Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Mikhail Novruk, is a Moldovan national who was born in 1972. He is represented before the Court by Ms I. Khrunova, a lawyer practising in Kazan.

In 2000, Mr Novruk and Ms O., a Russian national, started living together as a couple in Moldova. In 2001, a boy was born to their union; he acquired Russian nationality by birth. Two years later O. and their son moved to the Primorskiy region of Russia, where most of her family lived. In 2005 Mr Novruk joined them in Russia, and in the same year they married. They divorced in 2008.

In 2009, Mr Novruk met Ms S., a Russian national. In March 2010, he travelled to Moldova to renew his passport, where he discovered that he was HIV-positive. Three weeks later Mr Novruk returned to Vladivostok and on 24 April 2010 he and S. married. S. has a daughter from her previous marriage and she is also a foster parent to nine orphaned children, some of whom are HIV-positive.

In June 2010 Mr Novruk applied to the Primorskiy Region Federal Migration Service for a temporary residence permit. By a letter of 8 July 2010 he was informed that his application was refused by reference to section 7 § 1 (13) of the Foreign Nationals Act, which restricted the issue of residence permits to foreign nationals who could show that they were HIVnegative.

On 4 October 2010 the Sovetskiy District Court of Vladivostok, dismissed a challenge by the applicant to that decision, finding in particular that the Federal Migration Service had been required by law to reject his application for a residence permit. On 16 November 2010 the Primorskiy Regional Court upheld that judgment on appeal.

The applicant Ms Anna Viktorovna Kravchenko is a Ukrainian national who was born in 1982. She is represented before the Court by Ms N. Yermolayeva, a lawyer practising in Moscow.

In 2003, Ms Kravchenko married Mr D., a Russian national. They started living in Moscow. During her pregnancy she was diagnosed as HIVpositive. On 4 April 2003 her son F. was born. He acquired Russian nationality by birth.

In 2009, Ms Kravchenko applied for a temporary residence permit. By a letter of 25 May 2009 the Federal Migration Service refused her application by reference to section 7 § 1 (13) of the Foreign Nationals Act and ordered her to leave Russia within fifteen days or face deportation. Ms Kravchenko challenged the refusal with the courts.

On 23 September 2009 the Zamoskvoretskiy District Court, Moscow, found for Ms Kravchenko, noting in particular that the Migration Service had decided on her application without taking into account that her minor child and husband were both Russian nationals. It directed the Migration Service to reconsider the application.

Further to the District Court’s decision, Ms Kravchenko lodged a new application for a residence permit. On 15 January 2010 the Migration Service rejected it, referring to the same provision of the Foreign Nationals Act.

Ms Kravchenko applied again for a judicial review. By a judgment of 3 September 2010, the Zamoskvoretskiy District Court of Moscow granted a stay of enforcement of the Migration Service decision and ordered it to reconsider the matter in the light of the Constitutional Court’s decision of 12 May 2006 and the Convention principles. Ms Kravchenko appealed; she submitted that the District Court should have ruled that the Migration Service refusal had been unlawful.

On 8 February 2011 the Moscow City Court dismissed Ms Kravchenko’s appeal against the District Court’s judgment, finding that “there were no grounds to vary the judgment, because the Moscow division of the Federal Migration Service had actually complied with it”.

The applicant, Mr Roman Khalupa, is a Moldovan national who was born in 1974. He was granted legal aid and is represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg.

In 2005, Mr Khalupa married Ms E., a Russian national. Their children, a girl A. and a boy B., were born in 2005 and 2008 respectively. The family were living in St Petersburg.

In early 2008 Mr Khalupa took a blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive. The hospital reported the results of his test to the St Petersburg division of the Federal Migration Service, which issued a decision of 4 June 2008 on the undesirability of Mr Khalupa’s stay in Russia because he would pose a “real threat to public health”. On 17 June 2008 the director of the Federal Migration Service ratified that decision.

On 1 August 2008 the decision was notified to Mr Khalupa; he left Russia three days later, in compliance with the law. He took up residence in Dubossary in the “Moldavian Republic of Transdniestria”.

On the day following the pronouncement of the Kiyutin v. Russia judgment (no. 2700/10, ECHR 2011), Ms E., acting on Mr Khalupa’s behalf, applied to the St Petersburg division of the Federal Migration Service, asking it to set aside the decision by which his presence in Russia had been pronounced undesirable. She submitted medical documents showing that Mr Khalupa posed no danger to public health because he was receiving appropriate treatment. Her request was forwarded to the legal department of the Federal Migration Service for review. In a letter of 5 May 2011 addressed to the deputy director of the visas and registration department of the Federal Migration Service, the director of the legal department acknowledged that the decision of 4 June 2008 had not taken fully into account Mr Khalupa’s family ties in Russia. Nevertheless, on 12 September 2011 the deputy director of the St Petersburg division of the Federal Migration Service informed Mr Khalupa and Ms E. that their applications for review of the decision of 4 June 2008 had been refused. His letter did not specify the grounds for refusing the request.

Mr Khalupa complained to court. On 30 January 2012 the Basmannyy District Court of Moscow dismissed his complaint, finding firstly that his rights and freedoms had not been interfered with, and secondly that the director of the Federal Migration Service was not empowered to review or set aside a decision by which an individual’s presence in Russia had been declared undesirable. That judgment was upheld on appeal on 16 May 2012 by the Moscow City Court. On 12 December 2012 the Presidium of the City Court rejected Mr Khalupa’s cassation appeal.

Mr Khalupa also challenged the compatibility of section 25.10 of the Entry and Exit Procedures Act with the Constitution, in that it allowed an executive agency to pronounce his presence undesirable solely because of his HIV-positive status. By decision no. 902-O of 4 June 2013, the Constitutional Court declared his challenge inadmissible, finding that the impugned section was needed for the protection of public health from infectious diseases, including HIV. The Constitutional Court reiterated that its decision of 12 May 2006 (cited in paragraph 60 below) remained valid and applicable, and that the decision pronouncing someone’s presence undesirable must take full account of humanitarian considerations and the factual circumstances of each case, including the family links and state of health of the individual concerned.

On 14 January 2014 Mr Khalupa’s representative asked the Consumer Protection Authority to review the undesirability decision and to allow him to visit his children in Russia. By a letter of 13 February 2014 the deputy head of the CPA replied that it did not have the authority to reverse a decision issued by the Federal Migration Service.

The applicant, Ms Irina Grigoryevna Ostrovskaya, was born in 1953 in the Kurgan Region of the Russian Soviet Federal Socialist Republic of the USSR. She is represented before the Court by Ms O. Leonova, a lawyer practising in Samara.

In 1966 her parents took Ms Ostrovskaya and her sister to live in the Uzbek Soviet Socialist Republic of the USSR. In 1972 Ms Ostrovskaya got married and gave birth to a boy. Two years later her sister also married and moved back to Russia. Following the collapse of the USSR, Ms Ostrovskaya acquired Uzbek nationality.

After the death of her parents and husband and her son’s move to Russia in 2006, Ms Ostrovskaya remained in Uzbekistan alone. In September 2011 she decided to move to Russia to share the flat occupied by her son’s and her sister’s families. Ms Ostrovksaya’s sister and her husband are Russian nationals; her son and his family are Uzbek nationals with valid Russian residence permits.

In November 2011 Ms Ostrovskaya applied for a temporary residence permit. During a medical examination she tested HIV-positive.

By decision of 17 January 2012, the Samara division of the Federal Migration Service refused her application for residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act, and informed her accordingly. On 27 March 2012 a further notification to the same effect was sent by the Federal Migration Service.

By a letter of 9 June 2012 the Samara division of the Consumer Protection Authority notified Ms Ostrovskaya that she should leave Russia by 30 June 2012 or face deportation. The letter indicated that on 30 May 2012 the director of the Federal Consumer Protection Authority determined that her presence on Russian territory was undesirable by virtue of section 25.10 of the Entry and Exit Procedures Act.

On 26 June 2012 Ms Ostrovskaya complained to court, relying on humanitarian grounds in her claim that she should be allowed to stay in Russia. By a judgment of 23 July 2012, upheld on appeal on 17 September 2012, the Samara District and Regional Courts held that the decision to refuse her a residence permit had been lawfully given by the Migration Service within its jurisdiction and in compliance with the Foreign Nationals Act and its internal regulations. The District Court declared that it would not take any humanitarian considerations into account because Ms Ostrovskaya had missed the three-month time-limit for submitting her claim, and she had a receipt of notification as early as 16 February 2012. The undesirability decision had been issued by the Federal Consumer Protection Authority rather than by its Samara division; since Ms Ostrovskaya had designated the latter, but not the former, as the defendant in her claim, the courts refused to review what they described as an “actually non-existent decision”.

On 6 November 2012 the Regional Court refused her leave to appeal to a cassation instance.

The applicant, Mr V.V., is a national of Kazakhstan who was born in 1983 and lives in Yekaterinburg. The Court granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4).

V.V. came to Russia in 2006 to study at a medical college. Since 23 November 2007 he has been living with his partner Mr X, who also represented him in the present proceedings before the Court. They have maintained a common household, shared expenses and travelled together. They have met each other’s parents. V.V. submitted copies of travel documents and family photographs.

On 11 March 2012 V.V. applied to the Sverdlovsk division of the Federal Migration Service for a temporary residence permit. He committed himself to producing an HIV certificate within thirty days. On 16 April 2012 the Sverdlovsk Regional Centre for Aids Prevention and Treatment certified him to be HIV-positive.

On 28 April 2012 the Federal Migration Service refused his application for a residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act. V.V. challenged the refusal before a court.

On 26 July 2012 the Verkh-Isetskiy District Court of Yekaterinburg upheld the refusal, finding in particular that V.V.’s HIV status amounted to an “actual threat to the health of the Russian population” and that V.V.’s living with a same-sex partner was not equivalent to having a family.

On 21 November 2012 the Sverdlovsk Regional Court heard an appeal by V.V. against the District Court’s decision and, referring in particular to the Kiyutin judgment, held that V.V.’s HIV-positive status could not on its own be a ground for a restriction on his rights. Since the Migration Service did not cite any other grounds in its decision, the Regional Court enjoined it to carry out a new assessment of the application for a residence permit. The judgment became final and enforceable.

In the meantime, on 24 April 2012 the Sverdlovsk division of the Consumer Protection Authority forwarded a copy of V.V.’s diagnosis to the Federal Consumer Protection Authority, with a view to pronouncing his presence in Russia undesirable. On 16 November 2012 the federal authority asked the regional division to re-administer the HIV test. On 25 December 2012 V.V. again tested positive for HIV.

On 15 March 2013 the Federal Consumer Protection Authority pronounced V.V.’s presence in Russia undesirable in accordance with section 25.10 of the Entry and Exit Procedures Act. The decision stated that V.V. had been infected with HIV and had avoided treatment. It cited in evidence medical certificates dated 16 April and 25 December 2012. V.V.’s representative challenged the decision before a court.

On 26 April 2013 V.V. travelled from Russia to Kazakhstan. On his way back two days later, he was refused entry into Russia by reference to that decision.

On 30 May 2013 the Verkh-Isetskiy District Court allowed the challenge, finding that the undesirability decision had been unlawful because it did not refer to any grounds other than V.V.’s HIV-positive status. It also granted a stay of enforcement of that decision, enabling V.V. to return to Russia, which he did.

However, on 13 August 2013 the Sverdlovsk Regional Court reversed the District Court’s decision and dismissed the claim. It held that the ban against V.V. had been put in place not only because he was infected with HIV but also because he had refused to give contact details of his former partners during an “epidemiological investigation of the HIV infection”, that is when filling out a questionnaire at the hospital. The Regional Court also examined V.V.’s personal circumstances and found that he was single, that his next of kin lived in Kazakhstan, that he did not have a family relationship with any Russian nationals, that he lived in a student hostel rather than in a rented flat, and that he had no resources to pay for HIV treatment.

On 19 February 2014 the Sverdlovsk Regional Court refused leave to appeal to the cassation instance. It found in particular:

“The facts which, in the claimant’s view, are of legal significance but which the appeal court failed to take into account, including ... his voluntary compliance with the obligation to inform his former partners about a possible HIV infection, his being in a steady sexual relationship ... cannot be established on the basis of the claimant’s and his representative’s statements alone.

The court did not see any evidence of any social links the claimant has in the Russian Federation. The claimant and his representative merely confirmed that they have a sexual relationship, which does not equate to social links.

A threat to public health ... could result from the fact that the claimant has a registered place of residence and actually lives in a hostel, which is a public place; this fact alone put the health of the other residents of the dormitory at risk because the claimant may use the same public facilities ...”

On 1 April 2014 a judge of the Supreme Court refused him leave to appeal to the Supreme Court.

After notice of the case had been given to the Government, on 7 July 2014 V.V. informed the Court that the Government Representative’s office had forwarded the case materials to the Prosecutor General’s Office with a request to inquire whether or not V.V. was lawfully present in Russia, whether or not he was continuing his studies, and whether his representative before the Court Mr X could have been his partner. The request contained full personal details of V.V. The Prosecutor General sent the request to the local prosecutor’s office in Yekaterinburg. As it happened, Mr X was a former employee in that prosecutor’s office. A prosecutor summonsed Mr X for an interview and put questions about the nature of his relationship with V.V., whether V.V. was still present in Russia, and where they lived. Law-enforcement officers also visited their neighbours and asked them how long V.V. and Mr X had lived together and whether they had girlfriends.

The Government submitted a copy of a statement from a prosecutor in charge of human rights and federal law compliance, dated 6 August 2014, from which it appears that on 1 June 2014 Mr X had been asked to attend the Sverdlovsk regional prosecutor’s office in his capacity as V.V.’s representative. He was interviewed about “the exercise by V.V. of his labour, family and migration rights”. The interview was conducted “tactfully” (в корректной форме), and no pressure was put on him. The police and migration authorities had established that no one lived at the address which V.V. had listed as his registered place of residence. The Government also produced a copy of the statement signed by Mr X on 1 June 2014. Mr X clarified that V. had been living in a stable same-sex relationship since 2007. He refused to name V.’s partner or to say whether he was V.’s partner: in his capacity as V.’s representative he was not required to disclose any information about his own private life. He also briefly described V.’s education, employment and migration status.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in 1989 and lives in Manisa.

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

On 7 July 2009 the applicant was dismissed from the Expert Gendarmerie School due to non-compliance with disciplinary rules.

On 28 July 2009 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the decision to dismiss him.

On 6 January 2010 the Supreme Military Administrative Court rejected the applicant’s case, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant.

On 5 May 2010 the applicant’s request for rectification was rejected by the same court.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1987 and lives in Łomża.

On 7 March 2011 he was arrested on suspicion of committing a number of offences connected with handling drugs and psychoactive substances.

On 8 March 2011 the Rzeszów District Court (Sąd Rejonowy) remanded the applicant in custody for three months, until 7 June 2011. The court relied on a reasonable suspicion that the applicant had committed offences of serious nature and on the likelihood that a severe penalty would be imposed on him. The court did not share the prosecutor’s view that there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. At this stage of the proceedings the applicant was not suspected of being a member of an organised criminal group.

The applicant’s lawyer appealed against the decision to detain him on remand.

On 14 April 2011 the Rzeszów Regional Court (Sąd Okręgowy) upheld the challenged decision. It agreed with the applicant’s lawyer’s view that the applicant had not engaged in any activity that might obstruct the proceedings. It found however that the severe penalty likely to be imposed on the applicant might create a risk that he would attempt to impede the proper conduct of the proceedings.

On 2 June 2011 the applicant’s detention on remand was extended by the Rzeszów Regional Court until 7 September 2011. The court referred to the applicant’s previous convictions which made the imposition of a severe penalty on him more probable. It also noted that, taking into consideration the complexity of the case in which 27 persons had already been apprehended, the proceedings had been conducted properly and without undue delays. The trial court had obtained expert witness opinions and it was still necessary to hear further evidence.

The applicant appealed and requested to vary the preventive measure applied to him.

On 30 June 2011 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the challenged decision and ordered the applicant’s detention until 31 August 2011. The court agreed with the arguments relied on by the Regional Court. It found however that since the prosecutor had requested that the detention be extended until 31 August 2011, the Regional Court had had no right to extend it beyond that date.

On 24 August 2011 the Rzeszów Regional Court again extended the applicant’s detention for a further two months. The court still relied on the reasonable suspicion that the applicant committed the offences with which he had been charged and on the likelihood that a heavy penalty would be imposed on him. The prosecutor who requested extension of the detention relied on, among other things, the reasonable fear that the applicant might obstruct the proceedings. The Court referred to this part of the request and found that there were no grounds which would justify invoking this argument for the extension of the applicant’s detention.

The applicant appealed.

On 13 September 2011 the Rzeszów Court of Appeal upheld the challenged decision.

On 8 September 2011 the charges against the applicant were extended to include participation in an organised criminal group.

On 20 October 2011 the Rzeszów Regional Court extended the applicant’s detention until 30 November 2011. The court relied on the grounds previously invoked and, additionally, on the reasonable suspicion that the applicant might tamper with evidence and obstruct the proceedings which was based on the extended charges of being a member of an organised criminal group. The court further stressed that the proceedings had been conducted properly and without undue delays and their duration was attributable to objective reasons, namely the particular complexity of the case and the necessity to obtain evidence as regards organised criminal group consisting of numerous members.

On 7 November 2011 a bill of indictment against the applicant and several other coaccused was lodged with the Zamość Regional Court (case no. II K 71/11). The applicant was charged also with being a member of an organised criminal group.

On 23 November 2011 the Zamość Regional Court extended the applicant’s detention for three further months, until 29 February 2012. The courts relied on the same grounds as previously. They noted however that the charge of being a member of an organised criminal group justified the extension of the applicant’s detention with an additional reason, namely suspicion that he might obstruct the proceedings.

Further extensions of the applicant’s pretrial detention were ordered by the Zamość Regional Court on 24 August and 27 November 2012 and by the Lublin Court of Appeal on 6 March 2013. The Court of Appeal examined the course of the proceedings before the trial court and found that since September 2012 nine hearings had been held, they had been properly planned and each hearing had lasted the whole day. The court concluded that extending the detention beyond the statutory period of two years had proved necessary in view of the objective difficulties in concluding all indispensable activities in time.

On 5 June, 28 August and 4 December 2013 the Lublin Court of Appeal granted further extensions of the applicant’s detention. Each time the Court of Appeal examined the conduct of the proceedings, found no undue delays on the part of the trial court and concluded that extension of the detention beyond the statutory time-limit had been justified by the objective necessity of hearing further evidence.

The applicant’s lawyer appealed against the decision of 4 December 2013. He claimed that the court had failed to examine whether a less severe measure would be capable of securing the proper conduct of the proceedings. In this respect he referred to the fact that in November 2013 the court had ruled that the three other co-accused could be released on bail.

On 18 December 2013 the Lublin Court of Appeal granted the applicant’s lawyer’s request and amended the decision of 4 December finding that the detention could be lifted if a bail of 40,000 Polish zlotys was paid.

On 3 January 2014 the bail was paid and the applicant was released from detention.

On 14 January 2014 the Zamość Regional Court convicted the applicant and sentenced him to 5 years and 6 months of imprisonment. The charge of being a member of an organised criminal group was confirmed in the first instance judgment.

The criminal proceedings against the applicant are pending before the secondinstance court.


Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicants, Ms Maria Stefanova Tantilova and Ms Anka Stefanova Tantilova, are Bulgarian nationals, who were born in 1923 and 1922 respectively and live in Plovdiv. They were represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms L. Gyurova, of the Ministry of Justice.

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

The applicants’ mother owned a building and a plot of land of 1,370 square metres in Plovdiv. The property was expropriated in 1975, against the payment of monetary compensation of 1,911 old Bulgarian levs (BGL). Initially, the plot was designated for the creation of a public garden and in 1984 it was allocated for the construction of a street. However, none of these projects took shape. In 1983 the municipal authorities rented the property to the Evangelical Pentecostal Church of Plovdiv.

On 2 April 1992, following the adoption of the 1992 Restitution Act (see paragraph 17 below), the applicants requested the mayor of Plovdiv to quash the expropriation order and restore their property rights to the plot of land and the building on it. On an unspecified date the mayor rejected their request, reasoning that the building previously owned by the applicants’ mother had been pulled down and that a new building used as a church had been erected in its place, and that the area around this new building had been developed.

The applicants sought judicial review of the above decision.

In a decision of 10 May 1994 the Plovdiv Regional Court set aside the mayor’s decision and quashed the 1974 expropriation order, finding that the preconditions for restitution under the Restitution Act had been met. None of the projects for which the property had been taken, namely the creation of a public garden and the construction of a street, had been pursued. The domestic court noted in addition that the expropriated building existed and, in so far as in 1983 it had been reconstructed to serve as a church, such reconstruction had not been envisaged by the respective urban development plans.

In the meantime, on 27 June 1993 the applicants paid back the sum received in compensation at the time of expropriation, to allow the quashing of the expropriation order to take effect. As a result of inflation and the depreciation of Bulgarian currency, at that time the sum represented about 115 German marks (DEM). On 15 February 1995 the mayor of Plovdiv ordered the strike out of the plot of land from the register of municipal properties, in accordance with the decision of the Plovdiv Regional Court, but refused to do so in regard of the “building erected by permission no. 124 of 20 June 1983”.

The applicants were thus unable to take possession of the property, which continued to be occupied by the Evangelical Pentecostal Church of Plovdiv. On 17 June 1996, the applicants brought a rei vindicatio action against the Church. Initially the claim was also directed against the Union of the Evangelical Pentecostal Churches in Bulgaria; however, subsequently the proceedings in respect of it were dropped.

In the course of the proceedings, the Evangelical Pentecostal Church (and, in the beginning, the Union of the Evangelical Pentecostal Churches) argued that the preconditions for restitution had not been met, in particular because the building formerly owned by the applicants’ mother had been demolished as it had been entirely “worn out”, and the Church had built a completely new and bigger building, through donations from its parish and according to the approved construction plans. In order to establish these facts, the Church presented plans and called witnesses. Still, the Church conceded that the land and the building it was using were municipallyowned and that it rented the property. In the event that the courts would find that the property was to be returned to the applicants, the Church claimed that the applicants had to be ordered to reimburse the cost of the improvements made by it, and requested to be allowed to retain the property until payment.

On 21 February 1997 the Plovdiv Regional Court, which examined the case at first instance, allowed a request by the Evangelical Pentecostal Church of Plovdiv for the Plovdiv municipality to be joined to the proceedings as a third party. The municipality also argued in the course of the proceedings that the building claimed by the applicants was a new one, which meant that the preconditions for its restitution were not satisfied.

On 4 March 1999 the Regional Court allowed the applicants’ claims, finding, first, that they were the owners of the plot of land on the strength of the decision of 10 May 1994, and, second, that they were also the owners of the new building, which had been erected without the requisite re-allocation of the plot for that purpose and all necessary authorisations, and property to which had to follow property to the land. It found further that the defendant church was occupying the property without any valid legal basis.

On 22 December 2000 the Plovdiv Court of Appeal quashed that judgment and remitted the case to the Regional Court, which once again allowed the applicants’ claim in a judgment of 13 January 2003. Again, it found that the applicants were the owners of the land and the building and that, after the restitution, the defendant church was occupying them without any legal basis.

Upon an appeal by the defendant church, on 3 May 2004 the Plovdiv Court of Appeal quashed the Regional Court’s judgment and allowed the applicants’ claim in part. It found that in 1983, when it had been rented out to the defendant church, the building taken from the applicants’ mother had been pulled down and a much bigger, entirely new building had been built; it had become the property of the State, later of the municipality. It was irrelevant under the Restitution Act whether the new building’s construction had been duly authorised or not. Accordingly, the new building, the land on which it was standing, and the necessary adjoining land, totalling 744 square metres, could not be subject to restitution. On the other hand, the applicants’ property rights had been validly restored in respect of the remaining 626 square metres of the land and the defendant church had to vacate that part of the property.

As to the decision of 10 May 1994, the Court of Appeal noted that “it did not have res judicata effect as regards the property dispute”.

The applicants appealed on points of law. In a final judgment of 29 April 2004 the Supreme Court of Cassation dismissed their appeal. It confirmed the Court of Appeal’s finding that the building claimed by the applicants was not the one taken from their mother, but a new one, erected in 1983 and thus not subject to restitution. It held in addition as follows:

“The main issue in the case, as raised in the appeal on points of law is: what is the significance for the legal dispute of the [decision of 10 May 1994]? The Supreme Court of Cassation finds that the Court of Appeal was right to reach the conclusion that the decision at issue had been given in administrative proceedings concerning the revocation of the expropriation. It does not have res judicata effect in respect of the dispute concerning the ownership of the property at issue ... Of course, in the present litigation the court is obliged, on the basis of the evidence presented, to establish all the circumstances related to the alleged property rights disputed by the parties.”

The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the Restitution Act”) entered into force in February 1992. Its most relevant provisions have been summarised in the Court’s judgment in the case of Decheva and Others v. Bulgaria (no. 43071/06, §§ 28-31, 26 June 2012).

The provisions of domestic law concerning the res judicata effect of court judgments have been summarised in the Court’s judgment in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006).

According to settled judicial practice under the Restitution Act, third parties claiming property rights could not intervene in the ex parte proceedings under that Act or challenge any decision restoring the former owners’ rights, but could have their claims examined in separate judicial proceedings, in which the courts exercised “indirect judicial review” (косвен контрол) of the restitution decision. The scope of that review was discussed in an Interpretative Decision of 10 May 2006 of the Supreme Court of Cassation, which noted that a third party claiming rights to a restituted property was not bound by a decision given under the Restitution Act and could dispute all preconditions for restitution as provided for under that Act, as this was its sole means by which to defend its rights (Тълкувателно решение № 6 от 10.05.2006 г. на ВКС по т. гр. д. № 6/2005 г.).

The relevant provisions of domestic law concerning remedies in respect of the length of proceedings have been summarised in the Court’s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra

The applicants are four Russian nationals, Mr Vaid Isayevich Gisayev (“the first applicant”), Ms Birlant Pashayeva Gisayeva (“the second applicant”), Ms Zarema Vaidovna Gisayeva (“the third applicant”) and Ms Zareta Vaidovna Gisayeva (“the fourth applicant”).

The applicants were represented by Mr Z.Z. Dzagashtov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyuskin, the Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

The applicants were born in 1938, 1948, 1973 and 1978 respectively and live in Nalchik, Kabardino-Balkariya. They are the father, mother and the sisters, respectively, of Imran Gisayev. At the material time the applicants lived in Grozny.

In 1990 Imran Gisayev took part in a brawl in which a certain S. was fatally wounded, his death occurring shortly afterwards. While nobody was prosecuted for the death, it appears that S.’s relatives considered that Imran Gisayev was responsible for it.

Imran Gisayev was shot several times in 1992 but survived. According to the applicants, one of S.’s brothers carried out the attack in an attempt to avenge S.’s death. Nobody was prosecuted for it.

On 11 December 1998 Imran Gisayev was shot dead by an unknown person. The attack happened in the street around noon while the victim was taking his three-year-old nephew to a playground.

On 14 December 1998 the Grozny town prosecutor’s office opened an investigation into the shooting. The crime scene was inspected on the same day and three cartridges were found and sent to a ballistics expert. Several people, including the first and fourth applicant, were questioned. They alleged that the murder had been committed by somebody from S.’s family in revenge for his killing.

On 29 December 1998 the prosecutor acting in the case questioned U.S., S.’s father, who stated that his second son had unsuccessfully tried to kill Imran Gisayev in 1992 to avenge S.’s death. However, it had been his nephew, K.S., who had killed Imran Gisayev because his second son had died in 1995. In his view, the killing had been just as it had been part of a blood feud. He added that the gun which had been used in the killing was at his home.

On 7 February 1999 U.S. was questioned again. This time he stated that he was not sure who had killed Imran Gisayev but confirmed that it must have been one of his relatives as revenge for the killing of his son. On 9 February 1999 he testified in similar vein that he did not know who exactly had killed Imran Gisayev but that it must have been one of his relatives as part of a blood feud by applying the principle of “a death for a death”.

On 11 February 1999 the investigator at the Grozny prosecutor’s office who was in charge of the preliminary investigation was questioned by a senior prosecutor after the first applicant alleged that he had promised S.’s family that he would not arrest the murderer. The investigator admitted that it was true that he had spoken to S.’s family and had asked them to tell him who had killed Imran Gisayev. In exchange, he had promised not to arrest the murderer. However, in his view, that did not mean that he absolutely would not have arrested the murderer and, moreover, he had always intended to act in accordance with the law.

On 20 February 1999 a new investigator put in charge of the case issued an arrest warrant for K.S. because he had not responded to several previous requests to appear for questioning.

On 4 May 1999 the first applicant was granted victim status in the criminal case.

On 23 May 1999 U.S. was charged with inducing K.S. and another unidentified person to murder Imran Gisayev to avenge the death of his son.

On 24 May 1999 U.S. was questioned as a person charged with a crime. He stated that he had asked K.S. to kill Imran Gisayev to avenge his son. He had bought a gun for that purpose that he had given to K.S. He had visited K.S. after the killing and he had informed him that he had fulfilled the terms of the blood feud. U.S., however, denied that he had incited any other person to carry out the killing.

On 26 May 1999 the investigator separated the case against U.S. from the rest of the investigation. The decision noted that the other suspect, K.S., was in hiding.

On 1 June 1999 the Grozny prosecutor’s office sent the case against U.S. to the Supreme Sharia Court of the Chechen Republic.

Following the launch of a military operation in the territory of the Chechen Republic in early October 1999, the first applicant took the criminal case file from the prosecutor’s office in order to save it from destruction. According to the first applicant all the physical evidence in the file had been lost during its transfer to court.

Shortly thereafter the applicants left Chechnya and went to Kabardino-Balkariya Region.

U.S. died on 29 September 2006.

On 29 November 2006 the first applicant resubmitted his criminal complaint about his son’s killing to the Grozny town prosecutor’s office.

On 30 November 2006 the Grozny town prosecutor’s office again opened criminal proceedings concerning the death of Imran Gisayev. The criminal file from 1999 was joined to the new case as material evidence. On the same date the first applicant was again granted the status of the victim of a crime.

On 1 December 2006 K.S. was arrested. He was placed in detention the next day.

On 11 December 2006 K.S. was charged with the murder of Imran Gisayev under Article 105 § 1 of the Russian Criminal Code. During his questioning, K.S. denied any participation in the crime. He said that he had been approached by U.S. and another person to help avenge S.’s death, which he had refused. As far as he knew, U.S. had killed Imran Gisayev.

Over the following days several of K.S.’s relatives were questioned as witnesses. They all stated that U.S. had killed Imran Gisayev. In particular, K.K., one of U.S.’s daughters, testified that her father had accepted the blame for killing Imran Gisayev and that K.S. had had nothing to do with it.

On an unspecified date thereafter the prosecutor questioned A.V., a friend of Imran Gisayev and the only direct witness of the crime. He stated that two young men had carried out the killing, however, he was unable to describe them owing to the passage of time. When shown a photo of K.S. he did not recognise him.

On 20 December 2006 M.B., a local imam and a relative of the Gisayev family, testified that Imran Gisayev had been killed by members of S.’s family in a blood feud over the death of S. That act of vengeance had been in accordance with traditional practices and local customs so their family had decided not to make any claims against S.’s family. U.S. had taken responsibility for the killing upon himself. There was therefore no reason to suspect K.S. was the killer.

Similar testimony was given the following day by V.G., the first applicant’s brother, who was head of the family in 1998, and A.D., another relative of the applicants. A.D. added that he had tried to discourage the first applicant from pursuing the case as it was not in accordance with their customs because the killing of Imran Gisayev had been justified as part of a blood feud.

On an unspecified date in 2007 Grozny City Hospital informed the Grozny Town Prosecutor’s Office in reply to an enquiry that all the medical files from 1999 and 2000 had been destroyed during the military operation.

A forensic expert’s opinion produced on 5 March 2007 concluded that it was not possible to give a definite answer as to the cause of Imran Gisayev’s death as his body had never been examined. However, based on the findings of the investigators and doctors from 1999 it was possible to say with a high degree of probability bordering on certainty that he had had at least four bullet wounds in the chest. Such wounds could be characterised as lethal and could consequently have caused his death.

On 19 March 2007 the first applicant stated that he opposed the exhumation of his son’s body for religious reasons.

On 18 May 2007 the prosecutor for the case at Grozny town prosecutor’s office terminated K.S.’s prosecution and released him from pre-trial detention. He held that the evidence that had been collected proved that K.S. had not participated in Imran Gisayev’s killing.

On 29 May 2007 the prosecutor informed the first applicant that the investigation had been suspended for failure to establish the identity of the alleged perpetrator.

On 7 August 2007 the deputy prosecutor dismissed a complaint by the first applicant that the investigation up to that date had been biased in favour of the suspects.

In the following months the first applicant sent several complaints to various authorities, in particular the Grozny town prosecutor’s office and its investigations department, alleging that the investigation had been ineffective.

On 23 June 2008 the investigations department of the Grozny prosecutor’s office informed the first applicant that the investigation into the killing of his son had been resumed.

The first applicant received the same information on 9 September 2008.

On 9 October 2008 the investigation was suspended again. Following a complaint by the first applicant, it resumed again, only to be suspended on 29 January 2009.

On 20 February 2009 the Republic Prosecutor informed the first applicant that the decision of 29 January 2009 to suspend the investigation had been set aside as unfounded because of a failure to take all the necessary investigative steps and to establish all the circumstances of the crime. The prosecutor acting on the case for the Grozny town prosecutor’s office was ordered to carry out an additional investigation.

On 3 March 2009 the investigation resumed.

On 14 March 2009 the first applicant lodged an appeal with the Grozny District Court (“the District Court”) under Article 125 of the Code of Criminal Procedure complaining of inactivity on the part of the investigative authorities.

On 26 March 2009 the District Court dismissed the appeal, noting that the investigation had reopened in the meantime and that measures were being taken with the aim of establishing the circumstances and the perpetrators of the crime. The first applicant appealed against that decision to the Supreme Court of the Chechen Republic (“the Supreme Court”).

In the meantime, on 2 April 2009 the investigator in the case once again suspended the investigation as it had been impossible to establish the identity of the perpetrator.

On 17 June 2009 the Supreme Court quashed the decision of 26 March 2009 and remitted the case to the District Court. It noted that copies of the relevant documents concerning the resumption of the investigation were not in the file. The court was thus unable to endorse the District Court’s decision.

On 30 June 2009 the District Court decided anew to dismiss the first applicant’s appeal. The prosecutor and investigator submitted copies of the relevant documents from the investigation file. On 2 April 2009 the investigation was suspended under Article 208 § 2 of the Code of Criminal Procedure for failure to establish the identity of the perpetrator. The court considered that by obtaining the copies of the relevant documents it had eliminated the shortcoming indicated in the Supreme Court’s judgment of 17 June 2009.

On 12 August 2009 the Supreme Court quashed that decision. It held that the District Court had not substantiated its ruling and had failed to take all the material in the case file into account.

On 5 October 2009 the District Court granted the first applicant’s appeal, considering the investigators’ inactivity to be illegal. It held that the prosecutor had closed the investigation on 2 April 2009 without taking testimony from several witnesses and had failed to conduct the other investigative steps ordered by the Republic Prosecutor (see paragraph 39 above).

On 27 July 2013 the Deputy District Prosecutor quashed another decision (of unspecified date) to suspend the investigation.

According to the information available to the Court the investigation is still ongoing.

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.

Article 125 of the new Code provides that a decision by an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions, acts or omissions which are liable to infringe the constitutional rights and freedoms of parties to such proceedings or to impede citizens’ access to justice are subject to appeal to a district court, which is empowered to review the lawfulness and grounds of the impugned decisions.


André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Mr Vladimirs Gubenko, is a permanently resident non-citizen of the Republic of Latvia, who was born in 1976 and who at the time of submitting his complaint was in detention in Riga. He was represented before the Court by Mrs L. Cakare, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine, who was succeeded by Mrs K. Līce.

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

The applicant was serving a prison sentence in Daugavpils prison. He was a follower of the Hare Krishna movement. On 2 October 2006 he asked the director of the prison to be allowed to keep in his cell an audio cassette player with headphones and cassettes with recordings of religious programmes and services, prayer beads for chanting Maha Mantra, and other attributes for prayers and religious rites.

On 9 October 2006 the director denied his request, stating that according to Regulation no. 423 of the Cabinet of Ministers (see below) prisoners were not allowed to possess the aforementioned objects.

That response was upheld by the Prisons Administration (Ieslodzījuma vietu pārvalde) on 27 October 2006.

On 30 October 2006 the Ministry of Justice wrote to the applicant, conceding that the list of permissible objects contained in the Regulation was insufficiently complete and its frequently restrictive application by prisons made it difficult for prisoners to receive various objects. The Ministry told the applicant that it would take his comments into account when drafting future amendments to the existing legal regulation.

The applicant then attempted to dispute the constitutionality of the Regulation before the Constitutional Court. He stated in a general manner that the contested legislative instrument did not permit the keeping and use of religious objects in prison, and he asked the Constitutional Court to repeal it.

On 7 November 2006 a committee of three judges of the Constitutional Court, relying on Section 20 (5) (3) of the Constitutional Court Law, adopted a decision refusing the initiation of constitutional proceedings. The decision stated that the constitutional complaint did not comply with the criteria provided by Section 19²(1) of the Constitutional Court Law. It was evident from the decision that the applicant had not sufficiently demonstrated in his complaint how his fundamental rights had been infringed and that the Constitutional Court had been unable to rule on the constitutionality of an existing legal provision in this case.

The relevant Article of the Latvian Constitution (Satversme) provides:

Article 99

“Everyone has the right to freedom of thought, conscience and religion. The church shall be separate from the State”.

Regulation of the Cabinet of Ministers no. 423 (2006), entitled “The Internal Rules of Prisons” (Brīvības atņemšanas iestādes iekšējās kārtības noteikumi), provides in the relevant parts that detainees may keep only a limited range of objects in their cells, these objects being exhaustively listed in Annex no. 1 of that Regulation. The list in the amendment does not include any objects of a religious character such as those requested by the applicant.

Pursuant to Section 19²(1), an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed.

Section 20 (5) (3) provides that in examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-193 of the Constitutional Court Law. For a more detailed review see Meimanis v. Latvia, no. 70597/11, 30 June 2015, “Relevant domestic law and practice” part.

In 2010, R.N. ‒ a person who was serving a prison sentence at the material time ‒ lodged a constitutional complaint in which he asked the Constitutional Court to assess Annex no. 1 of Regulation no. 423 of the Cabinet of Ministers (see paragraph 11 above), insofar as it failed to regulate the keeping of religious objects. The claimant argued that the prohibition on the keeping by prisoners of religious objects such as icons, crosses, or rosaries contradicted the right to freedom of religion as guaranteed in Article 99 of the Constitution. He also argued that the prohibition on keeping religious objects prevented him from practising religious rituals and restricted his right to freedom of religion, and that such prohibition was not proportional. The claimant considered that the above restriction could not be justified on grounds of safety because it was possible to harm others using objects that were authorised. Moreover, in many prison establishments, the keeping of religious objects was permitted and this caused a feeling of inequality amongst the prisoners.

On 1 July 2010 the Constitutional Court instituted constitutional proceedings (case no. 2012-13-01) in connection with Annex no. 1 of Regulation no. 423 of the Cabinet of Ministers (2006), insofar as it failed to regulate the keeping of religious objects. On 18 March 2011 it ruled in favour of the claimant and recognised that the contested norm, i.e. Annex no. 1 of the contested Regulation did not comply with Article 99 of the Constitution. The annex was repealed with effect from 1 October 2011.


Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant, Mr Fiodor Dumitru Coretchi, is a Moldovan national who was born in 1960 and lives in Ialoveni, Moldova. He was represented before the Court by Ms A. Dadu, a lawyer practising in Ialoveni. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice.

The applicant complained, in particular, about having been unlawfully detained in Bulgaria pending extradition to Moldova.

On 8 February 2010 the application was communicated to the Government. Later the same month the Moldovan Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of this right.

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

In 2001 the Moldovan investigating authorities came upon information leading them to suspect that in 1998 the applicant had been involved in a car theft. However, they were unable to question him as he had left Moldova earlier the same year to work in Greece. In 2002 they issued an international warrant for his arrest through Interpol.

On 31 July 2004, when crossing into Bulgaria from Greece, the applicant was arrested by the Bulgarian border police on the basis of the warrant issued by the Moldovan authorities. He was informed in the presence of an interpreter that he was being arrested in connection with that warrant. The same day the police ordered that he be held under arrest for twenty-four hours under section 70(1)(6) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below). The applicant was given a copy of the order. He surrendered his car to the border police.

On the same day, 31 July 2004, the Moldovan authorities confirmed their intention to their Bulgarian counterparts to submit an official request for the applicant’s extradition to Moldova. Later that day the National Interpol Office within the Bulgarian Ministry of the Interior informed the Sofia city prosecutor about the applicant’s arrest.

The prosecutor then issued an order for the applicant’s detention for seventy-two hours, counting from the expiry of the twenty-four-hour police arrest. The order referred to Article 16 of the 1957 European Convention on Extradition (“the Extradition Convention”), as well as Article 440 of the Bulgarian Code of Criminal Procedure of 1974 (“the 1974 Code”) in conjunction with Article 152a § 3 of the 1974 Code. The order also stated that the regional prosecutor of Blagoevgrad should be immediately put on notice in order to ask the Blagoevgrad Regional Court to authorise the applicant’s further detention.

On 4 August 2004 the Blagoevgrad Regional Court ordered the applicant’s detention for forty days, pending receipt of the Moldovan extradition request. On 5 August 2004 he was transferred to Bobov Dol Prison on the basis of that court’s decision. On 11 August 2004 the Bulgarian Prosecution Service informed the Moldovan authorities that the applicant had been detained pending the official Moldovan request for his extradition. Such a request had to reach Bulgaria by 8 September 2004 when the applicant’s forty-day detention would expire.

On 7 September 2004 the Bulgarian Supreme Cassation Prosecutor’s Office received the extradition request. The next day that Office extended the applicant’s detention for seventy-two hours following the end of the forty-day detention period ordered by the court. The prosecutor relied on Articles 440 and 440a of the 1974 Code (see paragraphs 28-29 below) and Article 22 of the Extradition Convention (see paragraph 26 below). The Bulgarian Supreme Cassation Prosecutor’s Office additionally instructed the Blagoevgrad regional prosecutor’s office immediately to seek a court order extending the applicant’s detention and to submit the extradition request to the court for examination.

On 9 September 2004 the Blagoevgrad Regional Court, in proceedings in which the applicant was assisted by an interpreter and a court-appointed lawyer, refused to authorise the applicant’s extradition to Moldova or his detention for that purpose. The court found in particular that there had been no order in Moldova for the applicant’s detention with a view to his serving a sentence, one of the conditions of the Extradition Convention. On 10 September 2004 the applicant was released from Bobov Dol Prison on the basis of that decision.

On 9 September 2004, seeing that the proceedings for the applicant’s extradition were still pending, the regional prosecutor of Blagoevgrad imposed a ban on the applicant leaving the country. The ban was valid until the end of the extradition proceedings and was based on a provision in the 1974 Code which stated that individuals could be banned from leaving the country if criminal proceedings were pending against them (see paragraph 34 below).

On 16 September 2004 the applicant registered with the authorities in Blagoevgrad where he took up his residence on a provisional basis. On 20 September 2004 the border police returned the applicant’s car to him. He signed a form confirming that the car was not damaged and that nothing was missing from it.

The Bulgarian border police placed the applicant under arrest for twenty-four hours at 12.30 a.m. on 25 September 2004 when he tried to leave Bulgaria by crossing the border with Greece. The order for his arrest was based on section 70(1)(7) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below) and referred to the arrest warrant issued by the Moldovan authorities in connection with the applicant’s extradition. The applicant was informed of the essence of the order in the presence of a Russian interpreter. He surrendered his car to the border police and signed a form where he wrote in Russian that he objected to his arrest.

Having verified that a valid ban on the applicant’s leaving the country was in force and that there were no grounds for his detention, the police released him at midday on 25 September 2004, which was twelve and a half hours before the expiry of the order for his arrest. It is unclear what happened to the applicant’s car. He did not ask for its return.

In a decision delivered on 27 September 2004, following a public hearing that had been held the previous week in response to an appeal by the prosecutor against the ruling of the Blagoevgrad Regional Court of 9 September 2004 (see paragraph 11 above), the Sofia Court of Appeal allowed the applicant’s extradition to Moldova. It found that the lower court had wrongly assessed the Moldovan authorities’ request. In particular, the applicant had not been wanted in Moldova to serve a sentence, as the firstinstance court had found, but to be tried in connection with an offence. That meant that a different provision of the Extradition Convention had applied and all the material and procedural requirements to grant that request had been met.

The Sofia Court of Appeal held in a separate decision of 27 September 2004, issued following a closed hearing the same day, that it could not rule on the applicant’s detention pending extradition. It said that it had already adopted a final and enforceable decision allowing the applicant’s extradition and that that decision had put an end to the extradition proceedings. Given that those proceedings had been concluded, the applicant could thereafter only be detained for the purposes of being handed over to the requesting authorities.

In a letter of 7 October 2004, the Blagoevgrad regional prosecutor’s office advised the Supreme Prosecution Office that the applicant was not in detention but that there was a valid ban on his leaving the country. It noted that he was also registered at the address of his court-appointed lawyer and that his passport and car had been returned to him.

On 14 October 2004 the Bulgarian Supreme Cassation Prosecutor’s Office ordered the applicant’s detention for the purposes of his extradition to Moldova. The prosecutor’s order, written over five pages, comprised an overview of the procedural steps carried out up to that point. The order specified that the extradition proceedings were in their final phase and that the applicant was not in detention. Given that his extradition had been agreed with the Moldovan authorities and a concrete date and time for it had been set – 18 October 2004 at 11 a.m. local time – it was necessary to apprehend him for the purposes of his actual transfer into the custody of the Moldovan authorities.

The prosecutor then instructed the police to place the applicant under arrest on 15 October 2004 for twenty-four hours in order to extradite him. In the same order the prosecutor authorised keeping the applicant in detention for the same purpose for seventy-two hours, starting from 16 October 2004. The order referred to section 119(2)(4) of the Judicial Power Act 1994 (see paragraph 33 below, last sentence), as well as to Article 152a § 3 of the 1974 Code of Criminal procedure (see paragraph 32 below) and Articles 18 and 22 of the Extradition Convention (see paragraphs 24 and 26 below). It also stated that personal possessions taken from the applicant by the Bulgarian authorities when he had been arrested should be handed over to the Moldovan authorities at the same time as his transfer.

The applicant was detained on 15 October 2004 and handed over to the Moldovan authorities on 18 October 2004 as agreed. The report on his transfer stated that personal possessions held by the Bulgarian authorities were handed over to the Moldovan authorities at the same time.

On 23 December 2004 the Moldovan authorities discontinued the criminal proceedings against the applicant. On 1 July 2005 the applicant asked the Bulgarian authorities to take him off their database of wanted persons so that he could transit Bulgaria without fearing arrest. On 4 July 2005 the Supreme Cassation Prosecutor’s Office allowed that request and informed him accordingly. The border police recorded on 4 July 2005 that the applicant left Bulgaria with his car on that day.

The Extradition Convention entered into force in respect of Bulgaria on 15 September 1994 and in respect of Moldova on 31 December 1997. Article 16 of the Convention, which governs provisional arrest, provides as follows:

“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.

The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought.

A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request.

Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.

Release shall not prejudice rearrest and extradition if a request for extradition is received subsequently.”

Article 18 governs the surrender of the person to be extradited and provides that:

“1. The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition.

Reasons shall be given for any complete or partial rejection.

If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender.

Subject to the provisions of paragraph 5 of this article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him for the same offence.

If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree a new date for surrender and the provisions of paragraph 4 of this article shall apply.”

Article 20, which governs the handing over of property, provides as follows:

“1. The requested Party shall, in so far as its law permits and at the request of the requesting Party, seize and hand over property:

a) which may be required as evidence, or

b) which has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently.

The property mentioned in paragraph 1 of this article shall be handed over even if extradition, having been agreed to, cannot be carried out owing to the death or escape of the person claimed.

When the said property is liable to seizure or confiscation in the territory of the requested Party, the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over on condition that it is returned.”

Article 22, which specifies the applicable procedure, provides as follows:

“Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.”

The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 and clarifies the notion of “expulsion” as follows:

“9. The word “resident” is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose ...

The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered “lawful”.

[A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still “lawfully” present.

The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation.”

At the relevant time the extradition of persons accused of criminal offences was governed by Articles 439a-41 of the 1974 Code of Criminal Procedure. Articles 440-440c governed the procedure for processing an extradition request made by another State.

Once received, the extradition request had to be sent to the competent regional prosecutor (Article 440 §§ 1 and 2). That prosecutor then had to take the statement of the person whose extradition was being sought, implement any measure taken to secure his or her appearance, and transmit the extradition request to the competent regional court (Article 440 § 3). The request was then to be examined by three judges at a public hearing. The person whose extradition was being sought had to be provided with counsel and an interpreter (Article 440a § 1). The court had to hear the public prosecutor, the person and his or her counsel, and then either allow or refuse the extradition. In its ruling it additionally had to specify whether personal items, documents and money found on the individual and having a connection with his or her offence should be handed over to the requesting State as well (Article 440a § 2). The court’s ruling was subject to appeal before the court of appeal whose decision was final (Article 440c). The prosecutor was responsible for implementing judicial decisions authorising extradition (Article 440b § 3 and Article 440c § 2).

At present the procedure for detention in the context of extradition proceedings requested by a third State is laid down in considerable detail in the 2005 Extradition and European Arrest Warrant Act (section 13), which entered into force on 4 July 2005 and repealed Articles 435-41 of the 1974 Code.

Article 152a of the 1974 Code of Criminal Procedure, which governs the procedure for imposing pre-trial detention, was changed entirely – with effect from 1 January 2000 – in a bid to bring Bulgarian law into line with Article 5 the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС).

The amended paragraph 3 of Article 152a provided at the time of the facts that the investigation and prosecution authorities had to ensure the prompt appearance of the accused before the competent first-instance court and, if necessary, detain him or her for that purpose before bringing him or her before the court. Such detention could not exceed twenty-four hours if ordered by an investigator or seventy-two hours if ordered by a prosecutor. No judicial review was available in respect of such detention.

At the relevant time the bodies responsible for the investigation at the pre-trial stage were investigators (Article 172 of the 1974 Code) and the prosecutors who supervised the activities of the former (Article 176 of the 1974 Code). The prerogatives of the prosecutor included the issuing of mandatory instructions to the police (section 119(2)(4) of the Judicial Power Act 1994).

Under Article 153a § 1 of the 1974 Code of Criminal Procedure, as applicable at the relevant time, the prosecutor could prohibit an individual accused of a criminal offence from leaving Bulgaria without permission. The prohibition order was subject to judicial review (Article 153a § 3). The court had to rule immediately by means of a final decision (Article 153a § 4).

At the relevant time and until 2012, individuals could seek damages for unlawful detention under the SMRDA provided that such detention had been set aside in prior proceedings for lack of lawful grounds. Following amendments introduced in the SMRDA in 2012, in particular in section 2(1)(1), individuals can seek damages for all cases of detention in breach of Article 5 § 1 of the Convention. Civil courts examine the issue of lawfulness and compensation in the same set of proceedings.

Under the 1997 Act, as in force at the relevant time, the police could, on the basis of a written order, arrest individuals who were on international wanted lists owing to extradition requests from other States (section 70(1)(7)). An individual taken into police custody was entitled to be assisted by counsel and seek judicial review of his detention (section 70(3) and (4)). The application had to be examined immediately (section 70(3) in fine). Police detention under section 70 could not exceed twenty-four hours (section 71 in fine).

Arrest orders under section 70 were administrative decisions and any subsequent judicial review of them was carried out in accordance with the standard rules of administrative procedure, meaning that such an order could be appealed against within fourteen days of the arrestee’s being apprised of the order. According to the case-law of the Supreme Administrative Court (опр. № 1793 от 17 февруари 2006 г. по адм. д. № 1390/2006, ВАС, V отд.; реш. № 894 от 31 януари 2005 г. по адм. д. № 5783/2004 г., ВАС, V отд.), persons affected by police arrests could challenge their lawfulness before a court and, if the orders were set aside, the individuals concerned could seek damages under section 1 of the SMRDA.


VERLAGSGRUPPE HANDELSBLATT GMBH & CO. KG v. GERMANY

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant, Verlagsgruppe Handelsblatt GmbH & Co. KG, was formerly known as Verlagsgruppe Handelsblatt GmbH, a German private limited company whose registered office was in Düsseldorf. It published the weekly business news magazine Wirtschaftswoche. In 2010 it was converted into a private limited partnership and the company seized to exist. The applicant was represented before the Court by Mr R. Mann, a lawyer practising in Hamburg.

In its edition of 14 September 2000, Wirtschaftswoche published an article about the CEO of German Telecom (Deutsche Telekom AG), Dr Ron Sommer. It was entitled “Almighty Sommer” (Allmächtiger Sommer) and critically reviewed his management style and the consequences for German Telecom.

The article was accompanied by a photomontage, which was shown in different sizes four times throughout the entire magazine. The photomontage was a crumbling magenta-coloured “T”, the logo of German Telecom, with a person sitting on top of it with Dr Sommer’s face. The picture was put together using the body of a model in a sitting position and a photograph of Dr Sommer’s head. The applicant retrieved the photograph of the head from the image database of the Associated Press. To fit the body and head together, the photograph of the head was vertically stretched and horizontally shrunk.

Dr Sommer applied for an interim injunction to stop any further publication of the photomontage. He argued that by planting his head on a different body and by the fact that his head appeared more corpulent in the photomontage than in real life, his reputation was being damaged. He stated, in particular, that his cheeks appeared longer, his chin plumper and his neck shorter.

On 26 September 2000 the Hamburg Regional Court granted the interim injunction, without hearing the applicant’s arguments.

On 3 November 2000, on an objection by the applicant, the Hamburg Regional Court set the interim injunction aside. It found that the photomontage constituted a value judgment in the form of a satirical illustration, which conveyed the criticism expressed in the attached article. The minor discrepancies and the “wrong” body had not infringed Dr Sommer’s personality rights to such a degree as to justify an interference with the applicant’s freedom of expression. The court also stated that it was not its task to assess whether the applicant could have created a “better”, less infringing photomontage, since the form of expression was the prerogative of the author or artist. Furthermore, the satirical nature of the illustration was apparent, as the average reader would not consider that Dr Sommer sitting on a crumbling “T” replicated real life.

On 30 January 2001 the Hanseatic Court of Appeal reinstated the interim injunction. It held that the illustration had to be divided between the “T” and the depicted person. While it was apparent that the “T” part was a satirical illustration, the manipulation of the head, namely the stretching and shrinking, was not so obvious. Consequently, the average reader would expect the picture of Dr Sommer to depict reality. Owing to this “untrue” illustration, the personality rights of Dr Sommer overrode the applicant’s freedom of expression.

On 6 July 2001 the Hamburg Regional Court upheld the interim injunction preventing any further publication of the photomontage.

On 12 February 2002 the Hanseatic Court of Appeal dismissed an appeal brought by the applicant. It reiterated that the manipulated photograph of Dr Sommer showed him in an untrue, unfavourable and disadvantageous light. Nevertheless, since the manipulation was so slight, the average reader would not realise the distortion. The court found that Dr Sommer did not have to accept this untrue and manipulated depiction of himself in the press.

On 30 September 2003 the Federal Court of Justice overturned the Court of Appeal’s judgment. It found that the satirical illustration could not be broken down into individual components, but had to be assessed as a whole. Therefore, the satirical nature of the illustration was apparent and a typical reader would not expect to see a depiction of reality. Given that the extent of the alteration had been so slight, the applicant’s freedom of expression overrode the personality rights of Dr Sommer, who had to accept the satirical illustration of himself. Furthermore, the court found that the publication of the photograph had not infringed Dr Sommer’s right to protection of his image because, as the CEO of a well-known former Stateowned company with a monopoly, he was actually a “relative figure of contemporary society” (relative Person der Zeitgeschichte). Given that the shares of the company were intensely advertised as “people’s shares” (Volksaktie) and that the company still had a leading market share the management style of Dr Sommer and the consequences for the company were an issue of general interest. Consequently, the satirical illustration, including the publication of his photograph attached to an article that contributed to a debate of general interest, was legitimate.

On 14 February 2005 the Federal Constitutional Court repealed the Federal Court of Justice’s judgment and remitted the case (1 BvR 240/04). The court held that personality rights generally also included protection from the publication of technically manipulated photographs. In the context of satirical illustrations, it had to be established whether the manipulation had its own satirical nature or was technically necessary for the composition of the illustration, or whether the alterations were negligible. Applying these principles to the photomontage in question, the court found that the applicants had used a photograph of Dr Sommer to depict reality and make the person identifiable, and that the illustration of the person had no satirical value in itself. Therefore, the untrue photograph could only be justified if the alterations had been technically necessary or negligible. This however had to be ascertained by the lower courts.

On 8 November 2005 the Federal Court of Justice remitted the case to the Court of Appeal, as the latter had not established whether the alterations had been technical necessary or negligible.

On 7 February 2006 the Court of Appeal appointed an expert to analyse the manipulations of the original photograph of Dr Sommer and establish to what extent it had been altered. The expert established that the head had been vertically stretched by 8.7% and horizontally shrunk by 4.5%. He furthermore compiled his own photomontage that showed that the head could have been fitted to the body without the above-mentioned distortion being made. Consequently, he came to the conclusion that the manipulation had not been technically necessary.

On 30 October 2007 the Court of Appeal dismissed the appeal by the applicant and upheld the original interim injunction, preventing any further publication of the photomontage. The court found that the unnecessary alterations of the photograph conveyed an untrue message regarding the appearance of Dr Sommer. Because the manipulation had not been negligible and had led to an unfavourable and negative presentation of Dr Sommer, his general personality rights had been infringed. This infraction could not be justified by the applicant’s freedom of expression.

On 28 October 2008 the Federal Court of Justice dismissed an appeal by the applicant against the refusal of leave to appeal on points of law.

On 15 February 2011 the Federal Constitutional Court refused to admit for adjudication a constitutional complaint brought by the applicant, without providing reasons (1 BvR 3349/08).