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

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1984 and lives in Kars.

As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraphs 5-9 below). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 10-13 below). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 14-30 below).

On 21 October 2006 the applicant and three of her friends were in the city of Kars, distributing leaflets prepared by TAYAD (Association for Solidarity with the Families of Persons Deprived of Their Liberty), in a residential neighbourhood.

A man in plain clothes arrived and attempted to seize the leaflets without showing his identity documents demonstrating that he was a police officer. As the applicant and her friends refused to comply with the man’s demand, he held two of the applicant’s friends around their necks. Subsequently, around thirty police officers arrived at the scene and arrested the applicant and her friends. In the course of the arrest, the police officers used force and hit the applicant on various parts of her body before putting her in a police vehicle. In the vehicle, a police officer sat on her head and continued to hit her. A number of police officers also touched various parts of her body and made sexually suggestive comments.

The applicant was taken to hospital, where she was examined by a doctor who observed skin erosions, red patches (erythema) and sensitive areas on the applicant’s head, face, shoulders, lower back, abdomen and wrist. He concluded that the injuries were not life-threatening and a simple medical procedure was sufficient to treat them.

The applicant was then taken to a police station, where the beating continued and where she was threatened with rape by one of the police officers. The applicant’s requests for information about the reasons for her arrest and for a lawyer were refused. Each time the applicant repeated her requests the police officers used offensive language.

A lawyer who arrived at the police station the same afternoon secured the applicant’s release.

On 21 October 2006 at around 11 a.m. the police received information according to which TAYAD members were distributing leaflets in a residential area in Kars. Two police officers, V.G. and H.Ö., arrived at the scene of the incident at 11.15 a.m. in order to verify whether the content of the leaflets was legal. One of the officers, V.G., approached the applicant and her friends, told them that he was a police officer and requested to see the content of the leaflets and their identity cards. As the applicant and her friends refused to comply and began using offensive language and hitting him, a second police officer intervened. They subsequently asked for help from other officers, who also arrived at the scene of the incident. The police arrested the applicant and her friends and tried to put them in a police vehicle. The arrestees, however, resisted arrest. They also continued to hit the officers in the vehicle. During the physical struggle between the arrestees and the police officers, V.G., was injured.

At 11.30 a.m. the applicant was examined by a doctor, who observed minor injuries on her head, shoulders and wrist. At 11.45 a.m. V.G. was also subjected to a medical examination by the same doctor. According to the medical report issued in respect of V.G., he had pain and sensitivity in his lower back and numbness in his feet. The doctor considered that a simple medical procedure was sufficient to treat both the applicant’s and V.G.’s injuries.

At 1 p.m. the applicant and her friends were taken to the police station upon the instructions of the Kars public prosecutor. The applicant and her friends refused to make statements to the police.

At 4 p.m. the applicant and her friends were released from police custody and taken to a hospital for a medical examination. The doctor who examined the applicant observed the same injuries noted in the report issued at 11.30 a.m. on the same day.

The medical reports of 11.30 a.m. and 4 p.m. regarding the applicant contain information about the physical injuries sustained by the applicant and the doctors’ opinions as to the gravity of the injuries in the respective sections of the reports entitled “findings regarding the lesions” and the “conclusion of the examination” (see paragraphs 8, 12 and 14 above). The sections of the reports entitled “conditions of examination”, “information regarding the incident”, “the complaints of the person examined” and “findings of the psychiatric examination” were not completed.

At 1.30 p.m. on 21 October 2006 an arrest report was drafted by the police. According to this report, police officers had arrived at the scene of the incident as they had received information that members of TAYAD were distributing leaflets. When the police asked them to show the leaflets, the applicant and her friends put the leaflets in their bags and refused to present their identity documents. The report further stated that applicant and her friends had to be arrested through the use of force as they resisted the police officers and continued their acts. According to the report, the arrestees attacked the police officers by way of throwing themselves on the ground and chanting slogans. They were then put in the police vehicle by force and injured themselves in the vehicle by hitting their heads on the car glass and the door.

At 1.40 p.m. V.G.’s statements were taken by another police officer. He contended that he had been injured by the applicant and her friends and asked for an investigation to be conducted against them.

At 4.10 p.m. the applicant’s and her friends’ personal belongings were searched by four police officers who drafted a search report. According to this report, two of the arrestees each had a copy of the leaflet in their bags. The police returned all items found during the search when the applicant and her friends were released from police custody at around 4 p.m.

In November 2006 the Kars public prosecutor initiated an investigation against the applicant and her friends. Within the context of this investigation, on 17 November 2006 the public prosecutor took statements from V.G. and H.Ö. The documents containing the police officers’ statements refer to them as the “complainants”. The officers contended that they had been obliged to use force together with other police officers who had come to assist them, as the applicant and her friends had attempted to beat V.G. The police officers stated that they did not wish to lodge a complaint against the applicant and her friends.

On 23 November 2006 the applicant was questioned by the Kars public prosecutor as a suspect. In her statement, she described the illtreatment and the sexual assaults, and asked the public prosecutor to prosecute the police officers responsible for her ordeal. She also noted that she and her friends had downloaded the leaflets from the web and printed them. She stated that the content of the leaflets in question had not been illegal and that they had not committed any offence. The applicant’s legal representative was also present in the room and told the public prosecutor that while distributing the leaflets his client had been exercising her right under Article 10 of the Convention to impart her ideas and opinions. He complained that the police officers who had arrested his client had not shown her their identity documents and had not informed her of her rights. He further complained that the police had committed the offence of abuse of office as they had used violence against his client.

On the same day two of the applicant’s friends, S.P and B.K., also made statements before the Kars public prosecutor as suspects. They both contended that they had been ill-treated by the police and requested that an investigation be initiated against the officers who were responsible for their ill-treatment.

On 13 August 2007 the Kars public prosecutor filed an indictment with the Kars Criminal Court and accused the applicant and her three friends of obstructing the police officers in the execution of their duties under Article 265 § 1 of the Criminal Code. The public prosecutor alleged that the applicant and her friends had called the police officers “fascists”, “killers” and “enemies of the people”, had refused to show the police officers their identity cards and had hit them with their handbags. A case file was opened and given the number 2007/220.

On 4 December 2007 the Kars Criminal Court held the first hearing in the case.

On 24 March 2008 the criminal court heard V.G., the complainant police officer, in the absence of the applicant and her co-accused. V.G. contended that the applicant and her friends had chanted slogans, resisted arrest and hit him with their bags.

On 27 March 2008 the applicant made statements before the firstinstance court. She stated that they had not chanted slogans or beaten the officers. They had not known whether those persons were police officers and, in any event, V.G. had not asked to see the content of the leaflets. According to the applicant, V.G. had merely taken hold of one of her friends and asked for assistance from other officers in order to carry out the arrest. She noted that they had been attacked and arrested without being able to understand that V.G. was a police officer. During the same hearing, the applicant’s lawyer maintained that the applicant’s trial for distributing leaflets was in violation of her rights enshrined in the European Convention of Human Rights and, in particular, her right to freedom of expression and demonstration.

On various dates the applicant’s co-accused gave evidence before the Kars Criminal Court. They all contended that they had not been asked to show the leaflets or their identity cards but had been arrested through the use of force although they had not resisted arrest.

On 17 March 2009 the Kars Criminal Court convicted the applicant of obstructing the police officers in the execution of their duties and insulting them under Article 265 § 1 of the Criminal Code and sentenced her to eleven months and twenty days’ imprisonment. The first-instance court noted that the police had gone to the scene of the incident as they had received information that members of TAYAD were distributing leaflets. In the light of the statements of the officers who had signed the police report, the medical reports and the arrest report, the Kars Criminal Court found it established that the accused had insulted the police officers, shouted that they would neither show their identity cards nor give the leaflets and injured V.G. by way of hitting him with their bags. Taking into account the fact that the applicant did not have any criminal record, her personality traits and her conduct during the hearings, the first-instance court considered that the applicant would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment against her (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271).

On 26 May 2009 the decision of 17 March 2009 became final.

Meanwhile, the Kars public prosecutor initiated an investigation against V.G. and H.Ö. on the charge of abuse of office, upon the complaints lodged against them by the applicant and her friends.

On 11 August 2007 the Kars public prosecutor decided that no proceedings should be brought against the police officers. In the public prosecutor’s opinion the applicant’s injuries had possibly been caused when she and her friends had resisted the police officers, who had been performing their duties. The public prosecutor noted in his decision that some of the police officers had also been injured during the incident.

On 4 December 2007 the applicant’s lawyer filed an objection against the public prosecutor’s aforementioned decision. In his petition, the lawyer noted that the decision in question had not been served on him or his client and that they had become aware of it when the lawyer went to the court-house to read the documents in the case file on the same day. The applicant’s lawyer also noted that the applicant had been subjected to violence by the police and that she had not hit the police officers.

On 21 December 2007 the Ardahan Assize Court dismissed the applicant’s objection against the Kars public prosecutor’s decision following an examination on the merits. The Assize Court considered that the force used by the police officers had been no more than necessary to counter the applicant’s resistance. The applicant claimed that this decision was not communicated to her or her lawyer and was put in the investigation file. Her lawyer became aware of it when he consulted that file on 21 January 2008. There is no document in the investigation file, submitted by the Government, demonstrating the notification of the decisions of 11 August 2007 and 21 December 2007 to the applicant or her lawyer.


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

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1937 and lives in Novocherkassk, the Rostov Region. He is a retired military serviceman.

On 25 March 2003 the Justice of the Peace of the 2nd Court Circuit of Novocherkassk ordered the recovery of the applicant’s pension arrears for the period 1 January 1995 to 31 January 2003 and for the amount owed to be adjusted in line with the rate of inflation. The Justice of the Peace awarded him 40,356.67 Russian roubles (RUB), to be paid by the Military Commissariat of the Rostov Region (“the respondent authority”). The judgment was enforced.

The applicant brought a second claim against the respondent authority seeking a further adjustment to his pension as calculated by the judgment of 25 March 2003, because of an increase to the minimum wage. His claim was backdated to include the period 1995 to 1998.

By a judgment of 15 September 2004 the Novocherkassk Town Court allowed the claim. The court observed, in particular, that the amount awarded on 25 March 2003 had been adjusted to take into account the rise in inflation, but not the increase to the minimum wage for the specified period. The court awarded the applicant RUB 265,594.27, to be paid by the respondent authority, and ordered that the judgment be executed immediately. Representatives of the respondent authority were present at court.

On 12 October 2004 the applicant’s representative sent a copy of the judgment and a writ of execution to the respondent authority. According to its incoming correspondence log (item no. 11734), the documents were registered as having been received.

On an unspecified date the respondent authority lodged a statement of appeal with the Town Court. It appears that on 9 November 2004 (the exact date is unclear) the Novocherkassk Town Court refused to examine the application because the authority had failed to pay the court fee.

On 11 November 2004 the respondent authority withdrew its statement of appeal.

On 24 November 2004 the respondent authority requested a reexamination of the case in the light of newly discovered circumstances. On 10 February 2005 the Novocherkassk Town Court dismissed the application.

In September 2005 the respondent authority applied for the case be re-examined by way of supervisory review.

On 29 December 2005 the Presidium of the Rostov Regional Court quashed the judgment of 15 September 2004 by way of supervisory review and transferred the case for fresh examination by a different court. The Presidium concluded that the first-instance court had erroneously applied the substantive law and had failed to verify whether the same claim had already been examined by the Justice of the Peace on 25 March 2003. It also found that the Novocherkassk Town Court had lacked territorial jurisdiction to hear the case. The Presidium noted that judgment had been awarded against the respondent authority and that the case should have been examined by a court in the district where the respondent authority was located.

The applicant did not attend the hearing and received a copy of the judgment on 17 February 2006.

On 17 March 2006 the Oktyabrskiy District Court of Rostov examined the applicant’s claim against the respondent authority and rejected it as having no basis in law. No further appeal was brought.


CASE OF NEŠKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicant was born in 1964 and lives in Skopje.

As established in the criminal proceedings described below (see paragraphs 8-18 below), on 6 June 2011 at about 12.20 a.m., I.S., a member of the Special Police Forces Unit (Единица за специјални задачи) of the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of the parliamentary elections that coincided with a local cultural event. The killing occurred after M.N. attempted to climb onto a podium in order to approach certain high-ranking politicians. After I.S. warned him to desist, M.N. ran away. I.S. followed him and hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N., despite M.N. shouting for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute (Институт за Судска Медицина), M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was a brain haemorrhage. M.N. died at 12.30 a.m. The courts established (contrary to I.S.’s testimony) that at the relevant time I.S. had not been on duty, but had attended the ceremony in a private capacity.

According to the applicant, after Ministry officials had issued a number of conflicting statements regarding M.N.’s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to protest. After the Ministry’s spokesperson announced on 7 June 2011 that a police officer was suspected of having caused M.N.’s death, thousands of people took to the streets of Skopje to protest. Those protests lasted for forty days and turned into a movement called “Stop Police Brutality” (Стоп на полициската бруталност). On 14 June 2011 over six thousand people signed a petition containing several demands, namely that the relevant authorities establish the truth regarding M.N.’s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry’s officials.

On 8 June 2011 the public prosecutor asked an investigating judge to open an investigation in respect of I.S. related to the death of M.N.

In the course of this investigation, A.N. (M.N.’s brother) requested the Professional Standards Inspectorate (“the PSI”) of the Ministry of the Interior to investigate the circumstances surrounding M.N.’s death and the actions of the police officers concerned alleging that unidentified police officers had committed the crimes of “assisting an offender after the commission of a crime” and “failure to report an offence or perpetrator”, punishable under Articles 364 and 365 of the Criminal Code.

On 28 June 2011 the PSI replied as follows:

“... a police officer I.S., member of the Special Unit within the Ministry of the Interior, was on duty on 5 June 2011 between 8 a.m. and midnight on the basis of an operative plan prepared before. After the activities in the Special Unit had ended, at 12.10 a.m. [I.S.] left the Unit and went, in plain clothes and in a private car, to the centre of the city, where (a cultural event) and post-election celebrations were taking place.

At around 4 a.m. there was a verbal fight at the square ‘Macedonia’ between the suspect I.S. and M.N. After that, M.N. started to run ... after M.N. had fallen to the ground, I.S. punched and kicked him in the head and body. M.N. lost consciousness; I.S. pulled him up and placed him in a sitting position on a nearby bench. He took a bottle of water ... and poured it over [M.N.’s] head in order to resuscitate him. After that, I.S., together with other persons, pulled [M.N.] up and placed him in the greenery of the car park ... where again they were helping him, tried to revive him and in the meantime they informed the emergency unit.

Soon after two uniformed police officers, who were employed to secure the celebration, arrived on the scene. I.S. left for an unknown destination ...

(Police) inspectors from the police crime department (Одделение за крвни, сексуални и сообраќајни деликти) were informed about the event. After they had arrived on the scene, they informed a public prosecutor and an investigating judge of the incident. They (both) did not arrive on the scene, but delegated to the police investigation department (Одделение за истрага) responsibility for conducting an on-site inspection.

The police investigation department conducted the on-site inspection for which report was drawn up and photos were taken.

On the basis of an order by the investigating judge M.N.’s corpse was handed over to the Forensic Institute in order to establish the reasons for the death.

After the (post mortem) examination had confirmed that M.N.’s death had been violent, the police crime department took measures to establish the facts, including interviewing eyewitnesses.

At around 2.30 p.m. on 7 June 2011 the suspect I.S. handed himself in to a police station (in Skopje). After an interview had been held, the investigating judge ordered that an identity parade with eyewitnesses be organised in the presence of the public prosecutor.

The police crime department submitted a criminal complaint of murder against I.S... The investigating judge remanded him in custody ...

On 9 June 2011 the Ministry established the identity of one of the persons who together with I.S. had moved M.N.’s corpse from the bench into the greenery of the car park for which a Special report was communicated to the public prosecutor.

... On 15 June 2011 the Minister of the Interior terminated I.S.’s employment.”

In a letter to A.N. of 15 September 2011 the Ombudsman noted that he had asked the relevant authorities to undertake immediate measures to establish the relevant facts and stated that the incident “was a result and a consequence of irresponsible and unprofessional conduct on the part of the police, which [the Ombudsman] had repeatedly pointed out.”

On 3 October 2011 the public prosecutor brought an indictment against I.S., charging him with murder. In the indictment, the prosecutor requested that the trial judge examine I.S., the applicant, twenty-seven witnesses and four experts, and admit considerable material evidence.

The trial against I.S. commenced in the Skopje Court of First Instance (“the trial court”). The trial court heard over thirty witnesses, and examined evidence and records of the identity parade; the evidence produced by medical experts; other expert evidence; photographs; and other documentary evidence.

Z.J. and P.K., the uniformed police officers who had arrived at the scene after M.N.’s death, stated, in particular, that before the incident, I.S. had introduced himself as a member of the Prime Minister’s security service and had told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon afterwards, they had seen I.S. chasing M.N. and had heard people calling for police assistance. When they had arrived at the scene, they had seen M.N. lying on a bench unconscious. I.S. and others had been trying to resuscitate him with water. I.S. had told them that M.N. had fallen ill (му се слошило) and had asked that they call the emergency services. Soon afterwards, a third person, whom they did not know, had arrived. Z.J. had ordered that M.N.’s corpse be removed in order to enable the ambulance to access the scene more easily. I.S. and a person in plain clothes had pulled M.N. up from the bench and had placed him among nearby greenery. Then I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not realized that M.N. had been beaten, as he had not noticed any visible injuries on him.

V.B., employed in a State-owned public utility (electricity) company, who witnessed the incident, confirmed, in particular, that I.S. had pursued M.N. and had hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact. I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had pulled M.N. up, placed him on a bench and tried to resuscitate him. After the police officers had arrived, V.B. and I.S. had pulled M.N. up from the bench and moved him so that the ambulance would have easier access to the scene. He had stayed next to M.N. until the ambulance came. He said that there had been no visible injuries on M.N.

That M.N. had no visible injuries immediately after the incident was confirmed by L.K. and V.C. (the doctor and nurse respectively), who arrived at the scene in the ambulance soon after the incident.

On 16 January 2012 the trial court delivered a judgment (of forty-three pages) in which it found I.S. guilty of murder and sentenced him to fourteen years’ imprisonment. The court further advised the applicant (who had joined the prosecution as the legal representative of the late M.N.) to pursue a compensation claim by means of a separate civil action for damages.

On 9 July 2012, the Skopje Court of Appeal upheld the facts established by the lower court and I.S.’s conviction and sentence. On 7 May 2013 the Supreme Court dismissed a request by I.S. for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) and upheld the lower courts’ judgments.

On 12 October 2011, while the criminal investigation concerning I.S. was underway, the applicant submitted a criminal complaint against Z.J., P.K., V.B. and an unidentified police officer. She alleged that Z.J. and P.K. had failed to determine the identity of I.S. and – instead of apprehending him – had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the crime by moving M.N.’s corpse to the nearby greenery and not reporting I.S. as the perpetrator of the offence. The applicant alleged that the unidentified police officer (who was later identified as D.I.) had wrongly told the public prosecutor and an investigating judge that M.N. had died as the result of a drug overdose. As a consequence, neither the prosecutor nor the investigating judge had made an on-site inspection after the incident. The applicant alleged an abuse of office in relation to the alleged crime of “assisting a perpetrator after the commission of a crime” (Article 365 of the Criminal Code).

On 29 December 2011 the public prosecutor rejected the applicant’s complaint, finding no grounds to suggest that Z.J., P.K., V.B. and D.I. had committed the alleged crimes. The prosecutor found that, on the basis of all available evidence (including the available material in the case file against I.S.), Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later and had not determined the identity of I.S., who had told them that M.N. was feeling sick. They had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. to the nearby greenery in order to enable the ambulance to access the scene more easily. I.S. had left the scene, and Z.J., P.K. and V.B. had stayed at the scene until the ambulance arrived. A report (no. 025084 of 6 June 2011) by the medical staff who had responded to the emergency call noted that the staff had established M.N.’s death and had noticed no visible signs of violence on him.

The prosecutor found that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional error caused by the urgency of the need to save the life of M.N. They had arrived at the scene after the incident and they had not known that a crime had been committed. As regards V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that a criminal offence had been committed. Consequently, it could not be established that he had intentionally assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his being placed amongst the nearby greenery had been aimed at facilitating the access of the ambulance. The police officers had called the emergency services and D.I. had informed the police control centre, as suggested by the medical staff, that the cause of death could not be established (незнаена смрт), but that it was possible that M.N. had been a drug addict. Given the circumstances, the prosecutor established that there was no evidence that the accused officers had taken any actions with the intention of obstructing the investigation or preventing the identity of the perpetrator from being discovered, or that they had concealed any evidence. On the contrary, they had taken all necessary measures to facilitate the determination of the perpetrator’s identity. The incident had been reported to the local police station and the police control centre. The inspection unit of the Ministry of the Interior (увидна група) had arrived at the scene.

On 12 March 2012 the higher public prosecutor’s office found that this decision had been lawful and correct and based on all available material.

In the meantime, on 18 January 2012, the applicant took over the prosecution as a subsidiary prosecutor and lodged an indictment against Z.J., P.K., V.B. and D.I. before the trial court on the same counts (abuse of office, assisting a perpetrator after the commission of a crime and failure to report a crime or the offender).

At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation of 20 April 2012 by the president of an adjudicating panel of the trial court that the applicant’s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant’s complaint, finding no grounds to depart from the public prosecutor’s decision of 29 December 2011.

The applicant appealed against that decision, arguing that no procedural steps or hearing had taken place before the panel. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision. The applicant was served with this decision on 20 March 2013.

On 15 June 2015 the applicant submitted in evidence a CD-ROM with audio material and a transcript (in English) of taped telephone conversations which involved, allegedly, high-ranking public officials. The material concerned conversations regarding the possible direct perpetrator, which apparently took place soon after the incident. As stated by the applicant, on 5 May 2015 the audio material was revealed in public by the political opposition in the respondent State and was also made available on-line.


CASE OF LJATIFI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens;Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1991 and lives in Skopje.

In 1999 the applicant (eight years old at the time) and her family (parents and three siblings) fled Kosovo and settled in the respondent State, where she has been living ever since. In 2005 she was granted asylum and a residence permit. She entered into a common-law partnership with a Macedonian national, with whom she has three minor children (the children also have Macedonian nationality). Her residence permit was extended each year until 3 February 2014, when the Ministry of the Interior terminated her asylum, holding that she was “a risk to [national] security.” The decision was preceded by an interview at which the applicant, who had been legally represented, had confirmed her family situation and her intention to marry her partner. That the applicant represented a security risk was not discussed at the interview. The decision further stated:

“[the applicant] is obliged to leave the respondent State within twenty days of receipt of the final decision.”

The applicant, through her lawyer, challenged the decision as arbitrary. She argued that there was no evidence that her presence in the respondent State represented a threat to national security. Furthermore, she had not been given an opportunity to challenge any such evidence.

On 3 July 2014 the Administrative Court dismissed the applicant’s appeal and upheld the decision of the Ministry, noting that the latter had obtained a classified written note (службена белешка со назнака за доверлив документ) from the Security and Counter Intelligence Agency (“the Intelligence Agency”) indicating that she represented a threat to national security. The court did not provide any further details regarding that document. It ruled accordingly that the impugned proceedings had been lawful.

The applicant’s representative appealed against that decision before the Higher Administrative Court, reiterating the arguments raised previously. She further alleged that the wording used by the Administrative Court implied that there were some documents on which the impugned decision had been based. However, she had not been given an opportunity to have knowledge of or to comment on that evidence.

By a decision of 1 July 2015, served on the applicant on 6 October 2015, the Higher Administrative Court dismissed the applicant’s appeal and upheld the Ministry’s decision. The relevant part of the decision reads as follows:

“... [The Ministry] decided on the basis of ... classified information obtained from a relevant body (which) proves indisputably that her presence in (the respondent State) represents a threat to its security.

The Higher Administrative Court has examined the (applicant’s) allegations ... that information provided by the relevant body within the Ministry of the Interior was not forwarded to her and her representative, but it considers them irrelevant ...”

In the proceedings before the Court, the Government submitted a redacted version of the classified note that the Intelligence Agency had sent on 19 September 2013 to the Ministry of the Interior. The relevant parts of the note read as follows:

“... following security checks of [the applicant], it has been established that recognition of her asylum status would be a threat to the (national) security of the [respondent State].

It has been established that her (hidden text) ... are perpetrators of tens of crimes (serious thefts, thefts and acts of concealment). The applicant was aware of and supported all crimes committed by her (hidden text) ... She has also been living in a common-law partnership with M.M. in order to obtain the monetary allowance to which she was entitled having been granted asylum.

In such circumstances, we are of the opinion that she should not be granted asylum in [the respondent State].”

On 11 November 2015 the Ministry granted a request by the applicant to leave the respondent State in order to obtain, as she had stated, documents from the Serbian authorities for marrying her common-law partner in the respondent State. She was allowed re-entry to the respondent State in January 2016, which was one month after the expiry of the timelimit for returning to the respondent State. In February 2016 she contacted the Ministry with a view to submitting the relevant documents.


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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicant was born in 1976 and lives in ClujNapoca.

The applicant is the son and heir of Mr C. Pleş. He replaced his father in the domestic proceedings after his death.

The applicant’s father was shot on 21 December 1989 while participating in a demonstration organised in Cluj against N. Ceauşescu. He was immediately hospitalised and diagnosed with “a gunshot wound in the right side of the chest, rupture of the right lung and fracture of ribs seven and eight, plus a gunshot wound in the right arm”. Following surgery, two lobes of his right lung were removed. He was left with a breathing deficit of over 30%, paresis of his right arm, and a permanent disability that prevented him from continuing to work to support his family. Furthermore, in subsequent years he was hospitalised many times because of serious breathing problems.

Criminal proceedings were instituted against the army commanders who had ordered the shooting of demonstrators during the events of December 1989 in Cluj. Many victims of the repression joined civil complaints to the proceedings, requesting compensation for pecuniary and nonpecuniary damage. The applicant’s father lodged one such civil complaint, requesting 150,000,000 Romanian lei (ROL) (approximately 4,100 euros (EUR)) in respect of pecuniary damage, ROL 500,000,000 (approximately EUR 14,000) in respect of non-pecuniary damage, and ROL 50,000,000 (about 1,400 euros) for costs and expenses incurred during the trial.

On 17 May 2004 the applicant’s father died. He was replaced as a civil party in the proceedings by the applicant.

By a judgment of 23 May 2005 the High Court of Cassation and Justice, acting as a first-instance court, convicted five of the officers involved in the events of December 1989 in Cluj. They were ordered to pay compensation jointly with the Ministry of National Defence to all eightyfour civil parties in the case. The court granted the applicant ROL 150,000,000 in respect of pecuniary damage and ROL 50,000,000 for costs and expenses. It omitted to grant the claim for ROL 500,000,000 in respect of non-pecuniary damage, without providing any reason.

Eighteen civil parties to the criminal proceedings, including the applicant, lodged an appeal on points of law, complaining about the way in which the first-instance court had examined their claims for damages. The grounds of appeal of the civil parties were not identical. In most of the cases they concerned the amount of damages awarded. The applicant complained that the first-instance court had not granted him the requested compensation for non-pecuniary damage.

By a decision of 20 March 2006, a panel of nine judges of the High Court of Cassation and Justice dismissed all the appeals lodged by the civil parties. The court of last resort referred to the general provisions of the Code of Criminal Procedure and Civil Code concerning compensation for damages in the context of civil actions joined to criminal proceedings (see paragraph 13 below) and without examining in particular any of the civil parties’ appeals, it dismissed all the appeals as illfounded.


Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Damage - award (Article 41 - Pecuniary damage;Just satisfaction)

András Sajó;Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Johannes Silvis;Jon Fridrik Kjølbro;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Ksenija Turković

The applicants, Mr Gergely Karácsony, Mr Péter Szilágyi, Mr Dávid Dorosz and Ms Rebeka Katalin Szabó, were born in 1975, 1981, 1985 and 1977 respectively and live in Budapest.

At the material time the applicants were members of parliament and of the opposition party Párbeszéd Magyarországért (Dialogue for Hungary). Mr Szilágyi was also one of the notaries to Parliament.

At a plenary session on 30 April 2013, during a pre-agenda speech, an opposition member of parliament from the Hungarian Socialist Party criticised the Government and accused it of corruption with regard to, inter alia, the reorganisation of the tobacco market. Mr Zoltán Cséfalvay, the Secretary of State for the National Economy, was replying on behalf of the Government when the applicants Mr Karácsony and Mr Szilágyi carried into the centre of the Chamber a large placard displaying the words “FIDESZ [the party in Government] You steal, you cheat, and you lie.” Subsequently, they placed it next to the Secretary of State’s seat.

The minutes of the session read as follows:

“Dr Zoltán Cséfalvay, the Secretary of State for the National Economy: ...

Tell them that the increase of commodity wages particularly affects those with a minimum income, since the minimum income has been increased by 5.4 %, which is impossible to keep up with inflation lower than 3.5%. And tell them also ... (Gergely Karácsony and Péter Szilágyi show a placard displaying the words “FIDESZ You steal, you cheat, and you lie.". – Interventions from the government MPs: - Rules of procedure! Doctor! The Speaker rings the bell.)

Speaker: Honourable Parliament! (Constant interventions from the government MPs. Gergely Karácsony and Péter Szilágyi place the placard next to the speaker’s pulpit.) I request Mr Gergely Karácsony to remove the placard in the same way as they brought it in. (Gergely Karácsony and Péter Szilágyi leave the placard next to the speaker’s pulpit. – Constant interventions from the government MPs. – The Speaker rings the bell.) I request the ushers to remove the placard. (Interventions from the government MPs, amongst others: That’s all you can do.). I request the ushers to remove the placard. (The placard is removed.)

Thank you very much. Please continue Mr Secretary of State! (Interventions from the government MPs: How could they get that in? – [The Speaker] rings the bell.)”

On 6 May 2013 the Speaker presented a proposal to fine Mr Karácsony 50,000 Hungarian forints ((HUF); equivalent to EUR 170) and Mr Szilágyi HUF 185,520 (EUR 600) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The Speaker proposed that as regards Mr Szilágyi the maximum fine (a third of his monthly remuneration) be applied, since he had been elected an official of Parliament and was not just an ordinary MP. No other reasons were given in the proposal. A decision approving the Speaker’s proposal was adopted by the plenary on 13 May 2013, without debate.

On 21 May 2013 during the final vote on Bill no. T/10881 amending certain tobacco-related Acts the applicants Mr Dorosz and Ms Szabó carried into the centre of the Chamber and displayed there a large banner displaying the words “Here Operates the National Tobacco Mafia”.

“Speaker: ... I ask the Honourable Parliament whether it adopts Bill T/10881 in accordance with the consolidated proposal as amended just now. Please vote! (Voting)

I proclaim the decision: Parliament has (Mr Dávid Dorosz and Ms Rebeka Szabó display a banner with the words “Here Operates the National Tobacco Mafia”) adopted the Bill with 222 votes in favour, 81 against and 1 abstention. (Applause from FIDESZ MPs).

I call the attention of the two Members of Parliament to the fact that their conduct constitutes a grave disruption of the plenary proceedings. I inform you accordingly that the Rules of Procedure and section 49(4) of the Parliament Act (continuous applause from members of the Hungarian Socialist Party) sanction such conduct. (Dr István Józsa. – We want legislation against the Mafia!) I ask my colleagues to untie and remove the banner. (Dávid Dorosz and Rebeka Szabó do not hand over the banner to the usher. – Short break. – Loud noise from the opposition MPs.) Please help the lady and gentleman, Members of Parliament, to remove the draperies. (Dávid Dorosz and Rebeka Szabó leave the session). Thank you very much.”

On 24 May 2013 the Speaker submitted a proposal to fine Mr Dorosz and Ms Szabó HUF 70,000 (EUR 240) each for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The proposal stated that an increased fine was necessary since similar seriously disruptive conduct had occurred before. No other reasons were specified in the proposal. The plenary adopted the proposal on 27 May 2013 without debate.

The applicants, Ms Bernadett Szél, Ms Ágnes Osztolykán and Ms Szilvia Lengyel, were born in 1977, 1974 and 1971 and live in Budakeszi, Budapest and Gödöllő respectively.

At the material time the applicants were members of parliament and of the opposition party LMP (Politics Can Be Different).

On 21 June 2013 Parliament held a final vote on a new law, Bill no. T/7979 on the Transfer of Agricultural and Forestry Land. The legislative proposal was quite controversial and generated heated reactions among opposition members. In protest during the final vote on the bill, Ms Lengyel placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ms Szél and Ms Osztolykán unfurled a banner displaying the words “Land distribution instead of land robbery!” in front of the Speaker’s pulpit; meanwhile, Ms Lengyel used a megaphone to speak. She had previously delivered two speeches during the detailed debate and one speech during the final debate on the bill, filing three amending motions, and introduced two amending proposals just before the final vote.

“Speaker: The next point on the agenda is the vote on the amendments submitted prior to the final vote on the Transfer of Agricultural and Forestry Land Bill and the final vote. Members of Parliament have received the Bill under number T/7979 and the consolidated text of the Bill under number T/9797/2610.

First we shall vote on the amendments. Their adoption requires a qualified majority.

(continuous disruption of the session) ...

Speaker: Because the members of Jobbik [opposition party] do not allow me to take my position at the Speaker’s pulpit, I will continue presiding over the session from here. (Strong applause from the ruling parliamentary group). Because members of Jobbik are not allowing the left-wing, opposition party member and notary to sit at [the Speaker’s pulpit] during the vote by roll call and conduct the vote and proclaim the results (Continuous noise). I request Members of Parliament to take their seats and listen to me! I request Parliament to confirm that since the members of Jobbik are not allowing the vote by roll call to take place, we shall cast our vote electronically. (Strong applause from the ruling parliamentary group. Interventions from the same side: Hurray!).

Honourable Members of Parliament! I request all of you who agree, given the unusual circumstances, to cast your votes by electronic voting instead of vote by roll call. (Members of the parliamentary group Jobbik occupy the Speaker’s seat, chanting “Traitors, traitors” for several minutes. Szilvia Lengyel places a small golden wheelbarrow filled with soil on the table in front of the Prime Minister. Dr Bernadett Szél and Ágnes Osztolykán [the applicants] unfurl a banner containing the words ‘Land distribution instead of land robbery!’ in front of the Speaker’s pulpit).

I request technical assistance to enable the vote to take place. (Short break. Members of the Jobbik group keep chanting: ‘Traitors’. Szilvia Lengyel uses a megaphone to speak. Dr. András Schiffer applauds. Intervention from the FIDESZ group: - Where are the parliamentary guards? Laughter.)

Ms Member of Parliament! I have to warn you as well that your methods are unacceptable under the rules of procedure. I therefore request you to terminate your speech using the megaphone. Again, I request technical assistance to overcome this problem so that the Members of Parliament can exercise their right to vote, since I am hindered in accessing my own voting card. ...”

On 25 June 2013 the Speaker presented a proposal to fine Ms Szél and Ms Lengyel HUF 131,400 (EUR 430) each and Ms Osztolykán HUF 154,000 (EUR 510) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act.

The Speaker proposed that the maximum fine be applied, given the extraordinary situation that had developed during the voting process and that the MPs had engaged in conduct gravely offensive to parliamentary order by displaying their banner and using a megaphone. A decision approving the proposal of the Speaker was adopted by the plenary on 26 June 2013, without debate.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1973 and is currently detained in Łódź Remand Centre.

On 25 September 2006 the Łódź District Court (Sąd Rejonowy) ordered the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed with an armed organised criminal group. At the time, the applicant was serving a prison sentence imposed in another set of criminal proceedings against him. The end of that sentence fell on 7 November 2007.

In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences in question, the applicant’s active role in the criminal group and the likelihood of a heavy prison sentence being imposed on him after conviction. In the domestic court’s view the fact that the applicant was at the time detained in reference to other criminal proceedings against him did not guarantee the proper course of the proceedings since the applicant could had been released at any time from the pre-trial detention without the relevant authorities, responsible for the impugned proceedings, being notified. Moreover, the necessity to obtain further evidence justified remanding the applicant in custody.

The applicant’s appeal against the decision of 25 September 2006 was dismissed by the Łódź Regional Court (Sąd Okręgowy) on 25 October 2006.

On 19 December 2006 and 26 June 2007 the Łódź Regional Court extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

The applicant’s appeals against the decisions to extend his pre-trial detention were dismissed by the Łódź Court of Appeal on 24 January 2007, 16 April 2008, 2 July 2008, 12 November 2008 and 21 January 2009.

In the period from 7 November 2007 until 7 May 2011 the applicant served a prison sentence imposed by the Łódź Regional Court in separate set of criminal proceedings against him (case no. XVIII K 28/06).

During this period the Łódź Court of Appeal extended the applicant’s the applicant’s detention on remand by the decisions of 30 March 2009 (detention extended until 31 December 2009), of 21 December 2009 (detention extended until 30 September 2010), of 22 September 2010 (detention extended until 31 March 2011) and of 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

Meanwhile, on 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

The court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and due to problems with sound system in the court room.

In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.

The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010.

At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the judge lodged by one of the co-accused.

In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

Meanwhile, on 17 August 2011 the Łódź Regional Court decided to continue pre-trial detention unless the applicant would post bail of 20,000 Polish zlotys (PLN) within two weeks from the date of the decision.

The applicant was released on bail and police supervision on 19 August 2011. He was also prohibited from leaving the country.

The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties

Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

The criminal proceedings against the applicant are still pending before the first-instance court.

On 26 January 2011 the Łódź Regional Court (Sąd Okręgowy) dismissed the applicant’s motion to take part in a funeral of his grandfather, who had been also his godfather. The applicant did not lodge an appeal against this decision.

The funeral took place on 27 January 2011.

On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under 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 przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 PLN in compensation.

On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL

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

Krzysztof Wojtyczek;Paulo Pinto De Albuquerque

The applicant was born in 1961 and lives in Porto. The relevant details of the applications are set out in the appended table.

The applicant complained of the excessive length of civil proceedings and the lack of an effective remedy in this respect.


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

The applicants, Mr Paul Magri and Ms Jane Magri, are Maltese nationals who were born in 1950 and 1953 respectively and live in Qormi. They were represented before the Court by Dr J. Brincat, a lawyer practising in Marsa.

The applicants owned a piece of land in Qormi, Malta, consisting of a rural building and an adjoining piece of land. No building permit existed at the relevant time in regard to this land.

In 1994 or thereabouts works were being carried out in the valley situated below the applicants’ land. At the same time part of the applicants’ land was being used as a road in order to provide temporary access, for large vehicles and machinery, to the valley where the works were being carried out. At the time the applicants tolerated this situation.

In 2000 the road was tarmacked by the authorities. It appeared that the Qormi Local Council (hereinafter “the Local Council”) considered that this temporary access road, as well as an adjoining piece of land (also owned by the applicants, which had been used by the Local Council to build a football ground in 2001 or thereabouts, despite a lack of authorisation), were government property.

At the time the applicants permitted the use of their land by third parties, and raised no objections to the Local Council’s actions, because they had no pressing need of the property.

In 2007 the Local Council claimed that the land (both the road and the land used for the football ground) was public property.

In 2007 the applicants instituted civil proceedings (before the Civil Court (First Hall) in its ordinary jurisdiction) for eviction, on the grounds that the Local Council was occupying the part of the land used as a football ground without title. Employees from the then Department of Land testified that the land in question had never been public property and had never been the subject of a declaration of expropriation in the public interest.

During those proceedings a constitutional complaint was also raised.

A decision in the case appears to have been delivered on 30 September 2014. The applicants made no reference to the outcome of this case in their application.

On 29 July 2008 the applicants built walls around the land owned by them, with the result that access to the road was no longer possible. On 26 September 2008 the Local Council instituted civil proceedings against the applicants, arguing that they were blocking the road, that there had been spoliation of the road, and that they were preventing the Local Council from exercising its duty to administer and maintain the road.

During the proceedings, although the applicants’ legal counsel appeared at the relevant hearing and made submissions, the applicants themselves failed to participate in the proceedings.

By a decision of 25 October 2010 the Civil Court (First Hall), in its ordinary civil jurisdiction, found against the applicants. The court noted their absence and the lack of any evidence put forward by them, despite the repeated attempts of their legal counsel. Moreover, the case being an actio spolii – which had to limit itself to the question of possession and not to the actual ownership of the land – the court found that the plaintiffs (the Local Council) had satisfied the three conditions for the success of such an action by proving, inter alia, that they had possession of the land in question at the time the walls were built.

The applicants appealed that decision.

On 24 June 2011 the Court of Appeal confirmed the first-instance judgment, to the effect that the Local Council had possession of the land at issue, since it was the Local Council which maintained the road and traffic regularly used it.

Pending the conclusion of the above proceedings, in 2008 the applicants submitted an application (no. 05787/08) to the Malta Environment and Planning Authority (hereinafter “the MEPA”) for a permit to develop their land (including the land at issue). They wished to develop it into a single-storey gymnasium/fitness centre.

The Local Council objected on several grounds, including the fact that the proposed development was located on a public road used by both pedestrians and vehicles.

In a report drawn up by a MEPA case officer, it was proposed to reject the objections raised by the Local Council. He considered the development acceptable and suggested that the necessary building permit be issued.

On an unspecified date the Planning Directorate recommended that the permit be granted.

The MEPA board considered that the applicants’ pending application depended on the outcome of the Local Council’s Planning Control (PC) application (see below), therefore it chose to postpone its final assessment until the outcome of that application.

Following the outcome of the PC application (see below), on an unspecified date the Planning Directorate changed its position and recommended that the application be refused, on the grounds that the proposed development would encroach beyond the proposed official building alignment as set out by the MEPA’s Land Surveyor.

The applicants filed an appeal with the Revision Tribunal. A decision in the appeal is still pending. The applicants allege that the Revision Tribunal is awaiting the outcome of the application before this Court.

On 2 March 2011 the Local Council submitted a PC application to the MEPA, requesting that the existing road be formalised and thus considered a schemed road.

The applicants objected, since no such road existed in any formal plans, while the MEPA argued that, since it was being used as a road, it had to be considered a road.

On 26 January 2012 the Local Council’s PC application was approved, resulting in the existing road being recognised as a schemed road, in the interest of proper planning.

According to the applicants, no avenue of appeal against such a decision existed, in accordance with Article 28 of the Development and Planning Act (Chapter 356 of the Laws of Malta), since Article 59 of the Environment and Development Planning Act (Chapter 504 of the Laws of Malta) had not yet come into force.

On 20 February 2012 the applicants instituted constitutional redress proceedings, asking the Civil Court (First Hall), in its constitutional competence, to find a violation of Article 1 of Protocol No. 1 to the Convention and declare the MEPA decision in favour of the Local Council’s PC application unlawful, and requesting compensation for pecuniary and non-pecuniary damage.

On 30 September 2014 the Civil Court (First Hall), in its constitutional competence, decided not to take cognisance of the merits of the case, in so far as the applicants had not exhausted ordinary remedies which could have sufficiently addressed the infringements of their rights. Referring to the general principles of the Court’s case-law, it considered that the applicants had an effective remedy, namely an ordinary civil remedy, which they had not used. Indeed, the applicants had instituted ordinary civil proceedings (no. 425/2007 JZM, see paragraphs 8 to 10 above) in relation to that part of the land where a football pitch had been built, despite their also raising a constitutional complaint under Article 1 of Protocol No. 1 to the Convention in that case. Therefore, there was no reason why the applicants could not have utilised the same ordinary remedy with regard to the part of the land which had become a road, instead of instituting constitutional redress proceedings in this regard. While it was true that, in the present case, the applicants were claiming compensation in respect of pecuniary and nonpecuniary damage, such claims were to be made only after a finding in favour of the applicants by the ordinary court.

Furthermore, the court held that, in relation to their claim against the MEPA decision, while it was true that no avenue of appeal existed against it, the applicants had failed to utilise the judicial review procedure (Article 469A of the Code of Organisation and Civil Procedure). While that procedure was limited in the form of redress it could give (Article 469 A(5)), the applicants could nevertheless have asked the court to annul the MEPA decision in favour of the Local Council.

The applicants appealed, claiming that they did not have an ordinary, effective, just and adequate remedy available to them. In particular, they argued that, while it was normal to lodge an eviction action against the Local Council occupying the land used as a football ground, it could not lodge an eviction action in relation to a piece of land which was not physically occupied, but solely a projected road on paper.

By a judgment of 30 October 2015 the Constitutional Court rejected the applicants’ claims and upheld the decision of the first-instance court.

The Constitutional Court noted that, by a judgment of 24 June 2011, the Court of Appeal had confirmed that the Local Council had possession of the land. It followed that an ordinary civil action for eviction was possible. As to the remedy of judicial review, while it was true that such a review was not intended to deal with human rights violations, and that, according to domestic case-law, [Article 469A] sub-article 1 (a) referred to constitutional violations other than those arising from fundamental human rights and freedoms, in the present case the applicants should have used that remedy: requesting that the court annul the MEPA decision on application 9/11 on the grounds that it had been made on the basis of an allegedly unlawful premise (namely, a false declaration made by the MEPA as to the existence of a road). Coupled with this, the applicants could have used ordinary civil proceedings for a declaration that the passage or road in question was their property and to seek the eviction of the Local Council therefrom in so far as they claimed that the Local Council was occupying the land illegally in the absence of an expropriation according to law; as well as requesting compensation for the unlawful occupation of premises. According to the Constitutional Court, these were ordinary, effective, efficient, and available remedies which should have been exhausted before the applicants instituted extraordinary constitutional redress proceedings.

Article 469A of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, in so far as relevant, reads as follows:

“(1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

(a) where the administrative act is in violation of the Constitution;

(b) when the administrative act is ultra vires on any of the following grounds:

(i) when such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.

(2) In this article -

"administrative act" includes the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority

Sections 40 and 41 of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta, in so far as relevant read as follows:

“40. (1) There shall be a Tribunal, to be known as the Environment and Planning Review Tribunal, consisting of three members, one being a person versed in environment or development planning, who shall preside, and a lawyer and an architect, each of whom shall be appointed by the President acting on the advice of the Minister.

(1) Subject to those articles which specifically exclude the right to appeal before the Tribunal, and to articles 81(14), 82(4) and 86, the Tribunal shall have jurisdiction to:

(a) hear and determine all appeals made by the applicant or a person aggrieved by a notice issued under the provisions of Part VI on any decision of the Authority on any matter of development control, including the enforcement of such control, or appeals made by any person on any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage:

(2) Unless otherwise provided under any provision of this Act, an appeal may be lodged before the Tribunal within thirty days from date of notification of the decision or order by the Authority.

(3) In case of a development listed in the Seventh Schedule, at the request of the appellant made concurrently with the application for the appeal, through a partial decision, the Tribunal may suspend the execution of the development, in whole or in part, as approved by the development permit subject of the appeal, under those terms, conditions and other measures it may deem fit:

Provided also that the application is not for a development which, in the opinion of the Minister is of strategic significance or of national interest, related to any obligation ensuing from a European Union Directive, affects national security or affects interests of other governments.

(4) In the cases referred to in sub-article (3), the Tribunal shall hold its first hearing be within six working days from receipt of the appeal, and shall not suspend the execution of such a permit unless it is satisfied, after hearing all the parties, that unless the execution of the permit is suspended the prejudice that would be caused would be disproportionate when compared with the actual doing of the thing so permitted or if the request is deemed as frivolous or vexatious:

Provided that the Tribunal shall justify the decision suspending the execution of the development and shall grant its final decision on the merits of the appeal within three months from the date of the first hearing of the appeal:

Provided further that the suspension of the execution of such a permit may not be more than three months from the date of the first hearing of the Appeal before the Tribunal, and the suspension order shall be deemed to have elapsed ipso iure after the lapse of such a period.

(5) In all other appeals, the first hearing of the Tribunal shall be held within three months from receipt of the appeal.”