong to the applicant, the handwritten name “Hussain Ali” on both, the power of attorney and the notary’s registry records did.

On 14 September 2005 the PGO issued a ruling declaring the prosecution of Mr T.M. and Ms K.Ch. terminated and the criminal case closed in view of the inconclusive evidence. The ruling reasoned, inter alia, that the investigative steps which could have been taken in the course of investigation had been exhausted, as had the possibilities to collect any other evidence.

On 30 September 2005 the applicant appealed against the PGO’s ruling of 14 September 2005 and requested the resumption of the investigation which, according to the applicant, had been closed hurriedly and arbitrarily.

On 2 October 2005 a British forensic expert, following a request by the applicant, produced a forensic report concerning the impugned power of attorney of 16 August 2001 (“the second alternative forensic report”). It concluded that the applicant was not the author of the impugned signature dated 16 August 2001.

On 20 March 2006, after the applicant’s complaint of 30 September 2005 had been examined several times at various court instances, the Tbilisi City Court annulled the PGO’s ruling of 14 September 2005. It ordered the resumption of the criminal proceedings as the case had been closed hastily.

On 24 March 2006, another graphological expert report was ordered and carried out by the authorities. The experts concluded (“the fourth State forensic report”) that none of the signatures on the impugned power of attorney and in Ms K.Ch.’s notary logbook belonged to the applicant. The following day, Mr T.M. and Ms K.Ch. were once again charged with fraud.

According to the applicant, on 24 March 2006 the deputy head of the finance police initiated friendly settlement negotiations between the parties, which failed when the applicant refused to agree to the terms of the settlement. No evidence except for the applicant’s unanswered letter addressed to the finance police on that subject was submitted to the Court in support of this claim.

On 13 April 2006 the Tbilisi City Court approved a plea-bargain agreement between the PGO and Mr T.M. and Ms K.Ch. As a result of that judicial endorsement of the bargain, Mr T.M. and Ms K.Ch.’s guilt became confirmed without a full examination of the merits of the case (see paragraph 70 above). The latter were sentenced to a suspended five-year term of imprisonment, and fined GEL 10,000 (approximately EUR 5,000), in accordance with the terms of the agreement and Article 63 of the Criminal Code (see paragraph 69 above). The judgment became final after the statutory fifteen-day time-limit for appeals had elapsed.

On 4 October 2006 the two convicted persons, Mr T.M. and Ms K.Ch., lodged an application with the Tbilisi City Court for the restoration of the statutory time-limit to appeal against the judgment of 13 April 2006 (see paragraph 53 above). They first argued that the judgment of 13 April 2006 had only been served on them on 3 October 2006. Furthermore, relying on Article 523 § 2 of the Code of Criminal Procedure providing for a restoration of a time-limit for appeal based on a valid excuse, they stated that the decision to confess as well as their decision not to appeal in due time had been made under duress as their family had received serious threats by some unidentified persons. In a decision dated 15 December 2006 the Tbilisi City Court reasoned that Mr T.M. and Ms K.Ch. had provided valid reasons for the restoration of the time-limit and allowed their application.

On 18 December 2006 Ms K.Ch. and Mr T.M. lodged an appeal against the judgment of 13 April 2006 (see paragraph 53 above) arguing that the plea-bargain agreement and the related confession had not been a result of their free will but of duress. They maintained that their family had received serious threats from unidentified persons.

On 20 December 2006 the Tbilisi Court of Appeal granted the application lodged by Ms K.Ch. and Mr T.M. The court heard Ms K.Ch. and Mr T.M. who noted that at the time of concluding the plea-bargain agreements they were detained and did not notify the investigative authorities about the threats, including one to kill Ms K.Ch.’s young daughter, due to the fear that their declaration would have resulted in the fatal outcome for their loved ones. The court reasoned that the plea-bargain agreement and the related confession had been obtained under duress and was to be declared invalid as not concluded voluntarily. The case was therefore returned to the PGO for examination.

On 28 December 2006 the PGO declared the prosecution of Mr T.M. and Ms K.Ch. terminated. It reasoned that the findings of the forensic examinations were not consistent as some of them pointed to the applicant’s involvement with the impugned document (see paragraphs 44 and 46 above). The PGO also relied on the statement of an interpreter who confirmed having witnessed the applicant’s signature on the document. Among other witnesses, one of applicant’s former representatives noted that the applicant was a fictitious owner of the shares, and that the real person behind him and the shares, Mr A.N. helped the applicant find the private expert who would easily confirm the applicant’s version of the events. Another witness, Mr. G.O., the applicant’s former public relations representative stated that he parted ways with the applicant after becoming aware of some shady arrangements between Mr A.N. and the applicant. He also noted that the applicant had never explicitly denied having signed the power of attorney and instead had mentioned that at the time he signed numerous documents. The PGO also noted the existence of several domestic court decisions and judgments issued between 2001 and 2004 in other sets of proceedings attesting to Mr T.M.’s uncontested representation of the applicant based on the impugned power of attorney as a strong indication of the validity of the document and the applicant’s awareness of its existence for three years before contesting it in October 2004. Finally, statements of the family members of Mr T.M. and Ms K.Ch. attesting to the pressure placed upon the latter by unidentified persons to confess to the crime (concerning which a separate investigation was pending) were noted. The prosecutor concluded that the body of evidence did not warrant a conclusion concerning the existence of a crime of fraud.

On 22 January 2007 the applicant lodged an interlocutory appeal (see paragraph 67 below) with the Tbilisi Court of Appeal against the reopening decision of 20 December 2006 (see paragraph 56 above). The appeal was rejected as inadmissible both by the Tbilisi Court of Appeal and the Supreme Court on 24 January and 13 February 2007 respectively on the grounds that the legislation did not provide for a victim’s right to challenge judicial decisions relating to a plea-bargain agreement concluded between the prosecution and an accused. The applicant’s constitutional appeal on this matter was rejected on 19 December 2008. The Constitutional Court reasoned that the legislature’s approach to limiting the right of victims to appeal against plea-bargain agreements was justified by the principle of efficient criminal justice and balanced by enabling the victim to challenge decisions of the investigating and prosecuting bodies before the judicial authorities, a right of which the applicant had availed himself.

On 24 January 2007 the applicant appealed against the PGO’s ruling to terminate the investigation.

On 9 February 2007 the Tbilisi City Court dismissed the applicant’s appeal. The court reasoned that no clear evidence had been obtained during the investigation that would confirm the guilt of the two accused. It further noted that:

“... the investigating authorities have correctly assessed the witness statements of [four persons] that confirmed that Mr Hussain Ali had been aware of the existence of the concerned power of attorney and that it had been signed by him. These arguments are further strengthened ... by the decisions obtained by the investigating authorities from courts of various levels of jurisdiction, according to which Mr T.M. had participated in court hearings as Mr Hussain Ali’s representative based on the impugned power of attorney.”

On 9 March 2007 the Tbilisi Court of Appeal dismissed the applicant’s appeal of 11 February 2007 and upheld, at final instance, the lower court’s decision of 9 February 2007. The appellate court reasoned that:

“All possible investigative measures were carried out [by the investigating authorities], persons directly ... or indirectly connected with the issuance of the impugned power of attorney were questioned. Several forensic examinations were carried out. ... All evidence available in the case must be assessed in its entirety in the context of whether it is sufficient to reach a conclusion concerning a person’s guilt, [and] doubt concerning the authenticity and sufficiency of [such] evidence should be decided in favour of the accused ...”

On 10 January 2005 the applicant lodged a disciplinary complaint against Judge B. of the Isani-Samgori District Court with the High Council of Justice, accusing the latter of various violations of procedural law, including the failure to ensure the attendance of a party at the hearing on 16 September 2004.

On 11 August 2005 the Disciplinary Panel of the Disciplinary Council of the Common Courts of Georgia reached the following conclusions:

“Judge B. has violated Article 201 of the Code of Civil Procedure ... as he did not serve the legal claim and the supporting documentation to Hussain Ali.

The Judge has also violated Article 70 [of the Code], given that Hussain Ali, the respondent in the case, was not informed by a court summons, of the time and venue of the hearing or of the decision to terminate the proceedings [as a result of a friendly settlement] ... in contravention of Article 286 [of the CCP]...

... Regardless of the scope of the power of attorney, the respondent’s representative cannot procedurally turn into a respondent. ...

Accordingly, the disciplinary panel considers that ... Judge B. has committed a gross violation of law ... owing to which damage has been inflicted upon a party inasmuch as the latter had been unable to participate in the hearing.

... Having considered the Judge’s actions ... a strict punishment [such as the removal from the judicial panel] should be imposed.”

The decision became final after the statutory ten-day appeal time-limit elapsed.

The applicant not having been a party to the proceedings, he was neither informed of the decision nor given access to the relevant documents (see paragraph 67 below).

The Code of Civil Procedure (1997), as it stood at the material time, provided as follows:

“1. [The following categories of persons] are exempted from the payment of court fees:

c) applicants in applications [in respect of damage] caused by a crime...”

“1. A final judgment may be declared null and void following a request of a concerned party if: ...

b) One of the parties or – if the party needed legal representation – their representative was not summonsed to the hearing.

An application to declare a final judgment null and void based on these grounds is inadmissible if the party could have presented them during the hearing at the courts of first instance, appeal, or cassation.”

“1. A final decision may be subject to a reopening application based on newly discovered circumstances if:

a) it transpires that the document on which the decision was based had been fabricated; ...

c) criminal behaviour of the parties and their representatives or of a judge is established...”

“1. An application to declare a decision null and void ... must be lodged within one month ... [T]he renewal of this time-limit is not permitted.

The time-limit starts to run from the day on which a party becomes aware of the grounds for declaring a decision null and void ...

If an application to declare a decision null and void is based on Article 422 § 1 (b), the time-limit starts to run when a party, or if the latter is legally incapable, their legal representative is informed of the decision. ...”

Under Articles 414-420 of the Civil Procedure Code, an interlocutory appeal could be lodged regarding different types of decisions defined in the Code. Among others, Article 270 provided for the lodging of such an appeal against an immediate enforcement of a judgment. Under Article 68 of the Code a party could lodge an interlocutory appeal against a court’s refusal to reinstate statutory time-limits for appeal. Article 399 of the Code of Criminal Procedure (CCP) (1998) provided for a party’s right to lodge an interlocutory appeal against a court’s decision concerning the termination of a preliminary investigation.

The Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (“the Disciplinary Proceedings Act”), as it stood at the material time, provided that disciplinary proceedings against judges could be initiated, among others, on the basis of an application of an individual (Section 7) but the latter was neither a party to the proceedings (Section 39 (4)), nor were they notified of the outcome (Sections 58 and 73 (2)).

According to Article 63 of the Criminal Code (1999), it was the domestic courts’ discretion to impose a suspended sentence instead of imprisonment, with or without an additional sentence, including in relation to plea-bargain agreements.

Relevant legal provisions of the CCP concerning the nature of and procedure relating to the plea-bargain agreements were summarised by the Court in the Natsvlishvili and Togonidze v. Georgia judgment (no. 9043/05, §§ 4953, ECHR 2014 (extracts)). The acceptance of the plea bargain entailed the waiver of the rights to an ordinary examination of a case on the merits (see ibid., § 97).

Article 523 § 2 of the CCP as it stood at the material time, provided that a lapsed time-limit for appeal could be reinstated based on a “valid excuse.” Article 679(6) §§ 1 (c) and 3 provided that if a plea-bargain agreement was concluded under duress, the judgment approving the agreement was annulled and the case was returned to the preliminary investigation for examination. Article 679(7) § 3 provided that a review of a final judgment was allowed under common rules, based on newly discovered or newly revealed circumstances.


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The case originated in an application (no. 46144/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Yana Aleksandrovna Terenina (“the applicant”), on 2 July 2012.

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

The applicant complained of the inadequate conditions of her detention. She also raised other complaints under the provisions of the Convention.

The application was communicated to the Russian Government (“the Government”).


No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1992 and lives in Jomala.

On 26 March 2010 the applicant was charged with, inter alia, causing a serious traffic hazard (törkeä liikenneturvallisuuden vaarantaminen, grovt äventyrande av trafiksäkerheten) and operating a vehicle without a licence (ajoneuvon kuljettaminen oikeudetta, olovlig körning), both acts having been committed on 5 February 2010. The prosecutor requested that, in relation to the charge of causing a serious traffic hazard, a driving ban be imposed.

On 22 April 2010 the District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and sentenced him to 75 day-fines, amounting to 450 euros (EUR). A driving ban was also imposed until 4 September 2010 on the basis of section 44 of the Driving Licence Act of the Province of Åland.

No appeal was made against the judgment and it became final.

On 28 May 2010 the police imposed a new driving ban on the applicant from 5 September to 4 November 2010 on the basis of section 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland. In their decision the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licence and that the District Court had convicted him for this by final judgment on 22 April 2010.

By letter dated 22 June 2010 the applicant appealed to the Åland Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that he had been tried and convicted twice in the same matter. He referred to Article 4 of Protocol No. 7 to the Convention.

On 20 July 2010 the Åland Administrative Court rejected the applicant’s appeal and upheld the driving ban. The court found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Therefore, the applicant was not punished twice for the same offence and his rights protected by Article 4 of Protocol No. 7 to the Convention were not violated.

By letter dated 12 August 2010 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He stressed that both the criminal and the administrative proceedings had related to the same facts which had taken place on 5 February 2010.

On 19 January 2011 the Supreme Administrative Court upheld the Administrative Court’s decision. It found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Article 4 of Protocol No. 7 to the Convention had therefore not been violated. The decision was not unanimous and one of the judges expressed a dissenting opinion. In her opinion, it was not to be ruled out that a driving ban constituted a criminal sanction. Referring to the case Zolotukhin v. Russia, she considered that after the applicant’s final conviction by the District Court, a new driving ban based on the same facts on the basis of which he had already been convicted could no longer be imposed. Therefore, she would have quashed the police decision as well as the Administrative Court’s decision.


Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The first applicant, Mrs Maria Herakleous, is the widow of Mr Michael Herakleous, who was killed on 11 July 2011, while serving in the National Guard, as a result of an explosion at the Evangelos Florakis naval base near the village of Mari. The second and third applicants, Andreas Herakleous and Solonas Herakleous, are their sons. The applicants are Cypriot nationals and were born in 1967, 1996 and 1991 respectively. They all live in Nicosia.

The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia.

On 11 July 2011 at around 5.50 a.m. an explosion occurred on the Evangelos Florakis naval base. This was caused when ninety-eight containers of explosives, mainly gunpowder, burst into flames. These had been stored out in the open on the base since February 2009, after being confiscated from a Cyprus-flagged Russian-owned vessel – the Monchegorsk, heading from Syria to Iran – for violation of United Nations Security Council’s weapons sanctions. Thirteen people were killed by the explosion and sixty-two people were injured. Substantial damage to property was caused and there was significant financial damage and loss.

By an order dated 20 July 2011, and pursuant to the Commissions of Inquiry Law (Cap. 44, as amended at the time by Laws nos. 37/1982 and 84/1983), the Council of Ministers appointed a lawyer in private practice, Mr P.G.P, as a one-member commission of inquiry (“the investigator”), to look into the explosion and the circumstances which had led to it, as well as potential responsibility for the explosion.

On 3 October 2011 the investigator submitted an extensive report of over 600 pages to the then President of the Republic (“the President”), the President of the House of Representatives and the Attorney-General. In this, he stressed that, as an investigator appointed under the relevant law, he did not constitute a disciplinary or judicial authority, nor did he act as a coroner. His duties were purely investigative, and his findings and recommendations were not binding. He could not determine or establish legal or criminal responsibility. Any decisions in respect of possible criminal responsibility leading to a prosecution lay exclusively within the competence of the Attorney-General under Article 113 of the Constitution, following a police investigation in accordance with his instructions (see paragraph 17 below). Decisions as to actual criminal responsibility lay exclusively with the courts. He observed that, in his investigation, he had mainly dealt with possible State and/or political responsibility (πολιτειακές και/ή πολιτικές ευθύνες). He was of the opinion, however, that although he could not determine or establish criminal responsibility, he had the right and obligation to express general views on the matter.

The investigator, giving detailed reasons for his decision, concluded that both the Minister of Defence and the Minister for Foreign Affairs had very serious responsibilities, both statutory (θεσμικές) and personal. However, he found that the main responsibility lay with the President, who was the head of the State and the Government. The President bore the greatest responsibility for the inadequacy (ανεπάρκεια), negligence and remissness (ολιγωρία) that had been shown, and had failed to take care of or at least take basic measures to ensure the security of the citizens of the Republic of Cyprus, and in particular that of the soldiers and firemen in question. The fate of the cargo had been decided by the executive, which, headed by the President, had completely failed to take the necessary measures to handle the matter, including keeping the cargo safe in Cyprus. The investigator pointed out that the President, over and above his state office and his institutional capacity (πέραν του πολιτειακού του αξιώματος και της θεσμικής του ιδιότητας), had undertaken to deal with the dangerous cargo himself, had had ultimate control over it and had been responsible for taking important decisions on the subject. The investigator also emphasised and explained that he referred not only to the President’s statutory and ex officio (θεσμική και εξ’αξιώματος) political responsibility, but also his significant personal responsibility for the tragic event and its consequences.

His comments concerning criminal aspects were general and did not attribute criminal responsibility to any particular person. He expressed the view that the Attorney-General had a duty to examine the possibility that a number of criminal offences might have been committed, including the offences of manslaughter and causing death by reason of a rash, reckless or dangerous act (πρόκλησης θανάτου λόγω αλόγιστης, απερίσκεπτης ή επικίνδυνης πράξης) under sections 205 and 210 of the Criminal Code (Cap. 154).

The applicants submitted that the Attorney-General had publicly stated that the report would be taken into consideration in the relevant police investigations, and that such investigations had in fact been initiated in accordance with his instructions. According to the applicants, the relevant police reports were handed to the Attorney-General towards the end of 2011 or the beginning of 2012, but they contained no reference to the President.

By a letter dated 11 November 2011 the applicants’ lawyer requested that the Attorney-General seek leave from the Supreme Court to lift the President’s immunity from criminal prosecution. It appears that a similar request had already been made to the Attorney-General by the families of some of the other victims. In the above letter, the applicants’ lawyer expressed the view that the relevant acts and omissions of the President had constituted the offence of manslaughter and had been committed during his term of office and in the exercise of his functions, and not in his private capacity, as alleged in the request made by the other families. It appears that both requests remained unanswered.

As the Attorney-General did not take the steps requested, on 14 February 2012 separate applications were filed by the applicants (application no. 3/2012) and the relatives of other victims (applications nos. 1/2012 and 2/2012) under the relevant procedural rules (Rule 15 of the Supreme Constitutional Court Rules of 1962; see paragraph 20 below) for leave to commence proceedings in the Supreme Court for the interpretation under Article 149(b) of the Constitution of certain alleged ambiguities in the Constitution. In the applicants’ application and in application no. 2/2012, those ambiguities concerned the interpretation of the allegedly vague and imprecise terms “offence involving dishonesty” and “offence involving moral turpitude” in Article 45 § 3 of the Constitution, as well as “any offence committed by him [the President of the Republic] in the execution of his functions” in Article 45 § 5 of the Constitution (see paragraphs 18-20 below), and the conflicting interpretation by the applicants and the Attorney-General concerning the possibility of the President being criminally prosecuted before the end of his mandate for his acts and omissions in his handling in general of the matter of the dangerous explosives. As regards the remaining application (no. 1/2012), this focused on a number of disagreements with the Attorney-General as to the provisions of Article 45 and its alleged vagueness.

The applications were heard together by the Supreme Court (Full Bench), which rejected them on 29 June 2012.

In its decision, the Supreme Court observed that the applicants maintained that the terms “offence involving dishonesty” and “offence involving moral turpitude” included manslaughter, and that they relied on alleged statements by the Attorney-General that the above terms did not cover this offence. The Attorney-General, however, denied that such statements had any legal consequence, even if they had been made. He could not remember making them. It was also admitted that the letters to him on this point from the plaintiffs had never been answered. The question which arose was whether, even if the Attorney-General had made such statements, this disagreement would constitute a “difference of opinion” within the meaning given to this term by the relevant jurisprudence (such a difference being a prerequisite for the Supreme Court’s jurisdiction under Article 149(b) of the Constitution). The Supreme Court considered that this was not the case. It stated that it was not possible for any citizen who disagreed with another person or an authority, by means of only one simple disagreement, to create a “difference of opinion” which would satisfy the relevant provisions of the jurisprudence. Accepting such a position, as proposed by the applicants in the applications before it, would amount to recognising in every case an actio popularis. Moreover, accepting to undertake to interpret the Constitution in the case would simply and solely be a decision on a difference of opinion which constituted a theoretical question, since it could not lead to any consequence. If and when the Attorney-General decided to prosecute the President, only then would it be possible to raise the question of interpretation, and it would then be the duty of the Supreme Court, within the framework of the appropriate procedure, to judge and decide on the content, meaning and legal consequences and effects of the relevant Constitutional provisions. Otherwise, it was not the duty of the Supreme Court to solve theoretical problems and questions which would not themselves have legal consequences. In view of its conclusion about the non-existence of a “difference of opinion”, the Supreme Court stated that there was no need to rule on the other preconditions which needed to be satisfied in order for the leave sought to be given.

In the meantime, on 12 March 2012 the Attorney-General had brought criminal proceedings (case no. 4904/2012) against six high-ranking officials before the Larnaca Assize Court: the former Minister for Foreign Affairs, the former Minister of Defence, the former Deputy Commander of the National Guard, the Commander of the Fire Service, the Deputy Commander of the Fire Service (Διευθυντής της Πυροσβεστικής Υπηρεσίας και Αναπληρωτής Διευθυντής της Πυροσβεστικής Υπηρεσίας), and the Chief of the Special Unit for Disaster Response (Ε.Μ.Α.Κ.-Ειδική Μονάδα Αντιμετώπισης Καταστροφών) (“the first, second, third, fourth, fifth and sixth defendants”). They were charged with manslaughter and causing death by reason of a rash, reckless or dangerous act under sections 205 and 210 of the Criminal Code. They each faced separate charges.

On 9 July 2013 the Larnaca Assize Court gave judgment. The first and third defendants were acquitted; the second defendant was found guilty of both offences and was sentenced to five years’ imprisonment; the remaining defendants were found guilty of the second offence pursuant to section 201 of Cap. 154, but were acquitted of the remaining charges. They received a two-year sentence of imprisonment.

The second, fourth, fifth and six defendants lodged appeals against their conviction and sentence before the Supreme Court (appeal nos. 145/2013, 154/2013-156/2013). The Attorney-General also filed appeals in so far as the first-instance judgment concerned the first, second, and fourth to sixth defendants (appeal nos. 157/2013-163/2013). On 19 December 2014 the Supreme Court dismissed the appeals lodged by the second, fifth and sixth defendants and the corresponding appeals of the Attorney-General, as well as an appeal lodged by the Attorney-General concerning the acquittal of the first defendant. Further, it upheld the appeal of the fourth defendant against his conviction, acquitting him of all charges. Consequently, it dismissed the appeals against his conviction and sentence.

Under the Constitution, the Attorney-General is an independent officer of the Republic (Article 112). Article 113 § 2 of the Constitution provides that:

“The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.”

Pursuant to Article 45 of the Constitution, the President enjoys immunity from criminal prosecution during his term of office. However, this is not absolute, the exceptions being high treason and offences involving dishonesty or moral turpitude. The above-mentioned provision provides as follows:

“1. The President or the Vice-President of the Republic shall not be liable to any criminal prosecution during his term of office except under the provisions of this Article.

The President or the Vice-President of the Republic may be prosecuted for high treason on a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court upon a resolution of the House of Representatives carried by a secret ballot and a majority of three-fourths of the total number of Representatives:

Provided that no such resolution shall be taken and no item shall be entered on the agenda or debated in the House of Representatives in connection therewith unless the proposal for such resolution is signed by at least one-fifth of the total number of Representatives.

The President or the Vice-President of the Republic may be prosecuted for an offence involving dishonesty or moral turpitude upon a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court with the leave of the President of the High Court.

(1) The President or the Vice-President of the Republic upon being prosecuted under paragraph 2 or 3 of this Article shall be suspended from the performance of any of the functions of his office and thereupon the provisions of paragraph 2 of Article 36 shall apply.

(2) The President or the Vice-President of the Republic on any such prosecution shall be tried by the High Court; on his conviction his office shall become vacant and on his acquittal he shall resume the performance of the functions of his office.

Subject to paragraphs 2 and 3 of this Article the President or the Vice-President of the Republic shall not be liable to prosecution for any offence committed by him in the execution of his functions but he may be prosecuted for any other offence committed during his term of office after he ceases to hold office.

No action shall be brought against the President or the Vice-President of the Republic in respect of any act or omission committed by him in the exercise of any of the functions of his office:

Provided that nothing in this paragraph contained shall be construed as in any way depriving any person of the right to sue the Republic as provided by law.”

Under Article 149(b) of the Constitution, in the event of ambiguity, the Supreme Court has exclusive jurisdiction to interpret the Constitution in any manner, due regard being had to the letter and spirit of the Zurich Agreement of 11 February 1959 and the London Agreement of 19 February 1959.

Pursuant to Rule 15(2)(b) of the Supreme Constitutional Court Rules of 1962, as applied by the Supreme Court, when a reference is not made by a court, proceedings under, inter alia, Article 149(b) of the Constitution shall be commenced “with the prior leave of the Supreme Court, or any two judges acting in agreement, applied and obtained for the purpose, and in such manner as it may be directed upon granting such leave”.


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

Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek

The case originated in an application (no. 71256/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Hungarian nationals, Mr László Haraszthy, Mr György László Márton, Mr Gábor Horn, Ms Nóra Siska, Mr Zoltán Pintér and Ms Mária Terézia Oszter (“the applicants”), on 11 November 2011.

The applicants were represented by Mr I. P. Horváth, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.

On 31 August 2015 the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on their severance payment were communicated to the Government.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)

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

The applicant was born in 1977 and originates from Mosul.

The applicant applied for asylum in Sweden on 24 November 2008. He stated in essence the following in support of his application. He is formally a Sunni Muslim, but does not practise and considers himself to be an atheist. He had a shop in Mosul where he had rented out computer games and game consoles. In early August 2008 he had employed a young woman who did not wear a veil. After a few days, on 7 August, two masked men claiming to be members of Tahtim al-Jihad, an Iraqi branch of al-Qaeda, had entered the shop. They had told him that hiring a woman without a veil was against Islam and had required that she leave her job immediately. The applicant had refused their demand and had stated that “if this is Islam, then I am not a Muslim”. The woman had quit her job the following day. Still, three days later the applicant had received a letter with a bullet, stating that he had to excuse himself before the emir within five days or else he would be considered to have left Islam and could be killed. The applicant had refused to apologise. Some days later he had received a death threat and had been shot at. Soon thereafter, his shop had been destroyed by a bomb. Through a friend, whose brother had worked for the police, the applicant had been informed that the police were looking for him because they believed that the applicant had destroyed the shop himself to cover up for hiding weapons for terrorists there. His parents’ neighbour had later told him that both the police and alQaeda had come to the parents’ apartment to look for him on several occasions. The applicant had then fled to Dahuk in the Kurdistan Region, as alQaeda was less dominant there. Nothing had happened to him in Dahuk. After a month there, he had left Iraq on 26 September 2008. The applicant claimed that he risked being sentenced to death if he returned to Iraq, since he had uttered an unacceptable religious opinion in front of local al-Qaeda representatives and since he was wanted by the police for alleged cooperation with terrorists. Both al-Qaeda and the police were allegedly searching for him all over Iraq.

On 29 July 2009 the Migration Board (Migrationsverket) rejected the application and ordered the applicant’s deportation to Iraq. The Board questioned the applicant’s allegations that al-Qaeda had been searching for him in his parent’s home and that he was sought by the police for having hidden weapons for terrorists in his shop, because he had submitted this information only very late in the proceedings. In any event, noting that the police accusations were false, the Board did not consider that the risk of being prosecuted could be characterised as persecution that would justify the grant of asylum. However, it accepted the applicant’s claim that his life had been threatened by al-Qaeda and that he would thus face a real risk of persecution upon return to Mosul. The Board went on to examine the possibility of internal flight and found that the applicant had not made it plausible that he was at risk in all parts of Iraq. He was not considered in need of protection in relation to areas of the country where al-Qaeda was not strong. The Board noted that, while al-Qaeda retained a strong presence in Mosul, the security situation in the Kurdistan Region was stable and displaced persons could gain entrance there without a sponsor. Having regard to the general situation and the applicant’s personal circumstances – including his gender, age, health, religion and ethnicity –, it further found that he could reasonably relocate to the Kurdistan Region, even if he would lack a social network there. That finding was supported by the fact that he had already stayed in Dahuk for a month without encountering any problems.

The applicant appealed, reiterating the claims he had made to the Migration Board.

On 2 December 2009 the Migration Court (Migrationsdomstolen) upheld the decision of the Board, agreeing generally with its conclusions.

In his appeal to the Migration Court of Appeal (Migrations-överdomstolen), the applicant submitted a copy of an Iraqi document, purporting to be a warrant for his arrest.

On 16 April 2010 the Migration Court of Appeal refused the applicant leave to appeal.

Subsequently, in May 2010, the applicant claimed that there were impediments to the enforcement of his deportation order. He added the following to his story. His family had previously collaborated with Saddam Hussein and the new al-Maliki government therefore considered them to be supporters of Saddam Hussein. Several of the applicant’s relatives had been arrested in recent months and were being kept in a secret prison run by the government.

On 16 June 2010 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented.

On 11 August 2010 the Migration Court upheld the decision of the Board. It noted, inter alia, that the applicant’s allegation that he was wanted by the police had been examined earlier in the proceedings and that the arrest warrant presented later thus did not constitute a new fact which gave reason to grant him a new examination of his case. The applicant did not appeal against the Migration Court’s judgment.

In October 2010 the applicant lodged a further petition for reconsideration, claiming that new important facts had emerged in his case. The petition was rejected on 1 November 2010 by the Migration Board, which noted that the applicant had not presented anything concrete in support of it. No appeal was made against this decision.

Another petition for reconsideration was submitted later. The applicant now stated that he had been wrongly convicted of terrorism and sentenced in absentia to ten years’ imprisonment. He submitted two documents in Arabic, allegedly a copy of an arrest warrant and a copy of the judgment convicting him.

On 22 November 2010 the Migration Board rejected the petition, again finding that no new circumstances had been presented which justified that the case be reconsidered. It noted that the documents submitted were copies and of a very simple nature and that handwritten text had been added to the judgment. It thus considered that their value as evidence was very low.

On 21 December 2010 the Migration Court upheld the decision of the Board and on 21 January 2011 the Migration Court of Appeal refused leave to appeal.

The applicant submitted a fourth petition for reconsideration in February 2011. It was rejected by the Migration Board on 9 February 2011 and by the Migration Court on 15 February 2011. The applicant did not appeal against the Migration Court’s judgment.

A fifth petition was lodged by the applicant in October 2011. It was rejected by the Migration Board on an unknown date and by the Migration Board on 25 November 2011. On 16 December 2011 the Migration Court of Appeal refused the applicant leave to appeal.