Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applications were lodged by three Ukrainian nationals, Mrs Ganna Kostyantynivna Kolesnyk (“the first applicant”), Mrs Larysa Oleksandrivna Navrotska (“the second applicant”) and Mrs Svetlana Vyacheslavovna Fil (“the third applicant”, collectively “the applicants”). The applicants were born in 1978, 1977 and 1982, respectively, and live in Simeyiz, Vinnytsya and Donetsk, Ukraine.

The applicants, who had been granted legal aid, were represented by Mr E. Leontyev, a lawyer practising in the town of Gorlivka, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova of the Ministry of Justice of Ukraine.

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

On 5 April 2007 the first applicant gave birth to a child. She took three years of maternity leave, ending on 5 April 2010.

On 10 July 2007 the first applicant applied to the relevant State authorities for a monthly allowance, to be paid to her in accordance with section 42 of the Law of Ukraine on Compulsory State Social Insurance in Case of Temporary Loss of Ability to Work and Childbirth and Funeral Expenses (Закон України “Про загальнообов’язкове державне соціальне страхування у зв’язку з тимчасовою втратою працездатності та витратами, зумовленими народженням та похованням” – hereafter “the Compulsory State Social Insurance Act” - see paragraph 30 below). The allowance was awarded to her with effect from 21 June 2007 (the first day after the end of the initial period of maternity leave). Between June and November 2007 the first applicant received the following amounts: 43.01 Ukrainian hryvnias (UAH) in June 2007; UAH 129.03 in July 2007; UAH 132.64 in August 2007; UAH 134.45 in September 2007; UAH 136.13 in October 2007; and UAH 140.05 in November 2007. Between December 2007 and April 2010 the first applicant was receiving UAH 144.10 (around 16-18 euros (EUR)) per month.

In 2007-2009 the laws which set the amount of the allowance in question were modified by the State Budget Acts. On 9 July 2007 and 22 May 2008 the Constitutional Court of Ukraine found that the State Budget Acts for the years 2007 - 2008 could not validly amend the scope of rights and obligations set up in other legislation (see paragraph 46 below).

In December 2008 the first applicant asked for her allowance to be recalculated in the light of the Constitutional Court decisions of 9 July 2007 and 22 May 2008. In reply the Yalta Town Council informed the first applicant that since “the Cabinet of Ministers of Ukraine had not adopted a mechanism for recalculation of the child allowance, to make it compatible with the decision of the Constitutional Court of Ukraine”, the recalculation could not be carried out. At the same time it noted that, according to the decision no. 1751 of the Cabinet of Ministers of Ukraine (see paragraph 34 below), the monthly child allowance was UAH 425 for the period between 1 May 2007 and 30 April 2008.

On 12 February 2009 the Labour and Social Policy Ministry of the Autonomous Republic of Crimea informed the first applicant that she was entitled to a child allowance in accordance with the State Assistance (Families with Children) Act (Закон України «Про державну допомогу сім’ям з дітьми») (see paragraph 32 below) to be paid between 21 June 2007 and 5 April 2010. The Ministry noted that as of 1 January 2009 the amount of allowance was UAH 144.10 whilst, "pursuant to the decision of the Constitutional Court of 9 July 2007 the applicant would have received monthly payments of UAH 463 in July-September 2007 and UAH 470 in October-December 2007 which corresponds to the amount of the minimum subsistence level (прожитковий мінімум) for a child aged six". However, for the years 2007-09 the necessary financial provisions for these payments had not been not made, with the result that the applicant would continue to receive the sums provided by the State Assistance (Families with Children) act, as amended by the respective State Budget Acts.

In April 2009 the first applicant instituted proceedings in the Yaltynsky Town Court against the Labour and Social Protection Department of the Yalta Town Council claiming, inter alia, UAH 10,878.99 in allegedly unpaid child allowance due to her for the period between 21 June 2007 and 30 April 2009 and requesting that an allowance in an amount not lower than the minimum subsistence level established by law for an able-bodied person (see paragraph 36 below) be paid to her until 5 April 2010. The first applicant indicated that she was insured under the obligatory social insurance scheme and was entitled to child allowance under sections 42 and 43 of the Compulsory State Social Insurance Act. However, decision no. 1751 of the Cabinet of Ministers of Ukraine which had been applied in her case, contradicted the above Act, even though the latter had higher legal force. The first applicant further noted that she had learned about the allegedly erroneous calculation of the amount of her child allowance from the media only in September 2008.

On 9 June 2009 the court found that the first applicant was insured under the Compulsory State Social Insurance Act. Under section 43 of the Act the amount of child allowance paid could not be less than the amount of the minimum subsistence level established by law. The changes introduced by the State Budget Acts in 2007 and 2008, which provided for a reduction in the amount of the benefit, had been declared unconstitutional by the Constitutional Court of Ukraine on 9 July 2007 and 22 May 2008. Therefore, these changes were not applicable in the first applicant’s case.

The court further held that the first applicant had lodged before the court her claim for payment of the child allowance due to her in 2007 only in 2009, while the decision of the Constitutional Court of Ukraine of 9 July 2007 had been published on 27 July 2007. The first applicant should have learned about the breach of her rights on the latter date. As the first applicant requested recalculation of her child allowance in May 2009 only, she had missed the one-year time-limit provided for by the Code of Administrative Justice Procedure. The court allowed the first applicant’s claims related to the period between May 2008 and May 2009 and awarded her UAH 5,278.70.

On 24 March 2010 the Sevastopol Administrative Court of Appeal amended the decision of 9 June 2009. It found that the first applicant had had good reasons for missing the time-limit for lodging her claim. In particular, she had correctly tried to settle the dispute out of court by lodging her request for recalculation directly with the defendant first.

The court held that the relevant provisions of the State Budget Acts for 2007 and 2008, which suspended (for 2007) and then revoked (with effect from 2008) section 43 of the Compulsory State Social Insurance Act, had been found to be unconstitutional on 9 July 2007 and 22 May 2008. The first applicant was insured and thus was entitled to a monthly child allowance in accordance with section 43 of the Compulsory State Social Insurance Act, which provided that the amount of the child allowance should not be lowers than the minimum subsistence level. The court found that the State Budget Act for 2007 set the minimum subsistence level for children aged up to six years as UAH 463 (between April 2007 and September 2007) and UAH 470 (between October and December 2007). In June-December 2007 the first applicant was paid UAH 859.41. Consequently, the first applicant was to be paid “the remaining UAH 2,714.59” in child allowance for the period between 21 June 2007 and 31 December 2007.

As for 2008 the court found that the first applicant’s claims for the period between May and December 2008 (i.e. after the Constitutional Court decision of 22 May 2008) should be also granted. The State Budget Act for 2008 set for the minimum subsistence level for children aged up to six years as UAH 538 (between April and June 2008), UAH 540 (between July and September 2008) and UAH 557 (between October and December 2008). The first applicant received UAH 1,152 – UAH 144,10 x 8 months. The court awarded her the remaining UAH 3,215 for the period between 22 May and 31 December 2008 (538 x 2 + 540 x 3 + 557 x 3 – 1,152).

As for the first applicant’s claims related to the 2009 payments, the court held that section 46 of the State Budget Act 2009 provided that the amount of child allowance provided for by the Compulsory State Social Insurance Act and by the State Assistance (Families with Children) Act had to be fixed by the Cabinet of Ministers of Ukraine. As the relevant provisions of the State Budget Act 2009 had not been declared unconstitutional and the allowance in question had paid to the first applicant in the amount determined by the Cabinet of Ministers’ decision no. 57 (see paragraph 41 below), the court dismissed the first applicant’s claim relating to the 2009 payments. The court held that the first applicant’s claim for payment of an allowance up to 5 April 2010 could not be allowed, since it concerned future payments.

The first applicant appealed in cassation, stating that she was insured and thus entitled to child allowance in an amount no lower than the minimum subsistence level for an able-bodied person as of 21 June 2007. She also noted that the Constitutional Court of Ukraine had already declared on numerous occasions that the State Budget Act could not introduce changes to other legal acts.

On 19 July 2010 the Supreme Court of Ukraine found that there were no grounds to grant the first applicant leave to appeal on points of law.

On 7 February 2008 the second applicant gave birth to a child. From 8 April 2008 she received UAH 130 a month in child allowance.

On 3 March 2009 the second applicant lodged a claim before the Zamostyansky District Court. Relying on section 15 of the State Assistance (Families with Children) Act, the second applicant claimed that child allowance in an amount not less than the minimum subsistence level established by law was due to her for the period between 8 April 2008 and 7 February 2011. The second applicant also referred to Article 22 of the Constitution of Ukraine and the Constitutional Court decisions of 9 September 2007 and 22 May 2008, and argued that it was unconstitutional to amend an existing provision of the State Assistance (Families with Children) Act by virtue of the State Budget Act.

On 13 April 2009 the Zamostyansky District Court found that the second applicant was insured, and therefore the Compulsory State Social Insurance Act was applicable to her. Despite this conclusion, the court relied on section 15 of the State Assistance (Families with Children) Act, which was modified by the State Budget Act 2008, and also, referring to the State Budget Act 2007, held that resources for financing child allowance payments had to be allocated by the State Budget. On these grounds, it dismissed the applicant’s claims.

On 17 June 2010 the Vinnyatsya Regional Court of Appeal upheld that decision. It held, however, that in the second applicant’s case it was not the Compulsory State Social Insurance Act, which applied “to temporarily disabled persons or in cases of birth or death”, but the State Assistance (Families with Children) Act which was applicable, and that therefore the amount of child allowance had been calculated correctly.

On 16 August 2010 the second applicant appealed in cassation.

By letter of 19 November 2010 the Supreme Court informed the second applicant that since 9 September 2010 it had had no jurisdiction to examine administrative cases and that her appeal would be considered after the introduction of the necessary changes to the law.

By letter of 6 March 2012 the Higher Administrative Court of Ukraine informed the second applicant that her case (no. K/9991/75865/11) was pending before that court.

The second applicant’s lawyer informed the Court that the Higher Administrative Court of Ukraine had rejected the second applicant’s appeal in cassation on 31 May 2012. He submitted a copy of the decision, which was published in the General State Court Decisions Registry of Ukraine (Єдиний державний реєстр судових рішень України). The copy contains no mention of the second applicant’s name (all personal information was replaced by the reference “Person 4”) but makes reference to her case number (no. K/9991/75865/11).

The Higher Administrative Court of Ukraine found, without any particular specification, that the second applicant was entitled to a child allowance under the State Assistance (Families with Children) Act and had been paid it in accordance with decision no. 1751 of the Cabinet of Ministers of Ukraine.

On 9 May 2009 the third applicant gave birth to a child. From 29 June 2009 she received UAH 130 a month in child allowance, payable until the child reached the age of three.

On 11 June 2010 the Kirovsky District Court of Donetsk rejected the third applicant’s claim against the Labour and Social Protection Department of the Kirovskiy District Council of Donetsk for payment of child allowance in an amount equal to the minimum subsistence level. It held that the amount of the allowance paid to her had been calculated correctly in accordance with the State Assistance (Families with Children) Act.

On 13 August 2010 the Donetsk Regional Court of Appeal upheld that decision. It held that although section 43 of the Compulsory State Social Insurance Act was in force and applicable in the present case, the State Budget Acts of 2009 and 2010 provided that the amount of the allowance in question had to be agreed by the Cabinet of Ministers of Ukraine. The amount of the child allowance due to the third applicant had been calculated correctly, in accordance with the relevant decision of the Cabinet of Ministers. This court decision was not subject to appeal.

The relevant provisions of the Act read as follows:

Section 42. Right to a child allowance payable until the child attains the age of three

“An insured person (a parent, an adoptive parent, a grandmother, a grandfather, another relative or a guardian) who has a child under his or her care has the right to child allowance payable until the child attains the age of three.

Child allowance payable until the child attains the age of three is provided to an insured person in the form of an allowance during their three-year period of maternity leave and partially compensates the loss of salary (income) during this time.”

Section 43. Amount of allowance payable until the child attains the age of three

“Child allowance shall be paid to an insured person in the amount set by the board of the [Social Insurance] Fund but it shall be not lower than the amount of the minimum subsistence level established by law.”

The Transitional Provisions of this Act, adopted in 2001, stipulated that until the economic situation had stabilised the amount of the allowance would be determined every year by the Verkhovna Rada of Ukraine until it gradually reached the minimum subsistence level.

Section 13. Right [to receive] child allowance until the child attains the age of three

“A person who is not insured under the obligatory State social insurance scheme, who has a child under his or her care has the right [to receive] child allowance until the child attains the age of three.”

Section 15. Amount of allowance payable until the child attains the age of three

“Child allowance shall be paid in an amount which shall be equal to the minimum subsistence level for a child aged up to six years.”

The Transitional Provisions of this Act, amended in 2005, provided that the allowance in question should amount to 50% (from 1 January 2008), 75% (from 1 January 2009) and 100% (from 1 January 2010) of the difference between the minimum subsistence level for an able-bodied person and the average monthly family income for one person for the previous six months.

This decision established the amounts and methods of payments under the State Assistance (Families with Children) Act and, in particular, of child allowance payable to children under the age of three.

The monthly subsistence level for children aged up to six years was gradually increased by the relevant laws from UAH 463 (around EUR 67) in June 2007 to UAH 911 (around EUR 89.51) in June 2012.

The monthly minimum subsistence level for an able-bodied person changed from UAH 561 (around EUR 81.21) in June 2007 to UAH 1,094 (around EUR 107.49) in June 2012.

By the State Budget Act 2007 section 43 of the Compulsory State Social Insurance Act and section 15 of the State Assistance (Families with Children) Act were suspended. Part 2 of section 56 of the State Budget Act 2007 provided that the allowance in question should not be less than UAH 90 for non-insured persons and not less than 23% of the minimum subsistence level for insured persons.

On 9 July 2007 the Constitutional Court of Ukraine declared that part 2 of section 56 of the State Budget Act and the suspension of section 43 of the Compulsory State Social Insurance Act and of section 15 of the State Assistance (Families with Children) Act were unconstitutional.

By the Law “On the State Budget 2008 and on the Introduction of Changes to Certain Laws” (“the State Budget Act 2008”) sections 42 and 43 of the Compulsory State Social Insurance Act were revoked. The Act also introduced changes to the State Assistance (Families with Children) Act. These changes provided that a person raising a child had the right to child allowance until the child attained the age of three. This allowance was paid in an amount equal to the difference between the minimum subsistence level and the average family income for the previous six months, but not less than UAH 130.

At the same time the State Budget Act 2008 also provided that child allowance should amount to 50% (from 1 January 2008), 75% (from 1 January 2009) and 100% (from 1 January 2010) of the difference between the minimum subsistence level and the monthly average family income for one person for the previous six months, but should not be less than UAH 130.

On 22 February 2008 decision no. 1751 of the Cabinet of Ministers of Ukraine was amended by decision no. 57. The latter decision provided that the allowance in question had to amount to the difference between 75% (from 1 January 2009) and 100% (from 1 January 2010) of the minimum subsistence level and the monthly average family income for one person for the previous six months, but should not be less than UAH 130.

On 22 May 2008 the revocation of sections 42 and 43 of the Compulsory State Social Insurance Act was found unconstitutional by the Constitutional Court of Ukraine. The question of the constitutionality of amendments to the State Assistance (Families with Children) Act made by the State Budget Act 2008 was not raised before the Constitutional Court.

The State Budget Acts 2009 and 2010 provided that the amount of the allowance in question should be established by the Cabinet of Ministers of Ukraine.

The decision of 20 March 2002 concerned limitations on some social security payments introduced by the State Budget Act 2001. The Constitutional Court held that:

“... since for a considerable number of citizens of Ukraine privileges, compensation and safeguards, the right to which is provided by laws in force, are an addition to their main sources of support and a necessary component of the constitutional right to maintain a standard of living (Article 48 of the Constitution of Ukraine) no lower than the minimum subsistence level established by law (part 3 of Article 46 of the Constitution of Ukraine), any limitation of the content and ambit of this right by adoption of new laws or amendment of current laws is forbidden by Article 22 of the Constitution of Ukraine.”

The Constitutional Court of Ukraine reiterated this position in its decision of 1 December 2004 “On discontinuing or limiting privileges, compensation and guarantees”.

By its decisions of 9 July 2007 and 22 May 2008 the Constitutional Court stated as follows:

Decision of 9 July 2007 (citizens’ social protection case)

The analysis of the legislative activity of the Verkhovna Rada of Ukraine confirms that laws of Ukraine on granting privileges, compensation and guarantees, which form part of the constitutional right of citizens to social protection and to maintain a sufficient standard of living (Article 46 of the Constitution of Ukraine), are systematically suspended following the adoption of State Budget Acts.

The suspension of laws [...] is to be done in accordance with the Constitution of Ukraine. [...] Therefore, the State Budget Act suspends, for a certain period of time, the functioning of the mechanism for implementing constitutional socio-economic rights, which leads to a limitation of the right to social protection. Systematic suspension by the State Budget Acts of the laws of Ukraine on granting privileges, compensations and guarantees in practice invalidates them.

Suspension of laws which establish the rights and freedoms of citizens [...] is a limitation of those rights and freedoms and can take place only in cases provided for by the Constitution of Ukraine. [...]

As a result of the temporary suspension of the valid laws of Ukraine on granting privileges, compensation and other forms of social guarantee, citizens’ income, which should not be lower than the minimum subsistence level established by law (part 3 of Article 46 of the Constitution of Ukraine), falls and thus the right of everybody to a decent standard of living under Article 48 of the Constitution of Ukraine is breached.

Therefore, in accordance with part 3 of Article 22 and Article 64 of the Constitution of Ukraine, the right of citizens to social protection and other socio-economic rights can be limited, including by way of suspension of laws or their parts, only in a military state or state of emergency for a limited period of time.

This legal position has already been expressed by the Constitutional Court of Ukraine in its decision of 20 March 2002.

3.2 [...]Failure of the State to comply with its social obligations with respect to certain persons puts those citizens in an unequal position and undermines the principle of an individual’s trust in the State, which leads to a violation of the principles of the Welfare State and the rule of law ... .

The Constitutional Court of Ukraine has on numerous occasions [...] found that certain provisions of the State Budget Acts which suspend or limit privileges, compensation and guarantees contradicted the Constitution of Ukraine (decision of 20 March 2002 (case about privileges, compensation and guarantees); decision of 17 March 2004 (case about social protection of military personnel and employees of law enforcement bodies); decision of 1 December 2004 (case about suspension or limitation of privileges, compensation and guarantees); decision of 11 October 2005 (case about amount of pension and monthly living allowance). However, despite the above-mentioned decisions of the Constitutional Court of Ukraine, the revision of privileges, compensation and guarantees by the State Budget Acts, which started in 1995, has become systematic.

It follows from the above-mentioned provisions of the Constitution of Ukraine and the [Budget] Code of Ukraine that the State Budget Act [...] has a specific subject matter – the determination of the State revenues and expenditure for society-wide needs, in particular, expenditure for social protection and social security – therefore, this Act cannot introduce changes to or suspend the laws of Ukraine, or set up different (additional) statutory regulation of areas which are subject to regulation by other laws. This is also confirmed by part 3 of section 27 of the [Budget] Code.

Since the subject-matter of the State Budget Act is clearly determined by the Constitution of Ukraine, and in the [Budget] Code, this Act cannot repeal or change the scope of rights and obligations, privileges, compensation and guarantees provided for by other laws of Ukraine.”

Decision of 22 May 2008 (case on subject-matter and content of the State Budget Act)

“The Constitution of Ukraine does not give the State Budget Act higher legal force in comparison to other laws.

For this reason, the Constitutional Court of Ukraine has concluded that the State Budget Act cannot introduce changes to other laws, suspend their effect or revoke them, since for objective reasons it creates contradictions in legislation, and as a result, abrogation and limitation of human and citizens’ rights and freedoms.

In the event that operation of laws is to be ceased, it is for separate laws to introduce changes or amend them, or declare them void.”

Following a request by the Cabinet of Ministers for the interpretation of part 2 of Article 95 of the Constitution of Ukraine, which provides that any State expenditure must be determined exclusively by the State Budget Act, in its decision of 27 November 2008 no. 1-37/2008 “On budget balancing” the Constitutional Court referred to its previous decisions of 9 July 2007 and 22 May 2008 and decided that there was “no practical necessity” for such an interpretation since the above-mentioned decisions had already addressed the issue.

The Constitutional Court was not seized of a complaint in respect of the State Budget Act 2009.

In its decision of 30 November 2010 no. 1-47/2010 “On the constitutionality of certain provisions of the State Budget Act 2010” the Court held:

“2.2 The Constitutional Court of Ukraine has on many occasions [...] examined cases and taken decisions on the compliance of the State Budget Acts or specific provisions thereof with the Constitution of Ukraine (constitutionality).

In particular, in decision no. 6-рп/2007 of 9 July 2007 (citizens’ social protection case) the Constitutional Court of Ukraine established that the subject matter of the State Budget Act was foreseen in part 2 of Article 95 of the Constitution of Ukraine [...], the list of legal matters which formed the subject matter of the State Budget Act was exhaustive; according to the Constitution of Ukraine [...] it follows that the State Budget Act, as a legal act, was to be interpreted through the notion of a budget as a plan for the gathering and distribution of financial resources; it had a special subject matter, different from other laws of Ukraine – it concerned exclusively the determination of the income and expenditure of the State, and therefore this Act could not introduce changes, suspend the effect of other laws, or set up a different (additional) legal regulation of areas covered by other laws of Ukraine [...].

By declaring certain provisions of the State Budget Act 2007 unconstitutional, the Constitutional Court of Ukraine drew the attention of the Verhovna Rada, the President of Ukraine and the Cabinet of Ministers of Ukraine to the necessity to comply with provisions [...], 22, 95 [...] of the Constitution of Ukraine [...] in the preparation, adoption and implementation of the State Budget Act.

The same provisions of the Constitution of Ukraine [...] and the above-mentioned legal position served as the basis for the decision of the Constitutional Court of Ukraine of 22 May 2008 in the case on the subject matter and content of the State Budget Act [...].

2.3 Despite the constitutional requirements as to the subject matter of the State Budget Act and the legal positions expressed by the Constitutional Court of Ukraine in the decisions of 9 July 2007 and 22 May 2008, the State Budget Act 2010 introduced changes and amendments to a number of laws [...].

In its decision of 26 December 2011 no. 1-42/2011 “On the constitutionality of certain provisions of the State Budget Act 2011” the Court stated:

The amounts of social payments depend on the social situation and financial capacity of the State, but they should secure the constitutional right of every person to a decent standard of living for himself and for his family, granted by Article 48 of the Constitution of Ukraine.

In addition, in its decision of 8 October 2008 on insurance payments the Constitutional Court of Ukraine pointed out that the mechanisms and amounts of social services and payments to victims [...] were set by the State according to its financial capacity.

When examining this issue the Constitutional Court of Ukraine also took into account the provisions of international law. Thus, according to Article 22 of the Universal Declaration of Human Rights, the amounts of social payments and assistance are determined in accordance with the financial capacity of the State. The European Court of Human Rights in its decision of 9 October 1979 in Airey v. Ireland considered that social and economic rights are largely dependent on the situation - notably financial - reigning in the State. This conclusion also concerns the reduction of social payments, which is noted in the decision of 12 October 2004 in the case of Kjartans Ásmundssonar v. Iceland.

Therefore, one of the main elements in the regulation of relations in the social sphere is the principle of proportionality between the social protection of citizens and the financial capacity of the State, as well as guaranteeing the right of everybody to a sufficient standard of living.

... the social and economic rights provided for by laws are not absolute. The mechanism of implementation of these rights can be changed by the State, in particular, in the event that they cannot be guaranteed financially, by way of redistribution of costs with the aim of protecting the interests of society in whole. Moreover, these [changes] can be made in response to the need to prevent or remove a real threat to the economic security of Ukraine, which, according to Article 17 of the Constitution of Ukraine, is the most important function of the State. [...] It is unacceptable to establish a legal mechanism which would lead to the amount of a person’s pension, other social payments or allowance falling below the amount indicated in part 3 of Article 46 of the Constitution of Ukraine and [thus failing to] guarantee an appropriate standard of living and preserve his or her human dignity, which would be contrary to Article 21 of the Constitution of Ukraine.

Therefore, a change to the method of calculation of certain types of social payment will be compatible with the Constitution until it reaches a point at which the very essence of the right to social protection is compromised.”


CASE OF YAROSHOVETS AND OTHERS v. UKRAINE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5+5-3 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Article 5 - Right to liberty and security);Violation of Article 5+5-3 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Article 5 - Right to liberty and security);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The first applicant was born in 1978; the second, third and fourth in 1981; and the fifth in 1982. With the exception of the second applicant who died on 9 March 2014, the applicants currently live in Kyiv. Ms O.P. Vorona, the second applicant’s mother, informed the Court of her wish to pursue the application on his behalf.

The applicants, along with two other persons, were co-defendants in criminal proceedings instituted against them in October 2005. The charges against them included a number of counts of ill-treatment, theft, extortion and abuse of power, which the applicants allegedly committed during their service in the police.

At about 9 a.m. on 14 October 2005 the applicants, then police officers, were arrested by a special police unit and taken to the Kyiv City Police Department to be questioned by the prosecutors responsible for the investigation. Later that day the prosecutors ordered the applicants’ detention under Article 115 of the Code of Criminal Procedure of 1960. During the night of 14 to 15 October 2005 they were taken to police stations in the Shevchenkivskyy and Podilskyy Districts of Kyiv.

On 15 October 2005 the applicants were taken back to the Kyiv City Police Department for questioning.

The applicants were detained on different police premises until the end of October 2005, when they were placed in the Kyiv Temporary Detention Centre (слідчий ізолятор – “SIZO”).

From 17 October 2005 until the pre-trial investigations were completed and the case was referred to the Desnyanskyy District Court of Kyiv for trial on 12 December 2006, the courts at three levels of jurisdiction ordered the applicants’ continued detention. The courts based their decisions mainly on the grounds that the case was complex and the investigations were pending, that the applicants were accused of serious crimes, that they might evade investigation and trial and obstruct the establishment of the truth in the case, and that they might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicants’ state of health and family situation had been duly noted. Between 14 and 23 January 2007 the applicants continued to be detained as the case was awaiting examination by the trial court. There was no decision authorising the applicants’ detention during that period.

At trial, which started with a preliminary examination of the case on 23 January 2007, the courts refused the applicants’ and their lawyers’ repeated requests for release. Some of the decisions made reference to the seriousness of the crimes of which the applicants were accused and stated that there were no grounds for changing the preventive measures imposed, while other decisions provided no explanation for the refusal to release the applicants.

On 25 May 2007 the District Court ordered the second applicant’s release on an undertaking not to abscond.

On 28 October 2008 the District Court convicted the applicants and sentenced them to five years’ imprisonment with a ban on holding office in a law-enforcement capacity for three years and with confiscation of property. The second applicant’s sentence was suspended for three years. The other applicants were ordered to remain in detention pending the entry into force of the judgment.

On 14 May 2009 the Court of Appeal quashed the first-instance court’s judgment and adopted a new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. It also ordered the second applicant’s detention.

On 3 November 2009 the Supreme Court quashed the judgment of the Court of Appeal, mainly because of the lower court’s incomplete examination of the facts and non-compliance with the rules of procedure, and remitted the appeal against the judgment of 28 October 2008 to the Court of Appeal for reconsideration. The Supreme Court did not examine the applicants’ and their lawyers’ requests for release.

On 24 December 2009 the Court of Appeal quashed the judgment of 28 October 2008, finding that the first-instance court had failed to duly examine the applicants’ arguments and evidence, and that the criminal classification of their actions had been incorrect. The case was remitted to the District Court for retrial. The applicants were ordered to remain in detention.

In the course of the new examination of the case at first instance the applicants requested the District Court to release them arguing that there was no reason for their further detention and that their state of health was declining. On 15 February 2010 the District Court refused the requests as unsubstantiated.

On 13 August 2010 the District Court delivered a new judgment, finding the applicants guilty of a number of counts of torture, extortion, knowingly unlawful searches, and abuse of power. With the exception of the fourth applicant, they were also convicted of theft and forgery. The applicants were sentenced to five years’ imprisonment and banned from holding office in a law-enforcement capacity for three years. The court also ordered the confiscation of the property of some of the applicants. The second applicant was dispensed from serving his sentence and released from detention. The others were ordered to remain in detention pending the entry into force of the judgment. The starting date for the calculation of the duration of their imprisonment was 14 October 2005.

The third and fourth applicants and the prosecutor appealed against the judgment. The prosecutor challenged, in particular, the first-instance court’s refusal to find that the applicants had committed the crimes as members of an organised group, resulting in the wrong classification of their actions. The prosecutor also argued that the sentence was too lenient.

On 14 September 2010 the case was transferred to the Court of Appeal. On 21 October 2010 the Court of Appeal allowed in part the prosecutor’s procedural request and decided to examine afresh the evidence concerning the part of the case challenged by the prosecutor.

The first, third, fourth and fifth applicants requested the Court of Appeal to release them, arguing that by 14 October 2010 they had had served their sentences and that there were no grounds to suggest that they would avoid further proceedings in their case. The first and fifth applicants also argued that during their detention in the SIZO their state of health was declining.

On 8 November 2010 the Court of Appeal refused the applicants’ requests for release, holding that they were accused of serious crimes and sentenced to five years’ imprisonment, that the judgment of 13 August 2010 did not enter into force and that it was being challenged by the prosecutor and by two of the applicants. On 17 January 2011 the Court of Appeal refused the applicants’ repeated requests for release principally for the same reasons, having further noted that the verdict was being challenged inter alia for the reason of lenient sentence and that it was being reviewed by that court.

In the course of the proceedings before the Court of Appeal, about thirty hearings took place. On 20 September 2011 the Court of Appeal allowed the prosecutor’s appeal and quashed the judgment of 13 August 2010. The appeals of the third and fourth applicants were dismissed as unsubstantiated. The Court of Appeal adopted another new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. In particular, the first applicant was sentenced to eight years’ imprisonment, the second applicant to six years, the third and fifth applicants to seven and a half years, and the fourth applicant to seven years. It ordered the second applicant’s detention. The other applicants were also ordered to remain in detention. The starting date for the calculation of the duration of the first, third, fourth and fifth applicants’ imprisonment was 14 October 2005. The Court of Appeal further ruled that the second applicant’s detention between 14 October 2005 and 25 May 2009 and between 14 May 2009 and 13 August 2010 counted towards the duration of his imprisonment, the calculation of which had to start from the date on which the enforcement of the judgment of 20 September 2011 would begin.

On 8 May 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of 20 September 2011 for various procedural violations, including the failure of the Court of Appeal to question the applicants concerning the charges, the unreasoned refusal to examine the material concerning the allegations of police ill-treatment (see paragraphs 28-36 below) and for the court’s failure to comply with the instructions contained in the decision of the Supreme Court of 3 November 2009. The case was remitted to the Court of Appeal for fresh examination. The applicants were released from detention on an undertaking not to abscond.

On 16 September 2014 the Court of Appeal quashed most of the judgment of 13 August 2010. It found the applicants guilty of seven counts of ill-treatment, extortion and abuse of power. The applicants, excluding the second applicant, were sentenced to four and a half years’ imprisonment. The second applicant was not sentenced because he had died in the meantime.

In its decision of 16 September 2014, the Court of Appeal held that, in view of the case-file material on which the prosecutors’ decision of 16 May 2007 was based, there had been no violation of the applicants’ rights at the initial stage of the investigation. While injuries had been discovered on the first applicant’s body in October 2005 (see paragraph 30 below), the “possible use of force in the course of his arrest had had no impact on his [defence] position in the case”, as he had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage. The Court of Appeal further found that the alleged psychological pressure – allegations made by the applicants at trial though not supported by any evidence – “had had no impact on the [defence] position” of the applicants.

According to the fourth applicant, on 16 June 2015 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of the Court of Appeal of 16 September 2014 and delivered a new judgment. The parties have not provided a copy of that judgment.

According to the first applicant, between 5 p.m. on 14 October 2005 and 2 a.m. on 15 October 2005 he was beaten up and threatened with physical violence by police officer B. for refusing to answer questions relating to the crimes of which he was suspected. In particular, officer B. hit the first applicant in the face, the body and the legs, and also tightened the handcuffs on his wrists, causing him considerable pain. During the same period several other police officers insulted and threatened the first applicant and his close family members in an attempt to force him to confess to having committed the crimes of which he was eventually charged. Because of the ill-treatment, the first applicant refused to be questioned on 14 October 2005. His refusal was recorded in the case file.

On 17 October 2005 the applicant was taken to a police detention unit (ізолятор тимчасового тримання – “ITT”) in which he was examined by a paramedic who noted that he had bruises on his face and the legs.

Further to instructions issued by the prosecutors, on 19 and 26 October 2005 the first applicant was examined by doctors, who noted a number of bruises on his face and legs. They stated that the injuries could have been inflicted by “blunt objects” during the period referred to by the applicant (see paragraph 28 above).

On an unspecified date an official inquiry was launched into the first applicant’s allegations of ill-treatment. During the inquiry, the first applicant and his close relatives made detailed submissions, giving the names of some of the alleged offenders and specifying the time-frame and the place of the relevant events.

The inquiry initially resulted in a decision of 14 November 2005, by which the prosecutors rejected the complaints as unfounded. Following an appeal lodged by the first applicant, in September 2006 a district court quashed that decision, finding that the inquiry had been incomplete. In particular, the court noted that the prosecutors had not questioned the first applicant and his co-accused, that not all the police officers involved in the events had been questioned, and that the origin of the first applicant’s injuries had not been established. In March 2007 the courts found a further inquiry also incomplete, inter alia, because the prosecutors had failed to establish the origin of the first applicant’s injuries. The matter was again remitted to the prosecutors.

On 16 May 2007 the prosecutors rejected the complaints as unsubstantiated, finding that there was no evidence that the first applicant’s bruises had been inflicted by police officers. The prosecutors’ decision was principally based on the statements of the police officers who had taken part in the first applicant’s arrest and those who had been in contact with him afterwards. Those police officers stated that the first applicant had not been subjected to “physical or psychological coercion” and that he had not raised any complaints in that regard on 14 or 15 October 2005. They also argued that after his arrest on 14 October 2005 and until his placement in a cell at the Shevchenkivskyy District police station on 15 October 2005, the first applicant had been under the constant supervision of several police officers. At the police station, he had been detained alone in a cell and “without constant supervision” of the police. In his statements, officer B. also suggested that the first applicant had complained about him because the first applicant had been dissatisfied with the fact that officer B. had recorded all the items found in the car which he and his fellow suspects had used. During the search of that car the first applicant had insulted officer B. The incident had been witnessed by other people.

In their decision, the prosecutors also referred to the statements of the doctor who had examined the first applicant on 26 October 2005, obtained during the inquiry. In particular, the doctor stated that, given the location of the first applicant’s injuries, it could not be ruled out that they had been inflicted by the first applicant himself or “by a traumatic impact with a blunt object”.

The prosecutors’ decision was eventually upheld by the courts of first and appeal instances on 29 August and 21 November 2007 respectively.

Relying on the prosecutors’ findings, the District Court and the Court of Appeal dealing with the applicants’ criminal case also rejected identical complaints lodged by the first applicant, finding that the “possible use of force in the course of his arrest had had no impact on [his defence] position in the case”, as the first applicant had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage (see, in particular, paragraph 26 above).

In April 2006 the fourth applicant was examined by a doctor from the SIZO medical unit and was diagnosed with chronic prostatitis. In September 2006 he was further examined by a doctor and an urologist from the SIZO medical unit, who prescribed specific medication for the treatment of his chronic prostatitis. Subsequently, the fourth applicant underwent a number of medical checks by SIZO doctors in October and December 2006, June 2007, April and May 2008, May 2009, and June 2010, in the course of which it was confirmed that he had a serious urological dysfunction, often diagnosed as chronic prostatitis. He was prescribed specific medication.

During that period of time the fourth applicant, his lawyer and members of his family asked the authorities to allow the fourth applicant to be examined at a specialised clinic, but to no avail. Requests for the fourth applicant’s release in view of his state of health were also refused. By a letter dated 21 April 2008, the SIZO governor informed the fourth applicant’s lawyer that the SIZO medical unit did not have the equipment necessary to make an accurate diagnosis of the fourth applicant’s condition.

During a court hearing in the applicants’ criminal case on 2 February 2011 an ambulance was called for the fourth applicant because he was suffering from acute bladder pain. Doctors noted that he needed urgent catheterisation of the bladder. The judge of the Court of Appeal dealing with the applicants’ criminal case asked the SIZO governor to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary. On the same day, the fourth applicant was examined on the premises of the SIZO by a doctor from a civilian hospital. The doctor diagnosed him with acute chronic prostatitis and chronic cystitis, prescribed an antispasmodic drug and instructed him to undergo a urine test. He found no reason to prescribe urgent hospitalisation. The next day the fourth applicant underwent a urine test, which did not reveal any pathology.

On 3 February 2011, following a complaint by the fourth applicant’s mother that he had not received the required medical treatment, the judge of the Court of Appeal sent a letter to the SIZO governor requesting him, for the second time, to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary.

On 4 February 2011 the fourth applicant was taken to a civilian hospital where he was examined by a urologist, who diagnosed him with chronic prostatitis and chronic cystitis without a urinary disorder. The urologist found that the fourth applicant did not need a catheter or inpatient treatment. He was prescribed special medication.

Subsequently, in February and March 2011 the fourth applicant was further examined and treated with medication by a dermatologist from the SIZO medical unit, who eventually noted a certain improvement in his urological problem.

On 31 March 2011, following the fourth applicant’s request for interim measures under Rule 39 of the Rules of Court, the Court asked the Government to provide information concerning the fourth applicant’s state of health.

On 5 April 2011 the fourth applicant was examined by a panel of SIZO doctors and diagnosed with chronic prostatitis at the remission stage.

On 8 April 2011 a urologist from a civilian hospital examined the fourth applicant. He was diagnosed with urethroprostatitis at the exacerbation stage. Urine and prostatic fluid tests were recommended. Following the tests, the urologist prescribed specific medication.

On 4 May 2011, having received updated information concerning the fourth applicant’s medical situation from the Government and the fourth applicant himself, the Court decided to refuse his request under Rule 39.

Urologists carried out further medical examinations in September and October 2011. They noted that the fourth applicant was suffering from acute chronic prostatitis and chronic cystitis and prescribed him medication, which he received in a parcel from his relatives in October 2011.

By a letter of 17 October 2011, the deputy head doctor of a civilian hospital at which the fourth applicant had been examined informed the applicant’s lawyer that the treatment initially prescribed had been ineffective and that the fourth applicant needed “physiotherapeutic treatment along with ethiopathogenetic medication, which could not be made available in the SIZO”.

On 10 November 2011 the Court indicated, under Rule 39, that the Government should ensure that the applicant was urgently provided with medical treatment for his health problems in accordance with the doctors’ instructions, including those contained in the aforementioned letter of 17 October 2011. The interim measure was eventually lifted on 5 February 2013.

On 16 November 2011 the fourth applicant was examined by a urologist at a civilian hospital. He was diagnosed with chronic prostatitis beyond the stage of active inflammation and it was concluded that he did not require inpatient treatment. There is no information about his medical situation while in detention after that date.

After his release from detention on 8 May 2012, the fourth applicant was further examined by various doctors. In particular, on 22 May 2012 he was examined at a private urological clinic; the doctor discovered “congestive inflammatory modification” of his prostate, chronic calculous prostatitis, double-sided vesiculitis (inflammation and infection of the seminal vesicles) and intra-pelvic venous (інтрапельвікальна) congestion. In June 2012 the fourth applicant underwent surgery on his urethra. In June 2014 he underwent similar surgery.

According to the applicants, excluding the second applicant, when they were transported to and from court hearings they were kept for several hours in overcrowded prison vans, with insufficient access to fresh air and no heating. They were thus exposed to high temperatures in summer and freezing temperatures in winter. It took the vans several hours to get to the Desnyanskyy District Court and there were instances where, on returning to the SIZO, the applicants concerned had to wait in the vans for several hours while security checks were carried out.

The applicants concerned stated that they had been transported in the above conditions on more than 200 occasions.

They further submitted that on court days they had been routinely taken out of their cells at about 8 a.m. and before being taken to a prison van, had been placed in special transit boxes measuring 3.75 square metres with no ventilation for durations ranging from thirty minutes to several hours. Upon their return from court hearings, often at about 8 p.m., the applicants concerned had also had to wait for several hours in the same transit boxes before being escorted to their regular cells.

According to the Government, prison vans measured 8 square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones, measuring 2.5 square metres and designed for ten passengers each, and one small compartment for two passengers). The vans had no windows, but they were equipped with ventilation grills and benches for sitting on. The Government further submitted that on average it took up to forty minutes to transport prisoners between the SIZO and the Court of Appeal.

During their detention, the applicants, excluding the second applicant, received a certain number of one-hour visits by their close relatives, during which the applicants concerned and their visitors had to communicate via glass partition. No dates of those visits were specified. Nor did the applicants concerned claim that they or their relatives had requested any other visits. The applicants concerned stated that their relatives had had to consent to be questioned as witnesses in order to meet with the applicants concerned in detention.


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

On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land measuring 46,750 sq. m, of which 900 sq. m were restored to them. As the remaining plot of land was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law in respect of 45,850 sq. m. The Commission could not determine the boundaries of a plot of land measuring 13,750 sq. m and did not decide on the recognition of the applicant’s inherited property rights.

On 8 March 2011 the Court delivered its judgment in the case of Eltari v. Albania, no. 16530/06 as regards the authorities’ failure to pay compensation in respect of a plot measuring 10,500 sq. m, which was part of the Commission decision.

To date, no compensation has been paid.

On 21 March 1996 the Lushnjë Commission recognised the applicants’ inherited property rights over a plot of land measuring 576 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The applicants submitted that they were the remaining heirs of the above plot of land in respect of which the Court had already delivered the judgment in the case of Hamzaraj v. Albania (no. 1) (no. 45264/04, 3 February 2009).

To date, no compensation has been paid to the applicants.

On 18 May 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 1,000 sq. m. It ordered that the plot of land should be entirely restored to the applicants. On 11 February and 14 December 2000 the Tirana District Court and the Tirana Court of Appeal amended the Commission decision and ordered that the applicants would be compensated in one of the ways provided for by law of which 200 sq. m were restored to them. Since the remaining plot of land measuring 800 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 13 September 1996 the Tirana Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 16,500 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 25 October 1995 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 150,000 sq. m of which 29,700 sq. m were restored to them. Since the remaining plot land measuring 120,300 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 10 December 1999 the Korçë Commission recognised the applicants’ inherited property rights over a plot of land measuring 11,000 sq. m of which 10,100 sq. m were to be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 23 October 1996 and 24 April 1998 the Korçë Commission recognised the applicant’s inherited property rights over a plot of land measuring 9,950 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 7 July 2006 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 800 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 28 February 1995 the Tirana Commission recognised the applicant’s inherited property rights over a plot of land measuring 335 sq. m of which 162 sq. m were restored to him. Since the remaining plot land measuring 173 sq. m was occupied, the applicant would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 28 February 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 910 sq. m of which 630 sq. m were restored to them. Since the remaining plot land measuring 280 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 21 December 1995 and 22 April 1996 the Berat Commission recognised the applicant’s inherited property rights over a plot of land measuring 3,435 sq. m of which 130 sq. m were restored to him. Since the remaining plot land measuring 3,305 sq. m was occupied, the applicant would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 10 August 2007 the Agency for Restitution and Compensation of Property (“the Agency”), which had replaced the Commission, recognised the applicant’s inherited property rights over a plot of land measuring 14,400 sq. m located in Vlora. Since the plot of land was occupied, the applicant would be compensated in one of the ways provided by law.

To date, no compensation has been paid.


CASE OF MUTAYEVA AND ISMAILOVA v. RUSSIA

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1980 and 1971 respectively and live in Zubutli-Miatli, Kizilyurt district, Dagestan, Russia. They are the wife and the sister of Mr Kamil Mutayev who was born in 1976.

Between 2010 and 2012 the applicants’ relative Mr Kamil Mutayev had been detained on at least three occasions by representatives of lawenforcement agencies on suspicion of illegal activities and subsequently released. In particular, in 2010 he had been detained pending trial for about six months on suspicion of illegal possession of firearms and assault of a representative of the State and had then been subsequently sentenced to two years’ imprisonment. The sentence was suspended.

At about 1 p.m. on 2 May 2012 Mr Kamil Mutayev and his twelveyear old son Muradis were driving in their VAZ-21099 car in Shamil Street in the centre of the town of Kizilyurt, Dagestan, when they were blocked by two silver-coloured VAZ Priora cars with heavily tinted windows, one of which had an official registration number containing the digits “78”. Eight masked men in black uniforms and armed with pistols and machine guns got out of the Priora cars, knocked Mr Kamil Mutayev off his feet and forced him into one of their vehicles. They threatened his son with firearms and ordered him to stay in the car. The abduction took place approximately two hundred metres from the district police station (the department of the interior) and the public prosecutor’s office. After the abduction the perpetrators drove away through the local traffic police checkpoint.

The applicants submitted to the Court the witness statements of Ms Ya.R. dated 7 February 2013 and of Ms As.I. dated 25 February 2013. According to both women, they did not see the abduction but both saw two Priora cars speeding away from the vicinity of where the incident took place around the time of the abduction. It does not appear that either of the witnesses provided a statement to the investigation.

The Government did not dispute the facts as presented by the applicants. At the same time they denied any involvement of State agents in the abduction.

In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided documents from the file, amounting to 43 pages, which showed the steps taken by the investigators from 14 May to 27 June 2012.

In reply to the Court’s second and third requests for a copy of the contents of the investigation file, the Government submitted copies of its contents, some 688 pages long, which showed the steps taken by the investigators from the beginning of the proceedings to 15 August 2015. From the documents submitted, the investigation can be summarised as follows.

Immediately after the abduction, on 2 May 2012 the applicants complained to the Kizilyurt police station (Отдел внутренних дел по г .Кизилюрт) (hereinafter “the OVD”).

On 2 May 2012 the police questioned the second applicant who provided a detailed account of the events similar to the one submitted to the Court and stated that she had learnt of Mr Kamil Mutayev’s abduction from her nephew Muradis.

On 2 May 2012 the police examined the crime scene. No evidence was collected.

On 2 and then on 10 May 2012 the police questioned Mr Kamil Mutayev’s son Muradis, whose account of the events was similar to that submitted by the applicants to the Court. In addition, the witness stated that the abductors had scared him by threatening to shoot him if he disobeyed their orders not to move.

On 2 or 3 May 2012 the police examined Mr Kamil Mutayev’s VAZ21099 car. Fingerprints taken from the vehicle on that date were submitted for expert examination on 18 May 2012.

On 14 May 2012 the applicants lodged an abduction complaint with the Kizilyurt town prosecutor’s office.

On 14 May 2012 the investigations department of the Kizilyurt town prosecutor’s office opened criminal case no. 207127. The applicants were informed thereof on 24 May 2012.

On 19 May 2012 the investigators questioned Mr Kamil Mutayev’s son Muradis who reiterated his previous statements and added that he would not be able to identify any of the abductors as he had been scared.

On 19 May 2012 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted to the Court. In particular, the applicant pointed out that when driving away the abductors’ vehicle had gone through the traffic police checkpoint.

On 21 May 2012 the first applicant was granted victim status in the criminal case and questioned again. She reiterated her previous statements.

On 23 May 2012 the Dagestan Forensic Expert Examinations Bureau informed the investigators that they did not have matches in their database for the fingerprints found on Mr Kamil Mutayev’s car.

On 24 May 2012 the investigators again questioned the second applicant whose statement was similar to the applicants’ account submitted to the Court.

On 6 June 2012 the investigators again examined the crime scene.

On 7 June 2012 the investigators again questioned the first applicant who stated that her husband Mr Kamil Mutayev did not have financial debts or enemies. At the same time she stated that on several occasions he had received threats from unidentified persons on account of his religious beliefs. Those persons had visited their house and had thrown hand-written threats inside. The applicant did not specify whether she had had any suspisions or theories concerning the identities of those persons.

On 15 June 2012 the local police informed the investigators that Mr Kamil Mutayev was a member of an illegal armed group, belonged to an extremist religious movement and had, therefore, most probably, staged his own abduction.

On 29 June 2012 the investigators questioned five local residents, all of whom stated that they had not witnessed the abduction and found out about it from others.

On 6 August 2012 the investigators examined the registration log of detainees of the OVD. No records concerning Mr Kamil Mutayev were found therein.

On 6, 7 and 12 August 2012 the investigators questioned police officers from the OVD: Mr M.M., Mr Z.S., Mr R.A., Mr A.M. and Mr D.D. All of them stated that on the date of the abduction they had been on duty at the police station and neither Mr Kamil Mutayev nor his car had been brought in.

On various dates between June and November 2012 the investigators received the list of calls made from and to Mr Kamil Mutayev’s mobile telephone as well as replies to their numerous information requests concerning Mr Kamil Mutayev from hospitals, morgues, retirement homes, mosques and detention centres in various regions of Russia. No information pertatining to his whereabouts or the perpetrators’ identities was obtained.

On 14 September 2012 the investigation was suspended. It is unclear whether the applicants were informed thereof.

On 9 November 2012 the investigation was resumed in order to take further steps.

On 30 November 2012 the investigators questioned the head of the OVD officer R.S. who stated that according to their information Mr Kamil Mutayev was an avid follower of the extremist religious movement Wahhabi and that he had staged his abduction to join an illegal armed group.

On an unspecified date in 2013 the investigation was resumed.

Between March 2013 and February 2014 the investigators questioned a number of Mr Kamil Mutayev’s relatives and neighbours, whose statements did not provide new information. They also questioned again his son Muradis and the first applicant who reiterated their earlier statements.

From the documents submitted it follows that between November 2012 and August 2015 the investigation was suspended and resumed on several occasions. The last resumption of the investigation took place on 10 September 2015. The proceedings are still pending.

The applicants alleged that State agents were responsible for Mr Kamil Mutayev’s disappearance. They stressed that the authorities had suspected him of membership of illegal armed groups and, therefore, had motives for his abduction. The abductors had used Priora cars with heavily tinted windows; only law-enforcement agencies could use such vehicles. Moreover, after the abduction the perperators had passed through a permanent road traffic police checkpoint. The applicants referred to statements of local residents who had not witnessed the abduction but had seen vehicles similar to those of the abductors driving to that police station. Lastly, the applicants referred to a number of cases of abduction perpetrated in Dagestan in which some of the abducted persons had been later found in State custody.

The Government submitted that the applicants’ relative Mr Kamil Mutayev had been abducted by unidentified men or could have staged his own abduction. The only witness to the events was Mr Kamil Mutayev’s son Muradis, who was a minor, and the other persons, including the applicants, learnt of the events from him. In such circumstances the applicants’ allegations concerning involvement of State agents in the incident were groundless.

A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 393-96, 9 October 2014).

The Court notes that in reply to its request for a copy of the investigation file into the abduction the Government produced the relevant documents from the file (see paragraphs 10 and 11 above).

The Court has already found the Russian authorities responsible for disappearances of civilians perpetrated in Dagestan (see, for example, Umarovy v. Russia, no. 2546/08, 12 June 2012, and Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013). In doing so, it has taken into account the length of time during which the applicants had not had any news of their missing relatives and witness statements and other documents attesting to the presence of security or law-enforcement personnel in the area concerned at the relevant time. It has relied on witness accounts and other information on security operations.

However, in the present case the circumstances in which the events occurred cannot warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place in May 2012 and there was neither a curfew in place nor any restrictions on driving in civilian vehicles. Furthermore, from the documents submitted it appears that the applicants’ version of the events was based on the statements of the only witness, Mr Kamil Mutayev’s son, who according to his own statement had been scared during the incident (see paragraph 19 above), and of persons who had not witnessed the actual abduction and whose statements were not included in the investigation file (see paragraph 8 above). In addition, the Court notes that the first applicant stated to the investigation that Mr Kamil Mutayev had received threats but did not specify whom she had suspected or the nature of the threats received (see paragraph 25 above). In such a situation the Court has little evidence on which to draw such conclusions as the factual circumstances of the incident as presented by the applicants do not include any evidence corroborating their account to a decisive extent.

Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a security operation was carried out in respect of Mr Kamil Mutayev.

To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Kamil Mutayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.


Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Petr Kudlička, is a Czech national, who was born in 1940 and lives in Boskovice. He was represented before the Court by Mr Z. Pokorný, a lawyer practising in Brno.

The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.

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

On 11 April 2000, the applicant brought an action before the Brno Municipal Court against his former employer, the Czech Post, claiming compensation for wages and travel and subsistence allowances amounting to CZK 8,019 (which at that time corresponded to approximately EUR 220). The substance of the dispute was whether the applicant’s case concerned a business trip or only the employer’s instruction designating a new place of reporting to work.

Upon the court’s request, on 27 March and 3 July 2002 the applicant supplemented his action. In his submission of 27 March 2002 he reduced his claim to CZK 6,173 (which by this time, owing to currency fluctuations, was worth about EUR 200).

On 10 April 2003, the Municipal Court delivered a judgment in which it granted the action to a large extent.

Upon the applicant’s and defendant’s appeals, on 23 November 2004 the Brno Regional Court quashed the judgment and sent the case back to the court of first instance for further proceedings.

On 27 April 2006, the Municipal Court delivered a judgment granting the action.

Upon the defendant’s appeal, on 20 November 2007 the Regional Court reversed the judgment and dismissed the action.

On 28 January 2008, the applicant filed a constitutional appeal, which was dismissed on 11 June 2008.

On 21 December 2007, the applicant applied to the Ministry of Justice, claiming compensation for non-pecuniary damage caused by an unreasonable length of the above court proceedings.

On 19 November 2008, the Ministry of Justice noted that there had been delays in the court proceedings but did not award compensation to the applicant, considering that the finding of a violation was sufficient in this case.

In the meantime, on 27 June 2008 the applicant brought an action for compensation before the Brno Municipal Court, claiming nearly CZK 800,000 (approximately EUR 33,000 at that time).

On 28 April 2010, the Municipal Court delivered a judgment awarding the applicant an amount of CZK 10,000 (approximately EUR 390 at that time) for non-pecuniary damage caused by the unreasonable length of the proceedings.

Upon the applicant’s appeal, on 21 December 2011 the Brno Regional Court delivered a judgment upholding the judgment of the court of first instance.

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


CASE OF CUMHURİYET HALK PARTİSİ v. TURKEY

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

András Sajó;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Ksenija Turković

The applicant party is a Turkish political party based in Ankara.

Supervision of the finances of political parties in Turkey is entrusted to the Turkish Constitutional Court (“the Constitutional Court”) under Article 69 of the Constitution. Accordingly, all political parties are obliged to submit their consolidated final accounts annually to the Constitutional Court, which reviews the compliance of the political parties’ incomes and expenditure with the principles set out in Article 69 of the Constitution and sections 70-77 of Law no. 2820 on Political Parties (“the Political Parties Act”). Failure to comply with the relevant laws is subject to sanctions set out in the Political Parties Act. The decisions delivered by the Constitutional Court in this regard are final.

In keeping with the requirement under Article 69 of the Constitution and sections 74 and 75 of the Political Parties Act, the applicant party submitted the consolidated final accounts of its headquarters and local branches for the years 2007, 2008 and 2009 to the Constitutional Court for inspection. While the exact dates are unknown, it appears that the accounts were submitted within six months of the end of each respective fiscal year (that is, before 30 June) in accordance with section 74(2) of the Political Parties Act.

The Constitutional Court carried out a preliminary inspection on 1 July 2010 for the 2007 accounts and on 6 April 2011 for the 2008 and 2009 accounts. At the end of each preliminary inspection, it found the information submitted by the applicant party to be complete and decided to proceed with an examination on the merits.

On 7 October 2011, 29 November 2011 and 15 February 2012 the Constitutional Court sent the applicant party “questionnaires” in relation to its accounts for the years 2007, 2008 and 2009 respectively, whereby it requested the party to provide further information and documents regarding some of the expenses that it deemed problematic. It also requested the applicant party to provide the original invoices or other supporting documentation as required under Law no. 213 on Tax Procedure (“the Tax Procedure Act”) for all items of expenditure that had not been submitted previously.

It appears that the applicant party responded to the Constitutional Court’s requests within fifteen to thirty days of their receipt; its responses are summarised in the appendix below. It was, however, unable to provide original invoices or the like for all the items of expenditure as requested.

On 7 March 2012 the Constitutional Court delivered its decision regarding the final accounts of the applicant party for the year 2007, which was followed by decisions pertaining to the 2008 and 2009 accounts, both delivered on 11 July 2012. The decision concerning the 2007 accounts was published in the Official Gazette on 5 April 2012 and the decisions for the 2008 and 2009 accounts were published on 20 September 2012.

In all three decisions the Constitutional Court found at the outset that the income and expenses presented in the final accounts were financially accurate. It also held that the income obtained in the period under review had been mostly in compliance with the rules on funding as set out in the Political Parties Act. As for the expenses, the Constitutional Court made the following preliminary remarks to explain the basis for its examination:

“One of the main tenets of accounting is the principle of ‘documentation’. Section 229 of the Tax Procedure Act explains that ‘an invoice is a commercial certificate given to a customer by a vendor or a merchant to indicate the amount owed by the customer in return for the goods sold or service provided’, and section 232, entitled ‘Obligation to use an invoice’, specifies under what circumstances and by whom an invoice must be received and provided. In this connection, it has been made obligatory to document purchases of goods and services with invoices and to use invoices as supporting documents in bookkeeping.

Section 236 of the same Act, entitled ‘Obligation of receipt’, states that ‘self-employed persons are under an obligation to issue a freelance receipt in duplicate for all payments received in relation to their professional activities and to give one copy to the customer; and the customer is under an obligation to request and receive such receipt’. The contents of a receipt have been set out in section 237.

Section 234 of the same Act, entitled ‘Expense note’, states that ... those [tradespersons exempt from taxation] who are under no obligation to furnish an invoice should issue expense notes.

Since section 70(3) of Law no. 2820 [the Political Parties Act] provides that expenses below five thousand liras do not need to be substantiated with documents such as a receipt or an invoice, any expenses exceeding that amount must be based on a relevant supporting document.

Under section 70 of the Political Parties Act, ‘all expenses of a political party shall be incurred on behalf of the legal personality of that political party’ and pursuant to section 75 of the same Act, ‘at the end of its inspection, the Constitutional Court shall determine the accuracy and the lawfulness of the political party’s income and expenses, and shall order the registration of unlawful income and expenses as revenue with the State Treasury’.

Law no. 6111 ..., which was published in the Official Gazette dated 25 February 2011 [and which introduced some amendments to section 74 of the Political Parties Act], came into force on the date of its publication and it does not envisage ... the [retroactive] application of the amended provisions ...; therefore, the unamended provisions are to be applied to inspections and proceedings predating the amendments.”

On the basis of the principles outlined above, the Constitutional Court found that certain expenses incurred in the respective periods under review had been in violation of the Political Parties Act. The violations in question fell under two heads: the first head consisted of expenses that could not be considered to have been made “in pursuance of the objectives of the political party” and “in the name of the party’s legal personality” on the basis of a decision of the competent party organ, in accordance with section 70 of the Political Parties Act; and the second head concerned the expenses that had not been substantiated with the necessary documents as required under section 76, regardless of whether they were otherwise lawful. The Constitutional Court accordingly ordered the “confiscation of the party’s assets” in the amounts corresponding to its unlawful expenditure for each respective year under review, as per sections 75 and 76 of the Act.

The details of the Constitutional Court’s findings are presented in the table below (the amounts indicated are in Turkish liras (TRY)):

Further details regarding the individual expenses that were deemed unlawful by the Constitutional Court may be found in the appendix below.

The Constitutional Court treated all expenses that were not supported by original invoices, freelance receipts or expense notes as “undocumented”, referring to the strict requirements of documentation set out under the Tax Procedure Act as referred to in paragraph 11 above. The applicant party informed the Constitutional Court that in view of the sheer volume of documents circulating in the party, the originals of some invoices had been lost and submitted other documents as proof of payment. However, where the expense concerned an invoiceable transaction, the Constitutional Court did not accept as proof of payment vouchers, receipts, payment orders or even duplicates or notarycertified copies of invoices, and ordered the confiscation of the applicant party’s assets in the amounts corresponding to the undocumented expenses.

The expenses that were found not to have been incurred “in pursuance of the party’s objectives” and “in the name of the legal personality of the party” following a decision of the competent party organ, and those that were considered to “fall outside the party’s political activities”, covered a wide array of financial activities.

They included food, pharmaceutical and accommodation expenses, including those incurred by members of the party and employees of the party headquarters or its youth branches. Although the applicant party argued that the expenses in question had been incurred by the relevant individuals while on official duty, the Constitutional Court did not accept them as lawful expenses since the invoices had been drawn up in the individual members’ or employees’ names, rather than in the name of the party. Moreover, the applicant party had not submitted any other tangible evidence to demonstrate the professional nature of those expenses. In this connection, the Constitutional Court refused to accept that the food expenses of the driver assigned to the party leader and of other drivers working for the party could be lawfully met by the applicant party, in spite of the latter’s explanation that the relevant expenses had been incurred while the drivers were on duty.

Among the food expenses declared unlawful were expenses incurred by the head of the applicant party’s youth branch, F.P., who appears to have hosted six dinners in 2008 in connection with election work. The Constitutional Court accepted two of those meals as lawful expenses in relation to party work, but rejected the remaining four without any explanation.

Reimbursement of food and commuting expenses of persons not on the applicant party’s payroll and not party to the collective labour agreement between the applicant party and its salaried employees, such as freelance consultants, was not considered to be in keeping with the “party’s objectives”. Similarly, meals offered to persons who provided various services to the applicant party, but who were legally employed by other public or private bodies, such as police officers, municipality employees, journalists or gardeners, could not qualify as legitimate expenses under the Political Parties Act because any meal costs had to be met by the relevant person’s respective employers and not by the applicant party. Some dinners hosted for the applicant party’s guests, volunteers or personnel for special occasions were also considered to constitute personal expenditure not related to the party’s legal personality, whereas some other dinners were accepted as relevant to party work. In this connection, the Constitutional Court found that the expenses borne for the meals hosted for the Alevi-Bektaşi Federation and the Pir Sultan Abdal Association, as well as the meals organised for party personnel on the occasion of Bayram and following the death of an employee’s father, should not have been paid from the party’s budget, whereas it deemed legitimate the expenses in relation to food offered to Tekel workers during their industrial action.

The Constitutional Court also refused to accept a great number of travel expenses as lawful, because the bus and plane tickets in question had been prepared in the name of the individuals travelling rather than in the party’s name, and the official decisions of the relevant party organs authorising travel had not been submitted. In addition, reimbursement of passport fees to various employees was not considered relevant to the party’s objectives, even when the passports had been obtained for travel in connection with party business, as passports could be used for personal travel as well. The Constitutional Court also deemed costs for printing of business cards for employees to be unlawful, considering them to be personal expenses.

Payments made to employees apart from the entitlements specifically indicated in the collective labour agreement, including New Year bonuses (approximately 35 euros (EUR) per person in 2008) or bonuses to reward extra work during the general election period, were also deemed to fall outside the scope of the lawful expenditure provided for in the Political Parties Act. Moreover, chocolates distributed to party personnel for Eid alFitr (Ramazan Bayramı) in 2009 were found to be unlawful expenses, whereas no such finding was made in relation to the chocolates distributed during another religious holiday, Eid al-Adha (Kurban Bayramı). Blankets, umbrellas and raincoats purchased for use at the party headquarters were also found to be personal expenses, whereas no such finding was made for clothes and dishwashers purchased for the use of personnel.

In addition, payments made to security and cleaning personnel in excess of the amounts specifically indicated in the service agreements, where such excess amounts – no matter how meagre – could not be explained by increases in social security contributions or taxes, were considered unjustified and thus unlawful.

The Constitutional Court also found that the severance packages given to employees whose contracts had been terminated, which included basic severance pay, unused vacation time and benefits corresponding to unused leave, were not in compliance with the Labour Act and were therefore unlawful, as benefits corresponding to unused leave should not have been included in the severance packages.

The review of the financial accounts for the years 2007 to 2009 also revealed that the applicant party had paid court fees in various legal proceedings in which members of the party’s senior management and/or its members of parliament, including its leader at the relevant time, had been involved. Although the applicant party stated that the legal proceedings in question had concerned the party’s political activities, and not personal disputes, the Constitutional Court nevertheless decided that the litigation expenses had to be met by the persons in question, regardless of their role or status in the party, as the political party itself was not a party to any of the relevant proceedings. In the decision of 11 July 2012 concerning the review of the 2009 accounts (see paragraph 10 above), one of the judges dissented from the majority’s approach to this matter, and argued that demanding that such costs be met by the individual members of the party involved directly in the litigation, regardless of the effects of that litigation on the political party, would unduly curtail the scope of the party’s political activities in an unconstitutional manner.

Another payment that was considered unlawful by the Constitutional Court was made to Halk TV, a nationwide television channel, for the live broadcasting of political rallies and activities attended by the applicant party’s leader and coverage of the party’s parliamentary group meetings, press conferences, and important statements made by the party’s senior management, as well as the distribution of that material to other media outlets. The Constitutional Court found that while the applicant party could lawfully pay for the live broadcast of the relevant events, additional payments to cover the costs of production and for the allocation of link bandwidth were unacceptable, as such costs had to be met by Halk TV itself. In addition, payments made in 2009 for the lease of vehicles for broadcasting rallies organised by the party in various provinces were considered unlawful unless accompanied by the relevant lease agreements and detailed information on the exact nature of the services acquired. The Constitutional Court also noted that an agreement had already been made with Halk TV for coverage of the applicant party’s political rallies and other events.

Fuel and other expenses (such as installation of sound systems, speakers and microphones) for the vehicles owned or leased by the party and its local branches were accepted as having been made in the party’s name and for its purposes only where the vehicle registration certificates or lease agreements had been submitted to the Constitutional Court along with the invoices. As for fuel and other expenses for vehicles made available to the party by volunteers during the election campaigns, they were deemed entirely unlawful in the absence of any contracts with the volunteers for the use of the relevant vehicles.

The Constitutional Court held that gold coins given as wedding gifts at wedding ceremonies attended by the applicant party’s leader on behalf of the party could not be considered to have been made in the name of the party or in pursuance of its objectives. Similarly, the costs of flowers sent by the applicant party’s treasurer for special events could not be classified as lawful expenses where the invoice had been drawn up not in the party’s name but in the name of the treasurer.

The Constitutional Court also held that fines for traffic violations by the party’s drivers, as well as fines or interest on late payment of various financial obligations, such as social security contributions, court orders, rents or motor vehicle taxes for the party’s vehicles, could not be lawfully covered from the party’s budget, and had to be met by the individuals who had been responsible for defaulting on such payments.

Moreover, the Constitutional Court found that advance payments made to fifty-two employees in 2009 had only been partially repaid. In the light of the prohibition in section 72 of the Political Parties Act against lending money, the advance payments in question were unlawful and were thus confiscated in full (including the amounts that had been repaid by the relevant employees).

The Constitutional Court also issued a number of warnings in relation to certain expenditure in 2008 and 2009.

One of those warnings concerned the payment of employees’ salaries. Although the applicant party had submitted the relevant payment orders, it had not provided bank statements demonstrating that the amounts ordered had actually been paid. The Constitutional Court warned the applicant party to submit such bank statements with its consolidated accounts to demonstrate that the payments in question had indeed been made.

Another warning was issued in relation to a payment made to a private company in return for installing a sound system for an election bus. The Constitutional Court requested the applicant party to submit a technical report indicating when the work had been completed and a record stating that the bus had been duly delivered. The applicant party responded that there was no legal obligation to prepare such documents. The Constitutional Court held that in the absence of such information, it could not know whether the service had been delivered on time and, if not, whether the service provider had paid the penalty envisaged in the service agreement for defaulting on its obligation.

Yet another warning was issued about the incompatibility between the party’s expenses and its inventory, in that a number of items allegedly purchased for the party (three televisions and one computer) had not been registered in the inventory.

The Constitutional Court also issued a warning in connection with advance payments made to some employees in 2009, in addition to ordering the confiscation of the applicant party’s assets in the full amount of the advance payments in question (see paragraph 29 above).

On 11 May 2012 the applicant party received a letter from the Ankara governor’s office ordering it to pay the amounts indicated in the Constitutional Court decision concerning the review of the 2007 final accounts, which totalled TRY 3,372,446 (approximately EUR 1,435,000 on 7 March 2012, the date of the delivery of the decision), within thirty days of the receipt of the letter.

On 23 May 2012 the applicant party sent a letter to the Ankara governor’s office requesting postponement of the payment until January 2013, in view of the financial difficulties it would suffer for the rest of 2012 in the event of immediate payment of the amounts concerned.

On 12 March 2013 the Ministry of Finance informed the applicant party that the payments due in relation to the 2007 final accounts had been deducted from the State funding allocated to it on 10 January 2013 for that year, together with interest of TRY 176,211 running from the date on which the payment had become due (namely 12 June 2012). The amount deducted thus totalled approximately TRY 3,549,000 (approximately EUR 1,527,000 on 10 January 2013).

On 31 October 2012 the applicant party received a letter from the Ankara governor’s office ordering it to pay the amounts indicated in the Constitutional Court decisions concerning the review of the 2008 and 2009 final accounts, plus interest, which totalled approximately TRY 3,738,700 (approximately EUR 1,604,000 as at 31 October 2012), within ten days of the receipt of the letter.

On 6 November 2012 the applicant party sent a letter to the Ankara governor’s office, once again requesting the postponement of the payments due in relation to its 2008 and 2009 accounts until January 2013.

On 15 January 2013 the applicant party paid TRY 1,432,257.30 (approximately EUR 605,212 at the material time) to the State Treasury for its unlawful expenses, in compliance with the Constitutional Court’s review decision for the year 2008, and TRY 1,257,030.83 (approximately EUR 531,168 at the material time) for the decision regarding the accounts for the year 2009. It refused to pay the interest, which it contested before the relevant authorities.

On 7 June 2013 the applicant party paid the State Treasury the sum of TRY 45,920 (approximately EUR 18,460) as default interest on the amounts confiscated in relation to its 2008 and 2009 accounts.

On 30 March 2014 local elections were held in Turkey.


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the excessive length of civil proceedings.