No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1967 and lives in Rijeka. He is a lawyer by profession.

On 7 July 2010 while driving his car near Vrogorac, Croatia, the applicant was stopped by a police officer alleging that he had dangerously overtaken another car and that he had inappropriate tyres on his car. The police officer drew up a report on the incident.

On 6 October 2010 the applicant received a penalty notice (obvezni prekršajni nalog) dated 12 July 2010 and issued by the Dubrovnik-Neretvanska Police Department (Policijska uprava Dubrovačko-neretvanska; hereinafter: “the police”) which stated that he had committed the minor offences of dangerously overtaking another car under section 12 of the Road Traffic Safety Act, and driving a car with inappropriate tyres under section 236 of the same Act, fining him with 1,500 Croatian kunas (HRK). The statement of facts, which was printed on a form, stated that the offence had been established by the personal observations of a police officer, who had submitted a report on it.

On 7 October 2010 the applicant lodged a request for judicial review, challenging the statement that he had committed the offences and asking to be heard in court. The summary minor-offence proceedings were opened in the Vrgorac Minor Offences Court (Prekršajni sud u Metkoviću, Stalna služba u Vrgorcu).

The Vrgorac Minor Offences Court summoned the applicant for questioning on 23 February and 30 March 2011. The applicant did not appear for questioning, excusing his absence on account of professional commitments. He asked to be questioned by the Rijeka Minor Offences Court (Prekršajni sud u Rijeci) since he lived within its territorial jurisdiction.

On 3 May 2011 the Vrgorac Minor Offences Court forwarded the entire case file to the Rijeka Minor Offences Court and asked it to question the applicant, thereby also providing the applicant access to the case file.

On 17 October 2011 a judge of the Rijeka Minor Offences Court questioned the applicant. The applicant maintained his objection to the penalty notice, arguing that he had not overtaken a car at the time when he had been stopped by the police. He also contended that he had had factory tyres on his car and promised to submit a copy of the relevant documents to support that. He explained that he had no other evidence to put forward.

As the applicant failed to submit the documents concerning the tyres on his car within the relevant time-limit, on 28 October 2011 the Rijeka Minor Offences Court returned the case file to the Vrgorac Minor Offences Court.

On 21 November 2011 the Vrgorac Minor Offences Court found the applicant guilty of the charges of dangerously overtaking another car and driving a car with inappropriate tyres. The applicant was cautioned, fined with HRK 500 and ordered to pay HRK 100 in court fees. When convicting the applicant the Vrgorac Minor Offences Court relied on the police officer’s report of 7 July 2010 (see paragraph 6 above), holding that the applicant’s defence had not cast any doubt on the findings of the report.

On 2 March 2012 the applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He argued that he had never seen the police report on which the verdict was based and that he had had no opportunity to challenge the accusations contained in it. He also complained that the Vrgorac Minor Offences Court had relied solely on the report, without holding a hearing at which he could cross-examine the police officer who had drafted it.

On 2 May 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The Constitutional Court held:

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

The decision of the Constitutional Court was served on the applicant on 18 May 2012.

On 20 September 2012 the Vrgorac Minor Offences Court forwarded the judgment to the Rijeka Revenue Service (Porezna uprava u Rijeci) requesting that the fine be enforced. The enforcement proceedings are still pending.


CASE OF OOO IZDATELSKIY TSENTR KVARTIRNYY RYAD v. RUSSIA

Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

At the material time the applicant company was the publisher of Kvartirnyy Ryad, a newspaper specialising in coverage of the housing market in the Moscow area (“the newspaper”).

On 20 May 2004 the newspaper published an article by G. entitled “So sorry for the bird. The blue one” («А птичку жалко. Синюю» – “the article”). The article described a conflict situation concerning a large commonhold association, Bluebird (Синяя птица), which included eight blocks of flats in the south-west of Moscow. G. suggested in the article that a number of residents of the Bluebird flats had been affected by the alleged misuse of common areas, in particular attics in the blocks of flats and that T., the head of the commonhold association, had been behind the misuse. G. emphasised that T. was also the deputy head of a district council in Moscow and that he had declined to comment on the article’s contents prior to publication. The article asked T. and the local government questions pertaining to the misuse of the common areas.

The relevant parts of the article read as follows:

“Residents of eight blocks of flats in Severnoe Butovo keep sending letters to the courts, the prosecutor’s office, the city administration and even President Putin to complain about the head of the “Bluebird” commonhold association, T., [w]ho has developed an indecently hasty business activity spitting in the face of the association’s Charter and a number of regional and federal laws. ...

... But T. has expressed his distrust in the commission elected by the general meeting and has appointed his own commission...as a result T. has managed to retain his position ...

... let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?”

On 28 May 2004 T. lodged a defamation claim against the applicant company and G. with the Presnenskiy District Court of Moscow (“the District Court”). The plaintiff alleged that the statements contained in the article damaged his honour, dignity and business reputation. The court received the statement of claim on 15 June 2004.

On 8 December 2004 the District Court examined and partially allowed the claim, referring to Article 152 of the Civil Code and Resolution no. 11 of the Plenary Supreme Court. It reasoned:

“... the impugned statement: “... who [has] developed an indecently hasty business activity spitting in the face of the commonhold association’s Charter and a number of regional and federal laws” should be retracted [by the defendants] ... as during the judicial examination of the case the defendants failed to prove that T.’s actions were unlawful.

The defendants, a third party and witnesses explained that an attic ... had been unlawfully rented out. The lease agreement had been unlawfully concluded by T. ...

However, no evidence has been provided [by the defendants] to the court to prove that the plaintiff’s actions were unlawful or illegal or in violation of federal and regional law or the commonhold association’s Charter.

Moreover, the issue of the lease of the attic ... was examined by the Zyuzinskiy District Court of Moscow. By the decision of the Zyuzinskiy District Court of Moscow of 19 May 2004 actions of the Bluebird commonhold association headed by T. were found to be in compliance with the law in force.

As to the statements: “... the commission was not elected, but appointed, which guaranteed the appointment of T. for a third term ... In sum, even though T. did not have the majority of the votes, he nonetheless managed to conclude the contract ...” ... They are not to be retracted as they are not damaging to the honour and dignity of the plaintiff.

... as to the statement: “let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?” It should not be retracted either as ... the author of the article [G.] is asking a rhetorical question ...”

The District Court ordered the applicant company “to refute the statement [published] in the newspaper Kvartirnyy Ryad on 20 May 2004 ... that T. developed activities as the head of the “Bluebird” commonhold association, violating the association’s Charter as well as a whole range of laws of the capital area and federal law”. It also awarded T. non-pecuniary damages: 10,000 Russian roubles (RUB – approximately 270 euros) to be paid by the applicant company and RUB 8,000 to be paid by G.

The applicant company and G. appealed against the judgment to the Moscow City Court (“the City Court”).

On 4 May 2005 it upheld the judgment of 8 December 2004 in full, referring to Article 152 of the Civil Code and to Resolution no. 11 of the Plenary Supreme Court. It provided the following succinct reasoning:

“The plaintiff has proven the fact that the contested statements were disseminated: he provided the court with an original issue of the newspaper of 20 May 2004 ...

... the court [of first instance] rightly held that the defendants had failed to prove the veracity of the disseminated statement ... that [the plaintiff] had developed an indecently hasty business activity spitting in the face of the association’s Charter and the law.

At the same time, the court [justifiably] referred to the judgment of the Zyuzinskiy District Court of Moscow ... which found the actions of the commonhold association ... headed by T. to be in compliance with the law in force.”

On 25 July 2005 the City Court rejected a request by the applicant company for supervisory review.

On 13 October 2005 the enforcement proceedings were terminated by a bailiff as the judgment of 8 December 2004 had been enforced in full.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

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

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

All applicants were employed by Rudnik bakra Majdanpek, a copper mining company based in Majdanpek (“the debtor”).

Between 2001 and 2005 they all instituted separate civil suits against the debtor, seeking pecuniary redress on various grounds.

On 10 June 2002 the Majdanpek Municipal Court ruled in favour of the first applicant and ordered the debtor to pay him:

(a) the salary arrears due between 31 May 1998 and 20 July 2001, plus statutory interest;

(b) the pension, disability, health and other insurance contributions due for the same period; and

(c) his legal costs.

On 2 October 2002 the judgment became final.

Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the first applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.

On 10 January 2003 the court accepted the first applicant’s request and issued an enforcement order. On 21 January 2004 the same court issued an additional order to the same effect.

On 18 January 2006 the enforcement proceedings were stayed.

In May 2011, following their resumption, the first applicant was paid the full amounts awarded in his favour.

On 25 April 2002 the Majdanpek Municipal Court ruled in favour of the second applicant and ordered the debtor to pay him:

(a) the salary arrears due between 1 November 1999 and 1 August 2000, plus statutory interest;

(c) his legal costs.

On 19 June 2002 the judgment became final.

Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the second applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.

On 10 January 2003 the court accepted the second applicant’s request and issued an enforcement order.

In July 2011, following their resumption, the second applicant was paid the full amounts awarded in his favour.

On 8 February 2001 and 7 February 2002, the latter following a brief reopening of the proceedings, the Majdanpek Municipal Court ruled in favour of the third applicant and ordered the debtor to pay him the salary arrears due between 1 April 1998 and 28 February 2000, plus statutory interest, as well as his legal costs.

By 12 April 2002 these judgments became final.

On unspecified dates, the third applicant filed separate requests for the enforcement of the above judgments before the Majdanpek Municipal Court.

On 19 June 2001 and 13 November 2003, respectively, the court accepted the third applicant’s requests and issued the enforcement orders.

On 20 February 2006 the enforcement proceedings were stayed.

In May 2011, following their resumption, the third applicant was paid the full amounts awarded in his favour.

On 23 October 2001 the Majdanpek Municipal Court ruled in favour of the fourth applicant and ordered the debtor to pay him the salary arrears due between 1 December 1998 and 31 December 1999, plus statutory interest, as well as his legal costs.

By 22 November 2001 this judgment became final.

On 27 February 2002 the fourth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.

On the same date the court accepted the fourth applicant’s request and issued the enforcement order.

In May 2011, following their resumption, the fourth applicant was paid the full amounts awarded in his favour.

On 11 September 2002 the Majdanpek Municipal Court ruled in favour of the fifth applicant and ordered the debtor to pay him the salary arrears due between 19 December 1997 and 28 March 2002, plus statutory interest, as well as his legal costs.

By 24 October 2002 this judgment became final.

On 30 October 2002 the fifth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.

On 1 November 2002 the court accepted the fifth applicant’s request and issued the enforcement order.

In the course of 2003 and 2004, the debtor covered a part of the fifth applicant’s claims.

On 3 February 2006 the enforcement proceedings were stayed.

In June 2011, following their resumption, the fifth applicant was paid the full amounts awarded in his favour.

On 7 December 2005 the Majdanpek Municipal Court ruled in favour of the sixth applicant and ordered the debtor to pay him compensation for the non-pecuniary damage suffered due to a labour-related injury, plus statutory interest, and his legal costs.

By 31 March 2006 this judgment became final.

On 1 June 2006 the sixth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court.

On 14 June 2006 the court accepted the sixth applicant’s request and issued the enforcement order.

On 30 August 2006 the enforcement proceedings were stayed.

In May 2011, following their resumption, the sixth applicant was paid the full amounts awarded in his favour.

None of the applicants ever filed an appeal with the Constitutional Court, seeking compensation for any non-pecuniary damages suffered due to the length of the enforcement proceedings in question.

As of April 2014, the debtor appeared to be a company predominantly comprised of State or socially owned capital and was still in the process of being restructured.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The first applicant, Mr Dragan Radičanin, was born in 1947 and lives in Karlovac. The second applicant, Ms Danica Beneta, was born in 1952 and lives in Zagreb. The third applicant, Ms Nedjeljka Čuturilo, was born in 1949 and lives in Karlovac. The fourth applicant, Dragica Martinović, was born in 1943 and lives in Karlovac. They are all Croatian nationals and were represented by Mr L. Šušak, a lawyer practicing in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

During 1991 and 1992 Serbian para-military forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The applicants’ father, D.R., lived in Selakova Poljana, a village situated in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 7 November 2000 the second applicant informed the Vojinić Police about the disappearance of her father in 1995. She alleged that she and her sister, Nedjeljka Čuturilo, had learned that D.Sa., a neighbour of their late father, knew who had killed him.

On 29 June 2001 the police interviewed D.Sa., who said that the applicants’ father had been killed by a certain B.S. during the military action “Storm”. Later on B.S. had moved to Zagreb and had died there.

On 8 January 2002 the police interviewed M.P., who said that he had heard that the applicants’ father had been found in the courtyard of his house but nobody knew how or by whom he had been killed.

On 11 February and 27 March 2002 the police interviewed N.B. and P.G. N.B. had no knowledge about the killing of the applicants’ father. P.G. said that he had heard that the applicants’ father had been killed and buried in his courtyard and expressed the opinion that he had been killed by Serbian para-military forces because his family was rich.

On 29 March 2002 the police interviewed the second applicant, who said that a certain M.M. had been staying with her father in Selakova Poljana during the military action “Storm” and that M.M. had told her that on 15 August 1995 her father had gone to his neighbours’ estate to feed their pigs. M.M. had heard him yelling: “You thieves, why are you stealing?”, followed by three gunshots. M.M. had run away after that and had no knowledge what had happened to the applicants’ father. D.Se. had told the second applicant that the applicants’ father had been buried under a beech tree in his courtyard. Her father had had a valuable estate and kept 7,000 German marks in the house. The estate had been burned down after the military action “Storm”.

On 3 April 2002 the police interviewed D.Se., M.M. and the first applicant. D.Se. said that during the military action “Storm” she had not been in Selakova Poljana. When she had returned there together with a daughter of D.R. after the military action “Storm”, they had found that D.R.’s estate had been burned down. M.M. confirmed the facts given in the interview with the second applicant. The first applicant said that he had heard from his sister, the third applicant, that their father had been killed and buried under a beech tree in his courtyard.

On 17 March 2003 the ground under the beech tree in the courtyard of late D.R.’s house was excavated but no body was found.

On 31 July 2003 the police again interviewed D.Se., D.Sa. and M.M. They repeated their previous statements.

On 10 July 2006 the applicants lodged a criminal complaint with the State Attorney’s Office against unknown perpetrators for the criminal offence of a war crime against the civilian population in connection with the killing of their father D.R. However, since then no new information has been obtained.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant is an Iranian national who was born on 12 October 1977 in Teheran and currently lives in Einsiedeln, Switzerland.

The applicant entered Switzerland illegally on 26 June 2011 and applied for asylum the next day. He had two hearings before the Federal Migration Board (Bundesamt für Migration – hereafter “the Migration Board”).

The first hearing was a summary interview at the Migration Board’s “Centre for Reception and Procedure” (Empfangs- und Verfahrenszentrum) in Basel on 6 July 2011. The applicant gave an account of the alleged events in Iran leading to his escape from his home country. This account was summarised by the Migration Board’s interviewer in official minutes. At the beginning of this summary, the interviewer noted: “For lack of staff, the facts - summarised under no. 15 of the minutes - were not established in detail.” (“Es wird aus Kapazitätsgründen auf eine vertiefte Abklärung zu Pt. 15 verzichtet.”). An interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing.

During the hearing the applicant stated that, following serious ballotrigging after the Iranian presidential elections on 12 June 2009, anti-regime demonstrations had started to take place. He had participated in almost all these demonstrations until the beginning of March 2011. He claimed that he and his friends had organised peaceful demonstrations every Tuesday. As the demonstrations had been brutally oppressed by the Iranian regime, he and his friends had documented the demonstrations and had circulated this documentation to people. He further claimed that during the last demonstration he had attended, at the beginning of March 2011, several of his friends had been arrested. He alleged that they had been tortured and that one of them had probably mentioned his name to the Iranian authorities and had told them about his participation in the demonstrations. Consequently, on 10 May 2011, a summons issued by the Revolutionary Court of Teheran had been delivered to his residence, namely his parents’ house in Karaj, by a court courier. He had not been present at the time of delivery as he had been on a visit to his sister’s house in Teheran. The summons had ordered him to appear in court on 12 May 2011. Fearing that he might be arrested upon his appearance, he had not presented himself in court but had hidden at his sister’s home and at the homes of various friends in Teheran. As a result of his non-appearance before the court, agents of the secret service had come to his parents’ house the following day (13 May 2011) in order to arrest him. Because of his absence, his father had been arrested instead. The applicant had been left a message that he should report to the district police, otherwise his father would remain in detention. For fear of arrest and on his family’s advice, he had fled the country without legal exit papers in June 2011.

In order to support his account during the first hearing, the applicant submitted the allegedly original summons of the Revolutionary Court of Teheran of 10 May 2011. He also submitted documentary material pertaining to the anti-regime demonstrations, which had allegedly been produced by him and his friends.

The second, more detailed hearing took place at the Migration Board’s office in Berne 21 months after the first hearing, on 5 April 2013. A member of the non-governmental Aid Organisation of the Protestant Church of Switzerland (Hilfswerk der Evangelischen Kirche Schweiz) was present as a neutral witness in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the minutes of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. Again, an interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing.

The applicant again gave an account of the alleged events in Iran leading up to his escape. With regard to the events on the day when the summons had allegedly been delivered to his parents’ house (10 May 2011), the applicant now described that members of the Ettelaad security service had come to his parents’ house in his absence in order to search for him. They had searched the house, opening chests of drawers and cupboards. As they had been unable to find him, they had issued the summons while at his parents’ house and had left it behind. Confronted with the fact that he had not mentioned the house search of 10 May 2011 during the first hearing, the applicant responded that he had in fact done so, that he had recounted the same facts during the first hearing and that it was not his fault that this fact had not been recorded in the minutes of the first hearing.

Furthermore, asked about his hiding place prior to his escape from Iran, the applicant stated during the second interview that he had stayed at his sister’s home the whole time. When confronted with his testimony from the first hearing, the applicant explained that he had been with friends as well and added that these people had been friends from work and not friends he knew from the demonstrations.

With regard to the aftermath of the last demonstration he had attended in March 2011, the applicant stated during the second hearing that he did not know that the Ettelaad security forces were planning to arrest him. He again alleged that one of the friends arrested during the demonstrations had told the security forces who had participated in these demonstrations. Asked when this friend who had given his name had been arrested, the applicant responded that he did not know and that it had not necessarily been this arrested friend directly who had given his name to the security forces. Arrests of that kind usually started a whole chain reaction: the arrested person would give some names, then these people would be arrested and questioned and give further names, and so on.

Questioned further during the second hearing about any special occurrences with regard to his last demonstration in March 2011, the applicant stated that the demonstrations had all been rather similar. People had been arrested and agents of the government had beaten up people during the last demonstration just as during any other demonstration. Asked whether he knew the people who had been arrested, the applicant responded that he just knew these people from the street. They had not been people from his region. Teheran was a big city and people had come from everywhere. Confronted with his testimony from the first interview, in which he had claimed that friends of his had been arrested, the applicant stated that the people demonstrating together were all friends in a way and that he had used the term “friends” in that sense when giving his account of the events during the demonstrations.

On 10 April 2013 the Migration Board dismissed the applicant’s request for asylum and ordered him to leave Switzerland by 7 June 2013. The Migration Board reasoned that the applicant’s statement of facts was not credible as his descriptions of the events in Iran had not been consistent during the two hearings. The descriptions diverged considerably from each other with regard to decisive points of the applicant’s story. During the first hearing, the applicant had neither mentioned the appearance of the Ettelaad security forces at his parents’ house, nor had he mentioned the house search, nor the fact that it had been the Ettelaad who had issued a summons directly at his parents’ house on 10 May 2011, but had simply stated that a courier of the court had brought the summons. Furthermore, the accounts of the applicant’s hiding prior to his escape from Iran diverged from each other, as the applicant had first stated that he had hidden at his sister’s home and at friends’ homes, whereas he had claimed to have stayed exclusively at his sister’s home during the second hearing. Finally, the applicant had only mentioned the arrest of his friends during his last demonstration only in the account he had given during the first hearing and not during the second interview. The Migration Board took into consideration that the applicant had submitted some documentary material including the alleged summons of 10 May 2011, but was of the view that these documents could not dispel the doubts about the applicant’s account. The documentary material gave only a general account of the demonstrations, but not specifically anything about the applicant’s alleged participation, and a summons alone could not prove any public persecution.

On 15 May 2013 the applicant, now represented by counsel, appealed against the decision of the Migration Board to the Federal Administrative Court (Bundesverwaltungsgericht). He asked the Federal Administrative Court to quash the decision of the Migration Board, to grant him asylum, to find that the execution of the expulsion order would be an improper and unreasonable measure, and to grant him legal aid.

In his appeal the applicant claimed that upon the advice of his counsel he had phoned his family in Iran and had asked whether any further summons had been received. On that occasion he had learnt that he had again been summoned to appear before the Revolutionary Court of Teheran on 5 February 2013. He had also learnt that the Revolutionary Court had convicted him in absentia on 7 May 2013 because he had participated in demonstrations against the Iranian regime and had criticised the regime in slogans. The court had sentenced him to seven years’ imprisonment and 70 lashes. The applicant claimed to be in possession only of copies of the summons of 5 February 2013 and the judgment of 7 May 2013 because his family suspected state surveillance and feared that the mail would be checked if they tried to send him the originals by post. The applicant submitted the copies of the alleged new summons and of the alleged judgment to the Federal Administrative Court. In his appeal, he also asked the Federal Administrative Court and the Migration Board whether the authenticity of the two documents could be assessed by the Swiss Embassy in Teheran if the originals were handed in or shown there.

In his appeal the applicant also argued that the deviations between his two statements of the facts could be explained by the different nature of the two hearings. The first hearing had been only a summary hearing and the applicant had been asked not to go into detail. It was therefore understandable that he had not described the house search of 10 May 2011 until the second hearing. With regard to his hiding prior to his departure from Iran, his two reports were correct and consistent. He had stayed at his sister’s home but he had also met friends from work and spent time with them. With regard to the events during the last demonstration, he had in essence stated the same facts during the two hearings, namely that he and his friends had documented the demonstration and had handed out leaflets, that many participants, including his friends, had been arrested, and that he believed that one of the arrested persons had passed on his name to the Iranian authorities. The applicant further argued that when assessing his two statements, it had to be taken into consideration that almost two years had elapsed between the two hearings and that no one was able to describe events in exactly the same way after such a long time. Finally, the applicant claimed that the second hearing had not been fair, as the interviewer had constantly interrupted him and treated him as if he were lying.

On 22 May 2013 the Federal Administrative Court delivered an interim decision in which it declined the applicant’s request for legal aid, reasoning that his application lacked any prospects of success. In its preliminary assessment of the case, the Federal Administrative Court found that the applicant had not convincingly shown that he was persecuted by the Iranian State. His statements of the facts as given during the two hearings by the Migration Board diverged from each other with regard to essential points and his story was therefore not credible. The summons of 5 February 2013 and the judgment of 7 May 2013 had no probative value as the applicant had submitted only copies of these documents.

On 2 July 2013 the Federal Administrative Court dismissed the applicant’s appeal as manifestly ill-founded. In accordance with section 111 and section 111a of the Swiss Asylum Act of 26 June 1998 (hereafter “the Asylum Act”, see paragraphs 30ss. below), the case was decided by a single judge and the judgment contained only a summary reasoning. An oral hearing was not provided for in the rules of procedure. In accordance with section 111a of the Asylum Act, the Federal Administrative Court also abstained from the possibility of exchanging observations between the parties. The Migration Board was hence not given an opportunity to comment on the submission of the copies of the alleged summons of 5 February 2013 and the judgment of 7 May 2013 or on the possibility of having the alleged original documents – which were allegedly in the possession of the applicant’s family – checked by the Swiss embassy in Teheran.

The Federal Administrative Court decided that the applicant had no right to asylum. It further stated that there was no reason not to execute the expulsion order as the applicant had not been able to prove that he had been subject to state persecution in Iran. His accounts of the events during the two hearings diverged with regard to essential details and the applicant had not managed to explain these discrepancies to the Federal Administrative Court’s satisfaction. The time that had passed between the two hearings could not explain the contradictions, since the applicant had not been expected to describe the events in Iran in exactly the same way but rather in a consistent manner. Furthermore, contrary to the applicant’s allegation, there was no indication that the second hearing had been unfair. The hearing had been attended by a member of the Aid Organisation of the Protestant Church of Switzerland as a neutral witness. This person had not made any remarks about irregularities witnessed during the hearing, although he could have done so. The minutes had been translated for the applicant and signed by him. He had therefore had the opportunity to correct any statement had he found that it had not been noted down correctly.

The court further found that it could not draw any conclusions from the submitted copy of the summons of 5 February 2013 or the copy of the judgment of 7 May 2013 in the applicant’s favour, as copies had no probative value. The court did not mention the first summons of 10 May 2011, the authenticity of which had not been questioned in the decision of the Migration Board.

On 22 July 2013 the Migration Board issued a new expulsion order requiring the applicant to leave Switzerland before 19 August 2013.

On 15 August 2013 the applicant lodged his application with the Court and asked for Rule 39 of the Rules of Court to be applied in order to stay the enforcement of his expulsion. He stated that he had participated in demonstrations against the Iranian regime following the presidential elections of 2009 up until March 2011 and that he had handed out leaflets on these occasions. He further alleged that the Ettelaad security forces had searched his parents’ house with the purpose of arresting him. Moreover, he claimed that he had been summoned twice to appear before the Revolutionary Court of Teheran and that the same court had sentenced him in absentia on 7 May 2013 to seven years’ imprisonment, the payment of a fine, and 70 lashes of the whip because of his participation in the demonstrations.

In support of his claims the applicant attached to his application of 15 August 2013 documentary material on the demonstrations in Iran, written in Persian, copies of the alleged summonses of 10 May 2011 and 5 February 2013 and a copy of the alleged judgment of 7 May 2013.

On 10 October 2013 the applicant informed the Court that he was now in possession of the original summons of 5 February 2013 and of the judgment of 7 May 2013, as his sister’s husband had finally dared to send the documents by special delivery in August 2013. He also provided the Court with English translations of the summons of 5 February 2013 and the judgment of 7 May 2013. A translation of the summons of 10 May 2011 was not submitted. A translation was included in the minutes of the applicant’s second hearing, however, and this had been submitted to the Court.

According to the translation of the summons of 5 February 2013, the applicant was summoned to appear before the 10th division of the Islamic Revolutionary Court of Teheran on 5 February 2013 at 9 a.m., because of “participation in demonstrations against the public safety and the system of the Islamic Republic of Iran”. The summons was signed by an “investigating authority” on 3 February 2013.

The translation of the judgment of 7 May 2013 of the Revolutionary Court of Teheran reads in its material part:

“Charge: Undertakings and activities against the sacred order of the Islamic Republic of Iran

Judgement

In the case of the accused Mr. M.A., the court – due to the charge sheet of the 10th division of the public prosecutor’s office for the General and the Revolutionary Court of Teheran, due to the existing exhibits and his file, due to the credible report of the intelligence service and the clarification as well as the investigations of public prosecutor’s office mentioned above, due to the testimonies of the persons under arrest as well as due to the especially useful information on file, moreover because of the punishable participation in illegal gatherings, because of the disturbance of the peace and the system of the Islamic Republic of Iran, because of being a troublemaker and the writing of slogans, calling for resistance against the polity by distributing flyers and non-appearance before court despite being summoned, as well as due to the waiver of defence in court – comes to the conclusion that his guilt has been established.

For these reasons, in application of Art. 502 of the Islamic law, he is sentenced to 7 years of imprisonment, 70 strokes of the whip and to a fine of 15 Million Rial which is to be paid to the treasury.

An appeal against this judgment delivered in absentia is possible within ten days after disclosure. After this period of time, a request for reconsideration can be submitted to the competent courts of the province of Teheran.”

The translation also states that the judgment had been

“disclosed on 15 May 2013”.


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

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1981 and lives in Kharkiv, Ukraine.

The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in Kharkiv. On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant’s address and acquired Ukrainian citizenship.

Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkiv.

In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T.

On 22 July 2010 T. died in an accident. She fell from an open window of an apartment. L., who had apparently witnessed the tragic incident, started receiving psychological help in the form of dolphin-assisted therapy.

On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays. She signed a document authorising G. Ch. to travel with L. to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the applicant, L. was expected to return to Kharkiv by the end of August in order to start in September at a primary school in which he had been pre-enrolled.

On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia. For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch.’s brother, and his grandfather. G. Ch. travelled occasionally to Georgia to see his son.

On 16 November 2010 L. was diagnosed with an adjustment disorder and began having outpatient treatment.

On 22 March 2011 the Kievskiy District Court of Kharkiv ordered L.’s return to Ukraine. The court ruled that L.’s place of permanent residence should be that of the applicant.

G. Ch. was not apparently informed of the institution of the above proceedings. He did not accordingly appeal against that decision.

In October 2010 the applicant initiated child return proceedings under the Hague Convention via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court.

On 10 February 2011 two social workers went to see L. at the request of the Tbilisi City Court. They visited him at his uncle’s apartment, where he was living with his cousins. According to the report drawn up thereafter, L. was being looked after by his uncle, since his father was mainly based in Russia. The boy spoke Russian, although he had started attending a Georgian school. L.’s uncle told the social workers that L.’s sister had died as a result of their mother’s lack of attention; hence it was dangerous for L. to live with his mother. The social workers also had a short conversation with L. during which he stated that he was happy with his uncle and cousins, and did not want to go back to Ukraine. In conclusion, the social workers noted that L. was living in appropriate living conditions, and that his basic needs were being met.

In April 2011 the social workers set up and attended three meetings between the applicant and her son. In the report drawn up thereafter they concluded the following:

“On the basis of our intervention, which included visits, conversations with L. and observation of his behaviour, we consider his behaviour to be problematic. In particular, although L. wants to see his mother, and when seeing her expresses his love, warm feelings and happiness, he refuses subsequently to talk to her on the telephone. It should be underlined that when communicating with his mother he is following his father’s prompting and is stressed. Given that L. is living in the family of his uncle and grandfather, he lacks relationship with his parents (since neither of the parents lives with him). In order for a child to develop into a contented and healthy individual, and to have his interests protected, it is necessary for him to communicate with his parents.”

In the same report the social workers noted that during one of the meetings they noticed that the boy, prompted by his father, had stopped hugging his mother. This happened twice, until one of the social workers warned G. Ch. to stop doing this.

In April L. additionally underwent a psychological examination, which concluded that the boy was suffering from insufficient emotional relationship with his parents. It was noted that L. had a clearly positive attitude towards his father and the paternal family, while with respect to the mother his attitude was twofold: love and warm feelings on the one hand, and anxiety on the other. L. indicated to a psychologist that he wanted to live with his father and his father’s family and wanted his mother to be with them too. In her conclusions about his emotional condition the psychologist noted that the boy’s nervousness, aggression, distrust, and irritability, as well as low self-esteem, were caused by psychological trauma he had suffered in the past, as well as by his current complicated and barely comprehensible situation.

On 16 May 2011 the Tbilisi City Court refused the applicant’s request. The court concluded, having regard to the boy’s age and other circumstances of the case, that his return to Ukraine would expose him to psychological risk. It stated in this connection that it would be inappropriate to order the boy’s return to Ukraine, since the applicant had failed to show that she could create a stable environment for her son in which he could be protected from psychological risks related to the separation from his father. The court further noted the following:

“The court considers that in the current case, having regard to a psychologist’s report which categorically states that L. suffered a serious psychological injury, it is with high probability that if returned to Ukraine the child would be exposed to “physical or psychological harm or otherwise place[d] in an intolerable situation” (Article 13 of the Convention).”

The court dismissed the applicant’s argument that her son was suffering from an adjustment disorder and lacked communication with his parents. It noted in this connection the following:

“In view of a psychological examination the court particularly stresses the following – “L. Ch. has revealed ... high level of anxiety ... and fear of the future”, “twofold attitude towards his mother, which implies love and warm feelings as well as strong anxiety,” according to the same report, it was established that [he suffers from] “lack of emotional relationship with both parents” and “positive attitude towards his father and the paternal family” especially towards the grandfather (N. Ch.).

The court further particularly underlines the fact that minor L. Ch. expresses the wish to live with his father and the paternal family. At the same time, he wants his mother (G. S.) to stay with them ...

The court cannot accept the argument of the requesting party that the child is having adaptation difficulties because of the separation from his mother and because he is being kept in Georgia. The above opinion is not supported by any evidence and is not substantiated ... There is an attempt on the father’s side to take every possible measure ... to treat [the boy’s] psychological condition.”

As to the risks related to the boy’s return to Ukraine, the court stated:

“Hence, the court considers that the return of L. Ch. to Ukraine (in view of his current condition) would imply his return to an uncomfortable situation, which would result in his psychological stress and would place him at psychological risk, even if he returned to Ukraine with his father. Separation from his father and the paternal family and his return to Ukraine (at this stage) would cause mental deterioration of the child and from a psychological point of view would inevitably create a risk [for the boy]. (The requesting party failed to prove the opposite).“

That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L.’s return to Ukraine. The appeal court observed that L. had been born and had lived in Kharkiv, so he had adapted to the situation in Ukraine. Further, according to the psychological and social welfare reports, the boy was suffering from adaptation difficulties and lacked sufficient communication with his parents. In this connection, the court stressed that L. had indeed suffered psychological trauma as a result of the accidental death of his sister; but, according to the very same reports, he was also suffering because of the situation he was currently in. Hence, it was within the best interests of the child to be reunited with his mother. The court further noted:

“The above-mentioned conclusions confirm that the current situation for [the boy] is complicated and hardly comprehensible. Accordingly, in view of the interests of L. Ch., since there is no obvious risk of a negative impact on his mental state if he were returned to his mother, it would be appropriate that he be returned to his parent (the applicant G. S.) and to his habitual place of residence.”

As to the death of L.’s sister, the appeal court noted that related criminal proceedings had been dropped, as it had been concluded that it had been a tragic accident. It further noted in connection with the psychological trauma the boy suffered as a result, that

“... already traumatised child should not be separated from his parents. This should be viewed as a decision taken in the interests of the child. As was noted in the appealed decision, L. before his arrival in Georgia had been having dolphin-assisted rehabilitation treatment. At the same time, his stay with his mother cannot be harmful to him, since she has been doing an internship at the psychiatric hospital ...”

G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. On 22 August 2012, without holding an oral hearing, the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. On a general note, in connection with the purpose of the initiated proceedings the court noted the following:

“The subject matter of the pending application is the return to Ukraine of a child (L. Ch.) wrongfully retained in Georgia ... The cassation court pays attention to the analysis developed in the preamble of the Convention concerning its aims, according to which the interests of the child are of paramount importance when examining childcare-related issues. At the same time, the High Contracting Parties to the Convention undertook an obligation to provide international protection to children against any harmful effects of their wrongful removal or retention. Accordingly, it implies that the procedures provided for by the Convention which aim at the speedy return of a wrongfully removed or retained child to his or her habitual place of residence serve the main purpose of protecting children’s interests. In view of all the above-mentioned, the cassation court when considering the lawfulness of the request to end wrongful retention of a child considers it appropriate within the scope of the appeal on point of law to also examine the issue as to what extent the child’s interests would be protected in the event of his return which together with other factors implies the creation of a safe environment for a child. The above analysis of the cassation court finds its basis in the exceptional clauses of the Convention which in individual cases allow the relevant bodies of the receiving state to refuse the return of a child (Article 13 of the Convention).”

The Supreme Court further considered that the applicant had failed to show that the return of L. to the pre-abduction situation would be possible without damaging his interests. Notably, the court concluded:

“The cassation court wholly shares the view of the appeal court, according to which L. is suffering from lack of relationship with his parents; accordingly, in order for the child to develop into a contented and healthy individual and to have his interests protected it is necessary for him to communicate with his parents. However, as was noted above, when dealing with this type of case particular attention should be given to the consideration of exceptional circumstances ... The appellant alleges a violation of Article 13 § b of the Convention (there is a serious risk that if returned the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation) and considers that the impugned decision omits the primary reason for L. Ch.’s leaving Ukraine, namely the tragic death of T. Ch. in July 2010, which fact had a negative impact on the psychological condition of L. Ch. ...

The cassation court notes the results of the available psychological examination, in which the psychologist along with other issues stressed the high level of traumatisation in L. Ch. as a result of the death of his younger sister. At the same time, the psychologist considers the psychological features observed to be the boy’s reaction to the psychological trauma which he had suffered and to the current barely comprehensible situation. It is noteworthy that even the court of appeal could not omit the fact that as a result of the death of T. Ch. (the sister of L. Ch.) the latter had suffered mental trauma and is as of 16 November 2010 registered at a ... psychiatric institution .... However, the above-mentioned circumstances were not sufficient [for the appeal court] to refuse the return of the boy.

The cassation court considers that there is no evidence in the case file which would lead the court to believe that it would be possible to return the child to his pre-abduction environment without damaging his interests. In the opinion of the cassation court, the appellant validly substantiated, on the basis of relevant evidence, the risk factors which are inconsistent with the purposes of the Convention, while the respondent failed to show a higher purpose which could have been achieved by putting an end to the unlawful situation and [she had also] failed to demonstrate that in the event of the child being returned to Ukraine his interests and rights would not be even more violated. Accordingly, bearing in mind that the primary purpose of the Convention on Civil Aspects of International Child Abduction is the protection of the interests of a child, the cassation court considers that the appellant has lodged a substantiated complaint.”

To conclude, in reference to Article 13 § b of the Hague Convention, the Supreme Court observed that the main purpose of the Hague Convention was the protection of the best interests of a child, and that accordingly, given the well-substantiated risks that L. was facing upon his return to Ukraine, the exception clause should have been invoked.

The case file indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the case file, is currently living with his uncle and grandfather in Tbilisi.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Zbigniew Kasprzykowski, is a Polish national, who was born in 1944 and lives in Rybna.

The Polish Government (“the Government”) were represented by their Agent Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

On 17 October 1946 a property ‘Wesołówka’ owned by the applicant’s mother was taken over by the State pursuant to provisions of the Decree of the Polish Committee of National Liberation on the Agrarian Reform of 6 September 1944 (Dekret PKWN o przeprowadzeniu reformy rolnej; the 1944 Decree). No decision was delivered at this stage of the proceedings.

On 23 October 1948 the Board of the Warsaw Regional National Council (Prezydium Warszawskiej Wojewódzkiej Rady Narodowej), acting on a motion of the applicant’s mother to exclude her property from the operation of the agricultural reform, decided that the property fell within the scope of the reform.

In July 1957 the Board of the Warsaw National Council quashed its decision (orzeczenie) of 23 October 1948 and decided that the property did not fall within the scope of the decree. This new decision had not been signed or stamped and was later referred to as a ‘draft decision’ by the domestic courts and administrative authorities.

The applicant’s mother sought restitution of her property until her death in September 1975.

Over the years the property was divided into smaller plots. Some of the plots were acquired by private individuals and the Nowe Miasto Commune, others remained the property of the State Treasury.

On 1 June 2007 the applicant lodged a motion to have the decision of 23 October 1948 annulled.

On 31 October 2007 the Mazowiecki Governor (Wojewoda Mazowiecki) decided to refer the case to the Minister of Agriculture and Countryside Development (Minister Rolnictwa i Rozwoju Wsi). He found, after examining the case file of the previous proceedings, that the latter authority was the competent authority to examine the applicant’s motion.

On 29 January 2008 the applicant lodged a complaint with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie) about the inactivity on the part of the Minister of Agriculture and Countryside Development.

On 14 February 2008 the Minister of Agriculture and Countryside Development replied to the applicant’s complaint. The Minister explained that on 4 February 2008 the applicant had been requested to redefine his motion of 1 June 2007 and to provide documents certifying that he was an heir of Ms. B.K.’s property rights. He considered that this information was essential to proceed with the case. The Minister further informed the applicant that the time-limit to handle his case had been prolonged until the third quarter of 2008.

On 10 April 2008 the Warsaw Regional Administrative Court dismissed the applicant’s inactivity complaint. It appears that the applicant failed to request that written grounds for the judgment be prepared. He also did not appeal against this judgment.

On 6 March 2012 the Minister of Agriculture and Countryside Development declared the decision of 23 October 1948 null and void (stwierdził nieważność orzeczenia).

The applicant and the Płońsk Forestry Management (Nadleśnictwo Płońsk) requested a re-examination of the case. The applicant argued that declaring the decision of 23 October 1948 null and void resulted in him becoming an owner of the property in question. He thus considered that the decision should not have been declared null and void as regards the part of the property which had been acquired in good faith by private individuals. According to the applicant, the part of the decision relating to the private plots of land should have been declared as issued in breach of law (wydana z naruszeniem prawa) which would enable him to claim compensation from the State.

On 8 May 2012 the Minister of Agriculture and Countryside Development upheld his previous decision of 6 March 2012. The Minister argued that declaring the decision of 23 October 1948 null and void had not automatically resulted in the applicant becoming the owner of the property Wesołówka. In the Minister’s view, a refusal to declare null and void the decision would have adversely affected the applicant’s interests since only the annulment of the entire decision would enable the applicant to contest other decisions delivered as a result of the quashed decision.

The applicant challenged the above decision before the Warsaw Regional Administrative Court which on 19 March 2013 gave judgment and dismissed the applicant’s complaint.

The State Treasury represented, statio fisci, by the State Forests National Forest Holding (Państwowe Gospodarstwo Leśne Lasy Państwowe) lodged a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny).

The proceedings are pending before the Supreme Administrative Court.

The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are set out in the Court’s judgment in the case of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006.

On 3 December 2010 Article 37 of the Code of Administrative Proceedings and Article 3 of the Law on Proceedings before Administrative Courts were amended (amendments entered into force on 11 April 2011).

Following the amendment to Article 37 § 1 a party to administrative proceedings may currently file a complaint not only about an authority’s failure to handle the case within the time-limits referred to in Articles 35 and 36, but it may also complain about undue delay in the conduct of the proceedings (przewlekłe prowadzenie postępowania).

Section 3 § 2 of the Law of 30 August 2002 on Proceedings before Administrative Courts, as amended on 11 April 2011, contains provisions allowing a party to administrative proceedings to lodge a complaint with an administrative court, alleging inactivity of the authority obliged to issue an administrative decision or undue delay in the conduct of the proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


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

The applicant was born in 1961 and is currently detained in Kremikovtsi Prison Hostel near Sofia.

In a final judgment of 23 February 2009, the applicant was convicted of murder and sentenced to twelve years’ imprisonment. On 6 April 2009 he entered Sofia Prison to serve his sentence. He did not say anything about the conditions of his detention there.

On 21 August 2009 he was transferred to Kremikovtsi Prison Hostel, a closed-type prison hostel.

On 26 August 2009 the serving of his sentence of imprisonment was interrupted in order for him to take care of his elderly mother, who had undergone hip-replacement surgery in July 2009. The interruption came to an end on 26 October 2009, and the applicant was again placed in Kremikovtsi Prison Hostel.

From 26 October 2009 until 28 October 2010 the applicant was placed in group no. 72. According to him, the group was housed in several cabins with cement floors. The cells were heated with wooden and coal stoves. They were damp and had many of their windows broken and doors shattered. Each cell had between thirty and thirty-five square metres of floor space and housed between sixteen and twenty-two inmates – that is, provided less than two square metres per inmate –, and had one sink and one toilet with a shower. According to the Government, the cell measured between thirty-five and forty square metres and housed around twelve inmates.

The applicant further said that cold water was only available between 6 and 8 a.m. and 6 and 8 p.m., and hot water was only available between 8 and 9 a.m. and 7 and 8 p.m. Hygienic and sanitary materials were not regularly provided. There was no canteen or dedicated eating space, and no cutlery. As a result of those conditions – mainly the cold and the humidity –he had developed arthritis of both knees.

On 28 October 2010 the applicant was transferred to group no. 6. He was placed in a cell which he shared with three to four other inmates. He also started working in the hostel’s canteen and had his meals there. According to the Government, the applicant had to share a cell with two to three inmates. The cell was heated with electricity and there were no water supply restrictions. The door and the windows were in good condition.

After the applicant’s prison regime was changed to a more lenient one, on 19 November 2014 he was placed in a cell outside the guarded area of the hostel. The Government submitted that his cell had its own sanitary facilities and that no water supply restrictions existed.

According to the applicant, material conditions in the cells in which he was placed after 28 October 2010 were significantly better in terms of heating, lighting and hygiene, and were satisfactory. Food was also of good quality. Taking a shower, however, was only possible after 10 p.m. due to low water pressure.

Lastly, the applicant alleged that health care in custody was inadequate, with no qualified doctors but only a dentist working on site, and no provision of medicines at reduced prices, as available to people out of prison.


CASE OF OTGON v. THE REPUBLIC OF MOLDOVA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1963 and lives in Călărași.

On 26 October 2005 the applicant and her daughter drank water from taps in their apartment and shortly thereafter they felt unwell. On 29 October 2005 the applicant’s daughter, who was twelve at the time, was admitted to hospital with a diagnosis of “serious acute dysentery”. The applicant was admitted to hospital with the same diagnosis on 31 October 2005. She was released from hospital on 13 November 2005, a day later than her daughter.

The applicant lodged a court action against the local utilities provider (“the provider”), a State-owned company, claiming 100,000 Moldovan lei (“MDL”, approximately 6,700 euros (EUR) at the time) in compensation for the harm caused to her health and for the related inconveniences, including subsequent investigations and disinfection.

On 1 March 2006 the Călăraşi District Court found in her favour. It found that various sanitary, medical and technical reports had established that in the vicinity of the applicant’s apartment block the sewage pipe was situated above the drinking water pipe and was leaking. The water pipe had cracked on 26 October 2005 and sewage water had infiltrated the drinking water pipe. The court also established that the pipes had been used since 1977 and that their expected lifespan was fifteen years. A total of five people, all of whom had drunk water from taps connected to the same water pipe, had been admitted to hospital with the same diagnosis at approximately the same time as the applicant. Taking into consideration such elements as the amount of physical and mental suffering caused to the applicant and her daughter, the court awarded her MDL 10,000 (approximately EUR 648 at the time).

The parties appealed. On 26 April 2006 the Chişinău Court of Appeal rejected the applicant’s appeal and partly accepted the provider’s appeal. It reduced the award to MDL 5,000 (EUR 310) because it found exaggerated “both the sum claimed by [the applicant] and that awarded to [her]”.

The parties appealed. On 25 October 2006 the Supreme Court of Justice upheld the judgment of 26 April 2006. It found that the lower court had taken into consideration the nature and seriousness of the mental suffering caused to the applicant, as well as the degree of guilt of the defendant. That judgment was final.


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

The applicant was born in 1965 and lives in Mem Martins (Portugal).

The applicant is a former employee of G.N., a media company which entailed a collective dismissal in 2009. The applicant was dismissed on 4 May 2009.

On 27 October 2009 he brought an action against the company before the Labour Court of Lisbon (ação especial de impugnação do despedimento colectivo), seeking his reintegration and the payment of extra workload, (domestic proceedings no. 2150/09.9TTLSB-A).

On 16 March 2010 his case was joint to others related to the same collective dismissal.

On 25 October 2010 the applicant sent a letter to the court drawing its attention to the existence of a delay in the proceedings. The court replied on 26 October 2010 saying that some parties in the proceedings still had to be summoned.

Between 4 February 2011 and 9 May 2011 the labour court and the parties in the proceedings appointed experts to give technical assistance in the proceedings, as established by law.

On 6 September 2011 the experts presented their report.

On 31 October 2011 a preliminary hearing took place.

On 15 November 2011 the applicant contested the expert’s report. On 2 December 2012 the court notified the experts and on 9 February 2012 granted more 30 days for the submission of their observations.

On 27 March the applicant was notified of the experts’ reply and submitted his observations on 26 April 2012.

On 11 October 2012 the applicant informed the labour court that he had reached an agreement with the company. On 22 October 2012 the labour court endorsed the agreement.


Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1951 and lives in Waldegg, Austria.

On 28 September 1994 the applicant initiated civil proceedings requesting the division of a certain estate.

On 5 January 2009 the Ivanjica Municipal Court suspended the said proceedings until conclusion of another civil case.

It would appear that the said civil proceedings are still pending.

On 23 June 2011 the Constitutional Court found a breach of the applicant’s right to a hearing within a reasonable time and ordered the speeding up of the impugned proceedings. The court, additionally, declared that the applicant was entitled to the non-pecuniary damages sought, in accordance with Article 90 of the Constitutional Court Act (see paragraph 13, Article 90, below).

It seems that, the applicant contacted the Commission for Compensation on 11 December 2011 and requested the payment of the compensation awarded, but apparently received no response.


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra

The applicant, Ms Z.K. is a Slovak national. She is of Roma ethnic origin and was born in 1975. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She was represented before the Court by Ms V. Durbáková and Ms B. Bukovská, lawyers acting in cooperation with the Centre for Civil and Human Rights, a non-governmental organisation with its registered office in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 22 February 1993 the applicant gave birth to her second child in the public hospital in Prešov (“the Prešov Hospital”). The delivery was carried out by means of a caesarean section, as had also been the case when she gave birth to her first child. At the time, the applicant was underage. She was not legally married.

On 18 May 2005, when she accessed her medical records, the applicant became acquainted with a document indicating that she had been sterilised during the delivery of her child on 22 February 1993.

In particular, a surgery record appended to the applicant’s medical records indicates that the applicant underwent sterilisation by tubal ligation due to complications involving abnormally deep attachment of the placenta and imminent risk of rupture of the uterus. The document is dated 22 February 1993 and signed by Doctor S. of the Prešov Hospital. The delivery record itself contains no mention of a sterilisation operation having taken place.

Neither the applicant nor her legal guardians had been advised of or asked to give their consent to the applicant’s sterilisation.

The applicant was released from the Prešov Hospital on 1 March 1993. Her second child died of pneumonia two months later.

As the applicant was not aware why she was unable to conceive a child, she underwent infertility treatment in the years following the delivery of her second child.

Due to her inability to have more children the applicant has experienced serious physical and mental health problems. She has been ostracised by the Roma community and has experienced relationship difficulties with her husband.

On 1 July 2005 the applicant lodged an action for protection of her personal rights under Articles 11 et seq. of the Civil Code before the Prešov District Court. She argued that she had been sterilised contrary to the requirements of Slovak law and in breach of, inter alia, Articles 3, 8, 12 and 14 of the Convention. She sought an apology, 33,194 euros in compensation for damage and the reimbursement of her legal costs.

In a written statement of 31 October 2005 a representative of the defendant hospital argued that the sterilisation of the applicant had been medically indicated and that the hospital staff had acted in accordance with the law then in force.

The District Court heard Doctor N., who stated that he had become the applicant’s gynaecologist in March 1993, after the delivery of her second child. He had not been aware of a sterilisation operation having been performed on the applicant. Nurse M. stated that she could not remember the circumstances of the applicant’s delivery.

An expert appointed by the court noted, in an opinion of 8 November 2006, that, according to the applicant’s medical records, tubal ligation had been performed on her on 22 February 1993. It had not been a life-saving operation, but it had been medically indicated, as any subsequent pregnancy would have entailed a serious risk to the applicant’s life and health. The opinion further noted that the applicant had undergone a radiologic examination on 24 February 2003. It had revealed that the applicant’s fallopian tubes were not blocked and there were no signs of ligation on them.

The applicant submitted the opinion of a Czech expert of 6 August 2007 indicating that her sterilisation had not been necessary with a view to saving her life. The opinion was based on analysis of medical records related to the applicant’s admission to the Prešov Hospital from 22 February to 1 March 1993.

On 29 December 2008 the Prešov District Court dismissed the action. With reference to the result of the above-mentioned radiologic examination of 24 February 2003, it did not find it established that the applicant had been sterilised.

Upon the applicant’s appeal, on 2 December 2008 the Prešov Regional Court quashed the District Court’s judgment. It ordered the firstinstance court to obtain further evidence with a view to establishing all relevant facts.

Subsequently, the District Court heard Doctor L., who had been present during the delivery of the applicant’s second child. Albeit he did not remember its circumstances, he stated that he had completed the delivery record and that he would have mentioned the applicant’s sterilisation on its front page had such an operation been carried out. The only reference to the applicant’s sterilisation had been made in the surgery record written by Doctor S., who had died in the meantime. Doctor L. was not in a position to explain why Doctor S. had made such an entry. She might have mistaken the applicant’s file with that of one of the three other people on whom they had operated consecutively on that day.

The District Court further established from the hospital’s list of operations performed that Doctors S. and L. had performed four caesarean sections on 22 February 1993. The applicant was the third patient on whom they had operated.

The applicant’s gynaecologist highlighted that the report drawn up upon her release from the hospital did not state that the applicant had been sterilised.

Upon the court’s request an expert indicated, on 12 July 2010, that endoscopic examination by means of laparoscopic chromopertubation would reliably show whether or not the applicant had been sterilised. The reliability of the radiologic examination which the applicant had undergone on 24 February 2003 amounted to 90 per cent. The opinion further stated that sterilisation by tubal ligation, as recorded in the applicant’s file, failed for an unknown reason in 1.44 per cent of cases.

In her submissions, the applicant indicated that she was not willing to subject herself to invasive methods of examination entailing possible side effects and risks to her health for the purpose of proving that she had been sterilised. The medical records clearly showed that this had taken place.

On 16 November 2010 the District Court again dismissed the applicant’s claim. The court held that the evidence available did not permit it to conclude that the sole reason for which the applicant could not conceive a child was a blockage of her fallopian tubes resulting from an operation performed by the employees of the defendant hospital. The burden of proof was on the applicant to show that she had been sterilised. However, she had refused to undergo further medical tests which were necessary to establish in a reliable manner whether she had been subjected to a sterilisation operation, as claimed by her. The District Court further concluded that the applicant’s right to claim compensation for nonpecuniary damage had prescribed.

The applicant appealed. She argued that it was for the defendant hospital to show that its staff had erroneously indicated in her medical records that she had been sterilised.

On 24 March 2011 the Prešov Regional Court upheld the firstinstance judgment. It held that the District Court had established all relevant facts and had correctly applied the applicable law. In particular, as it could not be established beyond any doubt that the applicant had been sterilised by the hospital staff, she could not succeed in her action for protection of her personal rights. The reference to such an operation being performed in only one of several medical records drawn up in relation to the delivery of the applicant’s second child did not suffice to prove that the operation had actually been performed, given that a subsequent test had shown that her fallopian tubes were not blocked. The fact that the applicant had refused to undergo more reliable tests also had to be taken into account.

On 24 May 2011 the applicant filed a constitutional complaint. With reference to the proceedings leading to the Regional Court’s judgment of 24 March 2011, she alleged a breach, inter alia, of Articles 3, 6, 8, 13 and 14 of the Convention. The applicant argued that the ordinary courts had failed to comply with their obligation to carry out an effective investigation into the circumstances of her sterilisation. In particular, the Regional Court’s finding that it had not been clearly established that the applicant had been sterilised had been arbitrary and in disregard of the information in the applicant’s medical records. In view of the entry recording her sterilisation in her records, it was for the defendant hospital to show that the applicant had not been sterilised. Asking the applicant to submit herself to invasive medical procedures with possible side effects with a view to proving that she had been sterilised was inappropriate in the circumstances.

On 1 March 2012 the Constitutional Court dismissed the complaint. There was no appearance of unfairness in the proceedings leading to the Regional Court’s judgment, in which all relevant facts and arguments had been addressed and which had not been arbitrary. In those circumstances the other complaints made by the applicant were manifestly ill-founded.

On 23 January 2009 the applicant filed a criminal complaint with the District Prosecution Office in Prešov. She submitted that she had suffered serious bodily harm as a result of her unlawful sterilisation in the Prešov Hospital.

On 6 March 2009 a police investigator informed the applicant that a criminal investigation had been started on 6 February 2009.

In the course of the investigation the investigator heard the applicant and her legal representative, as well as two staff members from the Prešov Hospital. Doctor L. had been present during the delivery but he could not remember its circumstances, including whether the applicant had been sterilised. Similarly, Nurse M. stated that she could not remember the delivery. An expert indicated that sterilisation was not in itself a life-saving operation. It should not be performed without the consent of the woman concerned.

On 10 May 2010 the police investigator concluded that no criminal offence had been committed, as it had not been established with sufficient certainty that the applicant had been sterilised.

On 3 June 2010 the District Prosecutor’s Office in Prešov dismissed a complaint against the investigator’s decision made by the applicant.

On 31 August 2010 the Regional Prosecutor’s Office in Prešov informed the applicant that no reason had been found for departing from the conclusions reached by the authorities at the lower level. It was particularly relevant that the surgeon who had operated on the applicant had died, and that the period during which the alleged criminal offence could be prosecuted had expired on 22 February 2003.

On 17 December 2010 the General Prosecutor’s Office found no breach of law in the course of the investigation into the applicant’s criminal complaint. The reply contained the following information.

In the course of the investigation two possible reasons for the applicant’s infertility had been identified, namely either her unlawful sterilisation on 22 February 1993 or a medical condition affecting her reproductive organs, namely fallopian tube obstruction.

Only the surgery record of 22 February 1993 stated that the applicant had been sterilised. There was no mention of a sterilisation operation in the delivery record, in the other records relating to the delivery and the applicant’s subsequent treatment, in the records of the anaesthesia given to her or in the report drawn up upon the applicant’s release from the hospital. Doctor S., who had operated on the applicant, had died in the meantime. One of her colleagues had stated that Doctor S. had drawn up the patient surgery records after all of the operations scheduled for a given day had been completed. An expert had found that four caesarean sections, one of which had been accompanied by the patient’s sterilisation, had been performed in the hospital on 22 February 1993. Doctor S. had performed three of those caesarean sections. It could not be excluded that the entry recording the applicant’s sterilisation in the surgery record had been made erroneously. The expert was not in a position to confirm that the applicant had been sterilised. It was also possible that the applicant’s tubes were blocked by scar tissue. It was relevant in that respect that scars on the applicant’s organs had been noted in the course of the delivery of the applicant’s second child. According to the expert, surgery was required in order to establish why the applicant could not become pregnant.

The letter from the Office of the General Prosecutor further indicated that it would be inappropriate to ask the applicant to undergo such surgery. Even if it were thereby established that she had been unlawfully sterilised, no criminal law consequences would arise, as the surgeon involved had died and the period in which the alleged offence could have been prosecuted had expired.

On 26 October 2010 the applicant filed a complaint with the Constitutional Court. With reference to her sterilisation and the standpoints of the Prešov Regional Prosecutor’s Office and the General Prosecutor’s Office, she alleged a breach of Articles 3, 8, 13 and 14 of the Convention and also a breach of several other international instruments.

On 9 June 2011 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision stated that the Constitutional Court could only examine any breaches which had resulted from the unfairness or arbitrariness of the proceedings complained of. As the applicant in her complaint had neither relied on Article 6 of the Convention nor made reference to its guarantees in substance, her Convention complaints could not be dealt with in the constitutional proceedings.

With a view to describing the overall situation and circumstances in which she had delivered her child, the applicant submitted that she had experienced inferior treatment during her stay at the Prešov Hospital. In particular, patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room”, separate from women who were not of Roma ethnic origin.

The applicant referred to a number of publications pointing to a history of sterilisation of Roma women, which had originated under the communist regime in Czechoslovakia in the early 1970s and which she believed had influenced her own sterilisation. She also referred to a number of reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies, asking the Slovakian authorities to conduct an impartial and fair investigation of the allegations of forced and coerced sterilisation of Roma women in Slovakia, or criticising the absence of such an investigation (for further details see also V.C. v. Slovakia, no. 18968/07, §§ 43-47, ECHR 2011 (extracts)).

The applicant considered that her ethnic origin had played a decisive role in the way in which she had been treated. Citing a number of international reports, the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives.

Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, human dignity, privacy, name and personal characteristics.

Under Article 13 § 1, natural persons have the right to seek the cessation of unjustified infringements of their personal rights and to have the consequences of such infringements eliminated. They also have the right to seek appropriate redress.

Article 13 § 2 provides that, in cases where the redress obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, he or she is also entitled to financial compensation for non-pecuniary damage.

At the relevant time, the following provisions of the People’s Health Act 1966 (Law no. 20/1966 Coll.) were in force.

Pursuant to section 23(2) and (3), medical interventions were to be carried out with the patient’s consent. Such interventions were also permissible in cases where the patient’s state of health prevented him or her from expressing his or her will but where his or her consent could be presumed.

Pursuant to section 27 a sterilisation operation was permissible only with the consent of or upon the request of the person concerned and subject to the conditions set by the Ministry of Health.

Further information about the relevant domestic law, practice and international materials is set out in V.C. v. Slovakia, cited above, §§ 60-86; N.B. v. Slovakia, no. 29518/10, §§ 50-51, 12 June 2012; and I.G. and Others v. Slovakia, no. 15966/04, § 88, 13 November 2012.


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention.