Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1945 and lives in Ankara.

At the time of the events giving rise to the present application, the applicant’s daughter, Serpil İmren, worked as a secretary for a private company engaged in the trade of mineral oil, namely Kros Petrol Madeni Yağ Turizm İnşaat Emlak İth. İhr. San. Tic. Ltd. Şti (“the company”). On 18 December 2002, at approximately 8.30 a.m., a fire broke out at her workplace when one of her colleagues, M.Y., attempted to light the wood-burning stove used to heat the office area by pouring petrol onto it. Serpil İmren sustained serious injuries as a result of the fire. On 17 January 2003 she died at the hospital where she had been receiving treatment for her burns.

Upon being informed of the fire, three police officers arrived at the scene of the incident at approximately 9.30 a.m. on 18 December 2002. They prepared a report describing the state of the premises in the aftermath of the fire and a sketch map of the scene of the incident.

At 10.50 a.m. on the same day two police officers went to the hospital where the applicant’s daughter Serpil İmren had been taken for treatment. They reported that she was not in a condition to make a statement regarding the incident.

At 11 a.m. the police interrogated two suspects in relation to the fire, namely M.Y., Serpil İmren’s colleague who had apparently started the fire, and K.N.Y., who was the owner of the company for which Serpil İmren was working. M.Y described the incident as noted in paragraph 5 above. K.N.Y. stated that he had not been at the workplace at the time of the incident.

On 27 December 2002 the Ankara public prosecutor filed a bill of indictment with the Ankara Criminal Court of First Instance against M.Y. for starting a fire and causing bodily harm by negligence.

On the same day the Ankara public prosecutor delivered a decision not to prosecute in relation to K.N.Y.

On 1 April 2003 the Ankara Criminal Court of First Instance issued a decision of non-jurisdiction and transferred the case to the Ankara Assize Court.

In the meantime, inspectors from the Ministry of Labour and Social Security (“the Ministry”) initiated an investigation into the incident. According to their report dated 28 February 2003, the necessary precautions had not been taken at the relevant workplace to prevent and put out fires, such as training the employees in fire safety and the operation of woodburning stoves. Such training was particularly important bearing in mind that the company was engaged in the mineral oil business.

Relying on the inspectors’ findings regarding the lack of precautions necessary for the prevention of fires in the deceased’s workplace, on 18 April 2003 the applicant lodged a new complaint with the Ankara public prosecutor’s office against the owner of the company, K.N.Y.

On 26 May 2003 the Ankara public prosecutor issued an additional indictment against K.N.Y. for causing Serpil İmren’s death by negligence.

On an unspecified date the applicant joined the criminal proceedings as a civil party.

There is no information in the case file as to when the Ankara Assize Court started hearing the case. On 16 September 2003 the second hearing was held, during which the court heard the statements of the defendants and two prosecution witnesses.

At the third hearing held on 5 December 2003 the Ankara Assize Court heard three defence witnesses. It also ordered that an on-site inspection be carried out at the workplace on 23 February 2004 by courtappointed experts. It appears from the information in the case file, however, that the on-site inspection was carried out on 12 April 2004.

On 16 April 2004 the court-appointed experts issued their report, where they largely repeated the findings of the Ministry’s inspectors noted in paragraph 12 above. The experts concluded that M.Y. and K.N.Y. each bore 50 % responsibility for the incident.

On 19 April 2004 the Ankara Assize Court requested that the Forensic Medicine Institute issue a report examining whether a causal link existed between Serpil İmren’s death and the fire at her workplace. In a report dated 4 June 2004 the Forensic Medicine Institute confirmed that Serpil İmren had died on account of complications caused by the burns she had sustained during the fire.

In the meantime, on 6 May 2004 the Ankara Assize Court ordered the employer’s insurance company to provide the accident report prepared in the aftermath of the incident, along with photographs and any other documents relevant to the incident. On 9 July 2004 the insurance company submitted the requested documents.

Relying mainly on the reports issued by the court-appointed experts and the inspectors of the Ministry, as well as the report of the Forensic Medicine Institute, on 29 April 2005 the Ankara Assize Court convicted the defendants as charged and sentenced each of them to ten months’ imprisonment and a fine. The defendants appealed against this judgment.

On 1 May 2006 the public prosecutor’s office attached to the Court of Cassation remitted the case to the Ankara Assize Court for reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005.

On 17 November 2006 the Ankara Assize Court convicted the defendants once again as charged and issued the same sentence and fine. The defendants appealed against this judgment.

On 13 October 2008 the Court of Cassation quashed the Ankara Assize Court’s judgment of 17 November 2006. It found that the firstinstance court had to consider whether the procedure of suspension of pronouncement of judgments (hükmün açıklanmasının geri bırakılması) provided for in section 231 of the Code of Criminal Procedure (Law no. 5271), as amended on 6 December 2006, was applicable in the circumstances.

On 26 February 2009 the Ankara Assize Court convicted the defendants once again and sentenced them to the same term of imprisonment and fine as before. It held that the pronouncement of the judgment could not be suspended having regard, inter alia, to the nature of the offence and the gravity of the incident. The defendants appealed against this judgment.

On 27 December 2010 the Court of Cassation held that the criminal proceedings should be discontinued on the grounds that the prosecution of the offence in question had become time-barred.

On 18 July 2003 the applicant initiated proceedings against K.N.Y., the owner of the company for which her daughter had worked, before the Ankara 13th Labour Court (“the labour court”) requesting compensation in respect of pecuniary and non-pecuniary damage following her daughter’s death.

On 23 October 2003 the labour court dismissed the case, which it found should have been brought against the company for which the victim had worked rather than against K.N.Y.

On 5 November 2003 the applicant brought compensation proceedings before the labour court against the company in relation to her daughter’s death.

It appears from the information in the case file that during the three hearings held in April, June and October 2004, the labour court heard the parties’ witnesses (four witnesses in total).

At the hearing held on 25 September 2007 the applicant requested the appointment of experts to determine the defendant company’s responsibility for her daughter’s death. The labour court accepted that request and on 24 October 2007 it appointed three experts.

On 28 November 2007 the experts delivered their report, in which they found that the accused company and its owner, K.N.Y., bore 70 % and 5 % responsibility, respectively, for Serpil İmren’s death. According to the experts, the remaining responsibility lay with M.Y., who was not a party to the proceedings before the labour court.

Relying on the findings of the experts, on 3 March 2009 the applicant brought an additional compensation claim before the Ankara 7th Labour Court against K.N.Y. On 15 July 2009 the Ankara 7th Labour Court decided to join the case against K.N.Y. to the proceedings pending before the Ankara 13th Labour Court against the company.

Between 14 April 2004 and 28 December 2010 the labour court held twenty-three hearings. However, apart from those mentioned in paragraphs 30 and 31 above, the labour court did not take any procedural action during that period and decided to adjourn the case at the end of each hearing pending a judgment in the criminal proceedings.

At its first hearing following the termination of the criminal proceedings, which was held on 3 May 2011, the labour court ordered the appointment of an expert to determine the applicant’s pecuniary damage as a result of her daughter’s death. However, the expert was not officially appointed until 9 October 2012.

On 26 November 2012 the court-appointed expert delivered the report on the extent of the damage suffered by the applicant.

Between 8 February 2012 and 3 February 2014 the labour court held ten more hearings. It appears that six of those hearings were postponed pending information from the Social Security Institution (Sosyal Güvenlik Kurumu) concerning the benefits received by the applicant following her daughter’s death.

On 4 June 2014 the labour court delivered its judgment on the case. It rejected the applicant’s claims in respect of pecuniary damage, except for funeral costs in the amount of 1,306 Turkish liras (TRY) (approximately 455 euros (EUR)), plus interest (TRY 40 to be paid by K.N.Y. and the rest by the company). It granted her request in respect of non-pecuniary damage and ordered the payment of TRY 10,000 (approximately EUR 3,480), together with interest (TRY 1,000 to be paid by K.N.Y. and the rest by the company).

On 27 April 2015 the Court of Cassation upheld the judgment of the labour court.

It appears from the information in the case file that the applicant has not yet received payment of the damages ordered by the labour court. It also appears from the applicant’s undisputed allegations that during the time it took to reach a decision on her civil claim, the company had closed down and the damages ordered by the court against that company could therefore not be collected.


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

The applicant initiated a payment warrant procedure for repayment of debts on 21 July 1997 which, by the protest of the debtor, developed into court proceedings.

The procedure was suspended on 16 April 1999 due to other pending court proceedings, which ended in July 2003.

Subsequently, after several hearings, the first-instance court partly found for the applicant on 21 December 2003.

On appeal, the Budapest Regional Court quashed the decision and remitted the case on 10 March 2005.

In the resumed proceedings, after the transfer of the case from one court to another for reasons of jurisdiction, the Budapest IV/XV District Court partly found for the applicant on 23 November 2007.

On appeal, the second-instance court found for the applicant on 25 September 2008.

In review proceedings, the Supreme Court upheld this decision on 14 May 2009. Its ruling was served on the applicant on 27 August 2009.


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva

The applicant was born in 1951 and lives in Vidin. She is a member of the Board of Directors of the Animal Protection Society in Vidin. On 16 September 2002 she was authorised to represent the organisation before any and all institutions in Bulgaria in relation to its activities.

On 11 April 2002 the applicant asked the mayor of Vidin for access to information about an agreement, concluded between the municipality and the municipal company “Cleanliness” EOOD, for the collecting of stray animals on the territory of Vidin municipality.

The mayor sought the explicit consent to that effect of the head of “Cleanliness” EOOD, considering that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. The head of “Cleanliness” EOOD refused to give consent on 28 May 2002. The mayor issued a decision on 4 June 2002 in which he refused to provide the applicant with access to the information she sought. The mayor referred to section 37 (1) (2) of the Access to Public Information Act 2000, which at the time listed the absence of a third interested party’s explicit written consent for the provision of information among the grounds for refusal to grant access to information.

The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003, finding that the information sought did not affect the rights of “Cleanliness” EOOD and therefore section 37 (1) (2) was not applicable. The court accordingly ordered the mayor to provide the information to the applicant.

Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not affected and the mayor’s decision denying access to information to the applicant was not reasoned.

On 20 January 2003 the applicant again asked the mayor of Vidin for information. This time the information she sought concerned the annual statistics for 2001 and 2002 about animals held in an animal shelter called “Municipal Care”. In particular she asked how many animals were placed there, how many of them died or were put to death, and how much their care had cost the municipal budget.

The mayor sought the explicit consent to that effect of the head of the public utilities company concerned, “Titan Sever” OOD, considering once again that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. In a letter of 10 February 2003 the head of “Titan Sever” OOD refused to give consent. On 14 February 2003 the mayor refused to provide the applicant with access to the information, referring to section 37 (1) (2) of the Access to Public Information Act 2000.

The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003. It found that, if third parties objected to the provision of information concerning them, section 31 (4) of the Access to Public Information Act 2000 obliged the mayor to grant access to that information in a manner not disclosing the parts related to the third party. It then sent the case back to the municipality ordering it to provide the information to the applicant.

Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not concerned and that, even if they were, the information could be provided without disclosing the parts concerning the third parties. Finally, that court found that the mayor’s decision denying access to information to the applicant was not reasoned.

On 17 June 2003 the applicant once again asked the mayor for information. The information concerned a public procurement procedure which had been organised by the mayor and aimed at reducing the number of stray dogs in Vidin. The applicant wanted to know the number of the organisations which had tendered for a contract with the municipality, which ones had passed the pre-selection stage, and - in respect of those who have - the following information: the type and number of qualified staff they employed; the infrastructure and facilities they had for humane catching and transportation of dogs; the proof they had presented for their capacity to deliver quality services; and, the price they asked for providing the services.

On 1 July 2003 the mayor refused to provide that information in a reasoned decision. The explanation he gave was that the information requested concerned solely the participating candidates in that procurement procedure and their bids in accordance with the Public Procurement Act 2004; that it was of an economic nature; that it was related to the preparation of the mayor’s administrative actions in relation to the procurement procedure; and, that it had no significance of its own.

The applicant brought court proceedings against the decision of the mayor refusing access to the information. On 10 December 2003 the Vidin Regional Court allowed the applicant’s claim and overturned the mayor’s refusal to provide the information sought. The court found that the information in question had not been classified, that the mayor’s decision was not issued within the statutory time-limit and that its content was not in conformity with the requirements of section 38 of the Access to Public Information Act 2000. The court sent the case back to the mayor, specifically ordering him to provide information to the applicant about the organisation which had won the municipal contract at the end of the public procurement procedure and the conditions of that contract.

Following a cassation appeal by the mayor, on 20 October 2004 the Supreme Administrative Court partly upheld the lower court’s judgment. It quashed the judgment’s part which ordered the mayor to provide the applicant with information about the organisation which had won the municipal contract and the conditions of that contract. It held that the mayor had to provide the rest of the requested information.

On 10 June 2004, referring to the two decisions of the Supreme Administrative Court of 25 May 2004 which concluded the proceedings in her first two requests for information, the applicant asked the mayor of Vidin to provide her with the information requested.

On 10 December 2004, referring to the decision of the Supreme Administrative Court of 20 October 2004 which concluded the proceedings in her third request for information, the applicant asked the mayor to provide her with the information requested.

On 27 December 2004, the mayor refused in a written decision to provide the information sought by the applicant following the Supreme Administrative Court’s judgment of 20 October 2004. In particular, he repeated the findings of the Supreme Administrative Court that he was not expected to provide information about the company which had won the municipal contract and remained silent in respect of the rest of the information he had been ordered to provide. It would appear that the mayor did not react to the applicant’s request for information following the two Supreme Administrative Court’s judgments of 25 May 2004.

In a letter of 15 September 2010, the applicant informed the Court that there were no further developments and the information she sought had not been provided to her.


CASE OF CRISTIOGLO v. THE REPUBLIC OF MOLDOVA

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

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1975 and lives in Chişinău.

In 2001 the Comrat Prosecutor’s Office initiated a criminal investigation against the applicant on charges of murder and an arrest warrant was issued by the Comrat District Court. Since the applicant had left the country, an international search order was issued.

On 21 January 2011, upon his return to Moldova, the applicant was arrested and placed in detention. On 4 February 2011, when the applicant was about to be transferred from Comrat to Chisinau, he cut open his abdomen as a sign of protest. He was taken to a hospital where his wound was taken care of. The applicant lodged a habeas corpus request, however it was rejected on the ground, inter alia, that he had been in hiding for more than ten years and that, consequently, he could abscond again. Later the detention warrant was renewed several times on similar grounds and the applicant’s appeals were rejected. The last judgment in the proceedings complained of by the applicant is dated 18 October 2011 and was issued by the Comrat Court of Appeal.

During all this time the applicant was detained in Prison no. 13 in Chisinau (between 4 March and 17 April 2011 and between 9 October 2012 and 12 June 2013) and in Prison no. 5 in Cahul (between 18 April 2011 and 8 October 2012). The applicant gave a detailed description of the conditions of detention in Prison no. 13 where, according to him, the cells were overcrowded and dirty. Each inmate only had between 1.5 and 3 square metres of available space in the cells in which the applicant was detained. The toilets were separated from the rest of the cells by a wall which was not very high and were located at a distance of some 1.5 metres from the table where the inmates served their meals. There was no ventilation system and the air was impregnated with a sewage smell and with cigarette smoke; there was no sufficient natural light because the windows were very small; the daily walks lasted for only one hour and the food served was of a very bad quality. The applicant submitted that according to information available on the web page of the Ministry of Justice, each inmate was allocated only 10 Moldovan Lei per day, i.e. the equivalent of 0.8 Euros (EUR) at the time. Moreover, the applicant alleged that after his arrest, he needed urgent medical care for the wound on his abdomen and for an ear infection and that no medical care was provided for him for one month. He provided medical documents to support his claims concerning his health problems. The Government provided documents according to which the applicant was seen by doctors and medication was prescribed for him.

In so far as Prison no. 5 is concerned, the applicant submitted that he was detained in two cells in which each inmate had between 2.4 and 3 square metres. The Government contested that information and presented a document according to which in the applicant’s cells each inmate had between 4.4 and 6.6 square metres.

The applicant was released from detention on 12 June 2013. The Court was not informed about subsequent developments in the criminal proceedings against the applicant.


CASE OF JATAIRWAYS, A.D. BEOGRAD v. SLOVENIA

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)

On 4 December 1991 proceedings before the Ljubljana Court of Associated Labour were instituted against the applicant company by forty-seven of its former employees, following their dismissal from work.

By 28 June 1994 when the Convention came into force in respect of Slovenia, the court held one hearing.

A hearing was scheduled for 8 July 1998 but the Ljubljana Labour and Social Court was unable to serve the summons to the applicant company as the latter changed its address without informing the court. The court therefore ordered that all further court’s writings would be served on the applicant company by a publication on the court’s notice board.

On 30 June 1999 the Ljubljana Labour and Social Court held a hearing in the absence of the applicant company and issued its decision, deciding that the dismissal of the plaintiffs by the applicant company was illegal and ordering the applicant company to acknowledge their rights from the employment contract and to pay them outstanding salaries. The decision was served on the applicant company on 27 October 1999 through diplomatic channels. The applicant company appealed.

On 17 January 2001 the Higher Labour and Social Court upheld the first instance court’s decision in the part concerning the illegality of the dismissal, annulled the remainder of the decision and remitted the case back to the first instance court.

In the remitted proceedings the court’s writings were initially served on the applicant company. Later on, the applicant company authorized a Slovenian lawyer, M. J., to represent it in the proceedings.

On 17 December 2004 the first instance court held a hearing and decided to examine the claims of twenty-two of the plaintiffs separately from the remaining claims. On the same date it issued its decision on the claims of the remaining plaintiffs and upheld their claim concerning the payment of the outstanding salaries. The applicant company appealed.

On 15 March 2005 the Higher Court requested the applicant company’s representative to present his power of attorney.

On 31 May 2005 the plaintiffs filed a motion for interim order.

On 8 June 2005 the court made the interim order requested.

On 20 June 2005 the applicant lodged an objection against the interim order.

On 18 July 2005 the court dismissed the applicant’s objection. The applicant appealed.

On 14 October 2005 the Higher Labour and Social Court quashed the decision of 18 July 2005 and remitted the case back to the first instance court.

On 22 October 2005 the Ljubljana Labour and Social Court again dismissed the applicant’s objection against the interim order. The applicant appealed.

On 15 December 2005 the Higher Labour and Social Court upheld the applicant’s appeal, annulled the first-instance court’s decision of 8 June 2005 and dismissed the plaintiffs’ motion for an interim order.

On 9 November 2006 the Higher Labour and Social Court partially upheld the applicant company’s appeal against the decision of 17 December 2004 and modified the decision of the first instance court in the part concerning the payment of interest and dismissed the remainder of the appeal. The applicant company and the plaintiffs lodged an appeal on points of law.

On 6 February 2007 the applicant company was reminded by the court to pay the court fee for lodging an appeal on points of law.

On 28 February 2007 the applicant company was reminded by the court to pay the court fee for its reply to the appeal on points of law lodged by the plaintiffs.

On 25 February 2008 the Supreme Court dismissed both appeals on points of law and upheld the decision of the Higher Court. The applicant company lodged a constitutional appeal.

On 14 April 2008 the applicant company was again reminded to pay the outstanding court fees.

On 7 July 2008 the Constitutional Court dismissed the applicant company’s constitutional appeal. The decision was served on its representative on 20 August 2008.


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

The applicant was born in 1988 and lives in Zagreb.

In 1993 the applicant’s father, Ž.L., who was a war veteran, killed the applicant’s mother and her parents and then committed suicide.

In 1996 the applicant, represented by his grandmother, sought family disability benefit in connection with the suicide of his father, arguing that the suicide was a consequence of mental derangement caused by his participation in the war.

On 19 June 1996 his request was dismissed by the competent Zagreb Office of the Ministry of Defence (Ministarstvo obrane) in charge of war veterans’ affairs on the grounds that the war veteran status of his father had not been established. In July 1996 the applicant challenged that decision before the Ministry of Defence, which accepted his appeal and on 12 December 1997 quashed the first-instance decision and remitted the case for re-examination on the grounds that the nature of the applicant’s request had not been adequately established.

Following several procedural decisions of the Zagreb Municipality Office with responsibility for war veterans’ affairs (hereinafter: the “Zagreb Office”) and the Ministry in charge of war veterans’ affairs (Ministarstvo branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”), on 3 June 2004 the Administrative Court (Upravni sud Republike Hrvatske) ordered the Zagreb Office and the Ministry to examine the applicant’s request for family disability benefit on the merits, which the applicant should have a possibility to challenge if he was not be satisfied with the outcome.

On 8 November 2005 the Zagreb Office dismissed the applicant’s request on the grounds that nothing from the materials available in the case file suggested that the death of his father was a result of his participation in the war.

The applicant challenged this decision before the Ministry, and on 15 January 2006 the Ministry found that the facts of the case connecting the suicide of the applicant’s father to his participation in the war had never been clearly established. It thus ordered the Zagreb Office to clarify the matter by commissioning an expert report from the competent medical institution and to obtain the relevant witness statements concerning the applicant’s father’s wartime service.

On the basis of the Ministry’s instructions, the Zagreb Office commissioned an expert report concerning the question whether the suicide of the applicant’s father was related to his participation in the war from the Psychiatric Clinic of the Clinical Hospital Dubrava, Reference Centre of the Ministry of Health and Social Care for Stress-Induced Disorders, Regional Centre for Psychotrauma in Zagreb (Klinička bolnica Dubrava, Klinika za psihijatriju, Referentni centar Ministarstva zdravstva i socijalne skrbi za poremećaje uzrokovane stresom, Regionalni centar za psihotraumu Zagreb; hereinafter: the “Centre”), a public health care institution authorised by law to give expert opinions on matters related to war veterans’ psychiatric disorders (see paragraph 28 below). It also questioned two witnesses concerning the applicant’s father’s wartime service.

In an expert report dated 10 June 2007 addressed to the Zagreb Office, the Centre concluded, on the basis of the available medical reports and the statements of witnesses, that the applicant’s father had not developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war and that his suicide could not be attributed to his wartime service. This expert report was not forwarded to the applicant.

On 26 September 2007 the Zagreb Office dismissed the applicant’s request for the family disability benefit referring to the Centre’s expert report, which had not established any link between his father’s suicide and his participation in the war.

The applicant challenged the above decision before the Ministry, seeking remittal of the case to the Zagreb Office for further examination. He alleged that the Centre’s report was superficial, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father. The applicant also considered the report to be illogical, given that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide, which made it difficult to accept that he had not developed some mental condition. The applicant further contended that another expert report should be commissioned from one of the permanent court experts in psychiatry, since the report produced by the Centre raised the issue of its independence. He also stressed that any expert opinion on the matter should necessarily be forwarded to him for comments before the adoption of a decision.

On 2 April 2008 the Ministry dismissed the applicant’s appeal on the grounds that the Centre’s report was conclusive that the suicide of his father had not been related to his participation in the war.

The applicant lodged an administrative action in the Administrative Court against the above decision, asking the Administrative Court to decide the case on the merits instead of remitting it to the administrative bodies. He pointed out that the proceedings had already lasted excessively long and that the administrative bodies had failed to comply effectively with the previous instructions of the Administrative Court. He therefore considered that the Administrative Court should itself decide the case on the merits, as provided under section 63 of the Administrative Disputes Act (see paragraph 25 below). The applicant also contended that, if the Administrative Court did not decide the case on the merits, it should quash the Ministry’s decision and remit the case for re-examination.

In his administrative action the applicant in particular pointed out that the Ministry had failed to reply to the specific arguments set out in his appeal against the first-instance decision of the Zagreb Office and had merely reiterated the findings of the first-instance decision. He also reiterated his appeal arguments that the Centre’s expert report was superficial and illogical, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father, and that it had failed to take into account that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide. In these circumstances, the applicant stressed that under section 191 of the Administrative Disputes Act another expert report ought to be commissioned from the permanent court experts in psychiatry.

On 4 December 2008 the Administrative Court dismissed the applicant’s action as ill-founded. In particular, it stressed:

“During the proceedings an expert report was commissioned, under section 123 § 1 (8) of the [Veterans Act], from the [Centre] and the report was produced on 10 June 2007. The report concluded that based on the relevant documents from the case file it did not find that Ž.L. had developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war ...

Having these facts in mind, this court is of the opinion that the defendant acted lawfully when dismissing the appellant’s appeal against the first-instance decision ... It should also be noted that this court already held that the formation of an expert team [competent to determine] a possible link [between death and participation in the war], which [provides for] a decisive evidence within the meaning of section 123 § 1 (8) of the [Veterans Act], is a precondition for any further proceedings concerning the status of the family member of a deceased war veteran.

The defendant therefore correctly dismissed the appeal against the first-instance decision and thereby it did not act contrary to the relevant law. This court did not find it necessary to act under section 63 of the Administrative Disputes Act given that, as already noted above, the administrative body complied with the instruction from the judgement no. Us-2377/00 [see paragraph 9 above] concerning the appellant’s request for family disability benefit, which is the subject matter of the proceedings at issue. Although the defendant did not expressly reply to the appeal arguments concerning the necessity to request a report with regard to [Ž.L.’s] act of triple murder, [the court finds] that it could not be a decisive factor for a decision in the proceedings at hand. This is because such a criminal act cannot be a basis for the establishment of a link between the death of the war veteran and his participation in [the war]...”

On 18 February 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that his right to a fair trial in the proceedings had been violated. He contended in particular that the administrative bodies and the Administrative Court had ignored his request for an expert report to be commissioned from the permanent court experts and that he had been offered neither the possibility of participating in the choice of experts nor the opportunity to take cognisance of and comment on the expert opinion before the adoption of a decision during the proceedings.

On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded, noting that:

“In his constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...”

The decision of the Constitutional Court was served on the applicant’s representative on 14 June 2010.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1948, and at the time of lodging the application lived in Milton, Ontario, Canada.

Malta has gone through various legislative regimes in order to regulate its housing situation. The first regime came about in 1931 and protected tenants from the termination of their leases. This was followed by the 1944 Rent Restriction (Dwelling Houses) Ordinance which, apart from regulating termination of the lease of dwelling houses, also controlled rents and the initial conditions of contracts. The Housing Act was then enacted in 1949, with the aim of providing a solution to homelessness caused by the Second World War. In 1959 the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (hereinafter “the HD Ordinance”) was enacted, which provided incentives to encourage landlords to rent their property, and created a special class of dwelling houses free from rent control.

The applicant owns a property in Gozo (a maisonette measuring 105 square metres) which he inherited from his parents, his mother having passed away in 1984.

On 12 January 1960 the property was registered as a “decontrolled dwelling house” in accordance with Article 3 of the HD Ordinance. At the time, Article 5 (1) of the HD Ordinance provided that the provisions of the “Rent Ordinances” (the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta and the Rent Restriction (Dwelling Houses) Ordinance, Chapter 116 of the Laws of Malta) were not applicable to dwelling houses decontrolled in accordance with Article 3 of the HD Ordinance.

In 1970 the applicant’s mother leased the premises to couple C., who are Maltese citizens (born in 1943 and 1950 respectively), for a rent of 35 Maltese Liri (MTL) (approximately 81.50 euros (EUR)) every six months, which was later decreased to the equivalent of EUR 75.70 every six months. At the time, the law permitted her to increase the rent, to refuse to renew the lease or to change its terms on renewal.

In 1979 the Maltese parliament enacted an amendment to the HD Ordinance, which provided that the rent restrictions set out in the Rent Ordinances would apply where tenants were Maltese citizens and occupied houses as ordinary residences. It further provided that landlords could not refuse to renew leases, raise their rent, or impose new conditions on renewal, except as provided for by law (see “Relevant domestic law” below). The applicant submitted that the contractual freedom of parties was greatly restricted as a result of the new provisions, in that his family could not charge a fair rent or recover possession of their property, despite the fact that his tenants owned substantial immovable property.

By a decision of the Rent Regulation Board (RRB) of 7 July 1998, the rent was further reduced to EUR 65.22 per year. The applicant did not appeal.

In 1995 new laws were enacted in respect of new leases which could again be free from rent control. They did not apply to the applicant’s case.

In 2009 and 2010 new concepts and provisions were introduced, aimed at gradually eliminating the restrictive regimes applicable to leases entered into before 1995.

Thus, while a rent of EUR 65.22 per year had been paid to the applicant since September 1998, a rent of EUR 185 had been paid from September 2010 onwards in view of the above-mentioned amendments. However, the applicant refused to accept any rent as from 2007 and it was duly deposited in court by the tenants by means of a schedule of deposit.

According to a court-appointed architect’s evaluation made in the context of constitutional proceedings instituted in 2005 (see paragraph 17 below), the property at that time had a rental value of EUR 2,912 per year. According to an architect’s report commissioned by the Government, the rental market value in 2013 was EUR 2,900 per year, and the sale value EUR 58,000.

To date, couple C still reside in the applicant’s property. It does not at present appear that they have any children formally residing with them.

In 2005 the applicant instituted constitutional redress proceedings complaining, inter alia, that the 1979 amendments (in particular Article 5 (2) and (3) of the HD Ordinance, which prohibited landlords from refusing to renew existing leases or from raising their rent) had breached his property rights under Article 1 of Protocol No. 1 to the Convention.

On 4 June 2008 the Civil Court (First Hall) in its constitutional jurisdiction rejected his complaint. Basing its judgment on domestic case-law relating to the same subject matter, it considered that he remained the owner of the property at issue, which was being used as a dwelling house, that he could still evict the tenants if they failed to fulfil their obligations under the lease, and that although the amount of rent was low, the law provided for an increase in rent every fifteen years, amounting to double the actual rent. The interference with his rights was therefore proportionate given the needs of society. Moreover, his mother had not been forced to lease out the property.

The applicant appealed on 25 June 2008.

On 3 November 2008 the Constitutional Court dismissed his appeal as being lodged out of time, the statutory time-limit having expired on 16 June 2008.

On 29 April 2009 he lodged an application with the Court, relying on Article 1 of Protocol No. 1 to the Convention.

By a decision of 10 November 2009 the Court, sitting as a Committee of three judges, declared the applicant’s application inadmissible. It found that he had lodged his appeal with the Constitutional Court out of time. The domestic remedies had therefore not been exhausted as required by Article 35 § 1 of the Convention.

In 2010 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments, which prohibited landlords from refusing to renew existing leases or from raising their rent when the tenant was a Maltese citizen, had breached his property rights under Article 1 of Protocol No. 1 to the Convention. He submitted that the amendments introduced in 2009 had not improved his situation, even assuming they (in particular Article 1531C of the Civil Code) applied to the case in question, a matter which was unclear in the domestic context. With a new rent of EUR 185 per year (see Relevant domestic law below), he remained a victim of the alleged violation, not least because he was also prevented from refusing to renew the lease. He cited the then recent case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009), in which the Court had found a violation in analogous circumstances.

By a decree of 30 April 2010 the Civil Court (First Hall) in its constitutional jurisdiction ruled that the defendant in the case should be the Attorney General of Malta, not the State of Malta as purported by the applicant.

On 15 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction, upholding the objection raised by the third party who joined in the suit (kjamat fil-kawża), rejected the applicant’s complaint on the basis that the matter had already become res judicata by virtue of the decision of 4 June 2008 (see paragraph 18 above). It noted that such a conclusion required three elements, namely the same parties (eaedem personae), the same object (eadem res) and the same cause of action (eadem causa petendi). Moreover, where the arguments raised were different, it had to be seen whether they could have been raised at the time of the principal judgment. In the present case, it considered that there had been no doubt that the requirement of eaedem personae had been met, despite the fact that the applicant had attempted to bring the present proceedings against the State and that the other proceedings had been against the Attorney General, as it was clear that the defendant in both cases was the Maltese Government. The element of eadem res had also been satisfied in so far as the present case concerned the same lease of the same property, with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round. Similarly, the element of eadem causa petendi had also been satisfied, since the applicant’s applications to the court were to a great extent the same, if not identical, despite the fact that he had made further arguments and submitted that his situation had remained unchanged notwithstanding the 2009 amendments to the Civil Code. The court considered that the changes to the application had not changed the nature of the action, namely a claim that the restrictions on the rent imposed by the law had been disproportionate. This matter had already been dealt with by the court in the first set of proceedings (no. 49/05), where it had decided that a fair balance had been struck by the authorities; it was not therefore open to the applicant to relitigate the matter. The court further held that even though the applicant had argued that despite the 2009 amendments (if they applied at all) he had remained a victim of the alleged violation, there was already a judgment in his respect stating that the law in so far as it applied to his case had not breached his rights, and the more recent amendments had not worsened his situation. Thus, the Civil Court (First Hall) held that there could not have been a breach of his rights even under the new law. Lastly, it concluded that any new arguments put forward by him should have been incorporated into the first set of proceedings. As to the Court’s recent case-law, it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case.

By a judgment of 24 June 2011 the Constitutional Court upheld the first-instance judgment, considering the appeal to be frivolous and vexatious.


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months.

On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. (ten years old) and Z.F.D. (fourteen years old) to fetch some drinking water at a neighbour’s house. On their way, three boys, M.I.C. (fifteen years old), M.S. (fifteen years old) and M.C.S. (sixteen years old), approached the girls. M.I.C. pulled the applicant’s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M.C. (twenty-two years old), was waiting.

The three boys left and M.C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. (twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. (thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant’s father came looking for her and she told him that she had been raped. He immediately alerted the police.

The applicant underwent a forensic examination by a doctor on 14 January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant’s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination.

On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007.

On 5 March 2007 an additional forensic medical report was issued at the request of the applicant’s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant’s condition had required fourteen days of medical care. No signs of pregnancy had been detected.

On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May.

In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September.

On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found.

Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held.

On 15 January 2007 A.C.L., V.F. and M.C.S. gave statements to the police.

A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby.

M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant’s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road.

In his statement, V.F. claimed that he had been at the wake when the applicant’s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake.

On 17 January 2007 the applicant’s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them.

The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age.

M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant’s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts.

M.I.C. was questioned again on 22 January 2007, when he reconsidered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily.

On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time.

On 2 March 2007 the case was transmitted to the prosecutor’s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor.

On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape.

M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results.

On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant’s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C.’s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant.

The Beiuş District Court scheduled a first hearing in the case on 15 June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8-11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants.

M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes.

A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark:

“... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.”

On 31 August and 28 September 2007 the court heard statements from the applicant’s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a wellbehaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused.

In his testimony M.I.C. also stated as follows:

“The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake: you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her.”

On 12 October 2007 the Beiuş District Court convicted M.C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year.

In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim’s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant’s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant’s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident.

All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages.

On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years’ imprisonment for M.C. and eighteen months’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON) (approximately 600 euros (EUR)) in respect of non-pecuniary damage. In reply to the applicant’s reasons for appeal, the court reasoned:

“It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ...

It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of posttraumatic injury on her body.”

An appeal on points of law (recurs) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim’s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case.


CASE OF KAHADAWA ARACHCHIGE AND OTHERS v. CYPRUS

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

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

The applicants were born in 1974, 1978 and 1980 respectively. They all live in Sri Lanka. The first applicant lives in Colombo, the second applicant in Kochchikade, and the third applicant in Pannipitiya.

The applicants all went to Cyprus for employment purposes.

The first applicant arrived in Cyprus on 20 April 2001 in order to take up employment as a domestic worker. He was granted a temporary residence permit, initially until 20 April 2005. This was renewed until 10 May 2011.

During the above period the applicant left Cyprus twice to go back to Sri Lanka: on 12 November 2001 and in January 2004. The first time, he stayed in his home country for about eleven months, and the second time, he stayed for just over a month. On 21 February 2004, during his second visit home, he married a Sri Lankan national.

His wife joined him in Cyprus on 16 September 2004, in order to work as a housemaid. She was granted a temporary residence permit until 16 September 2008.

On 13 December 2007 their daughter was born.

On 17 September 2008 the first applicant’s wife abandoned her work and her place of residence. Her whereabouts at the time were not known to the authorities. She had not applied for the renewal or extension of her temporary residence permit, which had expired the day before.

On 10 December 2008 all competent authorities were given orders by the Police Aliens and Immigration Unit to trace the first applicant’s wife.

On 30 November 2010 a lawyer acting on behalf of the first applicant’s wife wrote to the Minister of the Interior requesting a visitor’s residence permit for her based on humanitarian grounds, a permit of the same duration as that held by her husband. The lawyer noted that the couple had a young daughter, that both the wife and the daughter were supported by the first applicant, and that she could not return to Sri Lanka without him, as she did not have family there with whom she and her daughter could stay. She also needed time to obtain travel documents for their daughter. The lawyer informed the authorities that the couple’s intention was that the whole family would return to Sri Lanka upon the expiry of the first applicant’s temporary residence permit.

The second applicant arrived in Cyprus on 5 February 2010 and was granted a temporary residence permit until 4 May 2010. This was renewed until 19 October 2011.

The third applicant arrived in Cyprus on 4 March 2002. He was granted a temporary residence permit until 3 May 2002. This was renewed until 12 February 2009. Following the expiry of his permit, he remained in Cyprus on an irregular basis. The third applicant submitted that he had applied for a renewal of his permit.

The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. It also stated that it was final and non-renewable.

According to the first and second applicants, on 6 January 2011, while in the first applicant’s car, they passed through the Ayios Dometios district of Nicosia and saw a group of Sri Lankans. They got out of the car and saw people holding swords and iron rods. Fearing for their lives, they abandoned the car and ran in different directions. The second applicant was injured during the clashes: his index finger was cut off and his middle finger injured. After the clashes, the first applicant took the second applicant to the Nicosia General Hospital, where the latter underwent surgery. According to the second applicant, the police came to the hospital and arrested him. He remained in the hospital after the operation, and on 9 January 2011 he was taken to Lakatamia police station, where he was detained. According to the first applicant, on the morning of 7 January 2011 six people who had taken part in the clash attacked his residence and threatened to kill him if he went to the police. However, half an hour later, when he went to the police station to report the incident, he was arrested and detained on suspicion of being involved in the clashes.

According to the third applicant, he was also passing by that area with his car and stopped to see what was going on, but, fearing for his life, he ran away and left his car behind. He informed his employer and the latter informed the police about the clash. The police asked the third applicant to come to the police station to make a statement and take his car back. On 7 January 2011 the third applicant went to Lakatamia police station and was arrested and detained on suspicion of being involved in the clashes.

On the evening of 6 January 2011 the police received information that about twenty aliens carrying offensive weapons (swords, clubs and Molotov cocktails) were in the Ayios Dometios district of Nicosia. The police immediately went to the site and discovered that a number of aliens had attempted to set fire to a house there by throwing Molotov cocktails at it. The police carried out an investigation into the events. They examined and collected evidence found in the area (including the first and third applicants’ cars). They reached the conclusion that the applicants, along with six other individuals from Sri Lanka, were likely to have been involved in the clash. A number of suspects, including the second applicant, had sustained injuries which had been treated at Nicosia General Hospital.

On 7 January 2011 the police arrested all nine Sri Lankans, including the applicants, on the basis of arrest warrants issued on the same day by the Nicosia District Court under section 18 of the Criminal Procedure Law (Cap. 155) and Article 11(3) of the Constitution, on reasonable suspicion that they had taken part in a fight in a public place, contrary to section 89 of the Criminal Code (Cap. 154).

On 8 January 2011 the Nicosia District Court convened at Nicosia General Hospital. The applicants were remanded in custody for six days under section 24 of the Criminal Procedure Law and Article 11(5) and (6) of the Constitution, to enable the investigation into the commission of various criminal offences to be concluded. The offences included: intending to inflict grievous bodily harm, unlawful wounding, an unlawful attempt to set fire to a building, and taking part in a fight in a public place (sections 228, 315 and 89 of the Criminal Code). The first applicant was detained in Paphos Gate police station in Nicosia, and the second and third applicants in Lakatamia police station.

On 13 January 2011 the police investigation file, which included written statements by the applicants concerning the incident, was transmitted to the Attorney General. The Nicosia Crime Investigation Department informed the Attorney General that that there was sufficient evidence against all the nine individuals arrested, including the applicants, in relation to the offence of taking part in a fight in a public place contrary to section 89 of the Criminal Code, but not as regards the remaining offences, which were more serious. The third applicant had also committed the offence of staying in Cyprus unlawfully, as his temporary resident permit had expired on 12 February 2009. At the suggestion of the police, the Attorney General decided not to prosecute the applicants, but to deport them instead.

On 14 January 2011 the residence permits of the first and second applicants were revoked by the Director of the Civil Registry and Migration Department under section 6 of the Aliens and Immigration Law (Cap. 105), on the grounds that their conduct had posed a danger to the public order of the Republic. Deportation and detention orders were issued against the applicants on the same day: under section 6(1)(g) of the above Law in respect of the first and the second applicants, on the grounds of public order, and under section 6(1)(k) in respect of the third applicant, on the grounds of unlawful stay.

On the same day three letters were prepared by the Minister of the Interior informing the applicants of the decision to detain and deport them. The letters stated that the applicants were illegal immigrants: the first and second applicants under section 6(1)(g) of the Aliens and Immigration Law, because their “conduct had been considered dangerous for reasons of public order”, and the third applicant by virtue of section 6(1)(k), on the grounds of “illegal stay”. Consequently, their temporary resident permits had been revoked and deportation and detention orders had been issued against them.

Consequently, on 14 January 2011, upon the expiry of the remand warrant, the applicants were released but re-arrested at once on the basis of the deportation and detention orders that had been issued against them. The Government submitted that, in accordance with standard police practice, the applicants would have been informed orally of the decision not to prosecute them and the decision to deport them. Although the Government did not have evidence as to the exact date on which the applicants were notified of the letters of 14 January 2011 or the exact manner in which they were notified, this happened sometime between 14 and 18 January 2011.

On 18 January 2011 a Cypriot lawyer acting on behalf of the applicants sent two letters by fax to the Minister of the Interior, referring to the letters of 14 January 2011 sent to the applicants. He objected to the deportation of the first and second applicants; he also requested a review of the decision taken with regard to the third applicant. The lawyer requested a meeting to discuss the matter with the above-mentioned Minister.

The Government submitted that the applicants’ case had then been reviewed by the Minister of the Interior, who had noted their lawyer’s objection, read the administrative file and maintained the decision to deport the applicants.

Although the first applicant called his wife several times during his detention, she did not come to visit him at the police station.

The first and third applicants were deported on 19 January 2011 and the second applicant was deported on 21 January 2011.

There were signed notes by a police officer on the copies of the letters of 14 January 2011 stating that the letters had also been served on the applicants on the day they were deported.

The applicants were included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring).

The documents submitted by the Government indicate that the first applicant’s wife continued to stay in Cyprus illegally following her husband’s deportation. On 3 December 2012 she lodged an asylum application, which was dismissed on 31 January 2013. She left Cyprus for Sri Lanka on 5 July 2013 and she was included on the authorities’ “stop list” (see paragraph 34 above). She returned to Cyprus that same month with a new passport with different identity details, and was granted a residence and employment permit until 15 November 2016. However, the authorities realised that she was the same person and arrested her on 10 September 2014 with a view to her deportation. No further details have been given by the Government in this respect.


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

The applicants lived in a dormitory in Lipetsk, Russia. The dormitory was mainly inhabited by the students and the staff of the Lipetsk Metallurgy College (“the College”).

In 2000 the joint-stock company “NLMK” (“the Company”) registered its title over that dormitory as a result of privatisation.

The applicants brought a case against the Company seeking to obtain a title to the rooms they lived in. They argued in particular that the privatisation of the dormitory had taken place in violation of the legislation and that the Company could not be declared as a sole owner of the property. The Lipetsk Metallurgy College was also involved into the case as a third party.

On 19 April 2010 the Oktyabrskiy District Court of Lipetsk found for the applicants and granted their claims. The District Court found that the dormitory was transferred to the Company in breach of domestic law.

On 2 June 2010 the appeal court upheld the judgment and it became final.

In August 2010 the applicants registered their title to the dormitory rooms and subsequently sold them to third parties.

On 12 April 2011 the Company lodged a request with the Oktyabrskiy District Court of Lipetsk seeking to reopen the proceedings on the grounds of newly discovered circumstances. It relied on the order of the College’s director and a lease agreement concluded in 2008 between the Company and the College in respect of the dormitory. The Company further argued that it had not been aware of those documents since they were possessed by the College.

On 12 May 2011 the Oktyabrskiy District Court of Lipetsk quashed the judgment of 19 April 2010. The court found in particular that the documents presented by the Company might have had significant impact on the outcome of the case and thus they constituted “newly discovered circumstances”.

On 31 August 2011 as a result of the fresh consideration of the case the Oktyabrskiy District Court of Lipetsk rejected the applicants’ claims and ordered reversal of execution of the judgment of 19 April 2010. This judgment was upheld on 26 October 2011 by the Lipetsk Regional Court.


Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr Raja Arlewin, is a Swedish national, who was born in 1970 and lives in Stockholm. He was represented before the Court by Mr K. Lewis and Mr J. Södergren, two lawyers practising in Stockholm.

In April 2004 TV3, a major commercial television channel, broadcast a television programme in which the applicant appeared in pictures and was mentioned by name. He was singled out as the central figure of organised crime within media and advertising and as being guilty of several fraud offences and other economic offences. The programme was rebroadcast a few days later as well as in September 2004. At this time, no preliminary investigation had been initiated against the applicant.

In July 2006 the applicant was indicted for aggravated fraud (grovt bedrägeri), an aggravated tax offence (grovt skattebrott), an aggravated bookkeeping offence (bokföringsbrott, grovt brott), a bookkeeping offence (bokföringsbrott), obstruction of tax control (försvårande av skattekontroll) and violations of the Swedish Companies Act (brott mot aktiebolagslagen). According to the indictment, the offences had been committed within 15 named companies, for which the applicant allegedly had been the actual representative (faktisk ställföreträdare). The prosecutor relied on extensive written evidence and requested that over twenty witnesses be heard and a recording of the abovementioned television programme be shown during the trial.

The applicant protested his innocence and submitted that he had been neither the formal nor the actual representative of the relevant companies. Thus he had had no right to decide over the companies, nor had he been responsible for their bookkeeping or reporting their turnover to the tax authority. He had done some consultancy for the companies and assisted with some administrative tasks. However, he had not financed the companies and could not be considered as their principal.

The applicant further requested the District Court (tingsrätten) in Stockholm to dismiss the use of the television programme as evidence. He argued, inter alia, that it violated his rights under Article 6 of the Convention as it was a strongly edited journalistic product aimed at creating sensational television and which amounted to defamation of him. Thus it would have a strong negative effect on the objectivity of the court. Moreover, since a number of persons in the programme were anonymous, they were unknown both to the defence and the court and the applicant would not be able to cross-examine them as witnesses.

On 3 February 2009 the District Court rejected the request. This decision could only be appealed against together with the court’s final judgment.

On 20 March 2009 the District Court convicted the applicant of aggravated fraud and sentenced him to five years’ imprisonment. He was acquitted of the other offences. The court held an oral hearing where the above-mentioned television programme was presented by the prosecutor during the opening procedures and relied on as evidence. At the request of one or both of the parties, 25 witnesses were heard, and the applicant was also heard. Moreover, substantial written evidence was invoked by both parties. The court, in a judgment comprising 69 pages, found it proved beyond reasonable doubt that the principal activity concerned by the indictment was fraudulent advertising sales in a number of companies, causing loss for the customers and gain for the companies. While it considered it a flaw that none of the customers had been heard in the case, it still found it established on the basis of other evidence that the customers had suffered the losses claimed by the prosecutor.

The court further found it proved that the applicant had been the actual representative of the companies and thus responsible for the fraudulent activities. He had been active in all of the companies and the driving force behind them and large amounts of money had been transferred from the companies to his personal company. Moreover, the court noted that none of the formal representatives of the companies had any corporate experience or knowledge of organising and running an advertising sales company. Some of them had extensive criminal records. The court also had regard to the fact that several of the companies shared office space, employees moved between the companies and the applicant had kept detailed information relating to, inter alia, taxes, yearly results, bookkeeping, billing and contacts with banks and authorities for all of the companies in his personal computer.

The television programme was mentioned in the District Court’s judgment under the heading “Statement of facts” (Sakframställningar) where it was simply noted that the television programme had been broadcast for the first time during the spring of 2004 and that the case against the applicant had been initiated by the Swedish Economic Crime Authority (Ekobrottsmyndigheten) in January or February 2006, more than one year and six months after the broadcast. The court did not mention the television programme in its reasoning.

Both the applicant and the prosecutor appealed against the judgment. The applicant also appealed against the decision to allow the television programme as evidence.

On 28 October 2009 the Svea Court of Appeal (hovrätten) rejected the applicant’s appeal in relation to the television programme as it found no reason to dismiss it as evidence. This decision could only be appealed against in connection with the Court of Appeal’s final judgment.

On 23 February 2010 the Court of Appeal, after having held an oral hearing, upheld the lower court’s conviction but also found the applicant guilty of an aggravated bookkeeping offence and an aggravated tax offence. The sentence was upheld. In addition to the witnesses heard before the District Court, whose testimonies were played to the court, supplementary questions were put to the applicant and eight new witnesses were heard on the applicant’s request. Substantial written evidence was also presented to the appellate court. As regards the television programme, it was stated in the judgment that it had been presented to the court. It was not mentioned by the Court of Appeal in its reasoning.

The Court of Appeal, like the lower court, found it proved beyond reasonable doubt that the applicant had been the actual representative of the companies. In addition to the findings of the District Court, the appellate court noted in particular that the applicant had explained his involvement and the large amount of money received from the companies as fees for consulting, with focus on training the sellers in the various companies. However, the court observed that this was not supported by the witness statements and, moreover, the applicant had not been able to give a credible account of the training he alleged to have provided. His explanations had been vague and diffuse and he had no documented qualifications as a trainer. Moreover, before the District Court, he had claimed not to have signed any contracts with the companies and when confronted by the prosecutor before the appellate court with such contracts, signed by him, he claimed not to have any memory of having signed them. That the applicant would have forgot such important acts were not plausible to the court and affected his credibility negatively. The contracts also revealed the applicant’s ability to control the companies. The Court of Appeal further noted that the companies had been inter-connected in various ways, even sharing offices and employees, which was remarkable considering that they were supposedly competitors in the same market. In view of this, the Court of Appeal fully agreed with the lower court’s reasoning and conclusion concerning the aggravated fraud and also found that he had committed an aggravated bookkeeping offence and an aggravated tax offence.

The applicant appealed to the Supreme Court (Högsta domstolen) against the judgment as well as the decision not to dismiss the television programme as evidence. He claimed, inter alia, that it was in violation of his right to fair trial under the Convention to allow the television programme as evidence

On 4 October 2010, the Supreme Court refused leave to appeal.

In the meantime, in October 2006, the applicant initiated defamation proceedings against the anchor man of the television programme. These proceedings were terminated in 2009 and an application regarding this matter, under Articles 6, 8 and 13 of the Convention, was lodged with the Court on 18 March 2010 (application no. 22302/10).

Chapter 35, section 1 of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows:

“After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case.

As to the effect of certain kinds of evidence, the specific provisions thereon shall govern.”

This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely.

Moreover, according to Chapter 35, section 7 of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it evidently would be of no effect.


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

The applicants, Mr Dumitru Spinu and Mr Sergiu Spinu, are Moldovan nationals, who were born in 1943 and 1974 respectively and live in Peticeni. They were represented before the Court by Mr V. Tarnovschi, a lawyer practising in Chisinau.

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

The applicants are the husband and the son of the late Varvara Spinu. On the evening of 21 May 2008, at approximately 10 p.m., the first applicant and Varvara Spinu were returning home when Varvara Spinu fell into a trench located on the public road. The next morning Varvara Spinu was taken to a hospital and diagnosed, inter alia, with a fracture of her spine. On 11 June 2008 she succumbed to the injuries and died.

On 13 June 2008 the local police office initiated an investigation into Varvara Spinu’s death and found that the trench located on the public road in front of the applicant’s house had been dug by a contractor of a mobile telephony company for the purpose of instalment of optical cables. The trench was not marked and/or secured in any way.

On 13 February 2009 the Călăraşi Prosecutor’s Office decided not to initiate criminal proceedings in respect of the death of Varvara SpinuCălăraşi District Court dismissed the applicant’s appeal while finding that the investigation carried out by the Prosecutor’s Office had been effective and complete. The decision of the Călăraşi District Court was handed to the applicant on 15 June 2009.

The parties did not inform the Court about any other proceedings in the case.