András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants, Ms Elena Haută, Ms Veronica Dima and Ms Aurelia Florea, are all Romanian nationals, born in 1930, 1924 and 1935 respectively and live in Huşi, Şişcani and Vuţcani, respectively.

The applicants were initially represented before the Court by Mr J. Crudu, a lawyer practising in Vaslui. The first and the third applicants are currently represented by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) are represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

On 11 March 1999 the applicants’ mother, Z.D., lodged with the administrative authorities a request under Law no. 9/1998, seeking to be compensated for a plot of land, a house and a yard she and her husband G.D., now deceased, had owned together before 1940 in Bazarghean, Durostor District. In her appended statement, given before a public notary on 19 July 1999, Z.D. confirmed that she had never received any compensation for the respective property.

On 27 January 2000 the Vaslui County Commission for Implementing Law 9/1998 allowed the request and granted the claimant 529 million lei (ROL) (approximately 29,000 euros (EUR) at the time) in compensation.

On 7 June 2002 this decision was overturned by the Central Commission, the national authority in charge of the implementation of Law no. 9/1998, which held that the calculation of the total amount needed to be done again, given that the disputed plot of land was actually located on the outskirts and not in the central area, while the disputed house had been built with adobe and not with bricks. The decision stipulated that:

“In view of the advanced age of the person entitled [to compensation] the decision must urgently be redrafted and the three children of the deceased father, G.D., should be included therein.”

Z.D. contested this decision, claiming that the calculation made by the County Commission was correct; however, in the judgment of 13 January 2003, the Vaslui Court of First Instance upheld the decision given by the Central Commission.

Z.D. appealed. Her appeal was dismissed as out of time by the Iaşi Court of Appeal on 31 March 2003. A further appeal lodged with the same court was dismissed as inadmissible on 20 October 2003.

On the same day Z.D. died.

The applicants, Z.D.’s heirs, have lodged several requests with various state authorities (including the President, the Ombudsman, and the Prefect of Vaslui), asking for a decision to be taken in their case.

An expert report issued on 19 October 2005 at the request of the Vaslui County Commission proposed that an amount of 23,891.62 RON be given for the impugned land. The report mentioned that according to a certificate issued by the Huşi Mayor Office, Z.D. had never requested or received compensation in accordance with the Romanian legislation on land restitution. A similar expert report issued on 15 October 2005 evaluated the impugned house and appurtenant land to 145,533.01 RON.

Consequently, on 1 November 2005 the Vaslui County Commission issued another decision on Z.D.’s name, granting her compensation in the amount of 169,424 Romanian lei (RON) (approximately EUR 47,000 at the time).

On 14 July 2006 the National Authority for Property Restitution (hereinafter “the National Authority”), the authority which had replaced and taken over the responsibilities of the Central Commission, replied to one of the applicants’ letters. The National Authority informed them that their file was pending before it, and that generally every file was assessed on the basis of on documents such as civil status certificates, other certificates attesting whether any compensation had already been granted, expert reports, and so on.

On 15 November 2006 the Prime Minister’s Head of Chancellery issued an order which invalidated the decision of 1 November 2004, given that the claimant needed to submit further documents concerning the civil status of G.D.’s heirs and attesting to whether any other compensation had been received by any of the heirs, in accordance with the Romanian legislation on land restitution. The Chancellery sent the file back to the Prefect of Vaslui County for further examination, while holding that:

“compensation should be granted to the claimant for 10 ha of land, house and yard of 4000 sq. m.; for the rest of the yard [the claimant] should be granted equivalent agricultural land”.

On 15 January 2007 the Prefect of Vaslui addressed a letter to Z.D., informing her that she needed to submit the documents referred to in the decision of 15 November 2006.

No other decision has yet been taken on the claims lodged by Z.D. under Law no. 9/1998.

Law no. 9/1998 came into force on 14 March 1998 and was amended in 2004 and 2007; it established a compensatory mechanism for Romanian citizens whose immovable properties were confiscated without due compensation under the Treaty of Craiova, signed by Romania and Bulgaria on 7 September 1940 (see paragraph 35 below).

The mechanism referred essentially to pecuniary compensation or to the right to shares in State-run companies. The deadline for filing such claims was set in Article 4 § 1 at eighteen months from the entry into force of the law. This deadline was subsequently extended by Law no. 97/2005, for a period of twelve more months starting with the entry into force of the law on 21 April 2005 and then by Law no. 348/2006, for a period of eighteen more months, starting from the entry into force of the law on 28 July 2006.

The bodies in charge of implementing the said Law were the County Commissions established within each county (including Bucharest) under the authority of the Prefect, and the Central Commission for Implementing Law no. 9/1998.

Under Article 7 § 1, the County Commissions had responsibility for assessing and dealing with requests for compensation within a maximum of six months following the date of registration. The decisions of the County Commissions were communicated to the claimants and the Central Commission, and they could be challenged by the claimants before the Central Commission within fifteen days. The latter then had to ratify or reject such decisions within sixty days.

In their turn, the decisions adopted by the Central Commission could be challenged before the domestic courts.

From 18 October 2004, when Government Decision no. 1643/2004 came into force, the responsibilities of the Central Commission were taken over by the Department for the Application of Law no. 9/1998, functioning within the Prime Minister’s Chancellery. The Department forwarded the ratification decisions adopted by the County Commissions for the approval of the Prime Minister’s Head of Chancellery. The Department was further entitled to make a proposal for adjustment of the compensation at the time of the ratification decision, in accordance with Law no. 9/1998.

These responsibilities were taken over by the National Authority with effect from the entry into force of Government Decision no. 361/2005, namely on 29 April 2005; this act was modified by Government Decision no. 240/2006 on 27 February 2006.

Adopted on 14 March 2014, EGO no. 10/2014 suspended for a period of six months the issue by the competent authorities of any decision on claims lodged under Law no. 9/1998 and Law no. 290/2003. The ordinance further suspended for the same period the voluntary payment of compensation already granted under Law no. 9/1998, Law no. 290/2003, and Law no. 393/2006.

Law no. 164/2014 concerning measures for the acceleration and finalisation of the process of resolving compensation claims lodged under Law no. 9/1998 and Law no. 290/2003 entered into force on 18 December 2014.

Article 2 states that the only compensatory measure possible was pecuniary compensation.

Article 3 defines the applicability of the law to all claims lodged in due time with the County Commissions and in respect of which no decision has been issued, or in respect of which a decision granting compensation has been issued but no payment has been made, as well as to those claims lodged under Law no. 9/1998 or Law no. 290/2003 that are currently pending before the domestic courts.

The law authorises the transfer of all powers of the Central Commission to the National Authority, who shall thus ratify or otherwise any decision taken by the County Commissions on claims lodged under Law no. 9/1998 and Law no. 290/2003. The National Authority is entitled to request further information and documents, from public institutions as well as from claimants, when such documents are missing or are not corroborated.

Decisions taken by the National Authority are subject to appeal before the administrative courts.

Article 10 of the law sets out the deadlines by which all payments should be made, providing also for the manner in which the compensation should be adjusted for inflation, on the basis of the consumer price index, from the moment the decision was issued until the entry into force of the law.

Article 12 sets out a 120-day deadline within which the claimants are to supplement their files with further documents, following a written request in that respect sent by the authority. This deadline may be extended once, for sixty more days, at the request of the claimant, if evidence shows that he/she has taken the necessary steps to obtain the necessary information.

Article 13 provides that the County Commissions are bound to issue a decision on the applicants’ claims within:

“a) nine months, if there are less than 500 files pending before them;

b) eighteen months, if the files pending before them are in the range of 501-1000;

c) thirty-six months if they have more than 1000 files pending before them.”

This deadline started running on 1 January 2015.

Article 14 stipulates that decisions issued by the County Commissions before the entry into force of the present law and already registered with the National Agency should be ratified or otherwise within eighteen months of the entry into force of the law. Decisions issued after the entry into force of the law should be ratified or otherwise by the National Authority within eighteen months of their registration with that authority.

The registration number and the number of files pending with the National Authority shall be published on its web page.

Article 15 gives claimants the opportunity to apply to the courts in the event that the above-mentioned deadlines are not complied with.

Article 17 of the law sets out several measures meant to increase the efficiency of the compensation procedures, providing, inter alia, for a temporary increase of the number of posts available at the National Authority.

The Treaty of Craiova was signed on 7 September 1940 by Romania and Bulgaria. Under the terms of this treaty, the signatory parties agreed on the border line that was to be established between the two countries, with particular reference to the territory between the Black Sea and the Danube River (the Cadrilater). Section III of the Treaty provided for a mandatory resettlement of Romanian citizens of Bulgarian ethnicity living in Tulcea and Constanţa Districts to Bulgaria, and the resettlement of ethnic Romanians living in Durostor and Caliacra Districts to Romania. Section V of Annex C of the Treaty stipulated that the Romanian State was in charge of compensating those Romanian citizens who, following the mandatory resettlement had to abandon their possessions in the rural areas which were transferred to Bulgaria.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law and of the lack of any effective remedy in domestic law.


CASE OF NOREIKIENĖ AND NOREIKA v. LITHUANIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in 1965 and 1961 respectively and live in Ramučiai, Kaunas Region. They are wife and husband.

In 1993 the Karmėlava Circuit Council of the Kaunas Region (Kauno rajono Karmėlavos apylinkės tarnyba) assigned a plot of land measuring 1.97 hectares to the first applicant (hereinafter “the land”), Ms Noreikienė (hereinafter “the first applicant”), for individual farming. In 1996 the Kaunas County Administration authorised her to buy the land for a nominal price of 123 “single-use investment vouchers” (investiciniai čekiai) and 6 Lithuanian litai (LTL – approximately 1.7 euro (EUR)).

On 2 August 2004 the first applicant signed a land purchase agreement with the Kaunas County Administration to acquire the land from the State. The plot was subsequently registered in the Land Registry in the joint names of both applicants.

In 2005 a third party, V.A., brought a civil claim against the Kaunas County Administration and the both applicants, seeking restoration of his ownership rights to the land. He argued that a request for restitution of property had already been submitted in 1991, so the land had been assigned and later sold to the first applicant unlawfully.

On 14 April 2006 the Kaunas District Court (Kauno rajono apylinkės teismas) allowed V.A.’s claim. It held that the first applicant had been assigned the land unlawfully because the local authorities had an obligation to resolve restitution claims before assigning plots to new owners, and because she did not fulfil the legal criteria for being assigned land. Applying the principle of priority of former owners’ rights, the court annulled the administrative decisions assigning the land to the first applicant and the land purchase agreement, and ordered the Kaunas County Administration to return LTL 129 (EUR 37) to the applicants.

On 31 October 2006 the Kaunas Regional Court quashed the lower court’s decision and dismissed the civil claim. V.A. lodged a cassation appeal. On 15 May 2007 the Supreme Court quashed the disputed decision and remitted the case to the Kaunas Regional Court for re-examination.

On 24 September 2007 the Kaunas Regional Court upheld the firstinstance decision of 14 April 2006 and allowed V.A.’s claim.

On 30 November 2007 the Supreme Court refused to examine the applicants’ cassation appeal, on the grounds that it did not raise any important legal issues.


Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicants, Ms Britt Bakke (A) and Ms Anna Midttveit Bakke (B), are Norwegian nationals, born in 1954 and 1930, respectively, and living in Steinsland. A is the mother of C, a Norwegian national born in 1983 who was found dead in her apartment on 11 March 2007, and B is the grandmother of C. The applicants are represented before the Court by Mr J.P. Rui, a lawyer practising in Bergen.

In the morning of 11 March 2007 C’s partner found her lifeless body in the shower in their common apartment. He called the emergency service centre at Haukeland University Hospital, requesting help. The phone operator advised him to start performing cardiopulmonary resuscitation (CPR) and ordered an ambulance to the apartment. When the medical personnel arrived at the apartment they continued to perform CPR, but shortly after their arrival the doctor declared C to be deceased. According to the doctor’s report from the scene there were signs of strangulation on C’s neck and his conclusion was that the cause of death had been strangulation.

The Hordaland Police (Hordaland politidistrikt) was called to the apartment. According to their report from that day, C, when they entered the apartment, had been lying naked on the floor in the living room covered with a blanket. It was also noted that her partner had told the police that he and C had been attending a party the night before and had drunk some alcohol. When they had returned to the apartment after the party, they had quarrelled. The quarrel had ended with C going to the bathroom, locking the door and turning on the water in the shower, while he had gone to bed to sleep. The next morning, he had discovered that C was not sleeping next to him in their bed and he had therefore searched for her in the apartment. As she had not been in the living room and the door to the bathroom had still been locked, he had broken up the lock on the bathroom door and found C lying in the shower with the shower hose around her neck. He had not been able to describe how C had been lying there. He had also said to the police that C had been depressed occasionally but that she had never told him that she had wished to commit suicide. The police photographed the scene as well as some marks on C’s neck.

On 12 March 2007 the police requested a forensic examination from the Department of Forensic Medicine of the University of Bergen (Avdeling for rettsmedisin). In the report from the examination, which was conducted on 13 March 2007, it was noted that there had been marks on C’s skin around the neck and point-shaped bleedings in the membranes of her eyes, eyelids and on her heart’s surface. The latter injury was thought to have resulted from the resuscitation attempts and it was very unlikely that it had anything to do with the cause of death. It had not been clarified how C had been lying when her partner had found her, but death spots on the front of her right thigh with imprints from the drain on the floor indicated that she had been lying slightly bent forward with the front of the right thigh down to the floor. The report concluded that the likely cause of death was suffocation by hanging. This conclusion was confirmed in an addendum to the report, dated 23 May 2007, which otherwise contained the chemical and microscopical analysis of the examination and showed that C had had 1.2 ‰ ethanol in her blood.

Since there was no suspicion of criminal conduct, the police decided to terminate the investigation on 23 July 2007. A requested the police to take further investigative steps to clarify what had happened in the apartment the night when C had died. However, on 14 August 2007, the police notified A that it upheld its previous decision. Nevertheless, C’s partner was formally questioned by the police on 21 September 2007.

A appealed to the public prosecutor in Hordaland (Hordaland statsadvokatembeter), which, on 16 October 2007, rejected the appeal stating, inter alia, that further measures would not be useful considering the time that had elapsed since the death. The public prosecutor noted that some investigative measures (for example the questioning of C’s partner) ought to have been carried out at an earlier stage of the investigation and that the photographs taken by the police at the scene should have been added to the case file.

On 25 November 2009 a private investigator, whom A had hired to scrutinise the investigation and to carry out further investigative measures, provided a report (which has not been submitted to the Court) where he concluded that it could not be excluded that C had been subjected to criminal conduct. However, since there was no concrete evidence indicating that a criminal act had been committed, he found that C most likely had taken her own life. In his overall assessment, he criticised the investigation, in particular its initial phase, and considered that the police should take further complementary investigative measures.

In a lawsuit against the State, brought before the Oslo City Court (tingrett) by A, she requested compensation, claiming police negligence. She stated that the investigation into C’s death had been deficient in several respects. On 26 October 2010 the court rejected the claim, although it acknowledged that some aspects of the investigation had been deficient.

On 23 May 2011 the police requested a complementary technical report, asking for a specialist assessment of the existing theories compared to the forensic evidence and other information available in the case. In the ensuing report of 11 August 2011 it was noted that a reconstruction of the scene had been made, from which it had been possible to determine the position of C’s body in the shower. The specialists came to the conclusion that it was possible that C had hanged herself using the shower hose and that there were no indications contradicting that conclusion.

Another technical report involving a reconstruction of the scene, dated 6 August 2013 and drawn up by external consultants at the request of A’s lawyer, concluded that it was possible that C had hanged herself in the shower using the shower hose but that it could not be excluded that someone else had strangled her with the hose. The consultants pointed out that the investigation had been deficient and had provided a poor basis for finding a clear result as to the cause of C’s death.

On 17 September 2013 A requested the public prosecutor to reopen the case, but on 7 October 2013 the request was rejected. The public prosecutor noted that, even if there were flaws in the initial investigation, the police had carried out several investigations after that point, for example the technical reconstruction of the scene, and since all the results pointed in the same direction, there were no reasons to carry out further investigative measures. A appealed to the Director of Public Prosecutions (DPP – Riksadvokatembetet), who, on 6 January 2014, upheld the decision. On 13 January 2014 the public prosecutor informed A about that decision. The letter stated that the decision was final but that A could take legal action by instituting private prosecution proceedings.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Erik Møse;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Mahoney;Paulo Pinto De Albuquerque;Ksenija Turković

The facts of the case may be summarised as follows.

The applicant was born in 1968 and is currently serving a life sentence in the town of Solikamsk, Perm Region.

On 21 November 1994 the applicant was arrested on suspicion of banditry, robbery and aggravated murder.

Between 21 November 1994, the date of his arrest, and the summer period of 1995 the applicant was held in various remand prisons in Ekaterinburg, Perm, Izhevsk and the Perm Region.

On 13 October 1995 the Perm Regional Court found the applicant guilty as charged and sentenced him to death. The judgment became final on 6 June 1996.

From the summer of 1995 to the autumn of 1999 the applicant was held in remand prison no. 1 in Perm. Following his conviction he was held in a special cell for prisoners awaiting the implementation of their death sentence.

On 19 May 1999 the President of Russia commuted the applicant’s death sentence to life imprisonment.

On 8 October 1999 the applicant was transferred to a special-regime correctional colony for life prisoners in the Perm Region, and on 11 October 1999 he began serving the first ten years of his sentence of imprisonment within the meaning of Article 127 § 3 of the Code of Execution of Criminal Sentences. The applicant fell within the exception from the general rule of that legal provision, in that the first ten years of his sentence were calculated from the date of his placement in the special-regime correctional colony, rather than from the date of his initial arrest in 1994. The exception applied only to those prisoners whose conduct during their detention on remand had been in breach of the rules (see paragraph 52 below). The applicant later unsuccessfully challenged this rule before the Constitutional Court (see paragraph 30 below).

For the next ten years the applicant was held under a strict regime of imprisonment, governed by Article 125 § 3 of the Code of Execution of Criminal Sentences (see paragraph 29 below).

On 11 October 2009, on expiry of the first ten years of his sentence, the applicant’s prison regime was changed from a strict regime to an ordinary regime, governed by Article 125 § 1 of the Code of Execution of Criminal Sentences (see paragraph 50 below).

At the time of his arrest on 21 November 1994 the applicant was married to S. and had a three-year-old son. His remaining family consisted of his parents, O. and A., his brother Se. and his grandmother M. According to the applicant, his extended family numbered seventeen people in total, and after his arrest he wished to maintain contact with all of them.

From 21 November 1994 to 8 October 1999 the applicant was not allowed to see his family at all, with the exception of one visit by his wife in the week following the first-instance judgment in the criminal case against him in October 1995.

In 1996, following the first-instance judgment in his criminal case, the applicant’s wife divorced him, on her initiative.

The applicant submitted that he had been allowed to start corresponding with the outside world following the entry into force of the Code of Execution of Criminal Sentences in January 1997. He then reestablished contact with all of his family members and his former wife.

During this period the applicant was allowed to have one short-term visit from his relatives every six months. The visits lasted no longer than four hours. During the meetings the applicant communicated with his visitors via a glass partition or through metal bars, under conditions which allowed no physical contact. A warden listened in to the conversations with his visitors.

The applicant used his right to short-term visits as frequently as possible, and received visits from his mother, his father and his brother. His friends also tried to visit the applicant, but this was not authorised by the prison administration. Long-term family visits during the first ten years of his sentence were not allowed.

According to the applicant, due to the severity of the restrictions on his contacts with the outside world he lost contact with some of his family members and with his own son, whom he had not seen for the past fifteen years. The applicant’s son refuses to see the applicant, but has agreed to help him financially.

After the applicant’s change of regime on 11 October 2009, he became entitled to long-term family visits in addition to short-term visits. The applicant availed himself of each subsequent opportunity to have a long-term visit, and saw his family members once every six months: once in 2009, twice in 2010, 2011, 2012 and 2013. On each of these occasions the visit was for the authorised maximum duration of three days, except for one visit in the spring of 2013. This visit was interrupted at the initiative of the applicant and his mother, who had to catch her train and leave earlier. The applicant’s brother also attended these visits. The visits lasted no more than seventy-two hours and his privacy was respected throughout. The applicant’s father participated in the short-term visits until 2007, but could not come for the long-term visits which started in 2009 on account of his health.

The Government submitted that, in total, the applicant had fourteen short-term visits and nine long-term visits during his detention in the special-regime correction colony. None of the applicant’s respective requests for a visit was refused.

On 24 August 2004 the applicant lodged a complaint with the Constitutional Court of Russia, challenging the constitutionality of the tenyear ban on long-term family visits for convicts sentenced to life imprisonment as contained in Article 125 § 4 of the Code of Execution of Criminal Sentences. He alleged, in particular, that the provision in question had been discriminatory and breached his right to respect for private and family life.

The Constitutional Court declared the applicant’s complaint concerning Articles 125 § 3 and 127 § 3 inadmissible, having ruled as follows:

“... Nor do the provisions of Article 125 § 3 and Article 127 § 3 of the Code on the Execution of Criminal Sentences breach [the applicant’s] constitutional rights.

Article 55 § 3 of the Constitution ... allows for the possibility of restricting human and civil rights by federal law, as a means of protecting the basis of the constitutional regime, morality, health, the rights and lawful interests of others, [and] securing the defence of the country and State security. Such restrictions may be linked, in particular, with the application of criminal sanctions against offenders, in the form of imprisonment and other measures related to punishment.

... Article 71 (o) of the Constitution empowers the federal legislature to provide for restrictive measures of this type in relation to convicted persons on whom a sentence has been imposed, which, as follows from Article 43 § 1 of the Criminal Code... consist, by their very nature, in deprivation or restriction of the convict’s rights and freedoms, as provided by law. At the same time, both the legislature, in establishing liability for a crime, and the law-enforcement agencies, in deciding on its application to an offender, are required to take into account the nature of the crime, the danger posed by it to the values defended by the Constitution and the criminal law, its seriousness, its causes and other circumstances in which the crime was committed, and also information about the offender, provided that regulation by those institutions, and their application, correspond to the constitutional principles of legal liability and guarantees to the individual in his or her public relations with the State.

As the Constitutional Court noted in [its previous case-law ...], the legislative regulation of criminal liability and punishment without taking into account the offender’s personality and other objective and reasonable circumstances which facilitate an appropriate assessment of the social danger posed by the criminal act itself and by the offender, and the application of identical sanctions for crimes that pose varying degrees of social danger, without taking into account the offender’s degree of participation in the crime, his or her conduct subsequent to the crime and in serving a sentence where that has already been imposed, and other [relevant] factors, would both be contrary to the constitutional prohibition on discrimination and the principles of fairness and humanism expressed in the Constitution.

In setting out criminal sanctions with a range of restrictions, corresponding to the gravity of the crime committed by the convict and the sentence imposed, and also in determining the manner in which that sentence is to be served, the legislature must proceed on the basis that convicts enjoy, as a whole, the same rights and freedoms as other citizens, with the exceptions determined by their individual personalities and the offences committed by them. The conditions for serving sentences, as laid down both in Articles 125 and 127 of the Code of Execution of Criminal Sentences and in a range of other provisions of that Code, are intended to tailor sentences to individual offenders and differentiate sanctions and their application, and to create the preconditions for achieving the aims of punishment, which, as stated in Article 43 § 2 of the Criminal Code, are the restoration of justice, reform of the offender and the prevention of new crimes ...”

On an unspecified date the applicant lodged a complaint with the Constitutional Court, this time challenging Article 127 § 3 of the Code of Execution of Criminal Sentences, in so far as this provision distinguished between two categories of detainees serving their sentence in special-regime colonies on the basis of whether or not they had previously breached prison rules while in their detention on remand and had been punished by solitary confinement. For those who had not previously breached prison rules and had not been punished by solitary confinement, the initial ten-year period of the strict-regime conditions started running from the date of their initial arrest and detention. For those who had previously breached prison rules and been punished by solitary confinement, the ten-year period under strictregime conditions began from the date of their arrival in a specialregime correctional colony. The applicant argued that this provision was unconstitutional and discriminatory. On 21 December 2006 the Constitutional Court declared the applicant’s second complaint against the above-mentioned provision inadmissible, ruling as follows:

“... the [above-mentioned] provision does not violate the rights of [the applicant].

Article 55 § 3 of the Constitution allows for the possibility of restricting human and civil rights by federal law as a means of protecting the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of others, [and] ensuring the defence of the country and State security. Such restrictions may be linked to the application of criminal sanctions against offenders in the form of coercion by the State, the distinctive feature of which is that, throughout its execution, certain of the offender’s his rights and freedoms are withdrawn and specific obligations are imposed.

At the same time, the restrictions imposed on a convicted person’s rights and freedoms shall correspond to the crime committed and to his or her personality. This requirement is also compulsory in respect of cases where [the authorities have punished] persons who breached the legally established regime in the course of the criminal proceedings or [already] while serving their sentence.

The provision of Article 127 § 3 of the Code of Execution of Criminal Sentences [in so far as it includes the contested rules] is intended to tailor sentences to individual offenders and to differentiate the conditions for serving sentences, and to create the preconditions for achieving the aims of punishment, which, as stated in Article 43 § 2 of the Criminal Code, are the restoration of justice, reform of the offender and the prevention of new crimes.

If, in the applicant’s opinion, his rights were violated by the relevant actions or decisions of the law-enforcement bodies when imposing a sanction in the form of a placement in a solitary confinement, during his transfer from a remand prison to a correctional colony or in calculating the term of his detention under the strict regime, he is entitled to appeal against them in court ...”

The applicant made attempts to bring civil claims against the prosecutor’s office and the lawyer who defended him in the course of the criminal proceedings. The applicant challenged in court the prosecutor’s refusal to institute criminal proceedings and the Ombudsman’s failure to act on his complaints. He also lodged a number of complaints with the Constitutional Court. All of these proceedings proved unsuccessful.


Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Vasile Mălăescu, is a Romanian national who was born in 1947 and lives in Ploieşti. He was represented before the Court by Ms G. Bârlă, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

At the time of the events giving rise to the present application, the applicant was a judge at Vălenii de Munte District Court, in Prahova County.

On 17 January 2006 P.C. informed the Ploieşti AntiCorruption Department of the Prosecutor’ Office that on 16 January the applicant had requested money from him as a reward for having drafted a judgment that he had delivered in a civil lawsuit won by P.C. According to P.C.’s statements, the applicant asked for 1,000,000 Romanian lei (ROL) in order to fill up the fuel tank of his car. P.C. was expected to pay the money the next day.

On the same day, the prosecutor supplied the money to P.C. in the form of ten banknotes of ROL 100,000 each. They were marked with the inscription “undue benefits” (foloase necuvenite) in a special ink. The prosecutor also gave authorisation for the recording of conversations between the applicant and P.C. In so doing, he relied on Article 912 § 2 of the Code of Criminal Procedure (“CCP”) which, in urgent cases, allows the interception of communications without a judge’s order.

On 18 January 2006 at 8 a.m. P.C. went to the applicant’s office fitted with an audio-video recorder. The applicant greeted P.C. and asked him if “that paper had been good” (which the prosecutor explained as referring to the court judgment delivered by the applicant). He accepted the money from P.C., confirmed that the amount was correct, and then put the banknotes in his pocket.

After P.C. had left, the prosecutor and a police officer entered the applicant’s office and found the applicant sitting at his desk. The applicant admitted having received money from P.C. and, at the prosecutor’s request, took the notes out of his pocket and handed them to the prosecutor. Eight banknotes of ROL 100,000 each were found, bearing the markings in special ink inscribed by the prosecutor beforehand. The remaining two banknotes were found in P.C.’s pocket. He explained that he had not handed them over to the applicant because the latter had been in a hurry to get the money from him and see him out of the office.

On 18 January 2006 the prosecutor instituted a criminal prosecution against the applicant (începerea urmăririi penale) and informed the applicant, in the presence of his counsel, of the charges brought against him. The applicant gave a statement. He admitted having received the money, but denied having asked P.C. for anything. He pointed out that P.C. had come to his office uninvited.

On 18 January 2006 the Ploieşti Court of Appeal reaffirmed the prosecutor’s authorisation for the interception of conversations.

The applicant was interviewed again by the prosecutor on 19 January and was brought face to face with P.C. The court clerk who typed the judgments delivered by the applicant was interviewed by the prosecutor. She confirmed that on 16 January 2006, while she was working with the applicant, P.C. had entered the applicant’s office and had asked if his judgment had been typed. The court clerk left the applicant’s office and was unable to say how the conversation between the judge and P.C. had gone. Later that day, the applicant told her that they should type out P.C.’s court judgment, but then they both realised that the judgment had been drafted that very morning, before P.C.’s visit.

The court clerk who had been present during the applicant’s court hearing which had resulted in the judgment favourable to P.C. declared that on 16 January 2006, after drafting the judgment, the applicant had brought the case file to her office, and that later on the same day he had returned with P.C. and had asked her to provide the latter with a copy of the judgment.

On 15 February 2006 the Ploieşti Court of Appeal sitting in private, in the presence of the prosecutor and the applicant, affirmed that the transcripts of the recorded conversations constituted relevant evidence in the case (procedure under Articles 913 and 915 of the CCP) and accepted their addition to the file. The transcripts were attached to the court’s report.

On 1 March 2006 the prosecutor committed the applicant for trial before the Ploieşti Court of Appeal on the charge of having received undue benefits (primirea de foloase necuvenite).

On 17 April 2006 the High Court of Cassation and Justice, acting at the applicant’s request, transferred the case to the Cluj Court of Appeal.

On 21 June 2006 the Court of Appeal heard testimony from the applicant. He maintained that he had not requested any sum of money from P.C. and had not expected to receive money from him either. He explained that when the prosecutor had entered his office he had been about to go out to find P.C. and return the money to him.

At the same hearing the applicant argued that the recording of conversations and the marking of the banknotes by the prosecutor constituted elements of the preliminary investigation (acte premergătoare) and that as such they had been unlawfully obtained and could therefore not be used as evidence in the file.

P.C. also gave a statement before the court. The two court clerks could not be questioned as they were absent for personal reasons from the court hearings. The defence counsel agreed that the witness statements given before the prosecutor could be read in open court.

On 20 September 2006 the applicant was convicted of having received undue benefits and was given a six month suspended sentence. The court established the facts based on the transcripts of the conversations, testimony given by the two court clerks before the prosecutor, and P.C.’s and the applicant’s statements.

The court dismissed the applicant’s complaint concerning the alleged unlawfulness of the evidence on the grounds that the prosecutor had respected the procedure provided for by the CCP in the matter and that the court had authorised the recordings and their utilisation in the case.

The applicant appealed against the judgment delivered by the Court of Appeal.

On 4 April 2007 the High Court of Cassation and Justice, in the presence of the parties, listened to the recordings of the conversations. At the same hearing, the applicant contested some parts of the conversations ‒ pointing out that they did not correspond to the transcripts ‒ and asked for the tapes to be examined by an expert in order to establish whether they had been tampered with. He also reiterated his complaint as to the unlawfulness of the evidence. Lastly, he contended that there was not sufficient evidence in the file to secure his conviction and that there were significant inconsistencies between P.C.’s various statements during the proceedings.

In a final decision delivered the same day, the High Court dismissed the applicant’s appeal and, based on the evidence in the file, upheld the judgment delivered by the Court of Appeal as well as its reasoning.

The High Court reiterated that the legality of the evidence had been correctly examined, at the applicant’s request, by the first-instance court. It also found the evidence sufficient to establish that the applicant had requested and received money from P.C. It furthermore concluded that ‒ even if it could not be proven that there had been discussions whereby the applicant could have requested money from P.C. ‒ the fact that the applicant had accepted money proved his intent to commit the crime.

The legislation concerning interception of conversations in force at the relevant time and its evolution after 1 January 2004 is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 3946, 26 April 2007).

Under the Criminal Code it is a punishable act for a public servant to receive money or other undue benefits for a task he has carried out during the exercise of his duty (Article 256). The Anti-Corruption Act (Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption) provides for an aggravating factor if the above crime is committed by a judge (Article 7).


Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Mr Adnan Oğuz Baysal, is a Turkish national who was born in 1978 and lives in Eskişehir. He was represented before the Court by Mr C. Çalış, a lawyer practising in Ankara.

The applicant, a military officer in the Turkish army, was dismissed in 2009 for disciplinary reasons. Subsequently, he initiated proceedings before the Supreme Military Administrative Court to have the decision regarding his dismissal annulled.

On 20 April 2010 the Supreme Military Administrative Court dismissed the applicant’s action (decision no. 2009/919 E, 2010/427K).

On 28 September 2010 the applicant’s rectification request was rejected by the Supreme Military Administrative Court. This decision was served on him on 12 October 2010.

A description of the domestic law at the material time may be found in Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015), and Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000).

Following a referendum held on 16 April 2017, Law no. 6771 was passed. According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished. Furthermore, the following paragraph was added to Article 142 of the Constitution:

“... No military courts shall be formed other than disciplinary courts. However, in a state of war, military courts may be formed with jurisdiction to try offences committed by military personnel in relation to their duties.”

On 21 March 2018 Law no. 7103 was enacted; it was published in the Official Gazette on 27 March 2018. Section 23 of Law no. 7103 amends the Administrative Procedure Act (Law no. 2577) to state that all applicants who currently have a pending application before the European Court of Human Rights concerning the independence and impartiality of the Supreme Military Administrative Court may request a retrial before the Ankara Administrative Court within three months of notification of the Court’s inadmissibility decision on account of non-exhaustion of domestic remedies.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

This application was lodged on 27 April 2007 by Marina Viktorovna Novikova, who was born in 1972 and lives in Moscow. The applicant is represented by Yuriy Yershov, a lawyer practising in Moscow.

On 10 November 2006 the applicant staged a demonstration in front of the State Duma in Moscow, holding a poster that read “Psychiatry kills our children on our taxes”. According to her, it was a solo static demonstration (одиночное пикетирование) (see “Relevant domestic law and practice” below) and, as such, fell outside the statutory requirement to give prior notification to the competent public authority. Moreover, she took care to position herself at a distance from other people who were also present in front of the State Duma.

After about ten minutes, the applicant was approached by police officers, who then took her to the district police station. An arrest record was compiled; the reasons for her arrest are unclear.

According to the applicant, she spent some three hours in the police station and was then allowed to leave.

The Government submitted to the Court a report issued on 11 November 2006 by the senior officer on-duty, Su. The report stated that the applicant and five other people (including A., M. and S.) had been present at 8.30 a.m. in front of the State Duma, holding posters that read “Attention! Psychiatry kills. 7.5 million roubles of public funds spent on the destruction of lives”, “Do not force taxpayers to pay for psychiatrists’ systematic extermination of Russians”, “Psychiatrists need walls to hide their crimes” and other such statements. The Government also submitted to the Court copies of documents relating to administrative offence proceedings against A., M. and S.

As for the applicant, the administrative offence record states that she was accused of “taking part, together with other citizens, in a demonstration in respect of which no prior notification had been provided to the public authorities”. Her actions were classified under Article 20.2 of the Code of Administrative Offences of the Russian Federation (hereinafter “the CAO”), which regulates the penalties applied to violations of the regulations on public events set out in, inter alia, the Public Assemblies Act.

Officer G. submitted a written report to his hierarchical superior indicating that the applicant “had been arrested and taken to the police station for violating the regulations on public gatherings, namely Article 20.2 of the CAO”.

According to the Government, on 14 November 2006 the case against the applicant was received by the justice of the peace of the Tverskoy District, who on the same day scheduled a hearing for 15 November 2006. According to the applicant, she was not informed of the hearing date until it was too late. Thus, she made no written or oral submissions to the court.

Having examined the file, on 15 November 2006 the judge considered that the applicant had been apprised of the hearing but had refused to sign the summons. The court decided to proceed with the case in her absence and held that she had been afforded but had not used an adequate opportunity to make written or oral submissions. On the same day, the judge found the applicant guilty under Article 20.2 § 2 of the CAO and imposed a fine of 1,000 Russian roubles (RUB), which was at the time equivalent to 29 euros (EUR).

Referring to the arrest record, the offence record and G.’s report (see above), the court considered that the applicant had participated in a demonstration after which some five people and the applicant had been arrested. In the court’s view, the applicant’s behaviour amounted to participation in a public event requiring prior notification. The justice of the peace then held as follows:

“[The applicant’s] actions constitute a violation of the regulations on static demonstrations in that no notification had been made [to the competent authority] about the possibility of staging a demonstration ... Thus, this demonstration was held without legal grounds. The court takes into account that the applicant’s presence next to the object being picketed, together with other people, directly discloses the expression of opinions and attitudes, and thus takes the form of a group public event, namely a static demonstration.”

The applicant sought re-examination of the case on appeal by the Tverskoy District Court of Moscow. On 5 December 2006 the court heard the applicant and upheld the judgment of the justice of the peace, concluding that the applicant had taken part in a public event held without prior notification to the competent authority; on 10 November 2006 she had been apprised of the hearing to be held before the justice of the peace but had failed to sign the summons.

On 23 January 2007 the Deputy President of the Moscow City Court upheld the District Court’s decision on supervisory review.

This application was lodged on 26 August 2011 by Yuriy Ignatyevich Matsnev, who was born in 1937 and lives in Kaliningrad. He was represented by Aleksandr Koss, a lawyer practising in Kaliningrad.

On 30 July 2010 the applicant staged a solo demonstration in front of the Kaliningrad Regional Administration building. He was holding a poster showing people (apparently, officials he suspected of corruption) behind bars, and saying “They should be found accountable!” and “Mr Boos! Kaliningrad’s residents are waiting for you to solicit the President!”. Mr S., a journalist, was passing by and filmed the demonstration and the arrival of the police.

The applicant was arrested by the police and taken to the police station. He remained there for two hours and was then allowed to leave. No administrative offence proceedings were instituted against him.

According to reports subsequently made by the arresting officers, the applicant had not had an identity document on him and had agreed to accompany them to the police station in order to have his identity verified and to have an administrative record compiled.

The applicant brought civil proceedings seeking RUB 500,000 as compensation in respect of non-pecuniary damage caused by the authorities’ actions. The applicant referred to Article 10 of the Convention.

By a judgment of 14 March 2010, the Tsentralnyy District Court of Kaliningrad acknowledged that the taking of the applicant to the police station and his retention there had been unlawful. The court held as follows:

“Following the escorting of [the applicant] to the police station no administrative offence case was opened ... [Mr S.] testified that the defendant had shown his identity document and had not expressed his consent to go with the police to the police station ... The police officers acted unlawfully when escorting the applicant to the police station ...”

The court awarded the applicant RUB 6,000 in respect of non-pecuniary damage (approximately EUR 149 at the time). It dismissed his claim concerning the alleged destruction of the poster by the police and made no separate findings relating to his freedom of expression.

On 25 May 2011 the Kaliningrad Regional Court upheld the judgment.

This application was lodged on 10 November 2012 by Viktor Mikhaylovich Savchenko, who was born in 1967 and lives in the village of Platonovo-Petrovka in the Rostov Region.

On 23 June 2011, when Mr Putin was visiting the village of Peshkovo, the applicant staged a demonstration, standing at some distance from a road close to the village and holding a poster reading “Mr Putin! In the Rostov region they disregard your Decree on social assistance to families. The Russian Government disregards its obligations to issue housing certificates!”

According to the applicant, police officers approached him and ordered him to go to another place where journalists were filming. He arrived there and displayed his poster. He was approached by people in plain clothes who ordered the police to take him to the police station. The police complied. After some three hours in the police station, the applicant was free to leave.

The police drew up a record of the administrative escorting in respect of the applicant.

The applicant was accused of disorderly behaviour on account of using foul language in a public place on 23 June 2011. On 24 June 2011 a senior police officer found him guilty under Article 20.1 of the CAO (see paragraph 74 below) and imposed a fine of RUB 500 on him. On 21 December 2011 the Azov Town Court overruled the conviction because the senior police officer had not heard evidence from the applicant. The court then discontinued the case owing to the expiry of the time-limit for prosecution. On 7 February 2012 the Rostov Regional Court upheld the judgment on appeal.

The applicant brought civil proceedings challenging the actions of the police in respect of him. On 4 April 2012 the Town Court dismissed his claims. On 14 June 2012 the Regional Court upheld the judgment on appeal. The appeal court noted that the courts dealing with the administrative offence case had not determined whether the applicant had committed the impugned action (using foul language) and whether he had committed an offence, but had simply discontinued the case on procedural grounds. The appeal court concluded that the above “did not disclose any unlawfulness” on the part of the law-enforcement officers, while the applicant had not substantiated, in the current case, that their actions had violated or otherwise impeded the exercise of his protected rights or freedoms.

This application was lodged on 30 November 2012 by Aleksandr Mikhaylovich Kirpichev, who was born in 1984 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow.

At 7.15 p.m. on 3 July 2012 the applicant staged a solo demonstration at a bus stop. He was holding a poster which read “The Kremlin is not for sale – it is a piece of architecture!”. After several minutes some five passers-by stopped and looked at him and his poster.

It appears that soon thereafter five police officers approached and warned those present that a meeting required prior notification to the authorities. The passers-by went away.

It appears from a video recording submitted by the applicant that one of the police officers refused to listen to the applicant’s explanations and told him that he would be taken to the police station. The applicant was then placed in a police car and taken to the police station. He was accused of holding a public event without giving prior notice.

According to the Government, the applicant had staged a public meeting first on the road and then on the pavement near a bus stop. The police officers’ written reports indicated that the applicant had called passers-by to approach and discuss with him the topic of the event. The police decided to apply the escort procedure (доставление) to the applicant because it was necessary to put an end to the administrative offence and because an administrative offence record could not be compiled on the spot since the applicant had no identity document on him. The applicant agreed to go with the police to the police station.

On 20 July 2012 a justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO. The court considered that the applicant had held a public event in the form of a meeting (митинг); some five people had gathered but then dispersed after a warning from a police officer. The justice of the peace sentenced the applicant to a fine of RUB 20,000 (approximately EUR 505 at the time), noting that the applicant had committed an offence that was similar to another one for which he had already been convicted earlier the same year. The justice of the peace warned the applicant that his failure to pay the fine would constitute an administrative offence under Article 20.25 of the CAO, which was punishable by a fine of double the amount or up to fifteen days’ detention.

The applicant appealed, arguing that the court had failed to take into account his financial situation when imposing a high fine.

On 21 August 2012 the Kirovskiy District Court of Astrakhan upheld the judgment on appeal. The appeal court dismissed the argument concerning the amount of the fine by stating that it was the minimum statutory amount prescribed by Article 20.2 § 2 of the CAO.

In September 2012 the justice of the peace allowed the applicant to pay the fine in three monthly instalments.

This application was lodged on 20 May 2013 by Valeriy Leonidovich Romakhin, who was born in 1965 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow.

At 1.30 p.m. on 10 November 2012 the applicant held a solo demonstration in front of the Maritime University in Astrakhan, to express his disagreement with the recent decision to close the university. The applicant was holding a poster that read “To close the university is to commit a crime”.

Mr A. was holding a demonstration on the other side of the road, making similar claims. He was holding a poster saying “Annul order no. 101 of 27 September 2012 and find its authors liable”. According to the applicant, he was standing some 50 metres away. The Government submitted that the applicant and A. were at “visual distance from each other”.

Shortly after starting his demonstration, the applicant was approached by a police officer who warned him that he was in breach of Article 20.2 of the CAO. He then escorted the applicant to the police station. It appears that A. was also taken to the police station. According to the Government, it was not possible to draw up an administrative offence record on the spot because the applicant had no identity document on him.

The applicant was allowed to leave the police station after several hours.

In the Astrakhan Region, Law no. 80/2012-FZ of 27 November 2012 set the minimum distance between solo demonstrators at twenty metres.

On 6 December 2012 a justice of the peace held a hearing. A. stated that he knew the applicant; without any concerted plan, they had both gone to the university to stage solo demonstrations; the applicant had not prepared his own poster and so had taken one of A.’s posters; they had placed themselves at a distance of some fifty metres from each other.

On the same day, the justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO (organisation and holding of a public event without prior notification) and imposed a fine of RUB 20,000 on him. On 5 February 2013 the Sovetskiy District Court of Astrakhan upheld the judgment. The courts considered that the applicant and A. had held a public static demonstration (common logistical organisation, timing and claims disclosing a common goal), which by law required them to notify the local authorities in advance. The courts concluded that the offence impinged upon public order and public security, “having a significant adverse impact on protected public relations”. According to the Government, the applicant was a “participant” in a demonstration with A.

It appears that on 26 April 2013 the Astrakhan Regional Court reviewed the case and reduced the fine to RUB 1,000.


CASE OF KUDREVIČIUS AND OTHERS v. LITHUANIA

No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant, Mr Arūnas Kudrevičius (hereinafter “A.K.”), was born in 1970 and lives in Vaitkūnai village, Utenos region; the second applicant, Mr Bronius Markauskas (hereinafter “B.M.”), was born in 1960 and lives in Triušeliai village, Klaipėda region; the third applicant, Mr Artūras Pilota (hereinafter “A.P.”), was born in 1973 and lives in Ožkasviliai village, Marijampolė region; the fourth applicant, Mr Kęstutis Miliauskas (hereinafter “K.M.”), was born in 1959 and lives in Jungėnai village, Marijampolė region; and the fifth applicant, Mr Virginijus Mykolaitis (hereinafter “V.M.”), was born in 1961 and lives in Varakiškė village, Vilkaviškis region.

On 15 April 2003 a group of farmers held a demonstration in front of the Seimas (the Lithuanian Parliament) building to protest about the situation in the agricultural sector with regard to a fall in wholesale prices for various agricultural products and the lack of subsidies for their production, demanding that the State take action. On 22 April 2003 Parliament passed a resolution on reinforcing the competitiveness of agriculture, providing for an increase in subsidies for the agricultural sector. According to the applicants, this resolution was not implemented by the government.

On 16 May 2003 the Chamber of Agriculture (Žemės ūkio rūmai), an organisation established to represent the interests of farmers, met to discuss possible solutions to the issues. If no positive changes in legal regulation were forthcoming, the measures foreseen included addressing complaints to the administrative courts. In the meantime, it was decided to organise protests, in three different locations next to major highways (prie magistralinių kelių), to draw attention to the problems in the agricultural sector.

In May 2003 the Kalvarija municipality issued a permit to hold peaceful assemblies in Kalvarija town “near the marketplace” from 8 a.m. to 11 p.m. on 13-16 May 2003, from 8 a.m. to 3 p.m. on 17 May 2003 and from 8 a.m. to 11 p.m. on 19-20 May 2003. The organisers had been warned about possible liability under the Code of Administrative Law Offences as well as under the Criminal Code, including under Article 283 of the latter (see paragraph 62 below). According to the Government, similar permits, accompanied by the same warnings, were issued for 21-23, 24 and 26-30 May 2003.

On 8 May 2003 the Pasvalys municipality issued a permit to hold a demonstration “at the car park at the sixty-third kilometre of the Via Baltica highway and next to that highway”. The farmers were also authorised to display agricultural machineries for ten days from 15 to 25 May 2003. On 12 May 2003 the organisers of the gathering were informed about possible liability under the Code of Administrative Law Offences as well as under the Criminal Code, including under Article 283 of the latter.

On 19 May 2003 the Klaipėda municipality issued a permit to hold an assembly in an “area in Divupiai village next to, but not closer than twenty-five metres from, the Vilnius-Klaipėda highway” from 11 a.m. to 11 p.m. on 19-25 May 2003. The permit specified that it granted the right to organise a peaceful assembly in compliance with the provisions set forth, inter alia, in the Constitution and in the Law on Assembly. It was also indicated therein that the organisers and the participants were to observe the laws and to adhere to any orders from the authorities and the police; failure to do so could engage their administrative or criminal liability. The second applicant, B.M., who was indicated as one of the organisers of the gathering, signed a receipt for the notification of the permit.

The Klaipėda police received information about the demonstrators’ possible intention to overstep the limits established by the permits. B.M. was therefore contacted by telephone and a meeting with him was organised in order to avoid unlawful acts during the demonstrations.

The demonstrations started on 19 May 2003. The farmers gathered in the designated areas.

On 21 May 2003 the farmers blocked and continued to demonstrate on the roads next to Dirvupiai village, on the Vilnius-Klaipėda highway, at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway, and at the ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway.

The Government underlined that the police had not received any prior official notification of the demonstrators’ intention to block the three major roads of the country. They described as follows the behaviour of the farmers and of the applicants during the demonstrations:

(a) On 21 May 2003 at around 12 noon a group of approximately 500 people moved onto the Vilnius-Klaipėda highway and remained standing there, thus stopping the traffic.

(b) On 21 May 2003 at 12 noon a group of approximately 250 people moved onto the Panevėžys-Pasvalys-Riga highway and remained standing there, thus stopping the traffic. Such blockage continued until 12 noon on 23 May 2003. The first applicant encouraged the demonstrators to move from the car park onto the highway.

(c) On 21 May 2003 at 11.50 a.m. a group of 1,500 people moved onto the Kaunas-Marijampolė-Suvalkai highway and kept standing there, thus stopping the traffic. In addition, on the same day between 3 and 4.30 p.m. the third, fourth and fifth applicants drove tractors onto the highway and left them standing there. Such blockage continued until 4 p.m. on 22 May 2003.

On 22 May 2003 the farmers continued negotiations with the government. The next day, following a successful outcome to those negotiations, the farmers stopped blocking the roads.

The parties disagreed as to the extent of the disruption to traffic created by the farmers’ demonstrations.

According to the applicants (see paragraph 121 below), knowing that blockages were likely to occur, the police had prepared alternative road itineraries in the vicinity of the places where the demonstrations were held, so that the roadblocks would not disrupt the flow of goods. Indeed, on the days in question the latter had been “even better than usual”. This could be proven by the “data from posts where the roadblocks took place”.

In a letter of 24 August 2004 addressed to the applicants’ lawyer, the State Border Guard Service indicated that several queues of lorries (ranging from two to ten kilometres) had formed from 21 until 23 May in both directions in the proximity of the Kalvarija border crossing between Lithuania and Poland. According to the same letter, “there were no queues of passenger cars.” Moreover, no queues had formed at the Lazdijai State border post (another post on the Lithuanian-Polish border).

The Government first observed that the Vilnius-Klaipėda highway was the main trunk road connecting the three biggest cities in the country, while the Panevėžys-Pasvalys-Riga highway (otherwise known as Via Baltica) and the Kaunas-Marijampolė-Suvalkai highway were transitional trunk roads used to enter and leave the country. According to the Government, all three roads were blocked at locations next to the customs post for approximately 48 hours.

The Government alleged, in particular, that owing to the blocking of the Kaunas-Marijampolė-Suvalkai highway, which prevented vehicles from passing through the border control station, rows of heavy goods vehicles and cars formed in Lithuania and Poland at the Kalvarija border crossing. The heavy goods vehicles were forced to drive along other routes in order to avoid traffic jams. As the functioning of the Kalvarija customs post was disturbed, the Kaunas territorial customs authority was obliged to re-allocate human resources as well as to prepare for a possible re-organisation of activities with the State Border Guard Service and the Polish customs. As a consequence, the Kaunas territorial customs authority incurred additional costs; however, the concrete material damage had not been calculated.

According to a report of the Kalvarija police, the road was blocked on 22 May 2003. The lorries returning to Lithuania from Poland were directed by the police to a car park at the Kalvarija border crossing. At around 11.40 a.m. the lorry drivers approached the farmers. They demanded an end to the roadblocks, with the threat of using physical force. The police urged the parties to the conflict to calm down and to wait for the results of the negotiations between the farmers and the Prime Minister. According to the Government, the farmers and the lorry drivers had a few arguments, but more serious confrontations were avoided. At around 4.15 p.m. the farmers received a telephone call about the positive outcome of the negotiations and moved one tractor off the road. The traffic then resumed in both directions.

The Government also noted that, owing to the blocking of the Vilnius-Riga highway on 22 May 2003 from 2 until 4 p.m., heavy goods vehicles could not cross the border and rows of traffic of 1,600 and 700 metres respectively appeared in both directions. Cars took diversions along a gravel road.

On 1 September 2003 the Pasvalys police issued a certificate stating that on 19-23 May 2003 the farmers had held a demonstration in the car park at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway. On 21 May 2003 at around midday the farmers had gone onto the highway and had stopped the traffic. They had only allowed through passenger vehicles and vehicles carrying dangerous substances. Vehicles that carried goods and cars were allowed to go through ten at a time on each side of the road once every hour. In order to improve the situation, the police had attempted to let the traffic bypass the blockade through neighbouring villages. However, owing to the poor condition of those neighbouring roads, not all lorries that carried goods were able to drive on them and they had to remain on the highway until the farmers had left. Some lorries became stuck in sand and special machinery was necessary to pull them out. The police indicated that the farmers had unblocked the highway at 4 p.m. on 23 May 2003.

As can be seen from the documents submitted to the Court, in May and September 2003 four logistics companies informed the police and Linava, the Lithuanian National Road Carriers’ Association, that they had sustained pecuniary damage in the sum of 25,245 Lithuanian litai (LTL – approximately EUR 7,300) as a result of the roadblocks during the farmers’ demonstrations. The companies stated that they would institute court proceedings in respect of those claims.

The Government alleged that notwithstanding the fact that only one claim for pecuniary damage was ultimately lodged (see paragraph 40 below), more than one carrier company incurred material loss owing to the disruption of traffic. As submitted by Linava, Vilniaus Dobilas incurred damage amounting to LTL 6,100 (approximately EUR 1,760); Rokauta incurred damage amounting to LTL 4,880 (approximately EUR 1,400); and Immensum incurred damage amounting to LTL 3 600 (approximately EUR 1,050). Moreover, in a letter of 26 May 2003 the company Ridma indicated that the loss incurred owing to the roadblocks amounted to LTL 10,655 (approximately EUR 3,000).

Pre-trial investigations against the applicants and a number of other persons, on suspicion of having caused a riot, were initiated. In July 2003 B.M., V.M., A.P. and K.M. were ordered not to leave their places of residence. That measure was lifted in October 2003.

On 1 October 2003 the police imposed a fine of LTL 40 (approximately EUR 12) on farmer A.D. According to the applicants, it was established in the police record relating to the fine that on 21 May 2003 A.D. had taken the farmers to block the Kaunas-Marijampolė-Suvalkai highway in Kalvarija municipality; he had walked in the middle of the road, pushing a cart in front of him, thus obstructing the traffic. By such actions A.D. had breach paragraph 81 of the Road Traffic Regulations (see paragraph 67 below) and thus committed an administrative law violation, as provided for in Article 131 of the Code of Administrative Law Offences (see paragraph 66 below).

The Government noted that the criminal proceedings against A.D. were discontinued on 1 August 2003 as he had not organised or provoked a gathering to seriously breach public order; his act (walking in the middle of the road pushing a cart in front of him) was not considered to fall under Article 283 § 1 of the Criminal Code (see paragraph 62 below). The Government further noted that the criminal proceedings had been discontinued on similar grounds in respect of three other persons. In respect of a fourth person the criminal prosecution was discontinued owing to his immunity as a Member of Parliament.

On 4 December 2003 an indictment was laid before the courts. B.M. and A.K. were accused of incitement to rioting under Article 283 § 1 of the Criminal Code.

The prosecutor noted that B.M. had taken part in the farmers’ meeting of 16 May 2003, at which the farmers had decided to hold demonstrations near major highways on 19 May and, should the government not satisfy their requests by 11 a.m. on 21 May, to blockade those highways. On 19 May B.M. had told the farmers to blockade the roads on 21 May. As a result, at 12.09 p.m. on that date around 500 farmers had gone onto the Vilnius-Klaipėda highway. The farmers had refused to obey police requests not to stand on the road. Consequently, traffic had been blocked until 1 p.m. on 23 May. Traffic jams had occurred on neighbouring roads and road transport in the region had become impossible.

With regard to A.K., the prosecutor claimed that he had also incited the farmers to blockade the highway. As a result, at midday on 21 May 2003 approximately 250 people had gone onto the Panevėžys-Pasvalys-Riga highway, refusing to obey police orders not to block the highway. The road had remained blocked until 10.58 a.m. on 23 May. The roads in the vicinity had become clogged. The normal functioning of the Saločiai-Grenctale border control post had been disrupted.

V.M., K.M. and A.P. were accused of a serious breach of public order during the riot, under Article 283 § 1 of the Criminal Code. The prosecutor maintained that on 21 May 2003, at around 11.50 a.m., approximately 1,500 people had gone onto the Kaunas-Marijampolė-Suvalkai highway at the ninety-fourth kilometre. At about 3-4 p.m. the aforementioned applicants had driven onto the highway with three tractors and had left the tractors on the carriageway. The three applicants had refused to follow police instructions not to breach public order and not to leave the tractors on the road. The tractors had remained on the road until 4.15 p.m. on 23 May 2003. As a result, the highway had been blocked from the eighty-fourth to the ninety-fourth kilometre. Due to the resulting increase of traffic on neighbouring roads, congestion had built up and road transport in the region had come to a halt. The normal functioning of the Kalvarija and Marijampolė State border control posts had been disrupted.

Within the criminal proceedings, a logistics company brought a civil claim against A.K., as the person who had incited the farmers to block the Panevėžys-Pasvalys-Riga highway, seeking damages of LTL 1,100 (approximately EUR 290) for the loss allegedly incurred by it owing to the blockading of that road.

Several hearings, during which a number of witnesses testified, took place before the Kaunas City District Court.

On 29 September 2004 the Kaunas City District Court found the applicants guilty of having incited riots or having participated in them, under Article 283 § 1 of the Criminal Code.

In convicting B.M., the District Court relied on video recordings of the events, documentary evidence and the testimony of one witness. The court concluded that B.M. had organised a gathering with the aim of seriously breaching public order, namely by rioting. B.M. had been one of the leaders of the farmers’ meeting on 16 May 2003, at which the farmers had decided to attempt to achieve their goals by organising protests next to major highways. The District Court noted that the second applicant had coordinated the actions of the farmers and as a consequence, on 21 May 2003, approximately 500 people had gone to the Vilnius-Klaipėda highway and had blocked it. As a result, traffic had been blocked until 23 May 2003. The ensuing serious breach of public order had been deliberate and had to be characterised as a riot. The District Court dismissed B.M.’s claim that he and other farmers had acted out of necessity because the roadblock had been their last opportunity to draw the government’s attention to their problems. The farmers had had an alternative, namely, they could have brought complaints before the administrative courts. The farmers had themselves mentioned that alternative during the meeting of 16 May 2003 (see paragraph 14 above). The District Court further noted that a person who created a dangerous situation by his or her actions could only rely on the defence of necessity when a dangerous situation arose through negligence (Article 31 § 2 of the Criminal Code – see paragraph 65 below). However, the actions of B.M. had been deliberate and it was therefore appropriate to find him guilty of organising the riot.

The District Court found it established, mainly on the basis of video recordings and documentary evidence, that A.K. had also organised a gathering with the aim of seriously breaching public order. He had taken part in the farmers’ meeting of 16 May 2003 and had known about the decision to hold protests next to the roads. When a crowd of farmers had blocked the Panevėžys-Pasvalys-Riga highway on 21 May 2003, public order had been seriously breached. Traffic had been stopped on that part of the road, causing inconvenience to drivers and goods carriers. The District Court held that “during the blockade of 21 and 22 May, A.K. coordinated the actions of the crowd, that is to say he gave orders that some of the vehicles should be let through, incited [the farmers] to hold on and not to move away from the highway, was in contact with the participants in the protests in Kalvarija municipality and Klaipėda region, [and] was negotiating with the authorities by mobile phone in the name of the farmers”. The District Court emphasised that the farmers who had gathered (approximately 250 people) “obeyed the actions of A.K. and followed his orders”. For the District Court, the actions of A.K. were to be characterised as organising a riot under Article 283 § 1 of the Criminal Code.

On the basis of written evidence submitted by Linava, the District Court also found that by having organised the blockade of the Panevėžys-Pasvalys-Riga highway, A.K. had caused pecuniary damage to three carrier companies. As one of the carriers had submitted a civil claim for the sum of LTL 1,100 (approximately EUR 290 – see paragraph 40 above), the District Court deemed it proper to grant that claim.

In finding V.M., K.M. and A.P. guilty of having caused a serious breach of public order during a riot, the District Court, on the basis of documentary evidence, audio-visual material and the testimony of two witnesses, established that on 21 May 2003 between 11.50 a.m. and 4.15 p.m. the three of them had driven tractors onto the Kaunas-Marijampolė-Suvalkai highway at its ninety-fourth kilometre. They had refused to obey lawful orders by the police not to breach public order and not to park the tractors on the road (ant važiuojamosios kelio dalies) and had kept the tractors there until 4.15 p.m. on 22 May 2003. As a consequence, and because about 1,500 people had gathered on the road, the traffic had been blocked between the eighty-fourth and ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway, traffic jams had occurred and the normal functioning of the Kalvarija and Lazdijai border control offices had been disrupted.

The five applicants were each given a sixty-day custodial sentence (baudžiamasis areštas). The District Court also noted that all the applicants had positive characteristics and that there were no circumstances aggravating their guilt. Accordingly, there was reason to believe that the aim of the punishment could be achieved without actually depriving them of their liberty. Consequently, the District Court suspended the execution of their sentences for one year. The applicants were ordered not to leave their places of residence for more than seven days without the authorities’ prior agreement. This measure was to last for one year, whilst execution of the sentence was suspended.

The District Court also acquitted, for lack of evidence, two other individuals charged with organising the riots.

On 18 October 2004 the applicants lodged an appeal with the Kaunas Regional Court. They noted, inter alia, that another farmer, A.D., had been punished under administrative law for an identical violation (see paragraphs 34-35 above).

The applicants further argued that in European Union (hereinafter, the “EU”) member States, roadblocks were accepted as a form of demonstration, and that the right to demonstrate was guaranteed by Articles 10 and 11 of the Convention. They referred, inter alia, to Article 2 of EU Council Regulation (EC) No 2679/98 of 7 December 1998 (see paragraph 77 below) and to a report of 22 March 2001 by the European Commission (COM (2001)160) on the application of that Regulation, as well as to the judgment of the European Court of Justice (hereinafter, the “ECJ”) in the case of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria (see paragraphs 73-76 below).

On 14 January 2005 the Kaunas Regional Court found that the District C The appellate court observed that the offence of rioting endangered public order, the safety of society, human health, dignity and the inviolability of property. The objective aspect of the offence was the organising of a gathering of people for a common goal – namely, to breach public order – and the implementation of their decision which, in the instant case, had been to organise the roadblocks. To constitute an offence, the actions also had to be committed deliberately, that is to say, the persons charged had to understand the unlawfulness of their behaviour. In relation to B.M. and A.K., the Regional Court observed that during the demonstrations the two applicants had told others that it had been decided to block the roads. It had been established that B.M. and A.K. had understood that the roadblocks would be illegal and that they had been warned about their liability as organisers. Even so, they had continued to coordinate the farmers’ actions and had insisted that the farmers would maintain the roadblocks. As a direct result of the actions of B.M. and A.K., on 21 May 2003 a crowd had gone onto the highways and had blocked them, thereby stopping the traffic and breaching the constitutional rights and liberties of others to move freely and without restriction, causing damage to goods carriers and thus seriously breaching public order.

The Regional Court also shared the District Court’s conclusion as to the reasonableness of convicting V.M., K.M. and A.P. It noted that by driving tractors onto the highway, thus causing traffic congestion and disturbing the work of the State border control service, and by refusing to obey lawful requests by the police not to park their tractors on the road, the three applicants had seriously breached public order. The fact that after the highway had been blocked the police and the drivers had negotiated with the farmers, with the result that some of the drivers had been let through, did not diminish the danger of the offence or its unlawfulness. The Regional Court also emphasised that the blockading of a major highway had had dangerous consequences and could not be considered to have been a mere administrative law offence such as a traffic violation. As to the applicants’ argument that their offences were identical to that for which another farmer, A.D., had been given a mere administrative sanction for a traffic violation (see paragraph 49 above), the Regional Court indicated that it was not an administrative tribunal and thus could not comment on the administrative offence.

Whilst noting that the applicants had the right to freedom of expression under Article 10 of the Convention, the Regional Court nevertheless observed that such right was not without restrictions, should the interests of public order and prevention of crime be at stake. Analogous limitations to freedom of expression were listed in Article 25 of the Lithuanian Constitution (see paragraph 61 below). On this issue, the Regional Court emphasised that the behaviour of B.M. and A.K., in guiding the actions of the other individuals involved in the protest, could not be regarded as a non-punishable expression of their opinion, because they had breached public order, thus engaging criminal liability.

The Regional Court further noted that the criminal offence had not lost its element of public danger merely because the government had refused to raise wholesale prices or had allegedly failed to take the necessary action.

On 2 March 2005 the applicants appealed on points of law.

On 4 October 2005 the Supreme Court, composed of an enlarged chamber of seven judges (see paragraph 70 below), dismissed the appeal. In providing an explanation as to the substance of the offence of rioting, as established in Article 283 § 1 of the Criminal Code (see paragraph 62 below), the Supreme Court referred to its classification as an offence against public order, which was the objective aspect of the crime (nusikaltimo objektas). In describing the scope of the offence, the aforementioned provision stipulated the following features: the organisation of a gathering with the aim of causing public violence, damaging property or otherwise breaching public order, or the commission of those actions during a gathering. For the Supreme Court, a riot was to be characterised as a situation where a gathering of people deliberately and seriously breached public order, caused public violence, or damaged property. The subjective aspect of the crime was that of direct intent (kaltė pasireiškia tiesiogine tyčia). The guilty person had to (i) be aware that he or she was performing an action that was listed as an offence in Article 283 § 1 of the Criminal Code and (ii) wish to act accordingly.

Turning to the circumstances of the present case, the Supreme Court found that the courts below had been correct in characterising the applicants’ actions as falling under Article 283 § 1 of the Criminal Code. In particular, the trial court had properly established all the prerequisites for the application of Article 283 § 1, namely that there had been a crowd and that public order had been breached by blocking the highways, stopping traffic and disturbing the work of the State border control service. The applicants had been sentenced for their offences under a law which had been in force at the time when they were committed and their sentences had been imposed in accordance with the provisions of the Criminal Code. It followed that the applicants’ convictions had been in accordance with the law and not in breach of Article 7 § 1 of the Convention.

The Supreme Court also stated that the applicants had not been sentenced for expressing their opinion or imparting ideas, actions which were protected by the guarantees of Article 10 § 1 of the Convention, but for actions by which they had seriously breached public order.

Lastly, the Supreme Court shared the Regional Court’s view that the applicants could not be regarded as having acted out of necessity (see paragraph 54 above). The fall in milk purchase prices and other problems with subsidies for agriculture had not constituted a clear or present danger to property, because the property in question had not yet materialised. The State had not deprived the applicants of their property, and their dissatisfaction with the government’s agricultural policy had not justified the acts for which the applicants had been convicted.

By court rulings of 17, 18, 20, 21 October and 7 November 2005, the Supreme Court discharged the applicants from their suspended sentences.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicants were born in 1978, 1979 and 1970 respectively and lived in Chelyabinsk prior to their arrest.

On 27 April 2005 the Krasnoflotskiy District Court of Khabarovsk remanded the applicants in custody. The applicants were charged with forgery and legalisation of money committed by an organised group. On 14 March 2007 the Industrialniy District Court convicted the applicants at first instance.

The applicants’ detention on remand was not based on relevant and sufficient reasons. The gravity of the charges was cited as the main reason for detention in orders of 27 April 2005, 3 June 2005, 16 July 2005, 19 July 2005, 25 July 2005, 9 September 2005, 12 September 2005, 13 September 2005, 1 December 2005, 30 December 2005, 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007. The same detention orders did not mention specific and relevant facts capable of corroborating the existence of security risks. The domestic courts did not consider the possibility of applying alternative measures of restraint or did not consider them seriously. Extensions were approved without verifying compliance with the special diligence requirement: it was not stated what had been done in the period elapsed since the last extension and what had to be done during the period for which the extension would be granted (see the orders of 27 April 2005, 1 December 2005, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007). The detention orders of 1 December 2005, 30 December 2005, 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007 employed repetitive standard formulae, notwithstanding changes in the applicants’ situation or developments in the proceedings. The trial court also issued collective detention orders in respect of the co-defendants that did not contain an analysis of their individual situations (see the orders of 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007).