Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Boštjan Zalar;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Kresnice.

The applicant and his family lived in a house in Litija which was sold in the impugned enforcement proceedings, described below.

During the proceedings described below the applicant was the subject of enforcement claims brought by three different creditors, namely a public water-supply company JP Vodovod-kanalizacija J. (hereinafter “company J.”), private company Porsche Kredit in Leasing SLO (hereinafter “company P.”), and an individual, A.A. Each creditor was seeking to enforce its own claim against the applicant. Although company P. had initially requested that the enforcement be carried out by seizing the applicant’s house, its claim was subsequently paid from the applicant’s bank account. Having been unsuccessful in securing the payment of its claim by the sale of movable property, company J. subsequently requested that enforcement action be taken against the applicant’s house. The house was ultimately sold at public auction for the purposes of enforcing company J.’s claim. A.A. joined the proceedings with his claim after the house had been awarded to the successful bidder at the aforementioned public auction. As the applicant repaid the debt to company J. after the auction, the proceeds from the sale of the house were used to cover his debt to A.A. Taxes and the outstanding mortgage on the house were also paid from the proceeds.

Company J. is based in Ljubljana and is the largest public water-supply company in Slovenia. On 18 December 2007 it sent the applicant a water bill in the amount of 124 euros (EUR), which was due to be paid on 5 January 2008.

As the applicant had not settled the aforementioned water bill of 18 December 2007, company J. instituted enforcement proceedings against him on 28 May 2009. It sought enforcement of the principal amount of EUR 124 plus default interest.

On 2 June 2009 the Ljubljana Local Court issued an enforcement decision – a writ of execution – against the applicant, ordering the seizure of his movable property as requested by company J. The decision contained a notice that an objection could be lodged by the debtor within a time-limit of eight days. The decision was served on the applicant on 24 June 2009. Since the applicant did not object to it, it became final on 3 July 2009. The case was subsequently transferred to the Litija Local Court for further consideration.

On 7 January 2010 an enforcement officer went to the applicant’s house with a view to seizing movable property. A report drawn up by the enforcement officer stated that nobody was at the property. The enforcement officer left a note, which included information concerning the attempted enforcement of the principal debt, interest and costs totalling EUR 376. He also wrote to the applicant inviting him to pay the debt voluntarily.

On 2 March 2010 company P. instituted enforcement proceedings seeking payment of EUR 1,576 together with interest accrued as from 10 July 2009 until payment. It proposed several means of enforcement, including the sale of the applicant’s house. The Ljubljana Local Court granted the request and the decision was served on the applicant on 9 March 2010. Since the applicant did not lodge an objection, the decision became final on 18 March 2010 and was transferred to the Litija Local Court for further consideration.

On 21 April 2010, as part of the proceedings instituted by company P., the Litija Local Court ordered a valuation of the applicant’s house. The order was served on the applicant through his father. Subsequently, on 2 June 2010, a property valuer submitted a report in which he set the market value of the house at EUR 140,000. He also stated that the applicant had assured him on the phone that the debt had already been repaid, but had then failed to submit confirmation of such repayment. The report was sent to the applicant for comment. As neither the applicant nor any other adult member of his household was found at the address, a note was left on 8 June 2010 directing the applicant to collect the report at the post office. However, he failed to do so, and on 24 June 2010 the report was left in his mailbox (see paragraphs 52 and 53 below). The applicant did not react to the report.

In the meantime, on 29 April 2010, the enforcement officer inspected the interior of the applicant’s house in the presence of the applicant’s wife and concluded that it contained no objects which could be seized and sold to cover the debt concerned in the proceedings instituted by company J. The officer again left a note inviting the applicant to pay the debt, now amounting to EUR 516, voluntarily. In his report, he proposed that the creditor choose some other means of enforcement, because enforcement directed against movable property would not suffice for the payment of the enforcement costs, let alone the debt. It was also established that the applicant’s car was leased and therefore could not be seized for enforcement purposes.

On 15 June 2010 company J. applied to the Litija Local Court for an attachment order in respect of the applicant’s immovable property, namely his house.

On 17 June 2010 the Litija Local Court granted company J.’s application and issued a decision allowing enforcement to be carried out by means of the sale of the applicant’s house. The decision was served on the applicant via his wife on 21 June 2010. The applicant did not lodge an objection. Subsequently, the court joined company J.’s application to the proceedings instituted by company P.

On 1 July 2010, the Litija Local Court set the amount to be paid to the property valuer. This was then paid from the deposit made by company P. On the same day the court also issued a decision setting the market price of the applicant’s house at EUR 140,000. After an unsuccessful attempt to serve both decisions on the applicant, they were left in the applicant’s mailbox (see paragraphs 52 and 53 below). The applicant did not appeal against the decisions.

On 31 August 2010 the Litija Local Court discontinued the enforcement proceedings pursued by company P. because the debt had been paid by means of the seizure of assets from the applicant’s bank account.

On 1 September 2010 the Litija Local Court ordered that a public auction of the applicant’s house be held on 7 October 2010. Following an unsuccessful attempt on 3 September 2010 to serve the order and the summons on the applicant, they were left in his mailbox (see paragraphs 52 and 53 below) on 20 September 2010.

On 2 September 2010 the Litija Local Court discontinued the enforcement action in respect of the applicant’s movable property because company J. had not lodged a new application within three months of the failed attempt (see paragraph 15 above). The decision was served on the applicant on 6 September 2010.

On 7 October 2010 a first public auction of the applicant’s house was held. However, there were no interested buyers. The applicant did not appear.

On 8 October 2010 the Litija Local Court ordered a second public auction to be held on 18 November 2010. Following an unsuccessful attempt to serve the order and the summons on the applicant on 14 October 2010, a note was left directing the applicant to collect them at the local post office. As he failed to do so, they were left in his mailbox (see paragraphs 52 and 53 below) on 2 November 2010.

In the meantime, on 18 and 25 October 2010, company J. applied to the Litija Local Court for an extension of the enforcement order to other means of enforcement, namely the attachment of the applicant’s bank account and his salary respectively.

At the second public auction held on 18 November 2010 the house was sold to M.L. for EUR 70,000, namely 50% of its estimated market value. The applicant did not appear.

On 19 November 2010 the Litija Local Court issued a written decision awarding the property to the bidder, M.L. (sklep o domiku). The award decision, together with a copy of the minutes of the second auction, was served on the applicant via his wife on 23 November 2010.

On 22 November 2010 the Litija Local Court granted company J.’s application and attached to the enforcement order the applicant’s salary and bank account. The decision was served on the applicant on 24 November 2010. The decision mentioned that enforcement had previously been ordered against movable property, but contained no mention of the judicial sale of the house. It was noted that up to two thirds of the salary the applicant was receiving from his employer K. could be seized, provided that the applicant was left with the statutory minimum guaranteed income. The decision also contained a notice to the bank, which stated, among other things, that if no assets were currently available, the bank should proceed with the seizure once assets became available; if no assets became available within a year of the decision being served on the bank, the latter should inform the court to that effect.

On 22 November 2010 another creditor, A.A., applied to the court for enforcement of a court judgment granting him compensation together with costs and interest, totalling EUR 5,112, with accrued interest. He requested that the enforcement be carried out by attachment of the applicant’s house.

On 24 November 2010 the applicant lodged an appeal against the award decision in which he informed the court that he had repaid the debt (see paragraph 26 above). He argued, inter alia, that he had been unable to go to the auction and that he had only learned from the impugned decision that the auction had been held. He further submitted that in the meantime he had repaid his debt. He had been having financial difficulties throughout that year since his father had died and his mother had lost her job. In this connection he submitted that he had needed to support her in addition to his wife, who had also been unemployed, and his two children. He stressed that in the event that the award decision were not revoked, his family would risk becoming homeless. Moreover, his employer, company K., had received the same day the enforcement order directed against his salary.

Following the applicant’s repayment of the debt on 24 November 2010, company J. on the same day applied to the court for discontinuation of the enforcement proceedings.

On 25 November 2010 the Litija Local Court discontinued the enforcement proceedings instituted by company J.

On 2 December 2010 the Ljubljana Local Court granted the application for attachment of the applicant’s house in the enforcement proceedings instituted by A.A. (see paragraph 28 above).

The applicant lodged an objection to the above decision (see paragraph 32 above), stating that the enforcement proceedings instituted by company J. had already been discontinued and that he wished to have A.A.’s claim enforced by the seizure of his monetary assets and repaid in twelve monthly instalments. On 19 January 2011 the Litija Local Court dismissed the applicant’s objection and refused to adjourn the enforcement proceedings in respect of the attachment of the applicant’s house. It also refused to allow the enforcement by means of seizure of the applicant’s monetary assets as proposed by the applicant because it had not been shown that such means would lead to the settlement of the debt within a year (see paragraph 49 below). That decision was served on the applicant on 21 January 2011. The applicant did not appeal against it.

On 29 December 2010 the Ljubljana Higher Court dismissed an appeal lodged by the applicant against the award decision issued in favour of M.L. (see paragraphs 26 and 29 above), which thus became final. The court held that the applicant had been properly summoned to attend the public auction, which he had not disputed in his appeal, and that he had not given a reason why he had been unable to go to the auction. The court dismissed his allegations that he had been unable to repay the debt. It explained that the enforcement decision concerning the debt of EUR 124 had become final in July 2009, whereas he was relying on circumstances which had taken place in 2010. Moreover, the debt was of minor value. The court further pointed out that the applicant had been properly served with all the court documents in the proceedings but had not reacted to them, which had been entirely his choice. It also found that there was no reason to suggest that the applicant’s family would end up on the street, although their standard of living might worsen as a result of the sale of their house. Lastly, the court referred to Constitutional Court decisions nos. Up-35/98 and Up-77/04 (see paragraph 55 below), stressing that the subsequent repayment of the debt could not lead to the revocation of an award decision that had already been pronounced, regardless of the amount of money to be paid.

On 12 January 2011, following the full payment of the sale price by M.L., the Litija Local Court transferred the property sold at public auction to him and ordered that his name be entered as the owner in the Land Register. It further ordered the applicant to vacate the house within thirty days of receipt of the decision.

On 21 January 2011 the applicant, now represented by a law firm, lodged an appeal against the decision concerning the transfer of title and applied for revocation of the finality of the award decision. He argued, inter alia, that following the discontinuation of the enforcement proceedings on 25 November 2010, the court should have, in accordance with section 76 of the Enforcement and Securing of Civil Claims Act (hereinafter “the Enforcement Act”, see paragraph 48 below), annulled any enforcement actions already taken; hence it should also have revoked the award decision. He stressed that at the relevant time the buyer had not yet acquired ownership of the property and therefore the revocation of the award decision would not have affected rights already acquired by the buyer. The applicant maintained that the summons for the auction had not been served on him.

On 25 May 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that under section 192 of the Enforcement Act (see paragraph 50 below) there were only two conditions to be fulfilled in order to allow the transfer of property to a buyer – a final award decision and the payment of the purchase price. Therefore, the law had been correctly applied. The court also rejected the allegation that the summons had not been served on the applicant, referring to the findings in the decision of 29 December 2010 (see paragraph 34 above). It also rejected the applicant’s assertion that the discontinuation of the enforcement proceedings should have resulted in the annulment of orders to carry out enforcement, including revocation of the award decision. The court further stated that the Constitutional Court, in its decisions nos. Up-35/98 and Up-77/04, had already expressed an opinion that the revocation of the award decision would have interfered with the rights of others (see paragraph 55 below).

On 17 June 2011 the Litija Local Court held a hearing on the distribution of the proceeds of the house sale and decided to distribute them as follows: the amounts of EUR 146 and EUR 5,895 would go to the applicant’s creditor, A.A., who had joined his claims to the enforcement proceedings after the house had already been sold; EUR 1,372 to the Tax Office for taxes due for the sale of the house; and EUR 58,888 to a bank on account of the outstanding mortgage on the house. The remainder of the proceeds from the sale in the amount of EUR 3,699 was transferred to the applicant. The decision was served on the applicant on 18 August 2011.

At the request of M.L., on 11 July 2011 the Litija Local Court issued a writ of execution against the applicant, ordering the eviction of the applicant’s family from the house. The applicant lodged an objection and a further appeal, which were both dismissed. He referred to his constitutional appeal (see the following paragraph) and essentially argued that the sale should be revoked in view of the fact that he had repaid the debt before the award decision had become final. In his submission, the transfer of the title to M.L. could not therefore be taken as a valid basis for his eviction.

In the meantime, on 28 July 2011 the applicant lodged a constitutional appeal against the decisions of 12 January and 25 May 2011 (see paragraphs 35 and 37 above). He argued that the decisions were unlawful and arbitrary and that the sale of his house resulting from a debt of EUR 124 amounted to a disproportionate interference with his property rights. In particular, he argued that the court had been under no obligation to attach immovable property to the enforcement order. He also submitted that an award decision could not become final if the enforcement proceedings had been discontinued, a point he had explicitly raised in his appeal (see paragraph 36 above).

On 5 March 2012 the Constitutional Court dismissed the applicant’s constitutional appeal by referring to section 55b(2) of the Constitutional Court Act (see paragraph 54 below).

On 16 March 2012 the applicant and his family were evicted from their house with the assistance of the police. They first moved in with their relatives and later acquired a new home.


CASE OF MISIUKONIS AND OTHERS v. LITHUANIA

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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first and second applicants were born in 1940 and 1942 respectively and live in Kaunas. The third applicant was born in 1977 and lives in France. The first and second applicants are husband and wife, and the third applicant is their daughter.

On 25 January 2001 the Vilnius County Administration (hereinafter “the VCA”) acknowledged G.O.’s right to restoration of title in respect of 0.728 hectares of land in the Antaviliai estate in the Vilnius Region. That land had belonged to G.O.’s father and had been nationalised by the Soviet regime.

The following day G.O. sold his right to restoration of title in respect of that plot of land in equal parts to four buyers: the three applicants and V.M. (the first and second applicants’ son, and the third applicant’s brother). The sale agreement was signed by V.M., acting as the applicants’ representative. The four buyers paid, in equal parts, a total of 15,000 Lithuanian litai (LTL; approximately 4,344 euros (EUR)) to G.O.

On 25 June 2001 the VCA issued documents confirming the applicants’ and V.M.’s right to receive 0.182 hectares of land each from the State for free. As the second applicant had been a deportee of the Soviet regime, in line with the domestic law she and her family had priority rights to have their property rights restored. The applicants and V.M. were provided with four plots of land (one plot each) in the city of Vilnius the following month.

In August and September 2001 the applicants, represented by V.M., sold their plots to third parties for the price of LTL 25,000 (EUR 7,241) for each plot. The sale agreements indicated that the indexed value of each plot, estimated by the Vilnius Branch of the State Enterprise Registry of Land and Other Immovable Property (Žemės ir kito nekilnojamojo turto kadastro ir registro valstybės įmonės Vilniaus filialas), was LTL 25,650 (EUR 7,429).

In October 2001 the Vilnius City Police Department opened a pretrial investigation concerning allegations of fraud in connection with the restoration of property rights in the Vilnius Region. It was suspected that an organised criminal group was forging documents showing deportee status in order to obtain priority rights in the property restoration process. It was also suspected that some officials of regional authorities had unlawfully restored property rights to individuals who did not have such rights.

On 26 November 2001 V.M. was interviewed as a witness in the investigation and asked to explain how he and his family (the applicants) had obtained land in Vilnius. V.M. stated that in 1994 he had befriended E.K. who was his wife’s stepbrother. V.M. knew that E.K.’s job was related to land measurement. Sometime in 2000 V.M. mentioned to E.K. that his mother (the second applicant) had been a deportee. Then E.K. told him that it was possible to acquire restoration rights from other persons and get certain privileges available to former deportees. After about six months E.K. informed V.M. that he had found a person who was willing to sell his restoration rights. E.K. advised V.M. that it was better if the contract with that person (G.O.) was signed by four family members and not just one, because that way they could obtain four separate plots of land. E.K. dealt with all the related paperwork and contacted public officials, while V.M. only signed the sale agreements with G.O. After V.M. and his family had received plots of land, E.K. suggested selling them, and found buyers for all the four plots. V.M. submitted that he had not known the buyers previously and had only met them when signing the agreements. He received LTL 25,000 from each buyer. In all their dealings related to the land V.M. and his family trusted E.K. and assumed that he knew all the relevant legal acts, as his work was related to land. Neither V.M. nor the applicants paid any money to E.K. at any point.

On 10 January 2002 V.M. was again interviewed as a witness in the investigation. He retracted his previous statement in part and stated that he had not received payment for the four plots of land (LTL 25,000 for each plot) and did not know if the buyers had paid that money to E.K. or to anyone else, or if they had paid anything at all. V.M. also stated that in the autumn of 2001 E.K. had informed him about the pending pre-trial investigation and advised him to tell the authorities, if questioned, that he (V.M.) had received the payment. E.K. had assured V.M. that everything had been done lawfully, but now V.M. considered that he had been misled and deceived by E.K.

It appears that none of the applicants were interviewed or had any procedural status in the investigation.

On 15 June 2007 the Vilnius City District Prosecutor ruled that “the facts of the case confirmed that suspects A.Ž., G.S. and S.Ž. had acted unlawfully” and that “during the investigation it was indisputably established (neginčytinai nustatyta) that suspect A.Ž. had unlawfully included relatives of friends or acquaintances of hers on the list of those who had priority right to have their property rights restored”. That same ruling discontinued the investigation as time-barred.

In January 2002 the prosecutor of the Vilnius Region (hereinafter “the prosecutor”) lodged a claim before the Vilnius City First District Court, asking for the administrative decisions which had acknowledged G.O.’s right to restoration of title, the sale of G.O.’s restoration rights to the applicants (and V.M.), and all the administrative decisions which had allocated land to them, to be overturned. That claim was amended in June and September 2002 and June 2005. The prosecutor submitted that the Law on Restitution, in force at the material time, entitled G.O. to receive one plot of up to 0.2 ha, with the remainder of his land being compensated for in other ways (see “Relevant domestic law” below), so the applicants were not entitled to be allocated a plot of land of that size each. The prosecutor also submitted that the VCA had unlawfully restored the applicants’ rights to property in the order of priority: even though the second applicant had been a deportee, G.O. had not, and thus he did not have the right to transfer to the applicants priority rights which he himself did not have.

On 20 February 2006 the Vilnius City First District Court allowed the prosecutor’s claim in part. The court found that the authorities had lawfully decided to restore G.O.’s property rights and that the latter had lawfully sold those rights to the applicants. However, the court upheld the prosecutor’s argument that G.O. did not have the right to sell more rights than he had himself, and that the applicants’ property rights could only have been restored under the same conditions as would have been applied had they been restored to G.O. The court observed that although such a rule had not been explicitly stipulated in the Law on Restoration at the time when G.O. sold his rights to the applicants, that rule stemmed from a systemic and logical interpretation of that Law, as well as from legal acts of lower rank (see paragraphs 32 and 34 below). Accordingly, the court held that the applicants had the right to receive one plot of land of up to 0.2 ha, but not three separate plots of that size, and they were not entitled to restoration in the order of priority. It overturned the administrative decisions which had allocated the land to the applicants.

As a result, the Vilnius City First District Court ordered the applicants to return to the State the plots of land which they had received from it for free. Since they had sold the land to third parties and restitution in integrum was not possible, the court decided that they had to pay the State the market value of that land. In line with Article 6.147 § 2 of the Civil Code (see paragraph 38 below), when property subject to restitution is transferred and the person who transferred it has acted in good faith, he or she has to compensate in the amount of the market value of the property at the time when it was received or transferred, or at the time of restitution, whichever is lowest. The court noted that the prosecutor had not alleged that the unlawful transaction had occurred because of the applicants’ fault or that they had acted in bad faith; nor had it been determined, at the time of the proceedings, that any crime had been committed. Accordingly, the court ordered the applicants to return to the State an amount corresponding to the market value of the land at the time they sold it, as that value was the lowest. On the basis of an estimate by the State Enterprise Centre of Registers, each applicant was ordered to pay LTL 216,000 (EUR 62,560).

The applicants appealed against that judgment; on 6 June 2006 the Vilnius Regional Court dismissed their appeal. The court considered that obliging the applicants to pay compensation in the amount of the market value of the land was not disproportionate, because they still retained the right to have property rights restored and to obtain new plots.

On 5 June 2007 the Supreme Court dismissed a cassation appeal by the applicants. It held that ignorance of the law could not absolve anyone of responsibility, and thus the applicants should have known that property rights had been restored to them in breach of peremptory legal norms, especially as there was information that they had been advised by E.K., who worked in a municipal land reform department (see paragraphs 11-12 above).

On 29 June 2007 the applicants submitted a claim against the State for pecuniary damages before the Vilnius Regional Administrative Court. They contended that each of them had received LTL 25,000 for selling the land but had been ordered to pay LTL 216,000 to the State each, and thus had suffered pecuniary losses of LTL 191,000 (EUR 55,317) each. They also asked for pecuniary damages of LTL 5,230 (EUR 1,514) for the court fees each of them had had to pay in the previous proceedings (see paragraphs 15-19 above).

After submitting their claim, the applicants applied for suspension of the execution of the Vilnius City First District Court’s judgment of 20 February 2006 (see paragraph 16 above), submitting that they did not have sufficient funds to comply with it. On 7 December 2007 the Vilnius Regional Administrative Court rejected their application on the grounds that the execution of the judgment had not been started yet, and that, in any event, if the applicants did not have sufficient funds nothing would be seized from them.

On 13 March 2008 the Vilnius Regional Administrative Court dismissed the applicants’ claim for damages. The court acknowledged that the VCA had acted unlawfully when allocating land to the applicants; however, it considered that the applicants had not proven that they had suffered any pecuniary damage. The court noted that the applicants still had the right to restoration of title to G.O.’s land, because their agreement had not been cancelled, and that they were on the list of candidates to be given new plots of land. Accordingly, until such plots were given to them it was not possible to assess whether the applicants had suffered pecuniary damage or not.

The Vilnius Regional Administrative Court also noted that there had been a criminal investigation concerning the VCA’s unlawful decisions restoring property rights. Although the investigation was eventually discontinued, it had nonetheless “indisputably established” that certain employees of the VCA had unlawfully issued documents recognising restoration rights (see paragraph 14 above). The court noted that one of those employees was E.K., whom the applicants had consulted. Accordingly, the court held that the applicants should have known that they had received the land unlawfully and that they had themselves contributed to the pecuniary damage “by acting carelessly and negligently” (veikdami nerūpestingai ir neatsargiai).

The applicants appealed against that judgment. They submitted, inter alia, that even if they had contributed to the pecuniary damage, the main agent who had caused those damages had been the VCA. Therefore, they argued that, in line with the provisions of the Civil Code (see paragraphs 39-40 below), the liability should have been distributed proportionately between the VCA and the applicants and not placed solely on them. The applicants also submitted that the fact that V.M. had consulted E.K. did not prove that the applicants had conspired with E.K. or other unlawfully acting officials, or that the applicants had pressured any officials to act unlawfully to their benefit. The applicants contended that after their restoration rights had been cancelled the original state of affairs should have been restored, and they should not have been obliged to pay more than they had received.

On 2 March 2009 the Supreme Administrative Court dismissed the applicants’ appeal and upheld the judgment of the lower court. It underlined that the applicants had received the land from the State for free, and that they had immediately sold it to third parties who had to be considered bona fide acquirers. The court held that by selling their plots for a price that was significantly lower than their market value the applicants had acted at their own risk, and thus the difference between what they had received (LTL 25,000 each) and what they were obliged to pay to the State (LTL 216,000 each) could not be regarded as pecuniary damage. The Supreme Administrative Court further held that even if the applicants had suffered pecuniary damage, they could not be awarded damages because they themselves had acted unlawfully. Relying on the Supreme Court’s judgment of 5 June 2007 (see paragraph 19 above), the Supreme Administrative Court considered that the applicants had abused their rights by attempting to get from the State more land than G.O. had been entitled to receive. Accordingly, having concluded that both the applicants and the VCA had acted unlawfully, the court relied on Article 6.282 § 1 of the Civil Code (see paragraph 40 below) and held that there were no grounds to award them pecuniary damages.

Subsequently the applicants applied for reopening of the proceedings, but on 31 December 2009 the Supreme Administrative Court dismissed their application.

In March 2013 a bailiff began executing the Vilnius City First District Court’s judgment of 20 February 2006 (see paragraph 16 above). According to the documents in the Court’s possession, from that date until June 2015 the first and second applicants each paid LTL 2,445 (EUR 708) in monthly payments ranging from LTL 69 (EUR 20) to LTL 200 (EUR 58). The third applicant paid LTL 3,249 (EUR 941) in monthly payments ranging from LTL 69 (EUR 20) to LTL 300 (EUR 87). At the time of the parties’ observations to the Court, the execution was ongoing. The Government submitted that in the future, when the applicants were provided with new plots of land (see paragraphs 28-30 below), the remaining amount could be recovered from those plots.

On 19 July 2007 the VCA included the applicants (and V.M.) on the list of individuals who had the right to have title to property restored in the area around Vilnius. Their number in the list was 1417 B.

On 14 March 2016 the applicants (and V.M.) were informed by the National Land Service that they were number 185 in the above-mentioned list. They were invited to a meeting of candidates during which they would be able to choose one plot of land of up to 0.12 hectares in joint ownership.

As submitted by the Government, that meeting took place on 5 April 2016 and the first and second applicants, as well as V.M., were present but the third applicant was not. Since the four of them were entitled to receive one plot of land in joint ownership, the first and second applicants (and V.M.) were not allowed to choose a plot in the absence of the third applicant. The Government further submitted that there was still land available in the area around Vilnius and that the applicants would be invited to another meeting, planned to take place in the autumn of 2016. At the time of the parties’ observations to the Court, the applicants’ property rights had not yet been restored.


CASE OF RUIZ PENA AND PEREZ OBERGHT v. MALTA

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

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

The applicants were born in 1964 and 1973 respectively and are detained in Corradino Correctional facility, Paola, Malta.

The first applicant is a Venezuelan national who has been detained in Corradino Correctional Facility, Paola, since September 2009. He is serving a tenyear prison sentence following a judgment of 21 March 2012. Since 10 January 2013 he has been detained in Division 3, cell no. 148. The first applicant has never asked for a transfer because, although there were prospects that he would be transferred to a division with an automated flushing system, this would also have meant that he would lose his individual cell and be placed in a dormitory, to the detriment of his privacy.

The first applicant submitted that his cell has one window and one air vent. The latter is clogged with dirt and debris and his cell window is positioned too high up, meaning that he therefore has to climb onto the sink to open or close it. He stated that the cell does not have adequate ventilation and it is subject to high temperatures in the summer and low temperatures in the winter. He alleged that he had not been provided with a heater during the winter and that his requests to this effect had been turned down. The prison authorities had provided him only with one blanket, other blankets and clothes having been received from NGOs. In the summer, when the temperature ranges between 35 and 40 degrees Celsius, the two fans purchased by the first applicant do not suffice as they merely circulate hot air, which is made worse in the absence of proper ventilation.

He also claimed that he has to use a bucket to flush his toilet. Given the low water pressure, it takes time to fill a bucket and sometimes more than one bucket is necessary to flush the toilet, making the situation deplorable, especially in the summer.

As the building housing the Division is more than 150 years old, the ceiling releases dust, which is allegedly harmful to the first applicant’s lungs.

The first applicant submitted that he does not have access to drinking water, since the tap water is rusty and filthy, and he therefore has to purchase drinking water. However, his job in prison pays only 0.60 euro (EUR) cents per day and in the summer he drinks three six packs of water a week, at considerable cost. The Government submitted that the first applicant received EUR 34.77 every four weeks in socalled “gratuity” remuneration and from the “Work and Pay” scheme, with which he had been involved since 2015. They stated that at the tuck shop a sixpack of water cost EUR 2.24 and an individual bottle EUR 0.38.

The second applicant, who is a national of the Dominican Republic, has been detained in Corradino Correctional Facility since 24 November 2009. He is serving a nine-year prison sentence following a judgment of 15 October 2012. Since 27 January 2012 he has been detained in Division 3, cell no. 155 (with the exception of one day 3 October 2015 spent in Division 6).

According to the Government, following communication of the complaint, the second applicant was asked whether he wanted to be transferred to another division and replied in the negative.

The second applicant submitted that his cell window is at a height of more than two metres and it is very difficult to open without endangering one’s life. Its metal protective bars make it difficult for the cell to admit any natural light. Although there are two openings for the purposes of ventilation, one of them is blocked and there is therefore not sufficient ventilation.

The second applicant alleged that the water is not drinkable; he therefore has to purchase it. The Government submitted that the second applicant received EUR 41.58 every four weeks in so-called “gratuity remuneration” and from the “Work and Pay” scheme, with which he had become involved prior to 2015.

The dust which falls from the cell’s ceiling allegedly affects the second applicant, who suffers from asthma. The Government submitted that the amount of dust falling from the ceiling of his cell was not abnormal, but was what emanates naturally from Maltese stone. They noted that the second applicant had never asked for materials to paint his cell.

The second applicant also submitted that because of the humidity in his cell and the fact that he does not have a heater, he frequently catches the flu during the winter months. The Government submitted that the cell was humid because the second applicant had blocked his vent with a towel and did not undertake any maintenance of his cell.

The second applicant noted that the light both inside and outside the cell is very poor, making it difficult for him to read. The Government noted that the second applicant had a ceiling light and another wallmounted light, as well a portable lamp which he had acquired. Natural light came in through three skylights and artificial light was provided through bell lamps of 400W each. The second applicant also claimed that the spiral staircase is not appropriate in the case of an emergency, since a stretcher could not be carried down it and it would not be possible to evacuate people two at a time. In this connection the Government submitted that other options were available should an emergency arise, such as the use of the walkway between the divisions.


CASE OF NEDYALKOV AND OTHERS v. BULGARIA

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicants were born in 1923, 1948, 1957 and 1924 respectively. The fourth applicant lives in the village of Rogachevo, the second applicant lives in the village of Obrochishte and the third applicant lives in Varna. The first applicant also lived in Rogachevo.

A predecessor of the applicants had owned agricultural land in the village of Kranevo, which had been collectivised after 1945.

Following the adoption of the Agricultural Land Act (“the ALA”, see paragraph 16 below) in 1991, the fourth applicant, on behalf of his predecessors’ heirs, sought the restitution of land totalling 15,000 square metres. In a decision of 19 June 1995, the Balchik agricultural land commission partially allowed the request, refusing to restore the heirs’ rights to 9,210 square metres of land which had been either taken for urban development or transferred to third parties.

Upon an appeal lodged by the fourth applicant, in a final judgment of 7 December 1995 the Balchik District Court quashed the relevant part of the land commission’s decision of 19 June 1995. It noted, in particular, that the public works for which parts of the land at issue had been taken had not been completed, and that in so far as other parts of the land had been transferred to third parties, there was no bar to restitution as the third parties had not carried out any construction work. On that basis the District Court recognised the heirs as the “owners” of all of the land claimed by them.

In execution of the above judgment, on 19 February 1996 the land commission issued another decision, restoring to the heirs, inter alia, in its “actual boundaries”, a plot of 1,180 square metres described as “plot no. 891, district 23, under the cadastral plan of Kranevo of 1950”. On 29 July 1996 the heirs obtained a plan of that plot. After agreeing as to the partition of the restituted land, the plot at issue was allocated to the fourth applicant and his sister (who after her death in 2004 was succeeded by the remaining applicants, namely her husband and her sons). On 30 September 1996 the fourth applicant and his sister obtained a notarial deed.

However, the plot was in actual fact held by several private persons, having been transferred in 1972 by the agricultural co-operative of the time to the predecessors of a certain Ms D.S. in exchange for another plot. In 1996 Ms D.S. had sold a share of the plot to a certain Ms E.H. and Mr N.R.

On 28 March 1997 the fourth applicant and his sister brought a rei vindicatio action against Ms D.S., Ms E.H. and Mr N.R., claiming that the 1972 transfer of the property and the subsequent sale could not have prejudiced their own rights.

The action was examined by three levels of jurisdiction and disallowed in a final judgment of the Supreme Court of Cassation of 1 June 2005. The domestic courts took note of the Balchik District Court’s final judgment of 7 December 1995, but found that they were competent to exercise an “indirect judicial review” (косвен контрол) of it. The courts found further that the documents describing the plot, namely the Balchik land commission’s decision of 19 February 1996 and the notarial deed of 30 September 1996, referred to “plot no. 891, district 23 under the cadastral plan of Kranevo of 1950”. However, there existed no cadastral plan dating from 1950 and the current plans, the last of which dated from 1984, did not show a plot bearing that number. The Balchik District Court and the land commission had thus restored the claimants’ rights to “a non-existent plot under a non-existent plan”.

In addition, the domestic courts found that the defendants had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 contract of sale. Accordingly, they were entitled to hold the land as its owners.

Following the above developments, the applicants have not sought to obtain compensation in lieu of restitution in kind, a possibility provided for under the relevant provisions of the ALA.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Ms A.V., is an Estonian national. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms K. Rekand, a lawyer practising in Tallinn.

The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

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

The applicant’s mother E., aged 82, complained about lower back pain. She was diagnosed with radiculitis and hypertension by a general practitioner who also prescribed medicines for her. Since the pain did not disappear, E. was taken to hospital on 15 April 2013. She underwent an X-ray examination and was diagnosed with lumbar spondylosis and osteochondrosis. Medicines were prescribed for her and nursing care was ensured in Tapa Hospital. While in hospital, she developed gangrene. On 4 May 2013 she died in hospital. According to the notice of death the cause of her death was atherosclerosis with gangrene.

The applicant filed an offence report with the prosecutor’s office, which refused to initiate criminal proceedings, considering that no offence had been committed. On 19 July 2013 the State Prosecutor’s Office dismissed the applicant’s appeal. It was noted in the decision sent to the applicant that pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence could lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. It was further stated that such a complaint had to be lodged through a lawyer. The applicant did not lodge a complaint.

The applicant also turned to the Expert Committee of Quality of Medical Aid (Tervishoiuteenuse kvaliteedi ekspertkomisjon). According to the Expert Committee’s opinion given on 21 November 2013 the applicant’s doubts and accusations that the staff of Tapa Hospital had not given E. the required treatment and nursing care and had failed in their duty of care and thereby caused E.’s death were groundless. Nevertheless, the Expert Committee noted that there were certain shortcomings in the documentation of E.’s treatment. It made recommendations to Tapa Hospital regarding the medical documentation and prevention and cure of pressure sores. It was noted in the Expert Committee’s assessment that the Committee’s assessment created no legal rights or obligations but it could be used as evidence in civil proceedings.

Article 117 of the Penal Code (Karistusseadustik) lays down that negligent homicide is punishable by up to three years’ imprisonment.

Article 119 of the Code provides that causing serious health damage through negligence is punishable by a pecuniary punishment or up to one year of imprisonment.

Article 123 of the Code provides that placing or leaving another person in a situation that is life-threatening or likely to cause serious damage to the health of the person is punishable by a pecuniary punishment or up to three years’ imprisonment.

Article 6 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) establishes the principle of mandatory criminal proceedings according to which the investigative bodies and the Public Prosecutor’s Office are required to conduct criminal proceedings when facts referring to a criminal offence have become evident.

The Code of Criminal Procedure further provides:

“(1) An investigative body or the Public Prosecutor’s Office commences criminal proceedings by the first investigative activity or other procedural act if there is reason and grounds therefor and the circumstances provided for in Article 199 § 1 of this Code do not exist.”

“(1) The reason for the commencement of criminal proceedings is a report of a criminal offence or other information indicating that a criminal offence has taken place.

(2) The grounds for criminal proceedings are constituted by ascertainment of criminal elements in the reason for the criminal proceeding.”

“(2) If a health care professional conducting an autopsy suspects that the person died as a result of a criminal offence, he or she is required to notify an investigative body or the Public Prosecutor’s Office of such suspicion immediately.”

“(1) Criminal proceedings shall not be commenced if:

there are no grounds for criminal proceedings; ...”

Pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. Such a complaint must be lodged through a lawyer.

Section 5 of the Establishment of the Cause of Death Act (Surma põhjuse tuvastamise seadus) provides that the death of a person who died at a hospital must be immediately notified to the person’s attending physician or doctor on call. Furthermore, if there is reason to believe that a person has died as a result of a criminal offence or as a result of external causes or a suspicion thereof, an investigative body or the Public Prosecutor’s Office must be immediately notified thereof.

Section 7 of the Act provides that the doctor having received a notice of death must immediately perform an external examination of the deceased in order to establish death and ascertain the cause thereof. If the cause of death cannot be established as a result of an external examination of the deceased or based on the information concerning his or her latest disease and treatment, the doctor must send the body for a pathoanatomical autopsy.

Upon ascertaining the elements of a criminal offence in respect of a death, the investigative body or the Public Prosecutor’s Office must commence criminal proceedings and order a forensic medical examination. In the case of a death caused by other external causes or a suspicion thereof or if the cause of death of a person is not established in another manner provided for in the law, the investigative body or the Public Prosecutor’s Office must send the body for a forensic medical autopsy (section 9 of the Act).

Section 14 of the Act provides that pathoanatomical autopsy is performed to ascertain an unclear cause death or in case of death caused by disease to assess the disease and the course thereof or if it is necessary in view of general health care and treatment quality if the cause of death cannot be established as the result of an external examination of the deceased and based on the information the doctor has on the last disease and treatment of the deceased, and there is no reason for a forensic medical autopsy or forensic medical examination in criminal proceedings. Pursuant to section 14(2) of the Act, a pathoanatomical autopsy must be performed, inter alia, in the case of an unclear death if there is no reason to believe that a person has died as a result of a criminal offence or due to external causes, in case of an unclear diagnosis of a disease in the person’s lifetime, if the person undergoing hospital treatment died at the hospital within the first twenty-four hours and the doctor has no data on the cause of death, or if the person died as a result of diagnostic or treatment methods. In addition, a pathoanatomical autopsy is performed at the written request of the persons close to the deceased. A pathoanatomical autopsy is not be performed in order to establish the cause of death if the deceased suffered from a chronic illness in his or her lifetime which has been recorded in the documents evidencing the provision of health care services to the person and which caused his or her death due to complications or becoming acute.

Section 128 of the Obligations Act (Võlaõigusseadus) stipulates that non-pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person.

Section 134(2) provides that in the case of an obligation to compensate for damage arising from causing bodily injuries to or damage to the health of a person, the aggrieved person must be paid a reasonable amount of money as compensation for non-pecuniary damage. Section 134(3) provides that in the case of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person, the persons close to the deceased or the aggrieved person may also claim compensation for non-pecuniary damage if payment of such compensation is justified by exceptional circumstances.

Section 759 provides that a contract for the provision of health care services is also, inter alia, deemed to have been entered into upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient, and also if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention.

Section 762 stipulates that health care services must at the very least conform to the general level of medical science at the time the services are provided and the services must be provided with the care which can normally be expected of providers of health care services. If necessary, a provider of health care services must refer a patient to a specialist or involve a specialist in the treatment of the patient.

Section 766 sets out an obligation for the provider of health care services to inform the patient and to obtain the patient’s consent for his or her examination and the provision of health care services.

Section 767 concerns the provision of health care services to patients who are incapable of exercising their will. In such circumstances, the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health. The intentions expressed earlier by a patient or his or her presumed intentions must, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient shall be informed of his or her state of health, the provision of health care services and the associated risks if this is possible in the circumstances.

Section 769 sets out the obligation of a provider of health care services to document the provision of health care services.

The Obligations Act further provides:

“(1) Providers of health care services ... shall be liable only for the wrongful violation of their own obligations, particularly for errors in diagnosis and treatment and for violation of the obligation to inform patients and obtain their consent.

(2) Providers of health care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used upon the provision of health care services.

(3) The burden of proof regarding circumstances which are the basis for the liability of the provider of health care services ... shall lie with the patient unless the provision of health care services to the patient is not documented as required.

(4) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by ordinary treatment, the damage is presumed to have resulted from the error. In this case, the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient.”

The rules on the non-contractual (delict-based) liability of the Obligations Act provide:

“A person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to the law.”

“(3) If the death, bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation, the tortfeasor shall also be liable for such damage on the basis provided in this Chapter.”

“(1) The causing of damage is unlawful if, above all, the damage is caused by:

causing the death of the victim;

causing bodily injury to or damage to the health of the victim;”

“(1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable of causing the damage.”

Health Services Organisation Act (Tervishoiuteenuste korraldamise seadus) provides:

“(1) The Expert Committee on Quality of Health Services ... is an advisory committee the purpose of which is to assess the quality of health care services provided to patients and to make proposals arising from the assessment to the Health Board, the Estonian Health Insurance Fund and the health care providers.

(2) The Committee is competent to:

assess the quality of a health care service provided to a patient;

make propositions to the Health Board for initiation of supervision proceedings over the activity of a health care provider; ...”

Under section 60 of the Health Services Organisation Act, the Health Board, a governmental authority operating within the purview of the Ministry of Social Affairs, shall exercise supervision over compliance with the requirements established for health care providers. Individuals have a right to submit complaints to the Health Board regarding compliance with those requirements.

The Supreme Court in its judgment of 22 September 2010 (case no. 3-1-1-60-10) reiterated the principle of mandatory criminal proceedings provided for in Article 6 of the Code of Criminal Procedure. It noted that while the principle in dubio pro reo required that the accused was to be given the benefit of the doubt when a judgment was made, the principle in dubio pro duriore applied in respect of initiation of criminal proceedings and at that stage any suspicion of crime was to be interpreted in favour of initiation of the proceedings. Nevertheless, due to the prevailing attitudes in society persons could also be stigmatized by merely initiating criminal proceedings in respect of them. Therefore, it was objectionable to initiate criminal proceedings in a situation where no suspicion of a crime existed at all or was merely theoretical.

The Tallinn Court of Appeal in its decision of 14 February 2011 (case no. 1-10-15692) examined a complaint against the refusal of the Public Prosecutor’s Office to initiate criminal proceedings related to serious health damage allegedly caused by a medical error. The Court of Appeal ordered the Public Prosecutor’s Office to initiate criminal proceedings in order to clarify the circumstances described in the offence report. It noted, inter alia, with reference to a Supreme Court’s judgment of 29 November 2010 (case no. 3-1-1-79-10), that if non-legal specialist knowledge had to be applied in criminal proceedings, an expert opinion had to be sought, whereas the decisions of the Expert Committee on Quality of Health Services were not admissible as expert opinions in criminal proceedings. In that case the Court of Appeal had granted legal aid to the alleged victim for filing the complaint with it against the decision of the Public Prosecutor’s Office.

The Supreme Court in its decision of 11 April 2011 (case no. 3-1-1-97-10) confirmed the generally recognized concept that, for example, in case of manslaughter or murder the next-of-kin of the killed person was to be considered a victim.

The Tallinn Court of Appeal in its judgment of 19 October 2011 (case no. 1-09-21700), in a case concerning manslaughter, agreed with the lower court that had awarded the victim’s next-of-kin non-pecuniary damages. The Court of Appeal found that unlawful causing of the death of a person’s very close next-of-kin (the person’s son) should be considered an exceptional circumstance within the meaning of section 134(3) of the Obligations Act (see paragraph 18 above).

Further cases provide examples concerning medical negligence and related issues, such as conviction of a doctor of causing serious health damage through negligence under Article 119 of the Penal Code (Supreme Court’s judgment of 29 November 2010, case no. 3-1-1-79-10, followed by the Tallinn Court of Appeal’s judgment of 27 June 2013 in the same case (no. 1-12-5377) in which also pecuniary and non-pecuniary damages were awarded), and conviction of an employee of the emergency call centre for leaving a person in a life-threatening situation under Article 123 of the Penal Code (Tartu County Court’s judgment of 16 September 2009, case no. 1-09-9063; subsequent to the criminal proceedings, the spouse of the deceased also initiated administrative court proceedings, was granted legal aid and awarded pecuniary and non-pecuniary damages). The Tallinn Court of Appeal, by a judgment of 18 May 2007 (case no. 1-06-4949), acquitted an ambulance worker who had been charged with negligent homicide under Article 117 of the Penal Code for not having taken an intoxicated person with signs of trauma and problems of consciousness to the hospital but instead having handed the person over to the police.

As regards the connection between the criminal and civil proceedings in alleged medical malpractice cases, Tartu Court of Appeal in its decision of 24 April 2007 (case no. 1-07-4017) confirmed the State Prosecutor’s Office’s decision that failure of a doctor to comply with the duty of notification about medical treatment or keeping a documentary record of the treatment can be unlawful under civil law, but cannot entail a criminal liability. The Court of Appeal stressed that the violation of a duty under the Obligations Act entails liability under civil law, but that type of liability falls outside the scope of criminal proceedings.

As regards civil liability, the Supreme Court in its judgment of 8 April 2011 (no. 3-2-1-171-10) noted that a victim may claim compensation for the damage caused by the non-conforming health care service first and foremost on the basis of a breach of the health care services contract. In addition, in the case of causing health damage to a person as a result of a violation of contractual obligations the health care provider may also be liable under the provisions concerning compensation for unlawfully caused damage (non-contractual liability) (section 1044 et seq. of the Obligations Act; see paragraph 25 above). In such a case, the victims may submit their claims alternatively and the legal basis of the claim has to be determined by a court regardless of the arguments of the parties.

The Tallinn Court of Appeal in its judgment of 22 September 2008 (case no. 2-05-2059) reiterated that in the case of an error in diagnosis or treatment resulting in health damage to the patient, which could have probably been avoided by ordinary treatment, it is presumed that the damage occurred as a result of the error. The absence of the causal link must be proved by the defendant. In that case, the plaintiff was awarded compensation for non-pecuniary damage. The court also noted that an opinion of the Expert Committee on Quality of Health Services constituted documentary evidence in civil court proceedings.

In several medical negligence cases non-pecuniary damages have been awarded. These include cases in which the duty of notifying the plaintiffs and obtaining their consent had been breached (Tartu Court of Appeal’s judgment of 2 December 2013 (case no. 2-10-61884), and Tartu Court of Appeal’s judgment of 9 October 2013 (case no. 2-06-9959); in the latter case the Supreme Court also granted the complainant’s request for legal aid for filing an appeal with it).

In a judgment of 15 February 2014 (case no. 2-14-13101) the Viru County Court dealt with the liability related to the provision of health care services. The court relied, inter alia, on the opinion of the Expert Committee on Quality of Health Services. It noted that breach of the duty to notify the patient or to obtain the patient’s consent did not serve as sufficient grounds for awarding damages if the patient had not sustained health damage as a result thereof. In that case the plaintiff had been granted legal aid.

The Supreme Court in its judgment of 9 April 2008 (case no. 3-2-1-19-08) noted that a person who had unlawfully been the victim of a bodily injury or health damage but who had only died later due to this also acquired the right to claim monetary compensation for non-pecuniary damage under section 130(2) of the Obligations Act. Under the conditions provided for in section 166(1) of the Obligations Act, such claims could be transferred or bequeathed, that is the successors of the deceased person could also file such a claim. In this case, the plaintiff had not acted as a successor in claiming compensation for the possible non-pecuniary damage caused to her spouse. The Supreme Court further noted that under section 134(3) of the Obligations Act the next-of-kin of a person who had died or sustained a serious injury or health damage could also claim compensation for non-pecuniary damage if payment of such compensation was justified by exceptional circumstances. Analysing the notion of “exceptional circumstances”, the Supreme Court found that these did not comprise causing of death or serious health damage as such and noted that grief inevitably accompanied the death of a close person. Rather, a compensation claim of next-of-kin was justified in case of spatial proximity with the next-of-kin at the time of causing of the damage or being a direct witness of an accident or its consequences as well as subsequent distress caused by seeing the injuries or suffering of the died or injured next-of-kin.

In a judgment of 14 February 2012 (case no. 2-06-17756) the Tallinn Court of Appeal dealt with a claim against the hospital for compensation for damage due to the causing of the death of the plaintiff’s mother. The court, inter alia, considered that an opinion of the Expert Committee on Quality of Health Services was admissible as documentary evidence. Relying on the said opinion, expert assessment ordered by the first-instance court and other evidence, the courts found that there was no causal link between the provision of the health care service and the death of the plaintiff’s mother. As regards the damage, the Court of Appeal noted that under section 134(3) of the Obligations Act the next-of-kin of the deceased also had an independent right of claim but held that the plaintiff had to substantiate and prove the existence of “exceptional circumstances” within the meaning of section 134(3).

In a case decided by the Supreme Court on 15 November 2013 (case no. 3-2-1-131-13) the courts established an error in treatment by a hospital that had caused the death of the plaintiffs’ new-born child and ordered the defendant to pay EUR 7,000 to the mother and EUR 3,000 to the father for non-pecuniary damage.

Lastly, further examples show that plaintiffs have been granted legal aid in proceedings related to compensation claims in medical negligence cases (cases nos. 2-09-9677 and 2-09-1724).


No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom to choose residence)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1971 and now lives in Vlaardingen.

On 25 May 2005 the applicant moved to the city of Rotterdam. She took up residence in rented property at the address A. Street 6b. This address is located in the Tarwewijk district in South Rotterdam. The applicant had previously resided outside the Rotterdam Metropolitan Region (Stadsregio Rotterdam).

The owner of the property asked the applicant, who by this time had two young children, to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a different property at the address B. Street 72A, also in the Tarwewijk area. The applicant stated that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A. Street dwelling which comprised a single room.

In the meantime, Tarwewijk had been designated under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek, see below) as an area in which it was not permitted to take up new residence without a housing permit (huisvestingsvergunning). Accordingly, on 8 March 2007 the applicant lodged a request for a housing permit with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to move to B. Street 72A.

On 19 March 2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant had not been resident in the Rotterdam Metropolitan Region for six years immediately preceding the introduction of her request. Moreover, since she was dependent on social-security benefits under the Work and Social Assistance Act (Wet Werk en Bijstand), she did not meet the income requirement that would have qualified her for an exemption from the residence requirement.

The applicant lodged an objection (bezwaarschrift) with the Burgomaster and Aldermen.

On 15 June 2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee (Algemene bezwaarschriftencommissie), they referred to housing permits as an instrument to ensure the balanced and equitable distribution of housing and the possibility for the applicant to move to a dwelling not situated in a “hotspot” area.

The applicant lodged an appeal (beroep) with the Rotterdam Regional Court (rechtbank). As relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article 2 of Protocol No. 4 of the Convention and Article 12 of the 1966 International Covenant on Civil and Political Rights.

The Regional Court gave a decision dismissing the applicant’s appeal on 4 April 2008. As relevant to the case before the Court, its reasoning was as follows:

“Section 8(1) of the Inner City Problems (Special Measures) Act provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer)]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life, particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve quality of life for the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3, pages 11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public. The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime.”

The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State).

On 4 February 2009 the Administrative Jurisdiction Division gave a decision dismissing the applicant’s further appeal. As relevant to the case before the Court, its reasoning included the following:

“The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section 5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article 12 § 3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, quality of life is under threat. The restriction resulting from section 2.6(2) of the 2003 Housing Bye-law (Huisvestingsverordening 2003) is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam Metropolitan Region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7(1), introductory sentence and under b of the Inner City Problems (Special Measures) Act, the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section 2.6(2) of the 2003 Housing Bye-law does not violate Article 2 of Protocol No. 4 of the Convention or Article 12 of the 1966 International Covenant on Civil and Political Rights.”

An evaluation report after the first year following the introduction of the housing permit in Rotterdam, commissioned by Rotterdam’s own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting), was published on 6 December 2007 by the Centre for Research and Statistics (Centrum voor Onderzoek en Statistiek), a research and advice bureau collecting statistical data and carrying out research relevant to developments in Rotterdam in areas including demographics, the economy and employment (hereafter “the 2007 evaluation report”).

The report notes a reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act in “hotspot” areas, though not, of course, a complete stop because Rotterdam residents of six years’ standing are not prevented from moving there.

From July 2006 until the end of July 2007 there had been 2,835 requests for a housing permit. Of these, 2,240 had been granted; 184 had been refused; 16 had been rejected as incomplete; and 395 were still pending. The hardship clause (section 8(2) of the Inner City Problems (Special Measures) Act) had been applied in 38 cases.

Three-quarters of the housing permits granted concerned housing let by private landlords; the remainder – 519 – had been granted through the intermediary of social housing bodies (woningcorporaties). The latter selected their tenants with due regard to the official requirements, so that refusals of housing permits with regard to social housing were unheard of.

Of the persons refused a housing permit, 73 (40 % of all those who met with a refusal) had managed to find housing elsewhere relatively quickly.

The 2007 evaluation report was presented to the local council on 15 January 2008. On 24 April 2008 the local council voted to maintain the housing permit system as was and have a new evaluation report commissioned for the end of 2009.

A second evaluation report, also commissioned by Rotterdam’s City Construction and Housing Service, was published by the Centre for Research and Statistics on 27 November 2009. It covered the period from July 2006 until July 2009 (“the 2009 evaluation report”), during which the events complained of took place.

During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group.

Out of 6,469 applications for a housing permit relating to privatelylet housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 (13%) had been discontinued without a decision being taken, generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion.

The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases.

Of 342 persons refused a housing permit, some two-thirds had managed to find housing elsewhere in Rotterdam (47%) or elsewhere in the Netherlands (21%).

The hardship clause had been applied 185 times – expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit.

The effects of the measure were considered based on four indicators: proportion of residents dependent on social-security benefits under the Work and Social Assistance Act, corrected for the supply of suitable housing; perception of safety; social quality; and potential accumulation of housing problems:

(a) It had been observed that in the areas where the housing permit requirement applied, the reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act had been more rapid in “hotspot” areas than in other parts of Rotterdam. In addition, the number of residents in receipt of such benefits as a proportion of the total population of those areas had also declined, although it was still greater than elsewhere.

(b) In two of the areas where the housing permit requirement had been introduced, the increase in the perception of public safety had been more rapid than the Rotterdam average. Tarwewijk had shown an increase initially, but was now back to where it had been before the measure was introduced. One other area had actually declined significantly in this respect. All of the areas where the housing permit requirement applied were perceived as considerably less safe than Rotterdam as a whole.

(c) In terms of social quality, there had been improvement in most of the parts of Rotterdam where problems existed, Tarwewijk among them. It was noted, however, that the effect of the housing permit in this respect was limited, since it only influenced the selection of new residents, not that of residents already in place.

(d) Housing problems – defined in terms of turnover, housing left unused, and house price development – had increased somewhat in the affected areas including Tarwewijk, though on the whole at a slower rate there than elsewhere. Reported reasons for the increase were an influx of immigrants of mostly non-European extraction (nieuwe Nederlanders, “new Netherlands nationals”) and new short-term residents from Central and Eastern Europe; the latter in particular tended to stay for three months or less before moving on, and their economic activity was more difficult to keep under review as many were self-employed.

Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas.

The report suggested that the housing permit requirement might no longer be needed for one of the existing “hotspots” (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four.

A third evaluation report, this time commissioned by Rotterdam’s City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (“the 2011 evaluation report”).

Based on the same indicators and methodology as the previous report, it concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force.

On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing the effectiveness of the Inner City Problems (Special Measures) Act and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act. The Minister’s missive stated the intention of the Government to introduce legislation in order to extend the validity of the Inner City Problems (Special Measures) Act. Requests to that effect had been received from a number of affected cities. It was noted that not all of the cities concerned had made use of all of the possibilities offered by the Act; in particular, only Rotterdam used housing permits to select new residents for particular areas. Appended to the Minister’s letter was a copy of the 2009 evaluation report and a letter from the Burgomaster and Aldermen of Rotterdam in which, inter alia, the desirability was stated of extending beyond the first two four-year periods the indication of particular areas for applying the housing permit requirement: the measure was considered a success, and a twenty-year programme involving the large-scale improvement of housing and infrastructure (the “National Programme Quality Leap South Rotterdam” (Nationaal Programma Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011.

On 19 September 2011 the Minister of the Interior and Kingdom Relations (on behalf of the Government), the Burgomaster of Rotterdam (on behalf of the municipality of Rotterdam), and the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions signed the National Programme Quality Leap South Rotterdam. This document noted the social problems prevalent in South Rotterdam inner-city areas, which it was proposed to address by providing improved opportunities for education and economic activity and improving, or if need be replacing, housing and infrastructure. It was intended to terminate the programme by the year 2030.

On 31 October 2012 the Minister of the Interior and Kingdom Relations, Rotterdam’s Alderman for housing, spatial planning, real property and the city economy (wethouder Wonen, ruimtelijke ordening, vastgoed en stedelijke economie) and the presidents of three social housing bodies active in Rotterdam signed an “agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam (2012-2015))” (Convenant betreffende een financiële impuls ten behoeve van de Kwaliteitssprong Rotterdam Zuid (2012-2015)). This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the South Rotterdam area within existing budgets and for a once-only additional investment of 122 million euros (EUR). Of the latter sum, EUR 23 million had been reserved by the municipality of Rotterdam until 2014; another EUR 10 million would be added for the period starting in 2014. These funds would be used to refurbish or replace 2,500 homes in South Rotterdam. A further EUR 30 million would be provided by the Government. The remainder would be spent by the social housing bodies on projects within their respective remit.

On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible.

The Inner City Problems (Special Measures) (Extension) Act (Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek) entered into force on 14 April 2014, enabling the designation of particular areas under section 8 of the Inner City Problems (Special Measures) Act to be extended the day before it was due to expire. It makes further extensions of the designation possible for successive four-year periods (section 5(2) of the Inner City Problems (Special Measures) Act, as amended).

A further Bill was introduced on 8 October 2015 (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 2). It purports to grant municipalities powers to deny housing permits to individuals with a criminal record. According to its Explanatory Memorandum (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 3), the intention is to provide a legal basis for measures likely to constitute interferences with the right of freedom to choose one’s residence, as guaranteed by Article 2 of Protocol No. 4 of the Convention and Article 12 of the International Covenant on Civil and Political Rights, and – since the measures in issue will of necessity entail the disclosure to local authorities of police information – with the right to private life as guaranteed by inter alia Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 7 of the Charter of Fundamental Rights of the European Union. It is currently pending in the Lower House of Parliament.

On 27 September 2010 the applicant moved to rented housing in the municipality of Vlaardingen. This municipality is part of the Rotterdam Metropolitan Region.

As of 25 May 2011 the applicant had been resident in the Rotterdam Metropolitan Region for more than six years. She therefore became entitled to reside in one of the areas designated under the Inner City Problems (Special Measures) Act regardless of her sources of income.

The Government stated that no renovation or building permits were sought for the dwelling in A. Street inhabited by the applicant at the time of the events complained of between 2007 and 2010 and that no such permit was applied for in the period prior to 2007 either.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1959 and lives in Radishchevo, Moscow Region.

In 1997, as a result of an accident, the applicant’s house had partially burnt and he had to live in the attic, which was not designed for lodging. The applicant considered that in the circumstances the authorities were under an obligation to provide him with free housing. His civil action against the municipality was dismissed in court.

In January 2006 the applicant lodged complaints with the State Duma and the Prosecutor General of the Russian Federation against the judges who had dealt with his civil case. In particular, the applicant, using abusive language, accused them of having taken bribes from the defendant in the amount of USD 30,000, falsification of evidence, terrorism, abuse of power as well as inciting racial and ethnic hatred.

On 13 March 2006 the applicant was arrested under suspicion of having committed defamation of a judge and deliberately false denunciation.

On 14 March 2006 the Meshanskiy District Court of Moscow (Мещанский районный суд г. Москвы) remanded the applicant in custody. His detention on remand was subsequently extended at regular intervals by relevant detention orders.

The investigator ordered the applicant’s psychiatric evaluation in the State Academic Centre for Social and Forensic Psychiatry in Moscow (Государственный научный центр социальной и судебной психиатрии им. В.П. Сербского) (“the Forensic Psychiatry Centre”).

On 20 June 2006 the experts concluded that he showed symptoms of paranoid personality development, was in need of an outpatient supervision and treatment. At the same time they concluded that the applicant was sane, fit to stand trial and highlighted that he had no history of mental disorders.

On 1 August 2006 the prosecution transferred the applicant’s case to the Moscow City Court (Московский городской суд) for examination. The City Court ordered an additional forensic psychiatric examination by the Forensic Psychiatry Centre.

On 21 November 2006 the experts concluded that the applicant was suffering from a chronic mental disorder - paranoid personality development – and needed involuntary treatment in a specialised psychiatric facility. The experts based their assessment, inter alia, on the applicant’s “overvalued” ideas expressed in numerous petitions to various authorities “in a grotesque form”, attempts to “find the truth”, contradictions in his opinions, ambivalence etc. The experts also concluded that the applicant had been insane at the time of the impugned offences and unfit to stand trial.

On an unspecified date the City Court ordered another forensic psychiatric examination of the applicant by the Forensic Psychiatry Centre.

On 7 February 2007 the new report confirmed the findings of the previous report of 21 November 2006. In addition, the experts found that the applicant was a danger to society, stating as follows:

“[T]aking into account that [the applicant] shows, in subjectively significant situations, a tendency towards rapid formation of overvalued ideas which sometimes reach a delusional level, broadening of the circle of persons brought into the focus of these emotions, grave emotional disturbances with non-corrective behavior, rejection of regime requirements, lack of critical attitude to his [emotional] state, dissimulation, [he] is a danger to the society and needs compulsory treatment in a specialised psychiatric hospital”.

On 20 February 2007 the City Court having established the principal facts in respect of the abovementioned offences discontinued criminal proceedings against the applicant due to his insanity. The court referring to the findings and recommendations of the psychiatrists ordered the applicant’s involuntary treatment in a psychiatric hospital.

On 5 April 2007 the Supreme Court of the Russian Federation summarily upheld the lower court’s decision.

In April 2007 the applicant was transferred from a remand prison to a psychiatric facility. In June 2008 he was released from the hospital.


CASE OF KHAYNATSKYY AND OTHERS v. UKRAINE

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)

On the dates set out in the appended tables domestic courts and labour disputes commissions delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.