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

The applicant, Mr Claver Ndikumana, is a Burundian national, who was born in 1973 and lives in Leiden. He was represented before the Court by Mr D. Schaap, a lawyer practising in Rotterdam.

The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, both of the Ministry of Foreign Affairs.

On 12 March 2000 the applicant arrived at Amsterdam Airport and reported at the asylum application centre (aanmeldcentrum) in Zevenaar. On 21 March 2000 he had a first interview (eerste gehoor) with officials from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; hereafter “IND”) and requested asylum. He had another interview with the officials of the IND on 22 March 2000. During these interviews the applicant explained that he had come to Amsterdam via Frankfurt Airport in Germany.

On 23 March 2000 the IND informed the applicant that it considered his case to fall within the scope of the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities that had been concluded in Dublin on 15 June 1990 (hereafter “the Dublin Convention”; see paragraphs 18-20 below) because he had travelled through Germany.

Additionally, the applicant was informed that he would not be provided with any reception facilities. At the material time, the Netherlands had a policy in place according to which asylum seekers in the applicant’s position (so-called “Dublin claimants”) had no access to State-sponsored reception and care facilities for asylum seekers (see paragraphs 13-15 below). Accordingly, the applicant’s request for assistance in the form of food, shelter and medical care was denied. It appears that on 23 March 2000 the police issued to the applicant a card entailing the obligation to report (meldingsregistratiekaart). The card notes two dates, 26 April and 24 May 2000 respectively.

On the same day, 23 March 2000, the applicant was informed by the Foundation for Legal Aid in Asylum Cases in North-East Netherlands (Stichting Rechtsbijstand Asiel Noordoost-Nederland, hereafter “the Foundation”), a non-governmental organisation engaged in assisting asylum seekers, that his asylum request would probably be declared inadmissible because pursuant to the Dublin Convention another State was responsible for the examination of that request. He was further informed that in the opinion of the Foundation it would be without avail to institute proceedings against the decision that would probably be taken by the Ministry of Justice (Ministerie van Justitie). This opinion was confirmed in writing in a letter given to the applicant by the Foundation on the same day. This letter also noted:

“The Netherlands authorities have decided not to provide you with reception facilities because there will be a [Dublin] claim in your case. We regret that you are not provided with any reception facilities but, unfortunately, we cannot change this. Proceedings previously instituted against this governmental decision (overheidsbesluit) have been lost.”

The applicant left the application centre and went to Amsterdam.

The “transfer report” drawn up at the Zevenaar application centre on 21 April 2000 notes that the applicant waited at the centre’s front gate for “several days” before he was admitted into the application centre on that day at 8.30 p.m.

On 15 August 2000 the applicant was granted a provisional residence permit valid from 21 March 2000 until 20 March 2001. He was later granted a residence permit for the purpose of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd). The document informing him of this last decision was dated 6 April 2004.

On 12 May 2005, the applicant requested the Public Prosecutor’s Office (arrondissementsparket) of The Hague to institute criminal proceedings against the Ministry of Justice because of the denial to him of reception facilities from 23 March until 21 April 2000. In his letter the applicant stated that on 23 March 2000 he had been told by the IND that he would be sent to Germany within three months and that in the meantime he would have no right to reception facilities; he had been given the advice to go to a big city such as Amsterdam where there were “many African people” who would be willing to “help him”. The applicant further stated that on 23 March 2000 he had spent the night at Amsterdam central train station and that he had returned to the application centre on 24 March 2000. When he had been denied access to the application centre, he had remained waiting at the centre’s front gate without any food or water. After having stood there the entire day he had fallen down during the night and had been taken into the application centre by security guards. The next day he had been told by application centre officials that he would have to leave the centre or face deportation to his country of origin. In view of this threat he had decided to leave the centre and he had spent the next three weeks living on the streets, trying to survive by all possible means. He had spent most of his nights in underground stations where he had been harassed a number of times by police who had handcuffed and beaten him and on one occasion he had met a man who, after listening to his story, had offered him accommodation. When the applicant had taken this man up on his offer he had been sexually abused by the man under threat of what the applicant believed to be a gun. He had managed to escape and had gone back to the asylum application centre in Zevenaar where he had again been denied admission. He had remained at the front gate the following three days. On the night of 21 April 2000 he had gone towards the nearby railway tracks with the intention to commit suicide but had been prevented from doing so by the police who had taken him into the application centre.

The acting chief public prosecutor (fungerend hoofdofficier van justitie) responded to the applicant’s request to institute criminal proceedings against the Ministry of Justice by letter of 21 June 2005 stating that there were no indications of any criminal offences (strafbare feiten) having been committed and that he had therefore forwarded the applicant’s complaint to the director of the IND. By letter of 24 January 2006, the IND notified the applicant that there had not been any irregularities in the processing of his asylum application and that neither the IND nor the Minister for Immigration and Integration (Minister van Immigratie en Integratie) could be held responsible for whatever hardship he had suffered. Furthermore, the applicant was informed that in 2000, persons whose request of asylum was subject to the Dublin Convention had been refused shelter and food unless there were “reasons (i.e. medical situation)” which would have necessitated proper accommodation and care. In the applicant’s case, no such reasons had been mentioned by him during his interview.

Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire).

At the relevant time, the provision of reception facilities was laid down in the Asylum Seekers and Other Categories of Aliens (Provisions) Regulations 1997 (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen 1997, hereafter “Rva 1997”). The Rva 1997 granted asylum seekers, in principle, a right to reception facilities. On 12 October 1998 a new provision added to the Rva 1997 entered into force (see the Official Gazette (Staatscourant) 1998, no. 194), which read as follows:

These Regulations do not apply to asylum seekers in respect of whom the Minister has requested, or will request, [transfer] to another State, party to the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin, 15 June 1990), until such time as this request is rejected by the other State.”

This amendment of the Rva 1997 was repeated and further clarified in the Aliens Act Implementation Guidelines 1994, which clarification included the following:

If, in the IND’s view, Dublin claimants find themselves in very acute humanitarian need, the IND will notify the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, hereafter “COA”) hereof and advise the COA to provide reception facilities despite the Dublin claim.”

On 21 November 2002 section 2a of the Rva 1997 ceased to apply (see Official Gazette 2002, no. 223).

The Dublin Convention provided for measures to ensure that asylum seekers had their applications examined by only one of the Member States and that they were not referred successively from one Member State to another. Articles 4 to 8 set out the criteria for determining the single Member State responsible for examining an application for asylum. The Netherlands and Germany were both signatory States.

Article 7 of the Dublin Convention, in its relevant part, read as follows:

The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum.”

The Dublin Convention has been superseded by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”), which, in its turn, has been superseded by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013.

Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”) requires that Member States ensure a dignified standard of living to all asylum seekers, paying specific attention to the situation of applicants with special needs or who are detained. It regulates matters such as the provision of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. It also covers standards for persons with special needs, minors, unaccompanied children and victims of torture.

The deadline for transposition of the Reception Directive by the Netherlands expired on 6 February 2005.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants, Ms Dzovinar Sapondzhyan (the first applicant) and Mr Albert Sapondzhyan (the second applicant), are respectively a stateless person and a Georgian national. They were born in 1955 and 1940 and live in Nadzornoye in the Kochubeyevskiy district of the Stavropol Region. They were represented before the Court by Ms O.V. Sadchikova, a lawyer practising in Stavropol.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

The Georgian Government were invited to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 (a)).

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

The applicants are a married couple with four adult sons. Prior to moving to Russia they lived in Georgia with two of their sons, Mr Grigor Sapondzhyan, who was born in 1971, and Mr Sargis Sapondzhyan, who was born in 1975.

In 1995 Grigor and Sargis Sapondzhyan moved to Russia. In 1997, the first applicant moved to Russia to join them, using her USSR passport. According to the applicants, on an unspecified date shortly afterwards she underwent a complex kidney operation and had to stay with her sons, who provided her with the necessary care after her surgery. Sometime in 2001 she lost her passport and became stateless. At a later date the first applicant had another kidney operation, meaning she required constant care, which was provided by her family.

In 1997 the second applicant arrived in Russia on a visa with his Georgian passport and joined his sons and the first applicant. He later left again and re-entered Russia in May or June 2002 on another visa.

In July 2003 Sargis Sapondzhyan obtained Russian nationality. According to the applicants, between 2002 and 2010 he and his commonlaw partner, a Russian national, Ms K.Yu., had four children.

On 18 February 2005 the second applicant was fined for a breach of Article 18.8 of the Code of Administrative Offences for failing to regularise his stay in Russia.

According to the applicants, they live with their son Sargis and his family in the same dwelling in Nadzornoye. They are fully dependent on him and they take care of his four children. The applicants’ fourth son, Mr Akon Sapondzhyan, has also become a resident of Russia.

It appears that the applicants’ third son, Mr Ovanes Sapondzhyan, has continued to reside in Georgia. In September 2016 Grigor Sapondzhyan also obtained Russian nationality.

Between the date of their arrival in Russia and 2016 neither of the applicants applied for a temporary residence permit or took any other steps to regularise their stay in the country.

On 19 June 2008 the Kochubeyevskiy District Court in the Stavropol Region fined the applicants 2,000 Russian roubles (RUB) (about 50 euros (EUR)) each and ordered their administrative removal (expulsion) from Russia. The court stated that the applicants, residing in Russia since 1997 and 2002 respectively, had not taken any steps to regularise their presence in the country, in breach of Article 18.8 of the Code of Administrative Offences. The court further stated that both applicants had admitted they had failed to regularise their stay and noted in respect of the second applicant that he had already committed a similar violation in 2005.

The applicants appealed against the expulsion order to the Stavropol Regional Court. They pointed out that they were long-term migrants and that their sons and other members of their family lived in Russia. They stated that their expulsion would have an adverse effect on their family life as they had been residing with their sons, were fully dependent on them, taking care of their grandchildren, Mr Sargis Sapondzhyan’s children, and that they were not dependent on the Russian social welfare system.

On 1 July 2008 the Regional Court upheld the expulsion order on appeal. It did not examine the applicants’ complaint concerning the alleged violation of their right to family life. The order became final and enforceable.

According to the Government’s submission, the expulsion order has not been enforced to date and will not be so as under the domestic legislation it could only be carried out within two years of its entering into force.

According to the applicants, in September 2016, upon receipt of the Court’s correspondence concerning their application, they decided to take steps to regularise their stay in Russia. No relevant documents were enclosed. The applicants continue to reside in Russia.

For a summary of the relevant domestic law see Muradeli v. Russia, no. 72780/12, §§ 45-54, 9 April 2015.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1962 and habitually resides in Krivoj Rog (Ukraine).

From 25 June 2002 until 19 September 2013 the applicant was continuously deprived of his liberty in Slovakia, mainly within the scope of detention pending trial on various charges pursued against him, partly in parallel and partly consecutively. His overall deprivation of liberty included the following periods.

From 25 June 2002 until 19 May 2005 he was remanded pending trial on several charges, which included what would later be classified as the charge of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 11 and 35 below). On the latter date the prosecution on that charge was removed to be dealt with in a separate set of proceedings.

The applicant’s pre-trial detention in the subsequent period would later be set off against a four-year prison sentence imposed on him for the offence of attempting to legalise the proceeds of a criminal activity. He was released from detention in connection with that offence on 13 July 2010.

Immediately after his release from the last-mentioned detention, the applicant’s liberty was again restricted and it later resulted in his being remanded pending trial on the charge of murder, of which he was ultimately acquitted on 27 July 2011. In consequence, he was released from detention on that very day.

Following his release on 27 July 2011, the applicant was immediately re-arrested on the same day, and later remanded pending trial on the charge of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 8 above and 35 below). This term of detention ended with the applicant’s release on 22 February 2012.

Upon his release on 22 February 2012, the applicant was immediately re-arrested on the same day, and was later remanded pending trial on another charge of murder. This term of detention ended with the applicant’s release on 17 September 2013.

Upon his last-mentioned release, the applicant was immediately transferred to the detention centre for foreigners (záchytný tábor) in Medveďov, where he was detained until his expulsion to Ukraine on 19 September 2013.

The applicant’s prosecution on the first charge of murder (see paragraph 10 above) commenced in 2007 while he was still deprived of his liberty within the scope of detention pending trial on the charge of attempting to legalise the proceeds of a criminal activity (see paragraph 9 above).

On 6 June 2010 an investigator informed the public prosecution service (“PPS”) that if the applicant’s conviction and sentence for attempting to legalise the proceeds of a criminal activity were to be upheld on appeal ‒ an appeal which was about to be heard ‒ the applicant would be eligible for release because the four-year term of his sentence would soon be fully covered by the term of his detention. It would therefore be advisable to consider lodging an application for the applicant to be detained pending trial on the murder charge, which the PPS subsequently did.

Immediately after the applicant’s release from detention in connection with the charge of attempting to legalise the proceeds of a criminal activity, on 13 July 2010, he was taken to the Border and Foreigners Police Department in Bratislava, where a decision was taken ordering his administrative expulsion, a ban from re-entering Slovakia for five years, and detention pending the enforcement of the expulsion order (zaistenie). The applicant was then taken to the detention centre in Medveďov to await implementation of the expulsion order.

In the course of the murder trial, a public session (verejné zasadnutie) was scheduled to take place before the Bratislava I District Court (Okresný súd) on 23 July 2010 with a view to examining questions concerning the detention of the applicant. However, in view of the circumstances described in the foregoing paragraph, on 15 July 2010 the public session was cancelled and the applicant was summoned for questioning the following day.

On the morning of 16 July 2010 the applicant was seized in the detention centre in Medveďov by police officers who then brought him to the District Court for the questioning that had been ordered.

Later in the day of 16 July 2010, the applicant was brought before a Chamber of the District Court for the questioning, immediately after which the District Court ordered a private session (neverejné zasadnutie) with a view to making a decision concerning the applicant’s detention.

Following the private session of 16 July 2010, on the same day, the District Court remanded the applicant in detention pending trial on the murder charge.

Immediately following the pronouncement of the detention order, on 16 July 2010, which was a Friday, the applicant stated on the record that he wished to lodge an interlocutory appeal and that he would submit the reasons for his appeal upon receiving the written version of the detention order with reasons. The appeal and its reasons were to be submitted to the court of appeal via the first-instance court, that is to say the District Court.

On 19 July 2010, which was a Monday, the applicant submitted the reasons for his appeal in writing in the Russian language, stating that he would submit further reasons when the written version of the remand order was served on him. It appears that the applicant’s submission of 19 July 2010 was received at the District Court on 21 July 2010.

On the last-mentioned date, that is to say on 21 July 2010, the written version of the detention order was served on the applicant in the Slovak language and, on the same day, the District Court transmitted the case file to the Bratislava Regional Court (Krajský súd) for determination of the applicant’s interlocutory appeal.

On 26 July 2010, which again was a Monday, the applicant sent a further written submission in the Russian language, adding reasons to his appeal. It appears that this submission was received at the District Court on 28 July 2010.

However, on that day, that is to say on 28 July 2010, the Regional Court determined the applicant’s interlocutory appeal by dismissing it as unfounded. The Regional Court observed at the outset that the applicant had not submitted any reasons for his appeal either orally or in writing.

On 25 August 2010 the applicant lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution (Constitutional law no. 460/1992 Coll., as amended).

Relying inter alia on Article 5 § 1 of the Convention, he contended that (i) his arrest and bringing before the District Court had been unlawful; (ii) the remand decision had been arbitrary; and (iii) the Regional Court had failed to take account of the reasons for his interlocutory appeal submitted on 19 and 26 July 2010.

On 7 December 2010 the Constitutional Court declared the applicant’s complaint inadmissible as being manifestly ill-founded.

It acknowledged that any tribunal ruling on matters concerning detention on remand was under a duty to examine carefully all submissions made by the person remanded, but pointed out that the applicant’s submissions of 19 and 26 July 2010 had not been available to the Regional Court when it examined his interlocutory appeal. In addition, matters concerning detention on remand generally require swift determination and courts of appeal were obliged to determine interlocutory appeals in such matters within five working days of the date when the appeal was referred to them for determination. Furthermore, in contrast to case no. II. ÚS 108/08 (see paragraph 50 below), the applicant had been heard at first instance. And lastly, he had been represented by a lawyer, but the latter had taken no steps to ensure the effective assertion of his rights.

Thus, in the circumstances, the decision to dismiss the applicant’s interlocutory appeal without examining the reasons for it could not be considered arbitrary.

The Constitutional Court’s decision was served on the applicant on 3 February 2011.

At around 3.20 p.m. on 27 July 2011, following his acquittal of the first murder charge and release from detention in connection therewith earlier that day, the applicant was re-arrested. At 5 p.m. that day he was served with a document dated 18 June 2003 charging him with the offence of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 8 and 11 above).

On 28 July 2011 the PPS applied for an order for the applicant’s detention pending trial, referring to charges of (i) 14 December 2001 for fraud; (ii) 8 June 2002 for legalising the proceeds of criminal activities; (iii) 18 June 2003 for conceiving, setting up and supporting a criminal and terrorist group; and (iv) 3 July 2003 on another count of legalising the proceeds of a criminal activity.

On 29 July 2011 a pre-trial judge at the Specialised Criminal Court (Špecializovaný trestný súd) remanded the applicant pending trial. As regards the specific trial in question, he identified it by reference to the charge of conceiving, setting up and supporting a criminal and terrorist group and the relevant provisions of the Criminal Code (Law no. 140/1961 Coll., as amended).

The judge observed that the applicant was a non-national and that, prior to his initial arrest, for more than a year he had not been living at his registered permanent residence, but rather at his girlfriend’s address. However, he had not been registered as living there. Furthermore, the applicant had often been travelling abroad.

Accordingly, the judge held that there was no guarantee that, if left at liberty, the applicant would actually continue to live at his girlfriend’s, as he had submitted he would do.

The judge also observed that the charges brought against the applicant in the other trials concerned various offences allegedly committed at various times and that even the bringing of these charges had not prevented him from allegedly committing the murder of which he stood accused in one of those trials.

In addition, the applicant had already been convicted with final effect of attempting to legalise the proceeds of a criminal activity (see paragraph 9 above). Therefore, his declaration that he had sufficient means to live on was not a sufficient guarantee that he would not continue offending.

The judge concluded that there was a need to detain the applicant under Article 71 § 1 (a) and (c) of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended) in order to prevent his fleeing and continuing to engage in criminal activities.

The applicant lodged an interlocutory appeal (i) arguing that his arrest had been unlawful because he had not been informed of the reasons for it; (ii) contesting the charge and the reasons for detaining him; (iii) complaining that he had already been deprived of liberty for more than 9 years; and (iv) complaining that his case demonstrated a pattern of arbitrarily remanding and re-remanding him consecutively on various charges.

On 8 August 2011 the Supreme Court (Najvyšší súd) dismissed the applicant’s interlocutory appeal, finding that all formal and substantive requirements for detaining the applicant had been met and that all the applicable time-limits had been observed.

On 19 September 2011 the applicant lodged a fresh complaint with the Constitutional Court.

Relying mainly on Article 5 §§ 1 and 3 of the Convention, he complained that, on his arrest, he had not been informed of the reasons for it; that the courts had ignored his argument concerning the unlawfulness of his arrest; that his detention was in general arbitrary; and, more concretely, that his case demonstrated a pattern of arbitrarily remanding and reremanding him consecutively on various charges.

On the last-mentioned count, he contended in particular that (i) he had been facing the charges pursued against him in the present trial for eight years; (ii) he had been constantly detained for all those eight years; (iii) throughout that period the authorities had had a sufficient time to pursue the case against him properly; (iv) his previous accumulated detention had to be seen as one matter; and (v) there were no adequate grounds for its continuation.

On 18 October 2011 the Constitutional Court declared the complaint inadmissible. It held at the outset that it had no jurisdiction to examine any alleged violations in so far as they concerned the first-instance court because, in line with the principle of subsidiarity, such examination lay within the jurisdiction of the court of appeal.

The Constitutional Court found that the report concerning the applicant’s arrest contained references to the charges on which he had been arrested and had been signed by the applicant. There could therefore be no doubt as to his having been informed of the reasons for his arrest.

Similarly, it was apparent from the Supreme Court’s decision that it had taken note of the applicant’s arguments regarding the lawfulness of his arrest. The fact that the Supreme Court had not given a specific answer on that point was not contrary to the applicant’s rights because it had examined the arguments by implication when dealing with the overall lawfulness of the applicant’s detention.

As to the remainder of the applicant’s complaint, the Constitutional Court acknowledged that the applicant’s detention had by then lasted more than nine years in total. However, in terms of the Constitutional Court’s decision, it was necessary to take into account the fact that the contested decision was neither a decision to dismiss his request for release nor a decision to extend his detention. Having taken into account the nature of the contested decision and the reasons behind it, and considering the length of the applicant’s detention in concreto in the case at hand ‒ that is to say only since 27 July 2011 ‒ the Constitutional Court came to the conclusion that, at the given time, the length of the applicant’s detention had not yet reached a point of being unconstitutional.

The decision was served on the applicant on 22 November 2011.

The applicant’s release on 22 February 2012 (see paragraph 10 above) had been ordered by the Supreme Court on that very day. In its decision, it observed that at the initial stage of the proceedings (see paragraph 8 above), the applicant had been prosecuted for and detained pending trial on various charges, which had then been removed to be dealt with in a separate set of proceedings on 19 May 2005 and that, in the subsequent period, he had been remanded pending trial partly on the same charges. In this connection, it referred in the following terms to the Constitutional Court’s judgment (nález) in unrelated case no. II. US 55/98:

“... the removal of one of several prosecuted offences to a separate set of proceedings is not, as such, contrary to the constitutional guarantees of personal liberty of the person facing the charges. Such a course of action on the part of the prosecuting authorities would, however, conflict [with those constitutional guarantees] ... if there were no well-founded reasons for it or if it manifestly served to obtain an extension of the detention beyond the statutory timescale of its duration, or if it otherwise entailed as a consequence the arbitrary keeping of a person in detention.”

As regards the present case, the Supreme Court went on to observe:

“In the case at hand it is not disputed that there are well-founded reasons for continuing the detention of [the applicant] .... However, on the other hand, it must be observed that in the given case doubts may not be completely dispelled that the keeping of the applicant ... in detention for ten years might appear to be an arbitrary and above all self-serving deprivation of liberty in order to obtain his conviction for serious offences, especially since he has been portrayed as the leader of an illegal mafia-type grouping.

Thus, if the duration of the above-mentioned [initial] detention is added to the period of the applicant’s detention after 27 July 201[1] (almost seven months), it becomes apparent that the maximum permissible duration of his detention for [two of the charges] has already been exceeded. At the same time, it must be observed that [the applicant] is being prosecuted for four offences which may not be detached from one another because it is one criminal matter for which he is detained.”

The Supreme Court went on to observe that the applicant’s detention after 27 July 2011 resulted from his prosecution for the same offences

“for which he had already been detained from 25 July 2002 at least until 19 May 2005, when that matter had been removed to be dealt with in a separate set of proceedings. Within that period and in that matter, [the applicant] was detained for two years and 329 days ... [He] is at present detained in the same matter, which is still at pre-trial stage, (the [statutory maximum duration]) of such detention having been significantly exceeded.

However, at the same time, the [statutory maximum duration] of the whole detention has also been exceeded.”

Moreover, in the closing part of its decision, the Supreme Court observed that:

“The status of the examined matter is even more complicated, however: after the removal to a separate set of proceedings of a part of [the charges against the applicant], no decision has been identified as having regulated the scope of the applicant’s detention. From later decisions it may be understood that the applicant’s detention was linked to his prosecution for the offence classified as murder, which had earlier been a part of the previously joined proceedings. This status must be accepted as reality; if the detention of [the applicant] were linked to his prosecution for the offences which now form the subject-matter of the present proceedings, the maximum duration of [his detention] would have run out substantially earlier.”

In a judgment of 19 April 2011 (case no. II. US 93/11), the Constitutional Court found a violation of the “speediness” requirement under Article 5 § 4 of the Convention in the procedure for the review of the lawfulness of the applicant’s detention in the first murder trial. However, his just satisfaction claim was rejected on the ground that he had failed to substantiate it.

On 22 August 2012 (case no. I. US 281/2012), the Constitutional Court found a violation of the applicant’s Article 5 rights in the context of the dismissal of his request for release from detention pending trial on the charge of conceiving, setting up and supporting a criminal and terrorist group. The grounds were essentially the same as those established by the Supreme Court in its decision of 22 February 2012 (see paragraphs 35 et seq. above).

In a judgment of 5 June 2013 (case no. I. US 47/2013), the Constitutional Court found a violation of the applicant’s Article 5 rights in the context of the dismissal of his request for release from detention pending trial on the second murder charge (see paragraph 12 above). It observed that he had been remanded in detention pending trial on that charge as well as on the previous charge immediately after having been released from the previous detention, which had amounted to a recurring pattern. It was noteworthy that the alleged murder had taken place in 1999, although the applicant had not been charged with it until 2012, despite having been detained as early as 2002.

The applicant had been prosecuted for various offences both in parallel and consecutively. The respective statutory provisions concerning the maximum duration of detention could not be interpreted as authorising detention pending trial for the maximum period in relation to each individual charge. Otherwise, as had occurred in the applicant’s case, a person could be detained for the maximum permissible period repeatedly for consecutively levelled charges ad infinitum, which was not justified by any public interest.

The Constitutional Court nevertheless dismissed the applicant’s just expedient nor appropriate” (účelné ani vhodné).

The written version of the Constitutional Court’s judgment was served on the Trnava Regional Court on 11 September 2013. It was against that court that the complaint was directed and, following the Constitutional Court’s judgment, it eventually ordered the applicant’s release on 17 September 2013 (see paragraph 12 above).

The Constitutional Court also found a violation of the applicant’s Article 5 rights in the context of his detention pending trial on the second murder charge ‒ not only on the same grounds as those mentioned above but also on others ‒ in three further judgments of 6 and 7 March 2014 (case nos. IV. US 494/13, IV. US 495/13 and IV. US 561/13).

However, noting that the applicant had been released in the meantime, it also cited and endorsed its previous position that it was “neither expedient nor appropriate” to award him any just satisfaction.


CASE OF KHADZHIMURADOV AND OTHERS v. RUSSIA

Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra

The applicants alleged principally that their twenty-one relatives (spouses, children, brothers and an uncle) had been killed by State servicemen on 5 February 2000 in the Novye Aldy settlement on the outskirts of Grozny (see Appendix for details).

A criminal investigation into the murders was opened on 5 March 2000 by the Grozny town prosecutor’s office. Over the years, the applicants or close members of their families were granted victim status in the proceedings. Those proceedings are still ongoing.

The documents indicate that only one applicant, Olga Soltykhanova (application no. 22304/10), was in the Novye Aldy at the time of the events; the other applicants were out of the district or out of Chechnya, owing to heavy fighting in the preceding months.

In support of their claims, the applicants submitted copies of the death certificates issued in respect of their relatives, copies of some documents from the criminal investigation file, decisions granting them or their close relatives victim status in the criminal proceedings, statements which they had made, statements from witnesses to the events, and press and NGO reports. Several applicants also submitted documents issued in 2000 and 2001 by the local administration or “neighbourhood committees” confirming that the houses in which they had lived had been destroyed or damaged in 2000.

Some applicants complained that their state of health had deteriorated due to the stress and anguish which they had suffered in the aftermath of the Novye Aldy killings, and particularly in view of the inadequate and callous response of the authorities to their plight.

The facts of the present case are connected to the case of Musayev and Others v. Russia (nos. 57941/00 and 2 others, 26 July 2007) in so far as the applicants claimed that their relatives had been killed by the same people and in the same circumstances as the relatives of the applicants in that case.

The applicants in Musayev and Others complained that eleven of their relatives had been killed by unidentified servicemen on 5 February 2000 in the Novye Aldy. The first applicant had witnessed the deaths of his seven distant relatives (cousins and nephews). Other applicants in Musayev and Others were more closely connected to the victims, and were their husband, sister or brothers. The first applicant had been granted victim status in the domestic criminal proceedings and had participated in those proceedings (see Musayev and Others, cited above, §§ 68, 81, 94). It appeared that in the domestic criminal proceedings the proximity of the relationships between the victims and the deceased had not been fully ascertained, and, as noted in the Musayev and Others judgment, no single list existed of the victims and the people who had been granted victim status in the proceedings (ibid., §§ 74, 80, 162). The Government did not challenge the first applicant’s victim status under Article 2 of the Convention.

On the basis of the parties’ submissions and inferences drawn by the Court, it was established that on 5 February 2000 eleven relatives of the applicants had been killed by State servicemen in the Novye Aldy settlement on the outskirts of Grozny, during a special operation (a “sweeping” operation) carried out by, amongst others, servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) from St Petersburg (hereinafter the St Petersburg OMON).

According to the documents examined by the Court, more than fifty people had been killed on that day in the Novye Aldy by unidentified servicemen wearing camouflaged uniforms and using automatic weapons, equipped with portable radio sets, armoured personnel carriers (APCs) and military Ural trucks. The same servicemen had also looted and burnt down a number of houses.

In April 2006, when the parties exchanged observations in Musayev and Others, the criminal investigation was still ongoing. Although the investigation file reflected some attempts to identify the servicemen involved, there was no information that anyone had been charged with the crimes. The Court concluded that the authorities had failed to carry out an effective investigation into the deaths.

In addition, the first applicant, who had witnessed the deaths of his relatives and had himself been held at gunpoint, was found to be a victim of inhuman and degrading treatment in breach of Article 3 of the Convention. Lastly, a breach of Article 13 of the Convention was found, since the criminal investigation into the deaths had been inefficient, rendering any other remedy equally futile.

On 5 March 2000 the Grozny town prosecutor’s office opened criminal investigation no. 12011 into the murder of several inhabitants of the Novye Aldy settlement in Grozny by “unidentified men armed with guns” under Article 105 § 2 of the Criminal Code (the murder of two or more persons with aggravating circumstances); the decision also referred to the looting of residents’ property. In response to the Court’s request in the present case, the Government submitted copies of eight volumes of documents from criminal case no. 12011, produced after the judgment issued in Musayev and Others. Those documents can be summarised as follows.

The applicants submitted that, prior to the Musayev and Others judgment in July 2007, they had not been aware that another group of victims had applied to the Court. They also submitted that, prior to that date, they had had no reasons to doubt the effectiveness of the domestic investigation, even if no regular updates from the prosecutor’s office had been forthcoming. Some of the applicants also referred to their previous contact with lawyers whom they had instructed to apply to the Court in 2005, but one lawyer had died, and either their instructions to other lawyers had not been complied with or the applicants had not kept any written proof of those instructions. As the documents in the Court’s possession indicate, in March 2005 thirty-one families of victims of the Aldy events sent a letter to the Court stating their intention to apply to the Court. That letter included at least ten applicants in the present case. The signatories failed to submit proper applications or otherwise pursue that complaint, which was eventually discontinued.

The deaths of eleven people were found to be in breach of Article 2 of the Convention in the Musayev and Others judgment (cited above), and the family members of five of those people are applicants in the present complaint (see Appendix). While the first applicant in the Musayev and Others case was a cousin and a nephew of the deceased, the applicants in the present group are the deceased’s spouses, children and brothers.

The applicants in the present case (or their close relatives) were granted victim status in criminal investigation file no. 12011 on various dates between March 2000 and June 2012 (see Appendix). Eight applicants were questioned and received victim status in March and April 2000. Six were granted victim status in April and May 2004, and one in March 2005. The other five received such status between December 2007 and July 2012. On 19 April 2004 the investigator of the Chechnya prosecutor’s office granted an application made by a lawyer, Mr A. Khamzayev. The application was for thirty-two people to have victim status. The list included fourteen applicants in the present case, twelve of whom later obtained and countersigned proper individual decisions as indicated above. There is no information that any other procedural acts involving the applicants’ participation occurred between April 2000 and December 2007 (see the following paragraph).

The investigation was adjourned and resumed a number of times (see subsection 5. Various procedural steps below); on 5 December 2007 the investigation was resumed. As of 2008 the applicants in the present case and in Musayev and Others and their close relatives were regularly questioned about the events of 5 February 2000. Thus, in December 2008 the following applicants were questioned: Zoya Musayeva (no. 21200/09), Malika Ganayeva (no. 30538/09), Ruslan Khadzhimuradov (no. 21194/09), Birland Tasuyeva (no. 27064/09), Ibragim Musayev (no. 21200/09), Aset Khakimova (no. 32851/09), Osman Kudozov (no. 30578/09), Manshura Sugaipova (no. 27259/09), Birlant Beterakhmadova (no. 24693/09), Baret Shamsatova (no. 27159/09), Abulkhasan Khaydayev (no. 30531/09), Alpatu Khirikhanova (no. 24700/09), Yakhita Bishayeva (no. 32855/09), and Yakhita Dzhabrailova (no. 32992/09). In November 2012 the investigators questioned Elina Umarkhadzhiyeva and Madina Dzhamaldayeva (no. 30538/09); in December 2013 they questioned Rashid Gerikhanov (no. 27063/09), Aysest Musostova (no. 32862/09), Abulkhasan Khaydayev (no. 30531/09), and Birlant Beterakhmadova (no. 24693/09). During questioning, the investigators informed the applicants about forensic expert reports on the bodies that had been carried out in 2000. The applicants were also asked questions about the loss of property and were asked to estimate the pecuniary damage which they had sustained. While they provided some estimates, no documents were provided, and all applicants stated that they intended to seek pecuniary damages as civil parties during the trial.

Additional questioning of the applicants, their relatives and other local residents continued into 2009 and the years which followed. New victims of the events were identified as late as 2014, and their relatives were granted victim status in the proceedings. The questioning of other local residents continued until 2014, when they were granted victim status in the proceedings, notably in respect of the loss of property.

On 9 February 2009 Mrs Birlant Beterakhmadova (application no. 24693/09) complained to the Staropromyslovskiy District Court of Grozny regarding the decision of 24 November 2008 to adjourn the investigation and the prosecutor’s failure to conduct an efficient investigation into the murders.

On 3 April 2009 the Staropromyslovskiy District Court noted that the decision of 24 November 2008 had been quashed on 15 March 2009 by the Chechnya Investigative Committee, and dismissed Mrs Beterakhmadova’s complaint. She did not appeal against that decision.

The decision of 10 April 2006 to adjourn the investigation (and subsequent similar documents) indicates that in May 2005 the investigation identified S.B. as a suspect. He was charged with aggravated murder and robbery. In February 2000 S.B. had been a police technician with the sapper battalion of the St Petersburg OMON. The charges stated that on 5 February 2000 he, along with three other unidentified persons, had killed Mr Sultan Dzhabrailov (the husband of Mrs Yakhita Dzhabrailova, applicant in case no. 32992/09) by shooting him with a Kalashnikov machine gun. S.B. was also charged with robbing two other people of money and jewellery, A.M and B.M. In October 2005 S.B. escaped to Belarus and his name was put on the international wanted list. In February 2006 the Zavodskoy District Court in Grozny ruled that S.B. should be arrested. The decision of 10 April 2006 states that the investigator informed the victims of that decision, but the case file contains no relevant correspondence. Copies of letters submitted by the parties indicate that a copy of that decision was sent to the victims on 14 November 2007.

In April 2011 the investigators asked the prosecutor’s office in St Petersburg to question S.B.’s civil partner about his whereabouts. In November 2012 she stated that she had had no information about S.B.’s whereabouts since 2006, although she had seen him in 2008 in St Petersburg.

In November 2012 the investigators examined a social network page belonging to S.B. and noted that the latest photographs on it had been uploaded in 2007. In May 2013 the investigators sought to obtain additional information about S.B.’s whereabouts by questioning his other relatives, locating his mobile phone, and so on.

During the questioning of victims and witnesses the investigators collected additional information about the suspects. Thus, in February 2009 Mr Ibragim Musayev (application no. 21200/09) referred to servicemen from the 245th motorised rifle regiment, the commander of that regiment, and the commander of company no. 6 (see Musayev and Others, cited above, § 107) as possible suspects.

In April 2010 the investigation produced a list of over 170 servicemen of the St Petersburg OMON who had been posted in Chechnya in February 2000, and asked for verification of whether one of them had a tattoo in the shape of a snake on his neck, mentioned by one of the witnesses. Dozens of servicemen were inspected, but no one with a snake-shaped tattoo was identified. When questioned in February 2011, the servicemen, in brief statements, confirmed that they had served in Chechnya in February 2000 but had no knowledge of the civilians killed in the Novye Aldy.

In April 2010 the investigators sent a letter asking the prosecutor of the Northern Caucasus military circuit to identify and question the servicemen and commanders of the 245th motorised rifle regiment (see Musayev and Others, cited above, §§ 105-07). The letter contained detailed information and questions about the events of 5 February 2000, and asked the prosecutor to identify and question the people who had used known radio call signs and to identify the commanders of the operation. In June 2010 an officer of the military unit concerned stated, as a witness, that all details about the use of radio equipment and the assignment of calls were stored as secret information for five years. Several reminders followed in 2011 asking, in particular, for the former commander of the 245th regiment, Major-General S.L., to be questioned.

In June 2010 the investigator in charge sought similar information from another military unit (the 15th motorised rifle regiment), including the names of the unit commanders who had taken part in the operation on 5 February 2000. In particular, the letter referred to the commander of company no. 6 of the regiment, who, the investigators suggested, had written a note left by the servicemen for the local residents.

In May 2011 the investigators asked the military investigators to submit information about the commanders of the 245th motorised rifle regiment and to ask them a number of specific questions about the events of 5 February 2000.

In April 2011 the investigators asked the investigator of St Petersburg to carry out additional ballistic reports on 357 guns used by the St Petersburg OMON in February 2000.

In May 2011 the investigator in charge informed the military prosecutor of the Southern military circuit that the special operation on 5 February 2000 in the south of Grozny had been under the command of Colonel Ye.K., the head of the operative headquarters of the internal troops of the Ministry of the Interior. He reminded the military prosecutors of his previous requests for the commanders of that operation to be identified and questioned. It does not appear that any progress was achieved in this respect.

During additional questioning in the period 2009-2013, local residents were asked about the damage to their property caused in 2000. They explained that many houses had been burnt down by the servicemen, and that those who had stayed in the district had been forced to give up their jewellery and valuables as a result of threats. Others estimated the amount of pecuniary damage caused (see Appendix). No one was granted victim status in relation to any property offence and no additional documents were requested from the residents. The victims stated that they would seek damages in the course of a criminal trial, as civil parties.

On 18 January 2014 the investigator ruled that no criminal proceedings should be opened in connection to the crimes relating to property, due to the expiration of the statutory limits for those crimes. It does not appear that that decision was challenged. In December 2014 decisions according civil party status in criminal proceedings with regard to property claims were issued in respect of the following applicants: Ayset Musostova (no. 32862/090), Birlant Beterakhmadova (no. 24693) and Zoya Musayeva (no. 21200/09). Osman Kudozov (application no. 30578/09) submitted documents which indicated that the house for which he claimed compensation had been owned by M.K., his sister. In his written statement to the Court he stated that at some point M.K. had received compensation from the State for the lost property, but he submitted no relevant documents.

On 5 December 2007 the investigation of criminal case file no. 12011 into the events of 5 February 2000 was resumed, and the victims were informed accordingly.

On 5 January 2008 the investigation was adjourned.

The investigation was then resumed, but on 18 August 2008 was adjourned again, and the applicants were informed accordingly.

The investigation was then resumed, but adjourned again on 24 November 2008. A letter informing the victims of the adjournment was dated 24 October 2008.

It appears that the investigation was reopened and then adjourned again on 11 January 2009.

It was then reopened in March 20009, and on 16 April 2009 adjourned again, for similar reasons as those stated in the decision of 10 April 2006 (see paragraph 24 above).

On 22 March 2010 the Chechnya Investigative Committee gave an order for an investigating group to be set up which would include investigators from the military prosecutor’s office, in view of information about the possible implication of military servicemen in the crimes.

In June 2010 the investigators watched a video filmed in the Novye Aldy on 9 February 2000 (see Musayev and Others, cited above, § 25) and produced the video’s transcript for the file.

In November 2012 the investigators compiled a table of people who had been killed on 5 February 2000, indicating their places of burial, the next-of-kin granted victim status in the proceedings, and the dates of such decisions. The table contains information about forty-seven deaths, including the deaths of twenty people about which the applicants in the present case complain; the one exception is Isa Akhmadov, born in 1964 (the brother of Aysest Musostova, application no. 32862/09). At the same time, the table contains information about the death of a certain Isa Akhmatov, born in 1959, in respect of whose death another person (his brother) was questioned and granted victim status in June 2012.

In December 2014 the investigation recognised civil party status of three applicants in connection with the destruction and theft of property during the events of 5 February 2000.

It does not appear that the applicants were informed of any other developments, or that they sought further information from the investigating authorities.


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

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants all live in Žilina, except for Mr Kyška, Mr P. Lalinský and Ms Vestfálová, who live in Turie, Bytča and Nemecká nad Hronom respectively.

The facts of the case are structurally similar to those obtaining in the cases against Slovakia of Urbárska Obec Trenčianske Biskupice (no. 74258/01, 27 November 2007 (merits) and 27 January 2009 (just satisfaction)), Jenisová (no. 58764/00, 3 November 2009), Šefčíková (no. 6284/02, 3 November 2009), and Salus (no. 28697/03, 3 November 2009).

The applicants are the owners of land situated in the cadastral area of Závodie on the territory of the municipality of Žilina. They acquired title to this land by way of inheritance from their predecessors.

In 1948 the State put the land in question at the disposal of an agricultural cooperative called Mier Žilina-Bánová. In 1987 the cooperative designated part of the land as an “allotment colony”, consisting of individual allotments which were put at the disposal of private third parties (“the gardeners”).

The applicants’ ‒ or, at the relevant time, their predecessors’ ‒ formal title to the land has remained unaffected but in practice, they have not been able to make use of it at all. The size of each of the applicants’ individual parcels of land thereby affected is listed in column C of the appendix.

In the context of the political changes in the former Czechoslovakia, the Land Ownership Act (Law 229/1991 Coll.) was enacted in 1991. Under section 22(2) thereof, in the absence of any agreement to the contrary with the applicants, the gardeners acquired a tenancy right in respect of the land in question with effect from the date of the Act’s entry into force.

The rent payable for such tenancy was regulated under section 22(3) of the Land Ownership Act until this provision was replaced by the Allotments Act, which entered into force on 26 March 1997.

The Allotments Act likewise imposed a compulsory tenancy arrangement in favour of the gardeners, the rent being regulated by its section 4, which applied by operation of law unless the parties had agreed otherwise. This provision, as applicable at that time, referred to other pieces of legislation which set the annual rent at ten per cent of the value of the property ‒ calculated on the basis of the then applicable price regulations ‒ the minimum being equivalent to 0.01 Euro (EUR) per square metre and per year.

In the applicants’ case, with the exception mentioned below, no such separate agreement had been reached between the parties, and the annual rent payable by the gardeners to the applicants was thus determined under the statutory rules at the lowest limit of the applicable scale, that is to say at a rate of EUR 0.01 per square metre. In the case of the applicant Ms L. Kothajová, an agreement was reached that, as from 2004, she would be paid rent equivalent to EUR 0.01168 per square metre and per year.

The applicable statutory regime was amended ‒ after the Court’s above-mentioned judgments had become final ‒ with effect from 1 April 2011 by Law no. 57/2011 Coll., which adjusted the rent payable to owners in a situation such as the applicants’ to a level commensurate with the market rent.

By virtue of the statutory amendment, the amount of the rent was to be determined under the Regulation of the Ministry of Justice on Determination of the General Value of Property (no. 492/2004 Coll.). This regulation uses the term “general value” ‒ which is understood to mean the expert assessment of the most likely price at a given place and time on the market in conditions of free competition and honest sale ‒ and lays down formulae for the determination thereof in relation to land and the rent payable for that land, the latter being linked to the former. These formulae take into account what is known as the “general situation index” (“the GSI”), ranging originally from 0.70 to 2.00, normally depending on the geographical location of the property.

However, prior to the entry into force of the amendments introduced by Law no. 57/2011, Regulation 492/2004 had been amended by Regulation no. 254/2010 Coll., which took effect from 1 July 2010. The latter Regulation introduced a special GSI ranging from 0.50 to 0.70 to be applied when determining the “general value” of land and the “general value” of the rent for the land in allotment colonies.

These amendments left the compulsory tenancy introduced by the Allotments Act unaffected. Such a tenancy arrangement remains in place until the completion of what are known as land consolidation proceedings in a given area. Such proceedings are also provided for under the Act, their aim being to have the ownership and use of the land in the allotment area consolidated, principally by transferring title to the land to the gardeners and having the former owners compensated by means regulated under the Act, the details of such consolidation being defined in what is known as a “land consolidation project”.

In the applicants’ case, the gardeners initiated the requisite land consolidation proceedings on 7 December 1998. Within the framework thereof, the order had been given for implementation of a “land consolidation project”, but the proceedings changed course on 7 August 2013 when the Constitutional Court held that the applicants’ inability to have that order reviewed by the courts violated their right of access to a court and their property rights.

The land consolidation proceedings are currently pending, at a stage where the general value of the applicants’ land remains to be determined.

The compulsory tenancy of the applicants’ land persists.

The parties disagreed as to the amount of rent payable for the applicants’ property. Their positions and the documents submitted in their support may be summarised as follows.

The applicants relied on report no. 05/2010 dated 29 March 2010, in which a sworn expert, A, estimated the general value of the rent in question by reference to the criteria laid down in Regulation no. 492/2004, and applied a GSI of 1.30. On that basis, the applicants considered that the market value of the annual rent amounted to EUR 2.66 per square metre.

Later, the applicants also submitted report no. 169/13 dated 5 November 2013 by another sworn expert, B, according to which the general value of monthly rent for a plot in the stated area belonging to the applicant Mr Leščinský was EUR 0.773 in 2013, EUR 0.782 in 2012, EUR 0.789 in 2011 and EUR 0.752 in 2010. These figures had been estimated on the basis of Regulation no. 492/2004, taking into account the GSI resulting from the amendments introduced by Regulation no. 254/2010.

The Government for their part submitted the following documents:

‒ A letter from the Forensic Engineering Institute in Žilina dated 17 December 2012, in which the Institute pointed out what they considered to be methodological flaws in the calculations of expert A. On the basis of their pro forma recalculation of the available data, the value of the annual general rent would be EUR 0.239 per square metre. However, the letter points out that this recalculation was done without a separate in situ investigation and without the examination of further documents that the Institute considered essential.

‒ A letter from the Slovak Real Estate Fund dated 24 April 2013 stating that, at that time, expert valuations of the general value of the land had been obtained for fourteen allotment colonies in the district of Žilina. On the basis of the general value of the land as established in these valuations, which took into account legislative amendment no. 57/2011, the Government contended that the average general value of the annual rent payable for land comparable to the applicants’ was EUR 0.38.

‒ A full expert report drawn up by the Institute in 2014, numbered 86/2014, which had been preceded by the Institute’s own investigations. In this report, drawn up on the basis of amended Regulation no. 492/2004, the Institute calculated the general value of the annual rent payable for the property in question as of 31 March 2014 as EUR 0.718 per square metre.

The method provided by Regulation no. 492/2004 could not be used in relation to the preceding periods. In these cases, the Institute assessed the general value of the annual rent for previous years ‒ on the basis of the results for the year 2014, but taking into account the general development of real estate prices in the given region and other economic criteria during those years ‒ as follows: in 2013 EUR 0.716, in 2012 EUR 0.746, in 2011 EUR 0.732, in 2010 EUR 0.745, in 2009 EUR 0.790, in 2008 EUR 1.084, and in 2007 EUR 0.804.

Lastly, the Institute reiterated the objections concerning the methodology used in the valuation produced by expert A and expressed the view that he had lacked the requisite qualifications for conducting the particular type of valuation obtaining in the present case, since his qualifications pertained only to agricultural land, and did not extend to include the type of land concerned in the present case.


CASE OF MIHAI LAURENȚIU MARIN v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1975. He is currently detained in Măgineni Prison.

In his initial letters to the Court the applicant stated that he had been detained in overcrowded cells which had lacked heating.

Starting from 2004 the applicant was detained and transferred between a number of prisons, including Poarta Albă and Măgineni Prisons.

The applicant was first detained in Poarta Albă Prison on 17 April 2006. The records concerning the cells the applicant had been detained in and the number of detainees he had shared the cells with during his time in detention there between 2006 and 2010 had been destroyed in accordance with the requirements of applicable domestic legislation.

From 2010 onwards the applicant was detained in Poarta Albă Prison from 19 February 2010 to 22 July 2013. During this period he was transferred repeatedly from Poarta Albă to Măgineni and other prison facilities as a result, among other things, of his violent behaviour towards other inmates and prison personnel.

In Poarta Albă Prison the applicant was detained in several cells where he was afforded between 3, 79 and 5, 03 sq. m of living space.

Part of the prison was fitted with its own central heating system, while the remaining part was heated by stoves. The heating was carried out based on a pre-determined schedule and on the available heating supplies and by taking into account the outdoor temperature.

The applicant was detained in Măgineni Prison from 5 December 2011 to date. During this period he was transferred repeatedly to Poarta Albă and other prison facilities.

In Măgineni Prison the applicant was detained in several cells where he was afforded between 1, 62 and 8, 02 sq. m of living space.

Each cell had electrical power and was fitted with individual beds, tables, chairs and benches.

The prison was also fitted with its own gas central heating system. The system was working properly. The cells had radiators, which ensured an appropriate temperature in the rooms during winter and when the outside temperature demanded it.


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Venko Nikolov Agontsev, is a Bulgarian national who was born in 1967 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms L. Gyurova, of the Ministry of Justice.

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

On 22 September 2002 the prosecution authorities in Varna opened criminal proceedings in relation to the murder of Mr O.K. On 11 November 2002 the applicant was arrested and charged with instigating the murder. On 12 November 2002 he was placed in pre-trial detention, where he remained until 23 June 2003 when the Varna Regional Court ordered his release on bail. The amount of bail was set at 10,000 Bulgarian levs (BGN), which was paid by Ms N.G. On 26 June 2003 the applicant was released.

The preliminary investigation into Mr O.K.’s death continued until 31 October 2005, when the applicant and several other individuals were indicted and sent to trial.

In a judgment of 29 March 2007 the Varna Regional Court convicted the applicant of aiding and abetting Mr O.K.’s murder and sentenced him to sixteen years’ imprisonment.

After delivery of the judgment, in a decision given at the same hearing, referring merely to the “degree of dangerousness of the offence committed and its [perpetrators], and the type and severity of the punishment imposed”, the Varna Regional Court ordered that the applicant be placed once again in custody. He was detained at the end of the hearing.

On 4 April 2007 the applicant appealed against his placement in custody, pointing out that while on bail he had not attempted to abscond or obstruct the investigation. On 21 April 2007 the Varna Court of Appeal declared his appeal inadmissible, noting that at that stage of the proceedings a decision ordering placement in custody could not be challenged separately from the judgment on the merits.

In his initial application to the Court, the applicant stated that following his detention he had not been able to recover the bail paid in 2003. However, after communication of the application the respondent Government submitted documents showing that on 3 May 2007 a representative of Ms N.G. had requested that the bail be returned to her. On 19 September 2007 the representative presented a power of attorney, and the next day the Varna Regional Court ordered the Regional Investigation Service to pay the sum back.

Following appeals by the accused, on 30 January 2008 the Varna Court of Appeal quashed the Varna Regional Court’s judgment of 29 March 2007 and remitted the case. On 1 July 2008, following a fresh examination, the lower court acquitted the applicant and ordered his release with immediate effect.

Following further appeals by the prosecution, on 25 March and 28 December 2009 respectively, the Varna Regional Court’s judgment was upheld by the Varna Court of Appeal and the Supreme Court of Cassation.

The relevant provisions of domestic law concerning remedies for excessive length of proceedings have been summarised in the Court’s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).


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

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

The applicant complained of the excessive length of criminal proceedings.


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

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant was born in 1957 and lives in Budapest.

On 25 January 2006 the applicant brought an action in compensation in the context of water damage in her condominium.

After holding several hearings and obtaining expert evidence, on 18 March 2010 the Buda Central District Court found for the applicant.

On 6 October 2010 the Budapest Regional Court reversed this judgment.

On 2 June 2011 the Supreme Court rejected, without an examination on the merits, the applicant’s petition for review since it did not meet the statutory requirements.

Act no. III of 1952 on the Code of Civil Procedure, as amended by Act no. XIX of 2006, provides as follows:

“(1) The party, the intervener or the public prosecutor participating in the proceedings are entitled to file a written complaint with the court hearing the case complaining about an omission specified in subsection (2) allegedly committed by that court, requesting the court having competence for the adjudication of the complaint to establish the omission and, by setting an appropriate time-limit, to instruct – in the cases specified under points a) and c) of subsection (2) – the omitting court to perform the omitted procedural act or to pass the omitted decision, and to take – in the case specified under point b) of subsection (2) – the most effective action in the given case.

(2) Such a complaint may be filed where:

a) the law prescribes a time-limit for the court within which to complete the proceedings, to perform a procedural act or to pass a decision and the time-limit has elapsed without any result,

b) a court has set a time-limit for the public prosecutor, the person participating in the proceedings, the authority or person requested to perform a procedural act but the time-limit has elapsed without any result and the court has failed to impose on the omitter the measures allowed by the law,

c) the court has failed to comply with its obligation to complete the proceedings within a reasonable time on account of the lapse of such time since the court’s last measure on the merits which was sufficient for the court to perform or order to perform a procedural act but the court failed to do so.

(3) No complaint shall be filed against orders related to evidentiary acts or decisions subject to a separate legal remedy.

(4) The complaint may be withdrawn by the complainant at any time until a decision on the merits is taken by the court. Complaints withdrawn shall not be re-submitted.”

“(1) The court hearing the case shall examine the complaint within eight days from its receipt, and if it finds the complaint well-founded, it shall, within thirty days, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of how the complaint has been settled.

(2) If the court hearing the case finds the complaint ill-founded, it shall transmit the complaint to the adverse party who may file observations on it within eight days from its receipt. After the expiry of the time-limit the court shall, within eight days, forward the file – together with the observations – to the court having competence for adjudicating the complaint. In its communication, the court hearing the case shall set forth its reasons for not performing the omitted procedural act or not passing the omitted decision.

(3) A complaint challenging an omission of the district court shall be adjudicated by the regional court sitting in a committee of three professional judges; a complaint challenging an omission of the regional court shall be adjudicated by the court of appeal sitting in a committee of three professional judges; a complaint challenging an omission of the court of appeal shall be adjudicated by the Kúria sitting in a committee of three professional judges; a complaint challenging an omission of the Kúria shall be adjudicated in camera by another committee of the Kúria, within fifteen days from the receipt of the case-file.

(4) Where the court adjudicating the complaint grants the complaint, it shall, by setting a time-limit, invite the omitting court to take – in the cases specified in section 114/A subsection (2) points a) and c) – the action required for the proper progress of the case and – in the cases specified in section 114/A subsection (2) point b) – to take the most effective action. Except for the cases specified in section 114/A subsection (2) point a), the court adjudicating the complaint shall not instruct the court hearing the case to perform a particular procedural act. If the court finds the complaint ill-founded, it shall dismiss it in reasoned decision. Against this decision no appeal may be filed.

(5) If the submitter of the complaint repeatedly submits an ill-founded complaint in the same case the court adjudicating the complaint may impose a fine on him.

(6) The provisions governing the submission and adjudication of appeals against orders shall be applicable to [such] complaints.”