No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney

The applicant was born in 1967 and lives in Arundel.

In 2006 he was convicted of assault occasioning grievous bodily harm. He had a previous conviction for a similar offence against the same victim. A pre-sentencing report identified the Enhanced Thinking Skills (“ETS”) course followed by the Controlling Anger and Learning to Manage It (“CALM”) course as potentially appropriate courses for the applicant to complete during a sentence of imprisonment and explained that attendance at these courses would take around two years. On 23 November 2006 an indeterminate sentence for public protection (“IPP sentence”) was imposed. A minimum term (“tariff”) of fourteen months and twelve days was fixed.

The applicant was detained in HMP Lewes. On 20 March 2007 a postsentence report by his probation officers confirmed that the ETS and CALM courses were, in principle, appropriate and that completion would take around two years. At a sentence planning board on 31 October 2007, following completion of an assessment using the Offender Assessment System (“OASys”), his targets were identified as: positive use of his time in custody; improved awareness of appropriate behaviour (thinking skills); and completion of a course on Victim Awareness, the latter of which, it was noted, had already been completed.

A progress report dated 20 December 2007 noted:

“Mr Hall has taken the only opportunities offered to him to address his offending and appears to have modified his attitude, which was a big step for him.”

On 4 February 2008 the applicant’s tariff expired.

On 15 February 2008 a first Parole Board Review was held. On 21 February 2008 the Parole Board informed the applicant of its decision not to direct his release or recommend his transfer to open conditions. The panel considered that the applicant still posed a high risk to his victim, particularly as the victim had been also been detained in HMP Lewes and the applicant had received an adjudication for assaulting him. In order to address this risk, the applicant was required to complete the ETS course and to be assessed for the CALM course, in closed conditions. The panel continued:

“Your supervisors considered that you should be assessed for ETS and Anger Management, but this has not been possible at HMP Lewes, where you are considered to be a polite and respectful Enhanced Prisoner.”

The Parole Board referred to the applicant’s submission that he would control himself and avoid the victim in future and that he was prepared to respect non-contact and exclusion zone conditions to secure his release. It concluded:

“The Panel accepts without reservation, that your high level of risk relates solely to your involvement with [the victim], but this is a risk which cannot be ignored, despite your determination to avoid him. Any such involvement is a real concern and cannot be ignored. It is the view of the Panel, having taken into account the varying views of your supervisors, that prior to your release you should have the opportunity to carry out all outstanding offending behavior work, namely ETS and to be assessed for CALM, and that the appropriate place for this to be done, is in Closed Conditions.”

On 5 March 2008 the Secretary of State approved the Parole Board’s recommendation and set the review period at eighteen months to complete outstanding offender behaviour work, with a hearing to take place in August 2009.

On 16 April 2008 the applicant was transferred to HMP Erlestoke. His targets were reviewed with his offender supervisor and on 25 April 2008, after a review of an initially negative decision, he was referred for assessments for the ETS and CALM courses and the Healthy Relationships Programme (“HRP”).

In May 2008, the applicant was deemed suitable to progress to the second stage of the assessment for the ETS course.

In the applicant’s Sentence Planning and Review Report dated 30 June 2008, prepared by his offender manager, it was recorded that he was to be assessed for and, if suitable, complete the ETS and CALM courses and the HRP. The report added as regards the HRP:

“I am also of the opinion that consideration needs to be given to completing this work in the community as a condition of his licence because the waiting list is extremely long.”

At a sentence planning and review meeting on 14 August 2008, the applicant’s sentence targets recorded that he should be assessed for and complete the ETS and CALM courses and the HRP programme. It was noted that he required extra psychological assessment as he appeared to be afraid of participating in group activities, which might hinder his eventual participation in the courses recommended to him.

A report of an interview with his offender supervisor dated 20 January 2009 notes:

“When the question of his current sentence plan targets was raised, he stated that he would not do any of the courses as he hates classrooms and he will not be forced into doing them. When it was explained that this attitude would make it extremely difficult for him to make any progress in his sentence and through the prison system, he stated that he did not care and would stay here ‘for thirty years’ ... Mr Hill did not want to discuss any of his specific sentence plan targets with me and this is clearly an area that needs to be addressed in order for him to progress.”

In his Parole Assessment Report of 27 January 2009, the applicant’s offender manager stated that she could not support the applicant’s release because at that stage he had not undertaken any work to address his behaviour. She noted his resistance to offending programmes and reported that it was “absolutely imperative” that arrangements be made for him to be psychologically assessed, adding:

“Mr Hill faces the potential of being left serving an IPP sentence with no means of working towards his release.”

She further noted that she had made enquiries at the prison as to whether the applicant might undergo psychological assessment but that the chances of this occurring were seen as slight. She stated that if this was not available at his current institution, the applicant would need to be moved to a facility where it could be undertaken.

In February 2009 the applicant’s case was referred to the Parole Board.

A Sentence Planning and Review Report dated 2 February 2009 recorded the applicant’s refusal to engage with his sentence plan targets to reduce his risk. It recommended that the ETS, CALM and HRP courses be undertaken in closed conditions and that counselling be provided.

On 5 February 2009 the applicant confirmed that he was prepared to do the ETS course in a one-to-one basis.

On 28 April 2009 he met with the ETS facilitators and on 29 April was notified that he had been identified as a potential participant of the ETS course scheduled to begin on 13 May 2009.

The applicant was duly enrolled on the May 2009 ETS course. He completed the course in June 2009. A post-programme review took place on 11 August 2009.

The applicant was subsequently informed by his probation officer that there was a two-year wait for access to the CALM course.

On an unknown date the Parole Board hearing scheduled for August 2009 was deferred to November 2009 in order to allow for the completion of the post-ETS course report. It was subsequently deferred again until 9 February 2010.

Meanwhile, at some point in 2009 or 2010, the applicant was assessed for the HRP and was found to be unsuitable.

On 29 January 2010 the applicant’s solicitors informed the Parole Board that they had commissioned an independent psychologist’s report on the applicant and that it might not be completed by the time of the scheduled hearing. As a result, on 1 February 2010 the Parole Board Panel Chair issued directions deferring the hearing and imposing deadlines for the provision of the psychiatric report (9 March) and any report in response by the Secretary of State (8 June). The target month for the hearing was September 2010.

The independent psychology report was completed on 7 February 2010 and filed with the Parole Board on 9 March 2010. The report supported the applicant’s release on licence into the community. It explained that the applicant had tried to complete his treatment goals but that his fear of group settings combined with his low IQ had made this very difficult. It further stated:

“5.1 I strongly recommend irrespective of the outcome of any future Parole Board hearing that Mr Hill receives one-to-one counselling as a matter of urgency...

5.3 There has been much debate regarding Mr Hill’s need for further treatment and indeed his ability to benefit from such treatment. In my opinion a prerequisite for deciding the issue is that Mr Hill undergo further cognitive and/or psychoneurological assessment.”

In an addendum to the report dated 14 May 2010, it was noted that the applicant was not capable of benefitting from group work but was fully capable of one-to-one coursework.

The prison was not notified that a report was required until 20 July 2010. Because of other reporting commitments, it informed the parties that it would be unable to deliver the necessary report before May 2011.

The Parole Board hearing was subsequently further deferred until 13 January 2011.

In an addendum to the Sentence Planning and Review Report, the applicant’s offender supervisor explained:

“There have been problems getting Mr Hill assessed for the CALM course, some of which relate to his reluctance to participate and others due to issues relating to availability of staff.”

On 10 January 2011 the applicant was informed that his Parole Board hearing had been cancelled because the applicant’s offender supervisor was unable to attend and that the earliest possible date for the hearing would be March 2011.

The deferred Parole Board hearing took place on 19 April 2011. By letter dated 28 April 2011, the Parole Board noted that the applicant had not cooperated with a prison transfer to allow him to be assessed for the CALM course and that he appeared to prioritise his work over addressing his areas of risk. The Parole Board further noted that the applicant was still, five years into his sentence, providing new and important background to the motivations and triggers for his violence. It said that this had limited the assessment of his risk factors.

The applicant subsequently sought judicial review of the Parole Board’s decision not to recommend his transfer to open conditions. On 21 January 2012 the Administrative Court granted the judicial review application on the basis that the panel had failed to carry out the correct balancing exercise when considering whether to accede to the applicant’s request for a transfer to open conditions. The Parole Board was instructed to reconsider this aspect of the applicant’s case.

The applicant subsequently undertook the CALM course and completed it in October 2011.

The Parole Board held an oral hearing on 13 April 2012. By letter dated 4 May 2012, it directed the applicant’s release. He was released on 15 May 2012.


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;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1974 and lives in Moscow.

Prior to its privatisation, the flat at 10-3-34 Bolshoy Rogozhskiy Pereulok, Moscow, had been owned by the City of Moscow. R. had resided there as a tenant under the social housing agreement with the City. On 31 May 1993 the title to the flat was transferred to R. under a privatisation scheme.

On 12 August 1996 R. died.

In October 1999 Yar. applied to a notary seeking recognition as R.’s heir. In support of his application, Yar. submitted a will allegedly signed by R. on 9 February 1996.

On 2 June 2000 the notary granted the request and issued a certificate confirming, inter alia, that Yar. had inherited R.’s flat.

On 20 June 2000 the Moscow City Committee for Registration of Real Estate Transactions (the “City Registration Committee”) registered the certificate, confirming Yar.’s title to the flat.

On 13 July 2000 Yar. sold the flat to the applicant. On an unspecified date the City Registration Committee registered the transaction and issued the relevant deed, confirming the applicant’s title to the flat. The applicant moved in and resided in the flat. After the birth of her daughter in 2004, she resided there with her daughter.

On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of R.

On 6 June 2001 the Taganskiy District Court of Moscow found Yar. guilty of fraud and sentenced him to five years’ imprisonment and confiscation of property. In particular, the court established that Yar., acting in concert with other persons, whose identity was not known, had fraudulently acquired R.’s flat and sold it to the applicant on the basis of a forged will. The judgment became final on 25 July 2001.

On 5 March 2002 the prosecutor brought a civil claim on behalf of the Department for Housing of the City of Moscow (the “Housing Department”) seeking (1) the annulment of R.’s will and of the applicant’s title to the flat; (2) the applicant’s eviction; (3) restitution of the flat to the City of Moscow; and (4) annulment of the purchase agreement between Yar. and the applicant, and the reimbursement by Yar. of the amount the applicant had paid for the flat.

On 16 December 2003 the District Court examined the case in the applicant’s absence and granted the prosecutor’s claims in full. The applicant appealed.

On 16 June 2004 the Moscow City Court held that the District Court had failed to duly inform the applicant of the date and time of the hearing. It quashed the judgment of 16 December 2003 and remitted the case for fresh consideration.

In the new set of proceedings the applicant brought a counterclaim against the City of Moscow, seeking to be recognised as a bona fide purchaser of the flat.

On 14 November 2005 the District Court invalidated R.’s will and Yar.’s title to the flat. The court established that the property was escheat and ordered its restitution to the City of Moscow. It also ordered the applicant’s eviction. The court dismissed the remainder of the prosecutor’s claims concerning the annulment of the sale contract concluded by Yar. and the applicant, and the former’s obligation to return the sum paid by the applicant to her. As regards the applicant’s counterclaim, the court recognised that she had bought the flat in good faith. However, it found that because Yar. had acquired R.’s flat fraudulently, he had, in fact, stolen it from the City of Moscow and the latter had the right to reclaim the flat from the applicant, despite the fact that she was a bona fide purchaser.

On 24 January 2006 the City Court upheld the judgment of 14 November 2005 on appeal.

On 23 March 2006 the district bailiff’s service instituted enforcement proceedings in respect of the judgment of 14 November 2005.

On 2 April 2008 the applicant and her daughter were evicted from the flat. According to the applicant, they had to move in with her parents and her brother and his family.

According to the Government, on 9 April 2010 the flat was reassigned to Sh., who had been on the social housing waiting list for twenty-five years.

On 12 May 2011 the District Court recognised the City’s title to the flat. In particular, the court established that R. had died intestate and without heirs and that her flat should have been transferred to the State as escheat property. The court also terminated the applicant’s title to the flat.

On 22 September 2011 the City Court upheld the judgment of 12 May 2011 on appeal.


CASE OF CEROVŠEK AND BOŽIČNIK v. SLOVENIA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant was born in 1962 and lives in Bizeljsko. The second applicant was born in 1946 and lives in Artiče.

The applicants were charged in 2005 and 2006 respectively of committing theft by cutting down and taking trees from a forest belonging to another person and appropriating the wood. They were tried by a professional judge, A.K., sitting as a single judge.

The first applicant stated in his defence in the proceedings against him that he had cut down trees which had been marked for cutting or had been attacked by bark beetle in his own forest. In the course of the proceedings against the first applicant Judge A.K. examined a number of witnesses during the main hearing, inspected the place of the alleged offence and examined a number of other documents, including a sketch and a copy of the land register map. None of the witnesses testified that they had seen the first applicant cutting down trees on the injured party’s plot of land. However, they testified about a number of other circumstances in relation to the charges, for example similarities in the way the trees had been cut down on the first applicant’s land and on that of the injured party, traces of the transport of trees, the fact that the first applicant had regularly sold wood and that he had also cut down unmarked trees on his own land. One of the witnesses also testified that he had seen the first applicant and another person, B.K., transporting trees over the injured party’s land. Another witness, the injured party’s husband, testified that B.K. had indirectly confirmed his involvement in cutting down the trees in question. B.K., however, stated that he believed that he had only cut down marked trees on the first applicant’s land. The court also appointed an expert, who estimated that the value of the allegedly stolen wood amounted to 2,028 euros (EUR).

The second applicant was charged with two counts of theft. In the course of the proceedings against him, Judge A.K. heard a number of witnesses at the main hearing and examined several documents, including copies of the relevant land register maps. In respect of the first charge, the second applicant maintained that he had mistakenly thought that he had been cutting down trees on his own land, whose borders had been shown to him by the former owners, F.H. and J.H., who also appeared as witnesses in the proceedings. The husband of the injured party, M.P., stated that they had found out about the stolen wood six months after the event and that neighbours had told them that the second applicant had been seen in the forest at the time, while another person, I.T., had been seen transporting the wood. He also testified that the second applicant had admitted to him that he had cut down the trees, thinking that they had belonged to his land but that they had failed to agree on how much the second applicant should pay M.P. in compensation. I.T. stated that he had helped the second applicant transport the wood and that he had been told by him that the land belonged to him, which I.T. had found suspicious. Another witness, S.P., stated that he had helped I.T. load the truck with the wood. As to the second charge, the second applicant argued that he had had an agreement with the injured party in that case, F.B., that he could cut down trees in exchange for wine. The judge questioned the injured party, who denied the existence of such an agreement. The court also appointed an expert, who estimated that the value of the beech and hornbeam trees cut down amounted to EUR 457 and that of the acacia trees at EUR 440.

On 21 June 2007 Judge A.K. found the first applicant guilty of taking another’s movable property with the intention of unlawfully appropriating it, and sentenced him to six months in prison, suspended for three years. The judge found that the applicant had cut down and taken eight oak trees in a forest without the knowledge of its owner and had appropriated wood worth EUR 2,028. She ordered him to either deliver to the injured party the same quantity of oak that had been taken from the forest or to pay compensation of EUR 2,028. She pronounced a guilty verdict and sentenced him (izrek, hereinafter referred to as “the verdict”) orally.

On 2 July 2007 Judge A.K., again giving an oral verdict, found the second applicant guilty of taking another’s movable property with the intention of unlawfully appropriating it and sentenced him to seven months in prison, suspended for three years. She found that the second applicant had cut down and taken three beech trees and nine hornbeams worth at least EUR 457 and two hundred acacia trees worth at least EUR 440 from land belonging to other persons. Moreover, the second applicant was ordered to pay compensation of EUR 457 and EUR 440 respectively to the two injured parties.

The Government submitted that Judge A.K., when pronouncing the verdict, had also given an oral summary of the main reasons (see paragraph 34 below), however, no indication of that can be found in the records of the hearing.

After hearing the verdict both applicants gave notice of their intention to appeal, which gave rise to an obligation on the part of Judge A.K. to draw up written grounds for her verdicts (see paragraph 23 below).

A.K. later retired on an unspecified date and the case files in both applicants’ cases got lost. In 2010, the local court reconstituted the files.

Based on the documents contained in the restored case file, Judge D.K.M. delivered written grounds for the verdict pronounced by Judge A.K. (see paragraph 9 above), which were served on the first applicant’s counsel on 17 August 2010. In her reasoning, the judge relied on the records of the hearings, the transcript of the inspection of the location and other documents in the file. The judge did not believe the applicant’s version of events and dismissed B.K.’s statements as biased because he had been working for the first applicant. She also found his testimony to be in contradiction with some of the other witness statements. The court relied heavily on the finding that while B.K. had cut down the trees professionally on the applicant’s land, witness testimony showed that certain trees had been cut down in an unprofessional manner on both the applicant’s and the injured party’s land, and that the first applicant and B.K. had been seen transporting trees over the injured party’s land.

The written grounds in the second applicant’s case (see paragraph 10 above) were delivered by Judge M.B., who also based them on the documents contained in the restored case file. They were served on his counsel on 17 June 2010. As to the first charge, the judge found that the second applicant’s defence had not been convincing. In particular, the judge considered the statements of two witnesses, F.H. and J.H., to be unpersuasive. On the other hand, the judge relied on the statements of the injured party and her husband, supported by other evidence, for example, the expert’s opinion, the statements of the witnesses S.P. and I.T and the copy of the land register map showing that M.P.’s land did not border on the second applicant’s. As to the second charge, the court relied predominantly on the statement of the injured party, F.B., who denied that he had had an agreement with the second applicant. Other evidence, such as the expert’s opinion and photographs, confirmed that F.B. was indeed the owner of the land and indicated the number of trees that had been cut down.

Both applicants appealed against the judgments, raising similar arguments as those submitted to the Court (see paragraph 32 below). They further alleged that the judgments should have been set aside and remitted to the first-instance court for fresh consideration. Furthermore, both applicants also appealed against the factual findings on which their convictions had been based, including the assessment of the credibility of a number of witnesses. The second applicant also complained about the assessment of the existence of intent on his part to commit the second count of theft.

On 26 August and 25 November 2010 respectively, the Ljubljana Higher Court dismissed the applicants’ appeals, holding that the fact that the written grounds of the impugned judgments had been given a few years after they had been delivered orally had not rendered the judgments unlawful. The higher court emphasised that the impugned judgments had been based on facts established in adversarial proceedings and on evidence given at hearings which the applicants had been able to challenge by presenting their own versions of the events at issue. The first-instance judgments had been given orally by Judge A.K. who had presided over both applicants’ hearings, had questioned the applicants and heard the witnesses. Moreover, the written grounds had disclosed on what evidence the judges providing them had relied and how they had assessed the reliability of the applicants’ statements. In the higher court’s opinion, the written grounds had been clear and reasonable. As regards the first applicant, the higher court reassessed the evidence, including the witness statements, and came to the same conclusion as the first-instance court. As to the second applicant, the higher court noted that the first-instance court had truthfully and accurately established all the relevant facts of the case, and that it had been proven that the second applicant had intended to commit the second offence.

On 13 October 2010 and 20 January 2011 respectively, the applicants lodged applications for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court, raising similar arguments as those submitted to the Court (see paragraph 32 below) and referring to the Constitutional Court’s decision of 11 October 2006 (see paragraph 28 below).

On 6 January and 1 September 2011 respectively, the Supreme Court dismissed the applicants’ applications for the protection of legality, holding that only the operative part of the judgment, namely the verdict, could have interfered with the rights of the parties, while the purpose of written grounds was to enable a decision to be reviewed by higher instances. As a rule, the written grounds of a judgment were given by the judge who had conducted the trial and pronounced the verdict. However, in certain situations, such as when a judge was absent for a long time or died, the law had to be interpreted as permitting another judge to give the written grounds. In such cases, the judge who wrote the judgment based it on logical reasoning and the evidence in the file. The Supreme Court found that while the principle of immediacy required that a verdict should be given by the judge who had participated in the trial, the act of writing a judgment, was not, strictly speaking, part of the trial. Moreover, if the written grounds for a judgment were not convincing, a defendant had a better chance of succeeding with his or her appeal. Having regard to those considerations, the Supreme Court took the view that the applicants’ rights of defence had not been violated.

On 1 April and 2 December 2011 respectively, the applicants lodged constitutional complaints, reiterating the arguments they had made before the lower courts.

On 3 April 2012 the Constitutional Court refused to admit the applicants’ constitutional complaints, holding that their cases concerned neither a violation of human rights having serious consequences for them nor an important constitutional question.


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

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

The applicant was born in 1930 and lives in Valencia. He has lived in San José, a residential district of Valencia since 1962. Since 1974 Valencia City Council (“the City Council”) has allowed licensed premises, such as bars, pubs and discotheques, to open in the vicinity of his home. In view of the problems caused by the noise, the City Council resolved on 22 December 1983 not to permit any more licensed premises to open in the area. However, the resolution was never implemented and new licences were granted. In 1993, the Polytechnic University of Valencia carried out a study of the levels of night-time noise during the weekend on behalf of the City Council. It was reported that in the San José district the noise levels were notably higher to the legally accepted norm.

In 1994, the applicant became president of the neighbourhood association of his district. In that position, and in an attempt to improve the noise-pollution situation for both himself and his neighbours, he lodged various claims against the City Council. He also asked for the withdrawal of the business licences of several establishments. The City Council replied that in fact no business activities were being carried out in some of the premises, and that the business activities carried out in the others could not be considered as producing a high level of noise (for example bakeries). Lastly, the licences had in any case expired in many of the establishments.

On 28 June 1996 the City Council adopted the municipal Ordinance on noise and vibrations (Ordenanza Municipal de Ruidos y Vibraciones hereinafter “the Ordinance”). Furthermore, in July 2000, at the applicant’s request, the municipality required the pub located in the basement of the applicant’s building to install a noise limiter.

Following a resolution of the City Council, sitting in plenary session on 27 December 1996, which was published in the Valencia Official Gazette on 27 January 1997, the area in which the applicant lives was designated an “acoustically saturated zone” (zona acústicamente saturada).

In view of the fact that the levels of noise pollution did not decrease, the applicant decided to replace his windows with double glazing and to install air conditioning in order to alleviate the high temperatures caused by having the windows permanently closed in summer.

On 14 June 1999 the applicant brought a preliminary State liability claim before the City Council, relying on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to privacy and inviolability of the home) of the Constitution. The applicant asked for compensation for the expenses incurred, as well as for compensation in respect of pecuniary and non-pecuniary damage.

Having received no reply from the authorities (silencio administrativo negativo), the applicant lodged a complaint with the Valencia High Court of Justice (“the High Court”) on 5 December 2001. On 5 January 2001 the City Council issued a resolution denying his preliminary State liability claim. The City Council joined the proceedings before the High Court.

The applicant provided the court with two reports: the first one of 1 April 1998 prepared by the municipal service for the environment stated that:

“Prior to the entry into force of the declaration of an acoustically saturated zone, the levels of disturbance by noise during the night exceeded 65 decibels, mainly during the nights from Thursdays to Sundays from 10 p.m. to 5 a.m. in the morning.

... after the declaration [of the area] as an acoustically saturated zone and the adoption of some corrective measures the levels of disturbance still exceed [those permitted for night-time].

The second report was issued on 28 March 2000 by the same municipal service, which admitted that:

“... it must be concluded that ... the limits established in Article 30 § 2 of [the Ordinance] are still being exceeded.”

In order to sustain his arguments, the applicant also produced an expert report, produced by an applied physics professor, which was joined to his complaint. The report noted as follows:

“The measured noise on the street and the noise perceived by neighbours in their homes, in the Xuquer area of Valencia – which is where the applicant lives – rise high total levels of ... 70 decibels ... Those levels are clearly related to the presence of a concentration of the entertainment industry in that area (pubs and discotheques).

As a result of this situation, the expert stated that it could be estimated that the sound levels for instance in a front facing bedroom were approximately 50 decibels (hereinafter dBA) and sometimes they could even reach 60 dBA. The expert highlighted that the City Council had recommended a maximum permitted level at night of 30 dBA. Consequently, there was a difference of 20-30 dBA. However, the expert report pointed out that this was a general estimation and that it was made without measuring the inside of the dwellings concerned.

Lastly, the applicant produced a medical report stating that he was suffering from anxiety due to the excessive noise inside his flat. The report concluded by considering that there was a relationship of cause-effect between the noise pollution and his psychiatric illness.

During the proceedings, the High Court ordered a legal medical expert report by a specialist in preventive medicine. The appointed expert reported that:

“... the nocturnal noise altered necessarily the physiological sleep of Mr Cuenca and his family, [although it is not] possible to ascertain the intensity of the disturbance owing to the lack of corresponding sleep studies”.

“... the sleep disturbance as a consequence of that noise produced in Mr Cuenca an ‘anxious depressive syndrome reacting to the noise, change in his psychiatric state manifested by irritability with his, anxiety, diminution of intellectual ability and somatization’”.

The City Council maintained that it was not proven that the applicant was suffering the noise level which he claimed in his home, as the environmental noise is perceived differently in each home, according to its height, aspect and other particularities. Furthermore, the City Council had been carrying out extensive activities in order to enforce compliance with the legislation on noise. It could not be said that the City Council tolerated infractions of that legislation.

In a judgment of 20 June 2003 the High Court dismissed the complaint. It found that there was no causal connection between the noise pollution and the alleged damage caused to the applicant, since there was no evidence proving that in his particular flat the level of noise pollution exceeded the established limits. Indeed, the applicant had decided to replace his windows without previously asking for a measurement of the noise inside his flat, as provided by Article 54 of the Ordinance. Furthermore, it should be taken into account that the applicant’s flat was on the fourth floor, where the noise would certainly be less intense than on a lower floor.

The applicant lodged an amparo appeal before the Constitutional Court, claiming that the State had violated his fundamental rights protected by Articles 14 (equality before the law), 15 (right to life and to physical and moral integrity), 18 (inviolability of the home) and 24 (right to a fair trial) of the Spanish Constitution. This appeal was initially dismissed on 18 October 2004.

On 16 November 2004 the European Court of Human Rights (hereinafter “the Court”) delivered a judgment in the case of Moreno Gómez v. Spain (no. 4143/02, ECHR 2004X). In the light of this judgment, the public prosecutor lodged an appeal against the Constitutional Court’s decision, asking for the admission of the applicant’s amparo appeal. On 31 January 2005 the Constitutional Court upheld the public prosecutor’s appeal and declared the amparo appeal admissible. The Constitutional Court stated that the judgment issued by the European Court of Human Rights in the case of Moreno Gomez:

“... justifie[d] entirely the reconsideration of the present amparo appeal, in order to ascertain the measure in which it might deal with an analogous case, and to examine whether the objects of analysis of the [Strasbourg] Court [had been] the same fundamental rights as in this amparo appeal”.

In the proceedings before the Constitutional Court, the public prosecutor claimed that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the Court had already addressed this issue in the case of Moreno Gómez, which had dealt with the exact same situation suffered by the applicant’s neighbour, and declared that Spain had violated Article 8 of the Convention. The prosecutor considered that Moreno Gómez and the applicant’s case were similar in terms of the facts as well as in the object and the merits, which was in principle sufficient to deliver a judgment on the merits on the alleged violations of the right to private and family life and to inviolability of the home.

In a judgment of 29 September 2011, served on the applicant on 19 October 2011, the plenary of the Constitutional Court dismissed the amparo appeal, arguing that (1) both cases were not identical, (2) the applicant had not proved that in his particular case the noise at his flat was above the permitted level, (3) that the City Council had indeed adopted specific measures to reduce noise pollution at the applicant’s neighbourhood and (4) that he had not proved that his health problems had been directly caused by noise pollution. The judgment was not adopted by unanimity.

Three judges out of twelve issued a dissenting opinion holding that there had been a violation of Articles 10 § 2, 18 §§ 1 and 2 of the Constitution. In particular, the dissenting judges argued that the standard employed by the Constitutional Court to decide when the right to privacy and family life had been infringed should have been based on the case-law of the Court and that prolonged exposure to a high levels of sound that could be qualified as avoidable and unbearable deserved the protection of the courts, given that it impeded him from living a normal life. They reiterated that according to the judgment delivered in the Moreno Gómez case (cited above), the assessment of a violation no longer depended on the evidence provided by the applicant about the seriousness of the noise pollution inside his home. Instead, the decisive element was to be hereafter the location of the house in an excessively noisy area and it would be enough for the applicant to prove the excessive level of noise in the street. Furthermore, the effects of noise on the applicant’s health had been confirmed by the expert report issued in the proceedings before the High Court.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

In March 2002, criminal proceedings were initiated against the applicant in absentia for being a member of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation. In the indictment, the public prosecutor relied on, among others, incriminating statements by certain accused persons who, in their statements to the police, had maintained that the applicant had been involved in a number of terrorist activities since 1991. A Red Notice was accordingly issued in respect of the applicant via Interpol.

On an unspecified date the applicant was arrested in Syria. After being detained in the Damascus Security Headquarters, allegedly for twenty-three days, the applicant was handed over to the Turkish authorities on 15 August 2003. The medical report issued at the beginning of the applicant’s custody indicated no signs of ill-treatment.

On 18 August 2003 the applicant was questioned at the Erzurum Gendarmerie Command, in the absence of a lawyer. According to a form explaining arrested persons’ rights, which the applicant had signed, he had been reminded of the charges against him, his right to a lawyer and his right to remain silent. The applicant refused legal assistance, and gave a detailed statement regarding his activities in the illegal organisation. He admitted that he had been a member of the PKK since 1989, maintained that he had been involved in several armed attacks and gave details about such events. He also stated that he had been acting as the Paris representative of the illegal organisation since 1994 and signed his statement as such.

On the same day, the applicant was examined at the hospital; no signs of ill-treatment were noted on his body. Subsequently, he was questioned by the Erzurum Public Prosecutor. The applicant refused legal assistance and confirmed this in his statement given to the gendarmerie. In this connection, he admitted to being a member of the PKK and participating in several terrorist activities between 1990 and 1998 and also being the Paris representative of the illegal organisation since 1999. He further admitted that he had been involved in some of the armed attacks with which he had been charged. These events were indicated by their location, nature and dates, which were between 1990 and 1998.

The applicant denied his participation in five terrorist attacks which had happened in 1992.

Later on the same day, the applicant was taken to the Erzurum State Security Court. Before the court he expressed the wish to be represented by a lawyer, and stated that he would make further submissions once a lawyer had been appointed. The court remanded the applicant in pre-trial detention and allowed him time for the assignment of a representative until the next hearing to be held on 7 October 2003.

On 20 August 2003 the Erzurum Public Prosecutor lodged an additional indictment, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control.

On 9 December 2003, at the fifth court hearing, in the presence of his three lawyers, the applicant retracted the statements he had made to the gendarmerie and the public prosecutor, alleging that he had been under psychological pressure during his interrogation. He confessed to being a member of the PKK, but only in charge of the instruction of the members, and claimed that he had never taken part in any armed attack. He further submitted that he had been injured during an armed clash in November 1992 and since then had been unable to use his right hand. In this connection he requested a medical report establishing that he was not able to hold a gun with his right hand. The prosecutor opposed this request by referring to the applicant’s healthy physical appearance.

During the hearing the applicant’s representatives contested the testimonies of other accused persons in different criminal proceedings indicating the applicant’s involvement or responsibilities as a team leader, by alleging that such testimonies had been given only in order to benefit from legal provisions allowing reduction of sentences. The crossexamination of these witnesses was not requested at any stage of the proceedings.

Again on the same day, the applicant made written submissions to the court and stated that he had signed his statement in custody without reading it.

On 27 February 2004 the Forensic Medicine Department of Erzurum Atatürk University issued a report. It found loss of function in the applicant’s right hand and concluded that the applicant would have serious difficulty in using a firearm with one hand. However, it was further reported that if his right hand were supported by other parts of his body he would be able to use a firearm.

On 4 May 2004, at the ninth hearing, the applicant objected to the medical report, requesting a new report from the Istanbul Forensic Institute. The trial court refused this request, holding that a new medical report would not have any effect on the merits of the case and therefore was not necessary. In this connection, the court held that the illegal acts admitted by the applicant, which had been committed prior to November 1992, thus before his hand was injured, would suffice for charges to be brought against the applicant under Article 125 of the former Criminal Code. It accordingly held that an additional expert report was not required.

At a hearing held on 24 August 2004, the applicant repeated his request for an additional medical report, and stated that during his interrogation by the gendarmes and the prosecutor he had felt fearful and anxious and had given his statements under pressure as a result of the conditions in which he had been detained in Syria. He repeated that the testimonies against him by persons accused of terrorism in different proceedings had been made only for collaborating and benefiting from lenient criminal provisions and could be dismissed once the medical report concerning his incapacity was established. The applicant’s lawyers also based their arguments on the establishment of a new report.

In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004. Accordingly, the case was transferred to the Erzurum Assize Court.

On 21 September 2004 the Erzurum Assize Court convicted the applicant as charged. In a reasoned judgment, the court found it established that the applicant had been involved in at least 15 armed attacks committed prior to 1992, among the 59 incidents of which he was accused. It enumerated the acts to which the applicant had confessed while being questioned by the gendarmes and subsequently by the prosecutor, such as setting fire to three primary schools, the robbery of several village guards and clashes with security forces. These acts also corresponded chronologically with each other and with the numerous official documents related to these events. The court further held that these acts would suffice to convict the applicant under Article 125 of the former Criminal Code and underlined that only after several hearings had he contested his initial statements, while choosing to accept his involvement in armed attacks in which terrorists had been killed and denying his implication in those in which members of the security forces had been killed. The court pointed out that the applicant’s argument could not be considered credible in view of the chronology of the events. The court further stated that throughout the criminal proceedings the applicant had consistently and proudly stated that he was a member of the illegal organisation to the point of making propaganda for the organisation, and he had shown no remorse which would indicate the likelihood that he would not repeat such crimes. Finally, it indicated that the applicant even refused the possibility of using Law no. 4959 for rehabilitation (certain paragraphs of Article 4 of the cited law foresee sentences varying between 12 and 19 years of imprisonment in replacement of an “aggravated life sentence”, according to the authenticity of information provided about the structure of a terrorist organisation or its activities) and accordingly sentenced him to “aggravated life imprisonment”.

On 7 January 2005 the Court of Cassation upheld the conviction.


RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI v. UKRAINE

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant association, Rymsko-Katolytska Gromada Svyatogo Klymentiya v Misti Sevastopoli (Римсько-Католицька громада Святого Климента в місті Севастополі), is part of the OdesaSimferopil Eparchy of the Roman Catholic Church and belongs to the Crimean Deanery (Decanat). It was registered as a religious organisation on 5 January 1995. It is currently composed of about 400 parishioners of various nationalities, residents of Sevastopol and the surrounding area, and was headed by a prior of the parish Mr Yuriy Ziminsky and vicar Jan Biletsky. The applicant association operates a Sunday school. It was represented by Mr I.F. Tkach, a lawyer practising in Sevastopol.

The Ukrainian Government (“the Government”) were represented, most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.

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

The Roman Catholic community in Sevastopol was founded in 1876 and consisted of about 4,500 members. After receiving permission from the authorities and approval from the Russian Emperor on 13 May 1904, the community built a Catholic church (костьол), which was named after Saint Clement (Собор Святого Климента). The construction of this church was financed by the Catholic community in Sevastopol, was authorised in 1900 and completed in 1911. The church was owned and managed by the community until early 1936, after the arrest of the prior of the community by the People’s Commissariat of Internal Affairs (НКВС) on 26 December 1935. A formal decision on “liquidation of the Catholic church” or dissolution of the Catholic religious community had been taken by the Presidium of the Sevastopol City Council and subsequently by the Central Executive Committee of Crimea in 1936 as the religious community had insufficient membership.

In late 1936 the Sevastopol City Council of Deputies decided to transfer the church building to the Sevastopol electricity company Transelectro for use as an electricity substation (трансформаторна підстанція).

The premises were partially damaged in the Second World War and then rebuilt in 1958-1960 using the foundations and walls of the old church, which had largely remained undamaged, at the expense of the City Council. In accordance with a redevelopment project in 1958 they were to be used as a cinema for 300-360 persons, with a screen measuring 11.5 metres. However, the existing architectural constructions had to be retained to the maximum possible extent. According to the architectural plans, the cathedral premises had to be rebuilt in such a way as not to reflect their religious origin and also in order to provide office premises for the Department of Cinemas of the City Council. The rebuilding also led to the destruction of the bell-tower, the internal reorganisation of the premises and the addition of an entrance hall for the cinema. After reconstruction, as from 1960, the premises were used as a cinema, which was eventually transformed into the “Druzhba” cinema for children. The lower part of the cathedral’s altar was transformed into a public toilet. The premises were also used to house a currency exchange bureau. The applicant association conducts religious ceremonies during the religious holidays near the entrance to the church, as it does not have permission to use it. It also conducts religious ceremonies at a rented apartment close to the premises in question.

On 1 July 1998 the First Deputy Chairman of the Sevastopol City State Administration provided the Cabinet of Ministers with a list of religious premises which had previously been nationalised and could be transferred to religious communities for permanent use. The church was included on the list of such premises, provided that funds be made available for the construction of a children’s cinema.

On 16 June 1998 the applicant association requested the Sevastopol City State Administration to transfer to it title to the premises of the former Catholic Church. On 26 June 1998 the Administration referred the applicant association’s request to the Sevastopol City Council (hereinafter – “the Council”) for a decision.

On 26 August 1998 the Department of Religions of the Sevastopol State Administration, acting on the basis of a resolution of 7 May 1998 of the Cabinet of Ministers authorising the transfer of religious premises to religious communities, included the former Catholic church building in the list of premises that were to be transferred to the applicant association, the only Catholic religious community in Sevastopol. The transfer was to take place on condition that a new children’s cinema was built by certain State authorities.

On 24 December 1998 the Sevastopol City Council, by decision no. 139, came to the conclusion that the transfer of the premises for use by the applicant association was “not advisable”. The applicant association sought to institute restitution proceedings before various judicial and administrative authorities. These proceedings are described below (see paragraphs 12-23 below).

On 7 April 1999 the Sevastopol City Department of Property issued order no. 100 requiring the city authorities to include the cinema in the register of State communal property. Following that, on 7 September 1999, the Sevastopol City State Administration rejected the applicant association’s request for transfer of the premises for its use, based on the provisions of Section 17 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991 (see paragraph 29 below).

On 24 March 1999 the applicant association instituted proceedings against the Sevastopol City Council before the Sevastopol City Court seeking to quash Council decision no. 139 of 24 December 1998. It also sought to obtain title to the premises, referring to Section 17 of the Act.

On 21 April 1999 the Sevastopol City Court rejected the applicant association’s claim, holding that it was not competent to hear a dispute between two legal entities as to title over property. On 4 May 1999 the applicant association appealed against that judgment to the Supreme Court.

On 9 June 1999 the Supreme Court quashed the judgment of 21 April 1999 and terminated the proceedings. In particular, it held that disputes between legal entities (in this case the applicant association and the Council), except in certain specified circumstances, were subject to examination by the State arbitration courts. The Supreme Court held that the applicant association was a religious community and had become a legal entity as from the moment of its registration on 5 January 1995. The claims had been lodged against the Sevastopol City State Administration and the Sevastopol City Council, which were also legal entities. The court ruled that the applicant association had to institute proceedings before the commercial (former arbitration) courts as the courts of general jurisdiction were, according to the court, not competent to deal with the matter.

In November 1999 the applicant association instituted proceedings in the Sevastopol City Court seeking the invalidation of the decision of the Sevastopol City State Administration of 7 September 1999 rejecting its request for transfer of the premises (see paragraph 11 above).

On 12 November 1999 the Sevastopol City Court refused to examine the applicant association’s request as it fell outside its jurisdiction. The court stated that the dispute related not to the decision of 7 September 1999, but to a controversy over the right to own particular premises between two legal entities, and had therefore to be examined by the commercial (former arbitration) courts.

On 22 December 1999 the Supreme Court quashed that ruling and remitted the case to the same court for fresh examination. In particular, it ruled that the issue under examination did not just concern a dispute between two legal entities as to the ownership of premises. The court stated that the applicant association’s claims concerned restitution of a religious building and thus had to be examined on their merits, in accordance with the provisions of Article 248-11 of the Code of Civil Procedure.

On 25 February 2000 the Sevastopol City Court rejected the applicant association’s request to transfer the title to premises to it and allow it their use. Without referring to any specific legal provision, it considered that the premises were not owned or administered by the Sevastopol City State Administration, but were “communal property” administered by the City Council according to the Local Government Act. The court also rejected the applicant association’s arguments that the original Catholic cathedral building had been constructed by the Roman Catholic religious community of Sevastopol and confiscated by the State authorities in 1936. It ruled that these claims concerned title to the premises, which had become “communal property” and the transfer of the premises into “communal property” was not challenged by the applicant. It established, having reviewed the evidence before it, that the cathedral had been damaged during the Second World War, rebuilt afterwards in 1960, and had been used as a cinema ever since. The court referred to Articles 15 (adversarial nature of proceedings), 30 (burden of proof), 62 (evaluation of evidence) and 248 (decisions with regard to administrative offences) of the Code of Civil Procedure, and in general terms to the Freedom of Consciousness and Religious Organisations Act (“the Act”), without referring to specific provisions of that law.

The applicant association appealed in cassation. It challenged inter alia the first instance court’s failure to apply the law that was applicable to the proceedings in the present case (Section 17 of the Act) and its erroneous application of legal provisions which were of no relevance to the legal relations at issue. In particular, the applicant association stated that:

- the courts had not examined its complaints as to the lawfulness of the refusal of the Sevastopol City State Administration to transfer the religious premises at issue into its ownership and use;

- the first instance court had established that the premises at issue were “communal property”, administered by the Sevastopol City Council, even though the proceedings concerned property owned by the State;

- the property at issue had been unlawfully confiscated from a Roman Catholic religious community in Sevastopol and the State had undertaken to return this property back;

- the “communal status of property” and the association’s failure to challenge transfer of property into “communal administration” were irrelevant to the determination of whether nationalised religious property should be returned or not.

On 17 May 2000 the Supreme Court examined the applicant’s appeal in cassation and upheld the ruling of 25 February 2000, finding no grounds for quashing it. In particular, it held that the premises had become communal property on 7 April 1999 and thus the Sevastopol City Council was the competent body to transfer title to property owned by it. Therefore, it was only within the competence of the Sevastopol City Council to decide and order return of such premises. It further stated that the first-instance court had lawfully refused to examine complaints about the right to claim property restitution as such complaints were to be examined in a different procedure. The court referred in its reasoning to the Local Self-Government Act and Articles 310 and 312 of the Code of Civil Procedure.

In September 2000 the applicant association instituted new proceedings before the Sevastopol City Arbitration Court, seeking a declaration that order no. 100 issued on 7 April 1999 was null and void. On 21 September 2000 the court, referring to the judgment of 25 February 2000 as being res judicata, ruled that the applicant association’s complaints were unsubstantiated.

On 13 December 2000 the First Deputy President of the Sevastopol City Arbitration Court upheld the judgment of 21 September 2000 in supervisory-review proceedings. In particular, it held that the applicant community had not raised any claims concerning the return of property to it before the first-instance court, and that the claims as to the unlawfulness of order no. 100 were unsubstantiated.

On 24 April 2001 the division responsible for review of decisions, rulings and resolutions of the Higher Arbitration Court examined the applicant association’s request for supervisory review of the aforementioned arbitration-court decisions and ruled that they were lawful and substantiated. It found that the premises at issue were communal property, had been damaged during Second World War and rebuilt in 1960s. The court also cited the findings made in the judgment of the Sevastopol City Court of 25 February 2000 as to the origin of the premises at issue.

From April 2001 the applicant association made repeated requests, both separately and jointly with religious groups of other denominations, for the transfer of the premises for use for religious purposes. In particular, they claimed that other larger religious denominations had received premises whereas their requests had been unsuccessful. These requests were heard by the Sevastopol City Council, at the request of the Sevastopol City State Administration, on 10 February 2004 and 10 November 2005. However, according to a letter from the Chairman of the Sevastopol City State Administration of 13 January 2006, a proposal by the City Administration to permit the use of the premises by the Catholic religious community of Sevastopol was not supported by the majority of the members of the City Council and so was not adopted.

On 30 September 2004 the then Prime Minister of Ukraine, Mr Yanukovych, instructed the Chairman of the Sevastopol City State Administration to organise, in cooperation with the City Council, the transfer of the premises to the applicant association.

On 24 January 2006 the Chairman of the Sevastopol City Council informed the applicant association that the cinema was part of a communal enterprise known as Kinoobyednannia “Kinosvit” (Кінооб’єднання “Кіносвіт”). He also stated that a transfer of the cinema for use by the religious community would be contrary to Article 21 of the Foundations of Legislation on Culture, so that there was no further need for the Sevastopol City Council to review the issue anew.

The most recent refusals to examine the issue of transfer of premises to the religious community date from August and September 2011. It appears from information in the case file, provided by the applicant association that the premises, which were cultural and historical monuments, were not being used as a cinema due to the poor state of the building and the need for significant renovation works.

The relevant domestic law and practice with regard to the activities of religious associations is summarised in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below.

Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charges, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea.

The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows:

“Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis.

Religious buildings and property which constitute State-owned property shall be transferred by the organisations administering them to the religious associations for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ...

Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ...

Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners.

Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...”

The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows:

The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following:

- the rights of the religious organisations which owned these buildings and property when they were nationalised;

- the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law;

- investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises;

- existence in the same residential area of other religious premises and their use by other religious organisations ...;

- other important matters in their entirety.

The decision of the relevant State body shall be reasoned ...”

Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local selfgovernment finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations.

Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century).

By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations” , adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises.

On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard.

On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application of its provisions by the domestic courts.

According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated.

Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalization (orthodox church to be returned to orthodox community, Roman-Catholic church to RomanCatholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4-9.6 of the Recommendation).

Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law.

The applicant association submitted two decisions of the Sevastopol City Council dated 29 December 1999 and 4 July 2006, by which title to former religious premises that were in communal ownership and used for cultural purposes had been transferred to Christian Orthodox communities in Sevastopol. By the decision of 29 December 1999 the Sevastopol City State Administration transferred title to the religious premises of the former St. Peter and Paul Cathedral, which had been used by the City Palace of Culture, to the Ukrainian Orthodox Church of the Moscow Patriarchate. According to the decision of 4 July 2006, the Sevastopol Centre of Culture and Arts was to be moved to different premises.

Article 2 of the 1991 Property Act (repealed by the Act of 27 April 2007), hereafter – the Property Act, established three forms of property ownership in Ukraine, which included private, collective and State property, with all three forms receiving equal protection from the State. Article 31 of the Property Act provides that the State property includes the State property itself and the property of administrative-territorial units (municipal or communal property). According to Article 32 of the Property Act, the subjects of the State property administration were the Verkhovna Rada of Ukraine (in relation to national property) and regional, district, town and village councils (in relation to communal property). Under Article 33 of the Property Act the Verkhovna Rada of Ukraine and the local council were responsible for administration of State property. Article 35 of the Property Act provides that communal property consisted of inter alia property necessary for ensuring economic and social development of a particular territory.

Paragraphs 3-5 of Article 16 of the Local Self-Government Act, in line with Article 142 of the Constitution of Ukraine, provide that the bodies of local self-government that represent local territorial communities, including the regional councils, shall be responsible for administration of “communal property”.

According to paragraphs 1-3 of the Cabinet of Ministers Resolution No. 311 of 5 November 1991 “On Separation of State Property of Ukraine into State-owned (Republican) Property and Property of the Administrative-territorial entities”, the “cultural property” had to be transferred into communal property and administered by the local territorial community of Sevastopol from the State property.

According to Article 248-11 of the Code, the courts had jurisdiction to hear complaints concerning decisions of State bodies with regard to the registration of religious associations and the ownership and use of religious property. Under Article 248-12 such complaints were to be lodged with the regional courts, the Kyiv and Sevastopol City Courts and, exceptionally, with the Supreme Court if the complaint concerned the State Religions Committee. A complaint could be lodged within a period of a month from the date of the decision. According to Article 248-13 of the Code, the complaint had to be examined within a period of ten days, if necessary with the participation of the complainant and the respondent State body. Under Article 248-13 of the Code, the court could order the State body to rectify its previous decisions so as to ensure that they complied with the law. The courts were to reject the claims if the State bodies’ decisions were lawful.

In accordance with Article 1 of the Code of Arbitration Procedure, in force at the material time, that is to say, before 21 June 2001, legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts, in accordance with the relevant jurisdictional rules, for the protection of their legal rights and interests.

Article 14 of the Code established that the Higher Arbitration Court had jurisdiction over complaints against the Regional State Administrations. In accordance with the rules on exclusive jurisdiction, under Article 16 of the Code cases concerning the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated. Under Article 17 of the Code, the court which had been wrongly seised was required to transfer the case file to another court that had jurisdiction in the case.


CASE OF SVINARENKO AND SLYADNEV v. RUSSIA

Preliminary objection dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Vincent A. De Gaetano

The applicants were born in 1968 and 1970 respectively. The first applicant, Mr Svinarenko, is currently serving a sentence of imprisonment in the Murmansk region. The second applicant, Mr Slyadnev, lives in the settlement of Sinegorye in the Yagodninskiy district of the Magadan region.

In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought several sets of criminal proceedings against a Mr Grishin.

On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years’ imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin, and of the illegal acquisition, storage, transportation and carrying of ammunition.

On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article 109 § 1 of the Criminal Code of the Russian Federation (“the CC”), was questioned as one of the suspects in the proceedings brought against Mr Grishin. On 22 January 2003 he was charged with the following crimes:

(i) establishing an armed gang under Mr Grishin’s leadership and participating in the gang’s attacks on citizens from October 2001 to September 2002 – under Article 209 § 1 of the CC;

(ii) the robbery in October 2001 of Mr V.B., the director of a private goldrefining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC;

(iii) illegal storage and transportation of precious metals (industrial gold allegedly misappropriated from Mr V.B.) of substantial value by an organised group in October 2001 – under Article 191 § 2 of the CC;

(iv) extortion (against Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, by an organised group – under Article 163 § 3 of the CC;

(v) the robbery of Mr Ya.B. in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, by means of illegal entry into a dwelling with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; and

(vi) illegal acquisition, storage, transfer, transportation and carrying of firearms by an organised group in October 2001 – under Article 222 § 3 of the CC.

On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court’s judgment of 26 July 2002.

On 24 April 2003 the Magadan Town Court ordered the second applicant’s remand in custody in the criminal proceedings at issue in the present case. It noted, inter alia, that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court’s judgment of 15 June 2001 convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to four years’ imprisonment.

On 20 May 2003 the investigation was completed and the defence received access to the case file.

On 13 August 2003 the Magadan Town Court found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September 2003.

On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants’ request.

As a result of the preliminary hearing, on 26 December 2003 the Regional Court ordered that the case be examined at an open hearing by a jury on 23 January 2004. On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.

On 13 February 2004 a jury was empanelled and sworn in.

The Regional Court held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend.

On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B.) to the lesser charge of “arbitrary unlawful acts” (самоуправство) with the use of violence, under Article 330 § 2 of the CC.

On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the Magadan Regional Court delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged.

The co-defendants and the prosecution appealed against the trial court’s judgment. On 7 December 2004 the Supreme Court of the Russian Federation examined the case on appeal and quashed the judgment on the grounds, inter alia, that some of the jurors had concealed information about their family members’ criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection; and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular failing to sum up the victims’ and witnesses’ statements. The Supreme Court remitted the case to the Magadan Regional Court for fresh examination.

On 21 December 2004 the Regional Court received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant’s lawyer had failed to appear.

In a decision of 8 February 2005 the Regional Court imposed on the defendants an undertaking not to leave their place of residence without its authorisation, to appear before it when summoned, and not to obstruct the proceedings.

The Regional Court’s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005.

The hearing before the Regional Court was adjourned on 17 June 2005 as a result of the first applicant’s and a co-defendant’s failure to appear, for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant’s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings.

The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.

On 6 December 2005 the Regional Court ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The applicants’ appeals against the detention order were dismissed by the Supreme Court of the Russian Federation in its decision of 22 February 2006. In upholding the Regional Court’s detention order, the Supreme Court noted that one of the victims, Mr Ya.B., had asked for the case to be examined without his participation as he had been afraid to give evidence in open court. This fear constituted, according to the Supreme Court, a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence. The applicants’ detention was subsequently extended for similar reasons.

On 9 December 2005 the jury was empanelled and sworn in and the court held hearings on 12, 20 and 23 December 2005. On the last-mentioned date one of the co-defendants was granted leave to engage a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular requests seeking the replacement of the presiding judge and the prosecutor.

As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it under escort. The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006, pending the execution of that order.

The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the examination of the evidence closed. In five sessions in June 2006 the Regional Court heard the parties’ oral argument. It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for their summer holidays in central Russia.

The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their oral argument. They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to be put to the jury then followed. The jury gave its verdict on 17 November 2006. The first applicant was found not guilty and was released in the courtroom.

On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the Regional Court delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion (against Mr V.B.), and “arbitrary unlawful acts” with the use of violence (in respect of Mr Ya.B.), and was sentenced to seven years’ imprisonment (which took into account his 2001 conviction, in respect of which the conditional sentence was revoked). He was acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect.

On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by a co-defendant, one of the victims and the prosecution. It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights, namely, by discussing in the jurors’ presence, despite the presiding judge’s warnings, issues which fell outside the scope of the jurors’ competence. They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held by the Supreme Court to have unlawfully influenced the jury’s verdict. It was also noted that the jury’s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. It also ordered that the second applicant remain in custody.

In August 2007 the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in 2002.

On 4 September 2007 the Magadan Regional Court received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the Regional Court instead of the 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned.

On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused to sit in the case, the number available was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November 2007.

The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, necessitating the summoning of an additional 200 and 250 persons respectively.

A jury, composed of twelve jurors and two substitute jurors, was empanelled on 5 February 2008 from thirty-four candidate jurors who had appeared before the court, and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for the jurors’ holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports.

For about a month the trial was delayed because a co-defendant was ill. Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye, or who had moved to the central and other parts of the country.

On 13 February 2009 the Regional Court started hearing the parties’ oral argument.

On 7 March 2009 the jury returned a “not guilty” verdict in respect of the first applicant. It found the second applicant guilty of “arbitrary unlawful acts” and not guilty on the remaining charges.

On 12 March 2009 the Regional Court ordered the second applicant’s release on an undertaking not to leave his place of residence and to behave in a law-abiding manner.

On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding, in respect of the second applicant, that on 11 October 2001 he, Mr Grishin and Mr N.G. (against whom the criminal proceedings were terminated owing to his death) had requested Mr Ya.B. to repay a debt in the amount of 100,000 Russian roubles (RUB); following Mr Ya.B.’s refusal Mr Grishin and Mr N.G. had beaten him up; the second applicant had beaten up Mr S.K., who had witnessed Mr Ya.B.’s beating; they had then taken Mr Ya.B. to his home and Mr Grishin had taken money from him in the amount of RUB 247,000.

The Regional Court noted that there had been mixed references in the materials of the case about the second applicant, who had been characterised negatively by the local authority and by a district police officer at the place of his residence, and positively by the administration of a detention facility, in which he had been detained on remand, and by the administration of a prison in which he had served his sentence after a previous conviction.

The Regional Court convicted the second applicant, under Article 330 § 2 of the CC, of “arbitrary unlawful acts” with the use of violence, sentenced him to two years and ten months’ imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months’ imprisonment; it discharged him from serving the sentence in the part relating to the conviction under Article 330 § 2 as liability for the relevant offence had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him on the remaining charges.

As of 19 March 2009 the first applicant was still detained in connection with unrelated criminal proceedings against him (see paragraph 34 above).

On 23 July 2009 the Supreme Court dismissed an appeal by a codefendant and the prosecution and upheld the judgment.

During the applicants’ detention on remand they were taken to the Magadan Regional Court from their detention facility by police guards. During the hearings they sat on a bench enclosed on four sides by metal rods 10 millimetres in diameter. The enclosure was 255 centimetres long, 150 centimetres wide and 225 centimetres high, with a steel mesh ceiling and a door, also made of metal rods. The distance between the metal rods was 19 centimetres.

Armed police guards remained beside the caged dock. There were always two police guards per detainee – eight police guards in total during the first and second trials and six police guards for the applicants and one of their co-defendants during the third trial.

After the first applicant’s acquittal had become final he brought proceedings against the State for damage suffered as a result of the criminal proceedings against him.

On 23 October 2009 the Magadan Regional Court awarded him RUB 18,569 in respect of pecuniary damage, representing an unemployment allowance that had not been paid as a result of his detention on remand. On 17 December 2009 the Supreme Court of the Russian Federation upheld the Regional Court’s judgment.

On 1 March 2010 the Magadan Town Court awarded the first applicant RUB 50,000 in respect of non-pecuniary damage incurred by him as a result of his criminal prosecution, the imposition on him of an undertaking not to leave his place of residence and his detention on remand from 9 October 2002 to the moment of his release, following the first “not guilty” jury verdict of 22 June 2004 and from 6 December 2005 until 17 November 2006. The applicant appealed against the judgment arguing, inter alia, that the amount awarded to him was not just or reasonable. On 30 March 2010 the Magadan Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment.