András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant, Mr Vasile Predescu, is a Romanian national who was born in 1975 and lives in Timişoara.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

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

On 6 January 2000 the applicant was employed as an electrical technician by the Timişoara office of a multinational company, F.

According to a report issued on 17 January 2009, the general assembly of the Solectron Free Trade Union (Sindicatul Liber Solectron – “the union”), formed by 206 of F.’s employees, organised elections for executive positions (funcțiile de conducere) at the union. According to the same report, the auditing committee was listed among the union’s executive functions and the applicant was elected as a member of that committee.

On 28 January 2009 F. gave the applicant notice that he would be dismissed.

On 16 February 2009 the union applied to the Timişoara District Court for authorisation for the changes made on 17 January 2009 in the composition of the union’s executive bodies (organe de conducere). F. was not a party to the proceedings.

On 18 March 2009 the Timişoara District Court allowed the union’s application and ordered the registration of the changes in the composition of the union’s executive bodies in the Special Register for Unions, held at the aforementioned court’s registry.

On 21 April 2009 the applicant was dismissed. The reason given in the dismissal decision, which was issued on the same date, was that the company had faced financial difficulties following a severe drop in client orders, which had forced it to reorganise and reduce its activities, to downsize and to remove 720 posts, including the applicant’s. The dismissal decision noted that the applicant was given the opportunity to apply for a position that had not been removed, but did not take up that opportunity. The dismissal decision also took account of the criteria established by the collective agreement concerning the order of priority in respect of dismissals and the fact that no other posts suitable for his professional qualifications or other posts in general had been available within the company.

On 19 May 2009 the applicant challenged the dismissal decision before the domestic courts and asked to be reinstated. He argued, inter alia, that on the dates that the dismissal notice and decision had been issued by the company he had already been an elected member of the union’s auditing committee and had therefore been occupying an elected position within the union. He stated that according to Article 60 of the Romanian Labour Code the company was not allowed to fire him while he held such a position. He further stated that he had been dismissed because on 15 January 2009 he had brought court proceedings for a salary increase and award of seniority bonuses and because as a union member he had caused problems for the company’s management in claiming his lawful rights.

F. defended itself by arguing that the applicant’s dismissal had been the result of a large downsizing process which had started in November 2008 and had been due to end in July 2009. Moreover, the dismissal had been lawful and had not breached the provisions of the collective agreement or the Romanian Labour Code.

On 25 November 2009 the Timiş County Court allowed the applicant’s claim, quashed the dismissal decision and ordered his reinstatement. It noted that the report of the meeting of 17 January 2009 had shown that the union had considered the auditing committee to be one of its executive bodies and that the applicant had been elected as a member of that committee. The court considered that even if it had accepted the company’s argument that the auditing committee had not been part of the union’s executive functions and that therefore the conditions set out by Article 223 of the Romanian Labour Code had not been met, the dismissal decision had still been unlawful because the provisions of Article 60 § 1(h) applied. The conclusion that at the time of his dismissal the applicant had been occupying an elected position in a union body (even if not an executive one, as Article 60 § 1(h) did not make the same distinction as Article 223) had become reasonable and even mandatory, given that he had been elected to the union’s auditing committee. Consequently, the dismissal decision had breached Article 60 § 1(h), given that that provision represented a legal safeguard against potential pressure on those occupying elected positions within the union from exercising their mandate. However, relying on the evidence before it, the court accepted F.’s argument that the selection of the staff affected by the downsizing process had been made by consulting with the trade union and by complying with the established criteria, in particular the level of professional performance and the order of priority set out in the collective agreement and the Labour Code.

F. appealed on points of law (recurs) against the judgment. It argued that the applicant’s dismissal had been lawful and justified by the company’s difficult financial situation.

The applicant reiterated the arguments raised before the firstinstance court.

By a final judgment of 21 April 2010, the Timişoara Court of Appeal allowed F.’s appeal on points of law, quashed the judgment of the firstinstance court and dismissed the applicant’s challenge to the decision to dismiss him. It held that Articles 9, 10 and 11 of Law no. 54/2003 concerned the protection enjoyed by representatives elected to a trade union’s executive bodies. The complimentary (complementare) provisions of Article 223 of the Romanian Labour Code concerned the same issues, while Article 60 § 1(h) prohibited dismissals during the exercise of the powers of an elected position. The collective agreement had also provided protection for representatives elected to the union’s executive bodies. Consequently, the court considered that it had been necessary to determine which of the union’s bodies were executive and whether the post of auditor had been an elected position.

In that connection, the court considered that Articles 8 and subsequent of Law no. 54/2003 provided that executive bodies were formed by elected union members. Moreover, the notion of an auditor and the functions of the auditing committee were regulated by Article 26 of Law no. 54/2003, which provided that the aforementioned committee operated according to the union’s constitution. Furthermore, according to the union’s constitution its executive bodies were the general assembly, the council and the permanent bureau. The union’s constitution also set out that the composition of the auditing committee was decided by the council and that its area of competence was approved by the general assembly.

The court held that according to the aforementioned legal provisions, taken together with the provisions of the union’s constitution, the auditing committee was neither an executive nor an elected body. While it was true that the applicant had been elected as an auditor, such a form of appointment had exceeded the provisions of the union’s constitution, which provided for the appointment of auditors by the council. In addition, the post of auditor could not have been an executive position because those positions had been clearly established by the union’s constitution.

The court also held that the provisions of Article 60 § 1(h) of the Romanian Labour Code had to be read in light of the provisions of Article 223 of the same code and Articles 8 to 11 of Law no. 54/2003. According to the aforementioned provisions, only workers occupying executive positions within the union enjoyed the protection claimed by the applicant. Consequently, the first-instance court had wrongfully held that the applicant’s dismissal had been unlawful.

Lastly, the court considered that it was unnecessary to examine the remaining aspects of the lawfulness of the decision in the context of F.’s appeal on points of law.

The relevant provisions of the Romanian Labour Code in force at the material time read as follows:

“(1) Employees may not be dismissed:

(h) while they hold an elected position within a union body, except in circumstances where the dismissal is ordered for serious or repeated disciplinary misconduct by those employees; ...

(2) The provisions of the first paragraph do not apply if the dismissal was ordered for reasons flowing from the employer’s judicial reorganisation or bankruptcy, according to law.”

“(1) Representatives elected to a trade union’s executive bodies shall benefit from the protection of the law against any form of conditions, constraints or limitations in exercising their function.

(2) During their mandate and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot be dismissed for reasons which do not concern the employee’s person, for professional inadequacy, or for reasons connected to the exercise of a mandate received from other employees in the company.

(3) Other measures for the protection of representatives elected to a union’s executive body are provided in special laws and the applicable collective agreement.”

The relevant provisions of Law no. 54/2003 on trade unions in force at the material time read as follows:

“Trade unions’ constitutions shall contain provisions with regard to:

(e) their executive bodies, name, method of election and removal, length of mandate and duties ...”

“Members of a trade union with full legal capacity and who have not been prohibited as a complementary punishment from holding a position or practising a profession of the nature used by the sentenced person to commit the offence may be elected to executive bodies.”

“The members of a trade union’s elected executive bodies shall benefit from the protection of the law against any conditions, constraints or limitations on exercising their function.”

“(1) During their mandate, and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot have their work contracts terminated or changed for reasons not imputable to them, which the law leaves at the discretion of the employer, except with the written agreement of the elected executive collective body of the trade union.

(2) A change or termination of the individual work contract of representatives elected to a trade union’s executive bodies and of their members at the employer’s initiative for reasons which concern the trade union’s activities are prohibited.

(3) The provisions of the first paragraph do not apply to those who have been removed from executive positions held within the union for breaching the provisions of the [union’s] constitution or the law...“

“(1) Reviews of a trade union’s own financial activities and of their social and financial units is carried out by the Auditing Committee, which operates according to the constitution ...”

The relevant provisions of the Solectron Free Trade Union’s constitution in force at the material time read as follows:

“The trade union’s organisational structure includes: the General Assembly, the Trade Union’s Council, the Permanent Bureau and the Auditing Committee.”

“The General Assembly is the trade union’s highest executive body...”

“The activities of the General Assembly are organised and run by the Permanent Bureau.”

“The General Assembly has the following duties: ... approves the competences and the report of the Auditing Committee ...”

“The Trade Union’s Council is the trade union’s executive body which has decision-making and deliberative character and decides on the measures needed to enforce the resolutions and decisions adopted by the General Assembly ...”

“The Trade Union’s Council has the following duties: ... decides on the composition of the Auditing Committee and any changes to it ...”

“(1) The Permanent Bureau is the permanent executive body which carries out the operational management of the trade union and enforces the decisions of the General Assembly and of the Trade Union’s Council ...”

“The Auditing Committee is the financial control body of the trade union’s economic and financial activities ...”


Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicants, Mr Alfred Beleri, Mr Koço Llazari, Mr Vangjel Kolila, Ms Sofika Rapo and Mr Angjello Kokaveshi, are Albanian nationals who were born in 1972, 1938, 1971, 1985 and 1959 and live in Greece. They were represented by Mr I. Ktistakis, a lawyer practising in Ekali and Athens.

The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office.

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

The applicants are originally from Himara, a town located on the south-west coast of Albania. They say they belong to the Greek-speaking minority. The fifth applicant was the president of a minority association, called the Union of Himariotes, in Greece (“the association”). He also published the periodical Himara in Greek, (“the newspaper”), the association’s journal. The newspaper was apparently distributed to Himariotes living in Greece. The first applicant was a board member of the association.

It is apparent from the case file that the autumn 2003 issue of the newspaper urged Himariotes living in Greece to organise themselves to cast their votes in the October 2003 local government elections in Albania. The newspaper ran headlines and articles which were the subject of domestic legal proceedings in Albania, as set out in paragraphs 26-29 below.

On 12 October 2003 local government elections for city councils and mayors were conducted in Himara and elsewhere in Albania. It was reported that a number of incidents occurred on polling day, including in Himara.

In the evening of 12 October 2003, following reported irregularities, the applicants protested in front of the Local Government Election Commission. They carried Greek flags and shouted pro-Greek slogans, demonstrating their support for one of the candidates.

It would appear that on 13 October 2003 the applicants left Albania for Greece, where they are currently living.

Between 13 and 17 October 2003 the prosecutor’s office opened a criminal investigation against the applicants on charges of incitement to national hatred (thirrja për urrejtje nacionale) and denigration of the Republic and its symbols (poshtërimi i Republikës dhe i simboleve të saj) under Articles 266 and 268 of the Criminal Code (“the CC”). According to records of the search for the people involved of 15 October 2003, which were submitted by the Government as part of their observations, it is apparent that the authorities tried unsuccessfully to find the applicants.

On 18 October 2003 the Vlora District Court (“the District Court”) made an order in absentia for the applicants to be remanded in custody. The measure was notified to the lawyer in the case, appointed by the court of its own motion.

On 5 November 2003 the District Court declared the applicants to be fugitives, in accordance with Article 351 of the Code of Criminal Procedure.

On 8 December 2003 the prosecutor in the case notified the applicants’ court-appointed lawyers of the charges against them. On the same day, the prosecutor committed the applicants for trial in absentia.

The first hearings, which had been due on 24 December 2003, and 16 January, 2 February and 16 February 2004, were adjourned by the trial court in order to allow the applicants to attend the proceedings. However, owing to their continued absence the court continued the trial in absentia.

On 24 September 2004 the District Court found the applicants guilty of the charges and sentenced four of them in absentia to three years’ imprisonment. The fourth applicant was sentenced in absentia to one year and six months’ imprisonment.

It would appear that on an unspecified date the applicants became aware of the District Court’s decision because on 17 November 2004 all of them authorised a lawyer to represent them in appeal proceedings.

The applicants’ lawyer lodged an application for leave to appeal out of time, which was granted by the District Court on 17 December 2004.

Following the appeal lodged by the applicants’ lawyer, that the trial proceedings had been conducted in absentia, on 13 April 2005 the Vlora Court of Appeal (“the Court of Appeal”) quashed the judgment of 24 September 2004 on the grounds of procedural irregularities and remitted the case for fresh examination by a different bench of the District Court.

On 23 September 2005, following an appeal by the prosecutor, the Supreme Court upheld the Court of Appeal’s judgment.

On 7 December 2005 the District Court resumed the proceedings. On 15 December 2005 the District Court ordered that the applicants be informed of the judicial proceedings against them by posting a public notice.

According to the Government, hearings scheduled for 7 and 12 December 2005, and 9 January and 16 February 2006 were adjourned in order to allow the applicants’ to attend the re-trial.

On 18 January 2006 the prosecutor confirmed that the applicants’ whereabouts could not be established.

On 19 January 2006 the District Court declared the applicants to be fugitives, in accordance with Article 351 of the Code of Criminal Procedure and continued with the trial in absentia.

Hearings due on 27 January, 6 April and 6 July 2006 were adjourned on the grounds that witnesses needed to be summoned for questioning, that one of the judges had to be transferred to another court and that a judge had to be absent for health reasons.

The applicants remained absent from the re-trial proceedings and on 18 July 2006 the District Court found them guilty of the charges and sentenced each of them in absentia to three years’ imprisonment. It found that by making anti-Albanian statements the applicants’ actions had been capable of inciting national hatred, as proscribed by Article 266 of the CC. The court further held that the applicants had publicly denigrated the Republic of Albania and its constitutional order, proscribed by Article 268 of the CC, as a result of not paying due respect to the Albanian flag and national anthem while displaying the Greek flag and singing the Greek national anthem; by writing press articles and issuing publications which portrayed Himara as Greek territory; and by refusing to recognise any government other than that of Greece.

The court examined a videotape of the applicants making public statements on 12 October 2003. The second and third applicants, Mr Koço Llazari and Mr Vangjel Kolila, had publicly shouted, “Al-Qaeda” and “Albania al-Qaeda”, while sticking their tongues out and showing their middle fingers. The third applicant had addressed a crowd of people in Greek from a podium while displaying a cross that he was wearing around his neck. The fourth applicant, Ms Sofika Rrapo, had wrapped herself in a Greek flag which she had been carrying with her. The third and fourth applicants had taken out other small Greek flags and waved them. Six photographs showing the applicants carrying out the actions mentioned above had also been obtained as evidence.

The court also examined the autumn 2003 issue of the newspaper. One of its front page headlines read:

“Fervently and in unison. The response of Himara for its own rights. Vote with dignity and not subserviently! What you failed to accomplish, Himariotes, you may finish now.”

The above headline topped an article which called on Himariotes “to be united against communism in Albania, which has been persecuting them since 1941 and continues [to do so] even today”.

Furthermore, the front page of the newspaper contained an announcement that buses were being made available for anyone wishing to cast their votes in Himara during the local government elections of 12 October 2003.

Another article, on page 5, by a certain H. K., had the following headline: “The battle for Hellenisation starts in Himara.” The court decision quoted the following excerpts from the article:

“These elections are the best way to achieve the Hellenisation of Vorio Epirus... The battle of all battles will be waged in Himara. The [united] forces of Himariotes who proclaim their Hellenisation will be tested in Himara so that it can be recognised as a Greek town, so that it can have a Greek school and enjoy all the rights that other minorities have in Europe. Every Greek Himariot who is absent from that battle has no right and is less than Greek. ... The vote is the only option for those who declare themselves to be Greeks and to fight against those who profess to be ‘socialists’ or, even worse, ‘Himariotes’ (këto zgjedhje janë më të duhurat për Elinizimin e vorioepirotëve... Beteja e betejave do të jetë në Himarë, në Himarë maten forcat e Himariotëve që deklarojnë Elinizmin e tyre dhe që Himara të njihet si zone me kombësi greke, të ketë shkollë greke dhe të ketë të gjithë të drejtat që kanë në Evropë të gjithë minoritetet. Cilido Himariot Grek që do të mungojë në këtë luftim, nuk ka asnjë të drejtë dhe është shumë pak për grek...Vota është rruga e vetme për ata që deklarojnë grek dhe japin betejën e tyre kundrejt atyre që deklarojne ‘spocialiste’ apo më e keqj ‘himariotë’)”.

Himara is Greek and this needs to be demonstrated. I think that the sacrifice demanded from the Greek Himariotes is not too great. Himara will win, Vorio Epirus will win.”

The court also relied on the statements of witnesses and police officers who were on duty on the day and who confirmed that the applicants had made such statements in public and that they had stirred up the crowd, which had led to a disruption of public order and the vote-counting process.

The decision reads, in so far as relevant, as follows:

“Defendants Angjello Kokaveshi and Alfred Beleri, through their active criminal acts as stated in their article in the Himara newspaper, whose publisher is Angjello Kokaveshi, are the principal organisers of the criminal acts that took place in Himara during the voting in the local elections on 12 October 2003. They are the main organisers of the protest that occurred on 12 October 2003 because they: published articles in the nationalist, chauvinist Himara newspaper a few days ahead of polling day; called on Himariotes to unite; stated that Himara is Greek, that they are Greek and that this is the battle of battles, that a war should be waged for Hellenisation and not Albanianisation, that Vorio Epirotes should fight in order to proclaim their Hellenisation so that Himara could be recognised as Greek territory; stated in the newspaper that no Greek Himariotes should be spared from this war or, otherwise, they could not lay claim to be called Greek; stated in their publication that this is a war of Hellenisation against communism, against Albanianisation, against socialists ... and democrats ...; informed, organised and secured the transportation of Himariote immigrants already living in Greece to Himara; incited them through their words and statements in favour of Himara’s secession from Albania; carried out criminal acts to incite national hatred against the Albanian population, State and Government; and incited people to use violence and other arbitrary acts against the population, police officers and commissioners.

Defendants Angjello Kokaveshi and Alfred Beleri actively participated in the protest of 12 October 2003 in front of the Himara municipality building. [They] incited the crowd to use violence and carry out other arbitrary acts which endangered public order and peace. [As a result] a policeman who was on duty at a polling station in Himara was injured; pressure was exerted upon other citizens who were casting their votes; Himara’s central street was blocked; an explosion in Himara occurred and attacks on polling stations and commissioners took place.

As regards defendants Vangjel Kolila, Koco Llazari and Sofika Rrapo, the court considers that after examining the transcript of the examination of the videotape, the photographs as well as the witnesses’ statements, they [the defendants], through the use of slogans, such as “Albania is Al Qaeda”, “Himara is Greek”, “This is Greek land”, “Turks away from Himara”, “Turkey did not subdue us, let alone Albania”, “We shall remove Albanians from Himara”, “We shall remove foreigners from Himara”, were in charge of the protest which took place in front of the Himara municipality building during the voting process in Himara and during the vote counting process, [and] were the main perpetrators of criminal acts. As a result of the slogans chanted before the crowd, they incited national hatred against the rest of the population ... Their actions endangered public order and peace. [As a result] a policeman who was on duty at a polling station in Himara was injured; pressure was exerted upon other citizens who were casting their votes; Himara’s central street was blocked; an explosion in Himara occurred and attacks on polling stations and commissioners took place.

Defendants Vangjel Kolila [who went to every polling station and held meetings], Koco Llazari [who held speeches] and Sofika Rrapo [who held the Greek flag, with all of them handing out small flags and calling on people to embrace the Greek flag] played a decisive role in inciting the protesters to chant slogans of a nature that promoted national hatred and the carrying out of violent and arbitrary acts against the population. [Such] actions jeopardised public order and peace.

Defendants Angjello Kokaveshi and Alfred Beleri through the publication of the Himara newspaper and the use of statements such as “Himariotes are Vorio Epirotes”, “Himara is Greek”, “Hellenisation versus Albanianisation” ... have denigrated the Republic of Albania and its constitutional order.

Defendants Vangjel Kolila, Koco Llazari and Sofika Rrapo, by waving and raising the Greek flag and stating that this [land] is part of Greece and not Albania, by singing the Greek anthem and showing disrespect for the Albanian flag, anthem, police and institutions ... in the presence of a huge crowd of people, have publicly denigrated the Republic of Albania, its constitutional order, flag and anthem.”

In imposing its sentence, the court took into account the limits on penalties provided for in Articles 266 and 268 of the CC, the fact that the offences had been committed in collusion and in public, the applicants’ criminal responsibility and degree of guilt, as well as the need to try and prevent that kind of criminal activity in Himara. The court dismissed the arguments of the applicants’ lawyer that their actions should have been classified as minor offences (kundërvajtje penale), in accordance with the Freedom of Assembly Act. It held that their acts, namely their calls to national hatred, their violence and other arbitrary acts against the population and the law-enforcement authorities, their denigration of the Republic of Albania, its constitutional order, flag and anthem fell to be considered under the CC and did not give rise to the application of the Freedom of Assembly Act.

On 19 July 2006 and 27 December 2007 the applicants appealed to the Vlora Court of Appeal and the Supreme Court, respectively. Relying on the Freedom of Assembly Act, the applicants sought to have their acts for participation in unlawful protest classified as minor offences and their imprisonment commuted to a fine. They also contested the witnesses’ statements as being unreliable.

On 14 November 2006 the Court of Appeal put out a public summons for the applicants.

On 26 December 2006 the Court of Appeal dismissed the appeal. The court stated that the evidence contained in the case file, such as the videotape, demonstrated that all the applicants had actively participated in the unlawful protest by chanting slogans against the Republic of Albania, pushing away law-enforcement officers, waving and distributing Greek flags or sticking their tongues out and showing their middle fingers. The contents of the Himara newspaper constituted additional corroborating evidence of the commission of the offence by the applicants. Witness testimony corroborated that they had uttered slogans and made various calls, which had been in Albanian, as also evidenced by the recorded material.

The Court of Appeal further stated that conducting an unlawful (i paligjshëm) protest during the local elections – a direct exercise of sovereignty by citizens – in front of the building which housed the institution that provided for the good conduct of such an important political activity, had struck at social relationships which had been established to secure equality, public peace and order. It had also struck at the inviolability of the Republic, its constitutional order, symbols, anthem and crest, as protected by criminal legislation. The applicants’ acts had not only consisted of the use of symbols or signs that incited violence or discrimination within the meaning of the Freedom of Assembly Act. Their calls and slogans and the publication of the newspaper had also aimed at inciting hatred against that part of Himara’s population which did not identify itself as being of Greek origin. They had caused problems relating to the maintenance of public order, to the denigration of State authority and to defiance of the constitutional order, national flag and anthem. As such, they had come within the ambit of Articles 266 and 268 of the CC.

On 4 February 2009 the Supreme Court, in a reasoned decision, dismissed the applicants’ appeals. It considered that the lower courts had made a correct classification of the applicants’ criminal acts under Articles 266 and 268 of the CC and that their conviction had been based on the evidence contained in the case file.

In a dissenting opinion, Judge S.S of the Supreme Court expressed the view that the applicants’ acts should have been examined as minor offences which had led to the disruption of public order, under Article 274 of the CC, which would have resulted in a fine.

The relevant Articles of the Constitution read as follows:

“1. Sovereignty in the Republic of Albania belongs to the people.

The people exercise sovereignty through their representatives or directly.

“The independence of the state and the integrity of its territory, the dignity of the individual, human rights and freedoms, social justice, the constitutional order, pluralism, national identity and inheritance, religious coexistence, as well as coexistence with, and understanding of Albanians for, minorities are the bases of the State, which has the duty to respect and protect them.”

“1. Limitations of the rights and freedoms provided for in this Constitution may be established only by law, in the public interest or for the protection of the rights of others. A limitation shall be in proportion to the situation that has dictated it.

These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.”

“1. Freedom of expression is guaranteed.

The freedom of the press ... is guaranteed.

Prior censorship of means of communication is prohibited.”

“1. The right to information is guaranteed.”

“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law”.

“1. The freedom to have peaceful meetings, without arms, and to participate in them is guaranteed.

Peaceful meetings in squares and places of public passage are held in accordance with procedures provided by law.”

The relevant provisions of the CC read as follows:

“It is the duty of the criminal law of the Republic of Albania to protect the independence of the State and its territorial integrity, human dignity, fundamental rights and freedoms, the constitutional order, property, the environment, the coexistence and good understanding of Albanians with national minorities as well as religious coexistence from criminal offences, and to prevent such offences.

“Endangering public order by inciting national hatred against other sections of the population, by insulting or defaming them, or by requesting the use of force or arbitrary actions against them, may result in a fine or a term of five years’ imprisonment.”

“Denigration of the Republic of Albania and [its] constitutional order, flag, emblem, national anthem or martyrs of the nation, voiced publicly or through the publication or distribution of written material, or the removal, damage or destruction of the flag or emblem of the Republic of Albania wherever displayed by official institutions, or making either of them indistinct or unusable, constitutes a minor offence (kundërvajtje penale) and is liable to a fine or two years’ imprisonment.”

The Act sets down rules on holding a peaceful assembly and participating in such an assembly. That freedom can be restricted on certain defined grounds such as national security, public security, the prevention of disorder or crime, the protection of health or morals or the protection of rights and freedoms of others (section 1). Before any assembly may be held in public squares or on thoroughfares (sheshe ose vendkalime publike), the organisers are obliged to notify the chief of police in writing, at least three days prior to the day of the assembly (section 5). When there are serious grounds to believe that an assembly will constitute a real risk to national security, public security, the prevention of crime, or the protection of the health, rights and freedoms of others and there are no less stringent measures available, then the chief of police may ban the assembly or decide when and where it may be held (section 8). Participation in a banned assembly constitutes a minor offence and can lead to a fine (section 24).

Section 9 provides for the dispersal of an assembly by the police on certain defined grounds. Failure to respect police orders constitutes a minor offence and can lead to a fine (section 24).

It is prohibited to possess firearms and conceal one’s identity which incites discrimination or violence on racial, ethnic or religious grounds (section 18-19). Section 20 further provides that in assemblies held in squares or places of public passages or in places open to the public, the use of uniforms, signs or symbols that refer to associations or groups that have been created to incite discrimination or violence on racial, ethnic or religious grounds is prohibited. The use of clothing, objects, signs or symbols to conceal one’s identity or incite violence or discrimination as provided for under sections 18-20 constitutes a minor offence and is punishable by a fine or a term of imprisonment up to six months (section 24).

Article 104 of the Electoral Code, as in force at the material time, provides for the maintenance of public order in polling stations (ruajtja e rendit në qendrën e votimit). When there is a risk of disruption of public order and the conduct of elections, the Polling Station Commission (Komisioni i Qendrës së Votimit) may decide to suspend the elections and seek the assistance of the police. The request must be submitted in writing and should contain a brief description of the facts and reasons for the intervention of the police.

International monitoring bodies, such as the Organisation for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (“the OSCE/ODIHR”) and the Council of Europe Congress of Local and Regional Authorities of Europe (“CLRAE”), monitored the local elections in Albania in 2000 and 2003.


S.C. I.F.N. COMAUTOSPORT LEASING S.A. v. ROMANIA

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant, S.C. I.F.N. Comautosport Leasing S.A., is a Romanian company, whose registered office is in Bistriţa. It was represented before the Court by Mr V. Petra, a lawyer practising in Bistriţa.

On 6 June 2007 the applicant company concluded a vehicle leasing agreement with a third party, the private company V. C. S.R.L. (the lessee), managed by E.V.

The contract stated, inter alia, that monthly instalments were to be paid to the applicant company until 5 June 2011, when the property right concerning the vehicle was to be transferred to the lessee, V. C. S.R.L. The contract further stipulated that the lessee was not allowed to use the vehicle for transporting merchandise, unless the lessor had given his or her prior written approval thereto. The contract also stated that the failure of the lessee to pay two successive instalments could entitle the lessor to ask for the termination of contract (reziliere), in accordance with the general principles of contract law.

On 22 July 2009 the Customs National Authority squad caught E.V., who was driving the leased vehicle, transporting 120 litres of alcohol, without having the appropriate excise stamp or documentation concerning their provenience. The authorities issued a contravention report, sanctioning E.V. to a fine of 20,000 RON. They also confiscated the vehicle, in accordance with the provisions of Article 220 of the Code of Fiscal Procedure. The report mentioned that the vehicle belonged to the applicant company and was leased to the company V. C. S.R.L.

The report was contested by the applicant company. It complained that the vehicle, which was its property, was confiscated from its owner even if it had not participated to and had not had any knowledge about the commission of the act sanctioned by the fiscal authorities. The applicant also mentioned that following the confiscation, the lessee ceased to pay the agreed instalments. It argued that the circumstances constituted a deprivation of property without appropriate compensation.

On 21 December 2009 the Cluj Napoca District Court dismissed the applicant company’s complaint, mentioning that the sanction was in accordance with the law, namely the Code of Fiscal Procedure. Noting that the applicant company had concluded a leasing agreement with the company V.C. S.R.L., the court considered that all issues referring to alleged breaches of contract were to be dealt with under the contract responsibility law, and not within the framework of the fiscal procedure, which was meant to determine the lawfulness of the contravention report.

The applicant appealed, without addressing the District Court’s arguments referring to the remedy allegedly offered by the contract law.

The Cluj County Court dismissed the appeal on 28 April 2010, finding that the lower court’s judgment was lawful and well-founded. The County Court further held that the Code of Fiscal Procedure imposed the sanction of confiscation of the vehicle used for committing a contravention, without differentiating between the owner or the user of the vehicle subject to confiscation.

The domestic legal provisions and practice of the Romanian Constitutional Court relevant for the present case are set out in detail in the case of S.C. Service Benz Com S.R.L. v. Romania (no. 58045/11, §§ 15-20, 4 July 2017).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law)

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

The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest.

In a dispute concerning a construction project envisaged in public procurement, in January 2012 the applicant company brought an action in damages against a university.

The President of the territorially competent Budapest High Court requested the National Judicial Office (“NJO”) to reassign the case to another court of the same jurisdictional level. In the request the President provided particulars about the case to be reassigned and indicated the data and the circumstances which prevented the adjudication, within a reasonable time, of this case, deemed to be of high importance, by relying on, in particular, the case-load of judges hearing civil cases, significantly exceeding the national average.

The President of the NJO examined the case-load statistics of the Budapest High Court, including the volume of highly important and priority cases and the workload of judges hearing civil cases. She found that, in view of the short statutory time-limits, the adjudication of the case within a reasonable time could only be ensured by reassigning the case to another court.

By requesting information from the President of the Zalaegerszeg High Court, the President of the NJO also examined the case-load and the operational conditions, including staff and facilities, of the Civil Division of the Zalaegerszeg High Court. On the basis of this information, the President of the NJO was satisfied that the reassignment of the case to the Zalaegerszeg High Court would not impose a disproportionate burden on that court.

For the sake of judicial economy as appreciated above, on 16 February 2012 the President of the NJO case assigned the case to the Zalaegerszeg High Court (decision no. 29/2012. (II.16.) OBHE), acting within the powers conferred upon her by the law.

The Zalaegerszeg High Court heard the case and dismissed the claim on 5 June 2012. That decision was confirmed by the Pécs Court of Appeal on 18 September 2012, a ruling served on 12 October 2012. The latter’s territorial competence to hear the appeal was a consequence of the case having been assigned to the Zalaegerszeg High Court.

Meanwhile, on 17 September 2012 the National Judicial Council issued decision no. 58/2012 on “the guidelines to be observed in respect of case reassignment”.

On 7 September 2013 the Kúria upheld the decisions of the High Court and the Court of Appeal in review proceedings.

The courts held in essence that the applicant company’s perception according to which the university had unlawfully backed out of the investment contract (namely, the construction of a dormitory) was nothing more than a misconception of the law and a tendentious interpretation of the circumstances, and that the facts of the case did not reveal any compensation liability on the respondent’s side, for want of unlawfulness.

Meanwhile, on 13 December 2012 the applicant filed a constitutional complaint. It counted – and complied with – the statutory sixty-day time-limit to do so from the service of the final decision in the case, i.e. from 12 October 2012. It claimed firstly that the domestic courts had reached their decisions in an arbitrary manner and, secondly, that it was deprived of a “tribunal established by law”, since by decision no. 29/2012. (II.16.) OBHE the President of the NJO had reassigned the case from the originally competent court to the Zalaegerszeg High Court.

The constitutional complaint was declared inadmissible on 10 June 2013 (decision no. 3123/2013. (VI. 24.) AB). The Constitutional Court held that the case as a whole did not reveal any arbitrariness or unfairness as such. As regards the specific complaint about the reassignment, it held that this issue was severable from the main procedure. It was of the view that the sixty-day statutory time-limit had run, in that respect, from the very reassignment decision of 16 February 2012 – rather than from 12 October 2012 as construed by the applicant – and for that reason this part of the motion was time-barred.

On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB in the matter of reassignment, in pursuit of constitutional complaints originating in cases other than that of the applicant. It held that the regulations which entitled the President of the NJO to reassign cases among courts (notably, sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, see paragraph 20 below) had been unconstitutional and in violation of Article 6 of the Convention. According to the Constitutional Court, the right for one’s “natural” (lawful) judge flows from the right to have one’s case examined by a court “established by law” and requires that a case be heard by a judge belonging to the court with competence and territorial jurisdiction and designated by the pre-established objective rules of case assignment of that court. In the Constitutional Court’s view, the impugned regulations, which had conferred responsibility for the reassignment of cases, at least in the material period, entirely on the President of the NJO, had been in breach of those principles. Moreover, it had violated the requirement of the appearance of impartiality. The Constitutional Court also held that the lack of a remedy against the decision of the President of the NJO had violated the Fundamental Law, as well as Article 13 of the Convention.

The Constitutional Court did not prescribe any particular legal consequence of this decision for the ongoing procedures concerned by re-assignment. Consequently, the Constitutional Court’s decision did not invalidate any reassignment decisions taken previously (see paragraphs 19 and 24 below).


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

The applicant, Ms Alisiya Yurieva Korpachyova-Hofbauer, is a Bulgarian national who was born in 1979 and lives in Wanfried, Germany. She was represented before the Court by her mother, Ms V. Shopova, who on 13 October 2014 was granted leave by the President of the Section under Rule 36 § 4 (a) of the Rules of Court to act on her daughter’s behalf in the proceedings before the Court.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, of the Ministry of Justice.

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

On 6 February 2012 the applicant, who suffered from a schizoaffective disorder, attacked her mother with a knife in their home. The police, who had been called by the applicant’s mother, arrested the applicant and took her to a centre for psychiatric health in Sofia. She remained there until 22 February, when the Sofia District Court ordered her to be transferred to Sveti Ivan Rilski State Psychiatric Hospital in Novi Iskar for two months’ compulsory treatment. The applicant appealed against that order, challenging in particular the court’s ruling as to the precise facility in which she was to be treated. Her mother, who was heard as a witness in the course of the appeal proceedings, also stated that she would prefer the applicant to be treated elsewhere, preferably as an outpatient. The Sofia City Court dismissed the appeal on 6 March 2012.

Sveti Ivan Rilski State Psychiatric Hospital, which is State-owned and operated, is situated at the outskirts of the town of Novi Iskar, at about one kilometre from the nearest neighbourhood, about eighteen kilometres from the centre of Sofia, and about four kilometres from Sofia’s ring road. It was created in 1949, using some of the premises of a nearby monastery, and consists of several buildings.

During the first week of her stay in that hospital, the applicant was placed under a “heightened security regime”, which meant she was not allowed to leave her ward unaccompanied. According to the hospital’s director, placing patients whose compulsory treatment had been ordered by a court under that regime was common practice as it allowed for an initial assessment of their condition.

After the first week the applicant’s regime was relaxed and she was allowed to move around the hospital grounds and take part in art therapy sessions. As her mental health improved – according to the Government as a result of the medication that she was given – her regime was relaxed even further, and between 15 and 17 March 2012 she was granted home leave. On 29 March 2012 her treatment continued on an outpatient basis, which meant that after that date she was only required to be present at the hospital during the day for medication and art therapy, but did not have to stay overnight.

The applicant’s compulsory treatment came to an end on 20 April 2012.

The applicant submitted that during the first week of her stay in Sveti Ivan Rilski State Psychiatric Hospital she had been assaulted by another patient. In the course of the hearing of the applicant’s appeal against the Sofia District Court’s order for her compulsory treatment, the applicant’s mother gave evidence that the applicant had told her that on 29 February 2012 a newly arrived patient had assaulted her in the shower, pushing her in the chest. She had however not sustained any injuries as a result, and had not called for help, apparently because she had felt scared. When her mother had visited her the next day, 1 March, the two had brought the incident to the attention of three members of the nursing staff, who had advised the applicant to call for help if such an incident were to occur again. On the basis of that evidence, the appellate court accepted that an incident with another patient had taken place. However, it noted that the proper way to deal with such matters was not to seek transfer to another hospital but to inform the nursing staff and ask them to take steps to avert future incidents, which was exactly what had happened. In the course of the same hearing the applicant said that the temperature in the hospital was too low for her to feel comfortable and that as a result she had a sore throat.

According to the applicant, conditions in the hospital were quite poor, characterised by insufficient funding and staffing levels, inter-patient violence, low temperatures in winter and frequent flooding. The hospital’s director had herself said in media interviews that the premises were old and impractical, with broken and mouldy walls and broken tiles, and that there had been cases of violence, including on one occasion against the director herself.

In support of her allegations, the applicant referred to a report by the Ombudsman of the Republic of Bulgaria drawn up after members of his staff had inspected the hospital on 26 June 2012 in their capacity as designated national preventive mechanism under Article 17 of the 2002 Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2375 United Nations Treaty Series 237), which entered into force in respect of Bulgaria on 1 July 2011.

The report began by noting that one of the hospital’s chief problems was its remoteness, which rendered access for patients’ relatives difficult, especially in winter. The other big problem was that the premises and the hygienic and material conditions did not live up to the applicable medical standards. The buildings were old and in a “deplorable” state of repair, despite partial renovation works carried out about a month before the inspection. The equipment was outdated and inadequate. As a result of a damaged dyke on the nearby Iskar River, the premises were flooded every year. The room in which food was being served to patients had leaks, mould on the ceiling and rusty equipment.

Patients were accommodated in rooms with three or four beds each. Each of the hospital’s wards housed about thirty-five patients and had two bathrooms and two toilets, found by the report to be “utterly insufficient”. Patients were allowed out of their rooms for one to one-and-a-half hours per day. Visits were permitted twice a week and had to take place in the yard, weather permitting. At the time of the inspection the hospital had one hundred and forty patients. Thirty-two of them were in the female ward, which was staffed by three medical doctors, one psychologist, eight nurses and ten orderlies. The hospital lacked almost all of the medical equipment required under the applicable regulations. It had never been audited, and did not properly record medical conditions other than the mental illnesses in connection with which the patients had been admitted. Patients who died in the hospital were not subjected to an autopsy, and patients who had to be restrained were not kept separate from other patients, as required under the applicable regulations.

In view of those findings, the report recommended that the hospital gradually be closed and transferred to new premises in Sofia.

In a letter to the Ombudsman dated 16 August 2014 in response to that recommendation, the Ministry of Health explained that the hospital’s possible relocation had been discussed on several occasions, but no decision had yet been taken.

Between 29 July and 1 August 2014 a team from the Ministry of Health audited the hospital, and on 18 August 2014 drew up a report. With regard to material conditions in the hospital, the audit report likewise noted that its premises were in a very poor state of repair and “dangerous for the health and lives” of patients and staff. It also noted that the buildings were regularly flooded, and that their foundations were not waterproof. Minor repair works such as repainting and a partial renovation of the roof had been carried out in 2012 and 2013.

The report, which also addressed the applicant’s situation, noted that the ward in which she had been kept had rooms with three or four beds each, and two bathrooms and toilets. The building, which had a local steam heating system, did not have proper isolation and could not be optimally heated. The nurses had kept records of room temperatures, taking the following readings at the time of the applicant’s stay: 17 degrees Celsius during the night of 23 February 2012, and 18 degrees Celsius during the nights of 25 February and 3 March 2012. The report also noted that in the applicant’s ward, patients were free to leave their rooms and move around. Those of them who, like the applicant initially, were placed under the “heightened security regime” were not allowed to leave the ward unaccompanied, in order to avoid acts of aggression, suicides or escapes, and were kept under constant supervision.

A report about the hospital aired by Darik Radio on 4 April 2011 and available online described derelict buildings with cracked walls, missing plaster and mould. According to that report, in winter temperature in some of the wards did not exceed 13 degrees Celsius. At the time of the journalist’s visit the hospital’s kitchen had been flooded. The poor state of the premises was also described in reports aired on 7 April 2011 by TV7 and on 24 January 2014 by Nova TV, also available online.


Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - 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 petition)

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

The applicant was born in 1950 and lives in Bucharest.

At the relevant time he had the rank of Brigadier-General and was serving as a doctor at the emergency military hospital of Bucharest.

A. The applicant’s arrest after being caught in the act of committing an offence

On 19 December 2003 the directorate general of prisons launched a recruitment competition for the post of specialist military doctor at the prison of Bucharest-Jilava. Six individuals were candidates, including a certain T.G. Preliminary interviews were conducted by N.D., a doctor with the rank of Lieutenant-Colonel, who was put in charge of setting up the board of examiners. N.D. invited the applicant to chair the board.

N.D. prepared all the necessary documentation for the competition, including the envelope containing the examination papers. She was supposed to take the envelope to the examination venue on 3 May 2004, at 7.15 a.m.

After the preliminary interviews with the candidates, N.D. contacted T.G. under a false identity to offer to help her succeed in the competition. When asked by T.G. how she could help her, N.D. told her that she could intervene in her favour at the level of the board of examiners. A number of meetings took place between T.G. and N.D., who handed her copies of the examination papers. At one of the meetings N.D. mentioned the applicant’s name, stating that he was the chairman of the board. On 23 April 2004, during a further meeting with N.D., T.G. recorded the conversation.

On 30 April 2004 T.G. reported N.D. to the national prosecution service for corruption (the “PNA”), indicating that the latter had asked her for a sum of money in return for favourable treatment in the competition. She added that she had an agreement with N.D. to give her 1,300 US dollars (USD) on the day of the examination, before the written test, then USD 1,200 once she had been accepted for the post.

On the same day the PNA authorised the recording of conversations between T.G. and N.D. The banknotes that T.G. was supposed to give to N.D. were marked with a fluorescent substance.

On 3 May 2004, at 7.05 a.m., N.D. was arrested in the act of receiving money from T.G. After being taken to the offices of the prosecution service, she was questioned and a report was drawn up concerning the discovery of an offence while it was being committed. N.D. stated that, as a member of the board of examiners, she had asked T.G. for a sum of money in exchange for her help in obtaining the post in question. She added that, on 27 April 2004, the applicant had given her the examination papers so that she could pass them on to a candidate who would be declared successful in return for USD 2,500, a sum that she was supposed to remit to him on 3 May 2004 after the examination. N.D. stated that she had asked for the money in order to give it to the applicant. After being informed of the possibility of a reduction in sentence if she cooperated with the prosecution, N.D. indicated that her statement constituted an act of self-incrimination. She agreed to cooperate with the PNA in the prosecuting of the offence in respect of the applicant, by going to meet him after equipping herself with audio and video devices.

According to the applicant, N.D. had denounced him to the PNA after being threatened by the investigators who, during her questioning, had drawn her attention to the potential consequences of her actions for her family.

On the same day, at 8 a.m., the prosecutor authorised the audio and video recording of discussions between N.D. and the applicant, together with the bugging of a number of telephones used by him, for a period of twenty-four hours, from 3 May 2004 at 8 a.m. to 4 May 2004 at 8 a.m. The intercept authorisations of 30 April (see paragraph 11 above) and 3 May 2004 were endorsed by a judgment of the High Court of Cassation and Justice (the “High Court”) on 3 May 2004.

At 8.17 a.m. N.D. called the applicant to inform him that she would be late. At 9.30 a.m. N.D. arrived at the hospital and met the applicant in the corridor. She asked him to go into his office, placed the envelope with the money on his desk and left.

At 9.40 a.m. officials from the prosecution service entered the applicant’s office. The investigators examined the applicant’s hands and clothing, using a fluorescent lamp, and observed traces of fluorescent substance on the fingers of his left hand. The objects on the applicant’s desk were then examined and traces of the same substance were detected. An envelope was found on the desk and the investigators asked the applicant to open it and deposit the contents on the table. The envelope contained the sum of USD 1,300.

A report was drawn up concerning the discovery of the offence while being committed. It recorded the sequence of events, the material items identified and the applicant’s replies to questions from the investigators. The applicant’s statements were recorded as follows:

“... When he [the applicant] was apprehended, the public prosecutor ... S.G. asked Dr Blaj Stefan, Brigadier-General, whether N.D. had left him anything.

He replied in the affirmative, saying ‘yes’ and pointing to his desk.

In the presence of the attesting witnesses ... and of Dr Blaj Stefan, Brigadier-General, formal note was taken of the offence that had just been committed.

Dr Blaj Stefan, Brigadier-General, was asked to state what he had received from N.D., at the time when ... Lieutenant-General S.M. entered his office ... and when Lieutenant-Colonel S.G., legal officer, showed him the object of the offence (obiectul care formează constatarea infracțiunii flagrante).

Subsequently Dr Blaj Stefan ... stated that N.D. had come to his office at the hospital, that she had said ‘I have brought you the envelope’ and that she had left it on the desk. He stated that, after N.D. had left, he had personally looked for some documents on his desk and had intended to leave his office to go to the toilet when he was stopped by Lieutenant-Colonel S.G., legal officer.

When questioned, Dr Blaj Stefan explained that he did not possess any document concerning the examination scheduled for 3 May 2004, because the documents were at the technical secretariat of the directorate general for prisons ...”

The report was signed by the applicant and by the two attesting witnesses present, without any objections. In the report, the applicant was mentioned as the “person caught in the act of committing an offence” (făptuitor).

The applicant was not informed at the time of that procedure of his right to legal assistance and to remain silent, or of any of the accusations against him. The discovery of the offence while being committed was recorded by audio and visual means.

The applicant was then taken to the headquarters of the PNA where he was informed, in his capacity as a “person caught in the act of committing an offence”, that preliminary investigative acts had been carried out against him and that he was entitled to legal assistance. Subsequently the prosecutor ordered that criminal proceedings be opened against the applicant and informed him of his right to remain silent. The applicant was assisted from that point onwards by a lawyer of his choosing.

Later on that same day, 3 May 2004, at 5 p.m., the prosecutor ordered that the applicant be taken into police custody for twenty-four hours, a measure that was subsequently extended by a period of detention on remand. The applicant was assisted by a lawyer of his choosing. The applicant’s detention on remand was then extended several times until 6 September 2004, when he was released.

On 5 May 2004 the intelligence services of the Ministry of the Interior transmitted reports to the prosecutor’s office concerning the recording of telephone calls intercepted on the applicant’s telephone. That information showed that the secret services had intercepted conversations which had taken place on 3 May 2004, at 3.35 p.m., and on 4 May 2004, at 8.50 a.m. As regards calls intercepted on 4 May 2004, after 8 a.m., a note in the investigation file gave the times of the calls with the indication that the numbers called had not been identified.

The transcription of the video-recorded conversation of 3 May 2004 between N.D. and the applicant, B.S., read as follows:

N.D. ...I wanted ... to tell you that the exam papers are still those ...

B.S. (interrupting N.D.): Yes, I am going ... (unintelligible) ...? Have you got [the exam papers]?

N.D.: ... Yes!

B.S.: OK. Put them on the table, they will take them from there ...

N.D.: Yes...

B.S.: But we can’t do the practical part ... until Thursday morning! We are running very late, we won’t be able to do the marking!

N.D.: Yes ...

B.S.: At noon I have to be in Breaza. Yes? OK.

N.D.: Euh... (at that moment ... at the fourth minute of the video recording, N.D. takes from a bag she is holding a white envelope that she holds out to B.S. At the same time, N.D. says:) This is from ... the candidate!

B.S. (covering N.D.’s words): What? (he then speaks softly) Put them there! (on the video recording – at 04.01 and 04.03 – B.S. can be seen pointing to his office and the desk in question. B.S. then continues) OK, come with me! ...

N.D.: It’s part. ... the rest will be ...

B.S. (interrupting N.D.): But ... I have nothing ... It is up to you (Deci, eu n’am comentat nimic) ...

N.D.: Yes...

B.S.: I have helped you, haven’t I?

N.D.: Yes ...

During the criminal proceedings, the applicant was questioned in the presence of a lawyer of his choosing and he denied the charges. A confrontation took place at an unknown date between N.D. and the applicant, each one maintaining the position taken in their respective initial statements. The applicant was assisted by lawyers of his choosing throughout the ensuing criminal proceedings.

B. The criminal proceedings against the applicant

On an indictment of 25 May 2004, the applicant was committed to stand trial in the Criminal Division of the High Court on a charge of soliciting bribes. He was charged with having, in his capacity as chairman of the board of examiners, asked T.G. through the intermediary of N.D. for the sum of USD 4,000, subsequently reduced to USD 2,500, in return for helping her in the examination, and with having, on 3 May 2004, received the sum of USD 1,300 on that basis. In the same indictment, N.D. was committed to stand trial on a charge of complicity in soliciting bribes.

Proceedings at first instance before the High Court sitting in a three-judge formation

When questioned by the High Court, the applicant denied the charges against him. He stated that he had been convinced that the envelope left by N.D. on his desk contained the examination papers that N.D. was, according to him, supposed to give him that day.

On 27 May 2004 the applicant argued before the High Court that he had been the victim of entrapment by the investigative authorities. He indicated in that connection that, according to his first statement as recorded in the report on the discovery of the offence, N.D. had initially said that the money was intended for her. He took the view that it was only after been subjected for one hour to psychological pressure on the part of the investigators, who had repeatedly stressed that she would benefit from a reduction in sentence and had questioned her about her family, that N.D. had stated that the money was intended for him. He added that the report on the discovery of the offence could not constitute valid evidence, on the ground that it contained a statement that he had allegedly made immediately after being caught in the act of committing an offence, without having been informed by the prosecutor of his right to legal assistance.

When questioned by the High Court about the substance of the discussion he had had with N.D. just before being caught in the act of committing the offence, the applicant indicated that he had heard N.D. say something about a candidate but had not understood exactly what she had meant, as she had spoken softly and at a point when his attention had been distracted by a colleague going into the secretary’s office.

On 24 June 2004 the High Court questioned N.D. She stated that she had been caught in the act of committing an offence and that when the investigators had asked her whether the money was for her or for someone else, she had mentioned the applicant. She also indicated that she was not supposed to receive any money from the candidate and that all the money was intended for the applicant. She added that the investigators had asked her to follow up the procedure for the discovery of the offence while being committed and to take the money to the person for whom it was intended. The investigators had allegedly asked her to behave as if nothing had happened and to explain to the applicant that she had been delayed by a traffic accident. When she had hesitated, the investigators had allegedly told her that she could benefit from a reduction in sentence if she accepted.

On 8 July 2004 T.G. was questioned by the High Court.

On 21 March 2005 the High Court listened to and watched the audio and video recordings made by the prosecutor’s office during the commission of the offence, involving first T.G. and N.D., and second N.D. and the applicant, together with the filmed interview of N.D. after she was caught in the act of committing an offence.

On 18 April 2005 the hearings were resumed. The applicant repeated that he had been the victim of entrapment and that N.D. had made the statements in question, after being caught in the act of committing an offence, without legal assistance and under pressure from the investigators. He indicated that in the transcription of the recording of his discussions with N.D., the phrase “Put them on the table ...” concerning the impugned envelope appeared in writing but was inaudible on the recording.

In a judgment of 25 May 2005, by a majority, the High Court, sitting in a three-judge formation, sentenced the applicant on the charge of soliciting bribes to a suspended term of one and a half years in prison. It based its decision on the report of the discovery of the offence while being committed by the applicant, on the statement of N.D. and on the audio and video recordings made when the applicant was caught in the act of committing the offence.

As to the applicant’s allegations that he should have had legal assistance from the time when he was first questioned by the public prosecutor in the procedure concerning the discovery of an offence while being committed, the High Court found as follows:

“Under Article 171, paragraph 1, of the Code of Criminal Procedure, suspects or accused persons have the right to be assisted by a lawyer throughout the criminal proceedings, and the judicial authorities are obliged to inform them of that right. At the time of the drawing-up of the report concerning the discovery of an offence while being committed, the criminal proceedings had not yet been started in respect of Blaj Stefan, who did not even have the status of suspect. Accordingly the [said] report and the audio and video recordings made during the discovery of the offence will be admitted in evidence”.

After noting that the applicant had always denied the charges, the High Court found that his allegations were contradicted by the video and audio recordings. Based on that evidence, it noted that N.D. had held out the envelope to the applicant telling him loudly and clearly “this is from the candidate”; it was thus obvious to the High Court that the applicant was perfectly aware of what was in the envelope and he had no reason to believe that an envelope from a candidate contained examination papers. It further noted that the applicant had pointed to where N.D. should place the envelope and that when she had started to explain that the rest would be remitted afterwards, he had interrupted her saying that it was up to her.

The High Court also found that the applicant’s statement that the envelope had then been covered by certain documents on the desk because he had tidied things up was contradicted by the verifications made using an ultraviolet lamp, which had revealed specific fluorescent traces leading to the conclusion that the applicant had not lifted the envelope to tidy the desk but that he had slid it under other documents to hide it. The High Court concluded that this evidence, together with the report on the discovery of the offence, proved that there had been a prior agreement between the applicant and N.D.

The appeal proceedings before the High Court sitting in a nine-judge formation

The applicant appealed against the first-instance judgment, seeking his acquittal and, in the alternative, a retrial before the first-instance court, arguing that there was no evidence that he had been aware of the content of the envelope in question.

He further argued that he had been the victim of entrapment on the part of the investigators. He pointed out that the evidence had been obtained illegally as a result of the pressure exerted for about two hours on N.D. by the investigators after she had been taken into police custody, without being informed of her procedural rights.

The applicant also indicated that the words “Put them there!” appeared in the transcripts whereas they were not, in his view, audible in the recording and that his discussion with N.D. before entering the office had not been transcribed, even though it would have shown that he had received N.D. in his office only upon her insistence. He further argued that the authorisations for recording his discussions with N.D. were not legal, on the ground that they had been issued before he was formally charged and had not been confirmed within the statutory time-limit by the President of the High Court.

He lastly indicated that he had not been assisted by a lawyer when he gave the first statement recorded in the report of the discovery of the offence. In this connection, he relied on the first paragraph of Article 467 of the Code of Criminal Procedure governing the discovery of an offence while being committed. He added that, under this Article, the prosecuting authority was required to draw up a report of the discovery of the offence containing the statements of the “suspect and other persons questioned”. He inferred from this that at the time the offence was committed he must have had the status of “suspect”, which meant that he should have been assisted by a lawyer or at least informed of that right.

The hearing took place on 25 September 2006. In a final judgment delivered on the same day, issued on paper on 22 January 2007, the High Court, sitting as a nine-judge formation, dismissed the applicant’s appeal.

The High Court found that, while it was clear that Article 467, paragraph 1, of the Code of Criminal Procedure was applicable in the present case, that did not, however, entail an obligation to prosecute before or at the same time as the discovery of the offence while being committed. In the court’s view, such an interpretation would render futile the relevant procedure as a whole, whereas the fact of being caught in the act of committing an offence formed the basis on which the criminal proceedings were then initiated. In addition, since the measure in which the above-mentioned legal provision provided for keeping a record of the statements of the suspect and other persons questioned, the person concerned would be questioned as the suspect only if the prosecution had already decided to bring proceedings against that person. If not, his or her statement would be recorded as that of “another person questioned”. The High Court concluded on that point that, in view of the fact that at the time he was first questioned the applicant had been neither a suspect nor an accused person, there had been no statutory obligation for him to be assisted by a lawyer. Moreover, it noted that the applicant had been informed subsequently, in the presence of a lawyer of his choosing, that preliminary investigative acts (acte premergătoare) had been carried out against him in his capacity as a person caught in the act of committing an offence.

The High Court further found that the charges against the applicant had been fully substantiated by the video and audio recording of his meeting with N.D. on 3 May 2004. It noted the importance of their conversation on that occasion and the indicative nature of the applicant’s gesture in showing N.D. where to place the envelope, thus ruling out the possibility that he could have been the victim of entrapment. The High Court held that, even supposing that the sentence “Put them on the table” had not been audible in the recording, the words spoken by the applicant, and not disputed by him, both before and after the envelope was placed on the table, formed a context that left no room for doubt.

The court lastly found the recordings to be valid. In this connection it noted that in case of urgency the prosecutor was empowered to authorise recordings and that the court was required to confirm the authorisations within twenty-four hours, as it had done in the present case.

On 9 December 2010 the Criminal Division of the High Court rehabilitated the applicant upon his application and cancelled his conviction of 25 September 2006.


No 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);Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing)

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

The applicant was born in 1968 and is currently serving a prison sentence in Kocaeli.

On 25 July 1999, at 11.30 a.m., the applicant was arrested on suspicion of being a member of an illegal organisation, namely the Turkish Revolutionary Communist Union, Türkiye İhtilalci Komünistler Birliği, “the TIKB”. The arrest records held by the police stated that they had had to use force to arrest the applicant, who had tried to escape when officers approached him to conduct an identity check.

On the same day he underwent a medical examination at 1.30 p.m. at Atatürk Hospital in Izmir. The report drawn up afterwards stated that no indication of ill-treatment had been observed on the applicant’s body.

The applicant was examined again later that day, at 5.45 p.m. at the same hospital. The report issued following that examination noted that the applicant had a healing, scabbed scratch measuring 2 x 2 cm on his right elbow. It concluded that there was no indication of physical violence on his body.

Following the medical examinations, the applicant was transferred to Istanbul, where he was placed in police custody at the Anti-Terrorist Branch of the Istanbul Security Headquarters. According to his submissions, he was subjected to ill-treatment during his time there.

On 27 July 1999 the applicant’s residence in Istanbul was searched by the police, who found several guns and cartridges, which were later sent to the Istanbul Criminal Police Laboratory for ballistic examination.

On 28 July 1999 the applicant was examined by a doctor at Haseki Hospital, who noted a swelling, a bruise and a scratch measuring 1 x 2 cm on his right elbow, as well as another scratch measuring 0,5 x 1 cm on his arm. The doctor recommended that the applicant undergo an orthopaedic examination.

At the request of the public prosecutor, on 29 July 1999 the Istanbul State Security Court decided to extend the applicant’s police custody by three days.

On 30 July 1999 the applicant was examined again at Haseki Hospital. This time, two scars on his gluteal region were noted.

On an unspecified date the applicant made statements to the police, in the absence of a lawyer.

On the last day of his police custody, namely on 1 August 1999 the applicant underwent another medical examination at Haseki Hospital. The report drawn up afterwards indicated a scar measuring 1 x 1 cm on his right elbow. The doctor also noted that the applicant’s medical condition was generally good, and recommended that he should undergo a urological consultation to follow up his complaint of rectal pain. He stated that a final report would be issued by the Forensic Medicine Institute.

On the same day the applicant was heard by the public prosecutor at the Istanbul State Security Court. He was not legally represented when he made his statements.

Subsequently, the applicant was brought before the investigating judge at the Istanbul State Security Court; he was remanded in custody. In the presence of a lawyer appointed by the Bar association, he retracted his previous statements and maintained that he had been subjected to illtreatment during his time in police custody. In response to a question by the investigating judge, the applicant maintained that he did not object to the content of the medical report drawn up earlier that day.

According to the applicant’s submissions, on 2 August 1999 he was examined by a doctor at Haydarpaşa Numune Hospital. The Government stated that there had been no such examination.

On 9 August 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State, pursuant to Article 146 of the Criminal Code in force at the time (Law no. 765). In this respect, the public prosecutor noted that the applicant had taken part in several armed acts of the illegal organisation, including murder.

On 7 August 2000 the applicant informed the Istanbul State Security Court that he would not attend the hearing that was to be held that day, as he had had no opportunity to have prior consultation with his lawyer. The court asked the public prosecutor’s office to ensure the applicant’s attendance at the subsequent hearing.

At a hearing dated 7 February 2001, during which the applicant’s lawyer was present, the court noted that although it had requested that the applicant be brought before the court, it had received no response from the public prosecutor concerning the matter. At the same hearing the case was joined to another one, in which the applicant was being tried together with some others.

During subsequent hearings, which were conducted in the absence of the applicant, the court heard submissions from some of the co-accused and some witnesses. At one of these hearings, on 24 January 2002, the applicant’s lawyer asked the court to obtain the medical reports issued at Haydarpaşa Numune Hospital in 1999. He also stated that the applicant had been transferred to another prison and that the order for him to attend the hearing had not been sent there.

On 28 March 2002 the court noted that the applicant could not be brought to the hearing as he had been transferred once again.

On 30 May 2002 the Istanbul State Security Court gave an interlocutory decision, holding that the applicant should be brought before the court for the subsequent hearings, and that failure to do so would result in those responsible for his absence being subject to a criminal investigation.

On an unspecified later date the applicant’s lawyer submitted a letter to the court, noting that the applicant had not been brought before the court following its interlocutory decision dated 30 May 2002. He argued that the prison personnel and police officers concerned should be prosecuted for this.

On 24 October 2002 the applicant was brought before the court. He submitted his defence, indicating that he had been severely beaten during his arrest in Izmir and had been subjected to electric shocks, hung by the arms, hosed with cold water and sexually assaulted during his seven-day police custody at the Istanbul Security Headquarters. He claimed that although his right arm had been broken and he had developed facial paralysis, he had not been taken to the Forensic Medicine Institute. In that respect, he asked the court to obtain the medical reports issued following his examination at Haydarpaşa Numune Hospital, where he said a plaster cast had been put on his broken arm.

At hearings on 6 February, 17 April and 17 June the applicant and his lawyer submitted additional defence statements.

During those proceedings, in 2004 State Security Courts were abolished following a constitutional amendment, and the case was transferred to the Istanbul Assize Court.

At a hearing on 27 February 2007 the applicant informed the court that his lawyer had failed to attend the hearings, and asked for time to appoint a new lawyer.

On 11 December 2007 the applicant’s new lawyer reiterated the applicant’s allegations of ill-treatment and asked the court to assess the medical reports on him. In that connection, she maintained that the applicant had not undergone urological or orthopaedic consultations, although the doctors at Haseki Hospital had recommended that he should. The lawyer added that the applicant had never been taken to the Forensic Medicine Institute, and that the court had not obtained the reports from Haydarpaşa Numune Hospital, despite the applicant’s request for them. She also stated that the applicant had not been present at the hearings when the court had heard certain key witnesses.

On 11 June 2008 the applicant’s lawyer submitted a request to Haydarpaşa Numune Hospital for the medical reports on the applicant’s medical examination on 2 August 1999. However, the hospital administration informed her that the records for that year had been destroyed in 2006, as a result of a sewage pipe explosion above the archives.

On 12 September 2008, on the basis of several items of evidence, including the applicant’s police statements, the guns found at his home, and ballistic reports on those guns, the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment.

The applicant’s lawyer appealed against the judgment, arguing that the applicant had been subjected to ill-treatment while in police custody and had been convicted on the basis of statements extracted under duress.

On 18 March 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court. This judgment was pronounced on 7 April 2010.


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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in 1973 and 2004 respectively and live in Sofia.

The applicants are the widow and the son of Mr Konstantin Dimitrov Dimitrov, who died in December 2003.

In 2001, following publications in the media concerning the income of the first applicant and her husband, the Sofia regional public prosecutor’s office opened proceedings against them under Chapter Three of the Citizens’ Property Act (“the CPA”, see paragraphs 23-28 below). In a decision of 23 August 2002 a prosecutor from that office discontinued the proceedings.

The prosecutor found, first, that for the period from 1990 to 1992 Mr Dimitrov’s expenditure had exceeded his income, but that in 2002 he had paid the difference to the State budget. Accordingly, there was no ground to pursue the proceedings for that period (section 45 of the CPA, see paragraph 27 below).

Next, the prosecutor described the income and the expenditure of the first applicant and Mr Dimitrov for the period from 1993 to 1997, but did not make an explicit finding as to whether she considered their income lawful within the meaning of the CPA.

Lastly, analysing the couple’s income and expenditure for the period from 1997 to 2001, the prosecutor concluded that they were equivalent, and that there were no grounds for bringing forfeiture proceedings under the CPA.

On an unspecified date the Sofia regional public prosecutor’s office opened new proceedings under Chapter Three of the CPA. On 18 November 2004 it brought an action in the Sofia Regional Court against the two applicants, seeking the forfeiture of two flats, one in Varna and one in Sofia, a garage, an office and a share in a plot of land in Sofia, a holiday house in the Borovets resort and a Toyota Land Cruiser car, all acquired by the first applicant and Mr Dimitrov with income received between 1990 and 1999, which was allegedly “unlawful” within the meaning of section 34 of the CPA (see paragraph 25 below).

The Sofia Regional Court gave a judgment on 28 November 2006. It analysed in detail the income received by the first applicant and her husband and their expenditure during the period at issue. Due to the difficulties in making an assessment because of the high inflation of that time, the court relied on expert conclusions, calculating all the amounts in United States dollars (USD).

The Regional Court accepted in particular, referring to rent contracts, the tax declaration submitted by the first applicant in 1998 and witness statements by those involved, that in 1997 the first applicant and her husband had received substantial income from farming.

On the basis of its calculations, the Regional Court concluded that the couple’s expenditure for the period at issue had exceeded their proved income by approximately USD 40,000, which by virtue of section 34 of the CPA represented “unlawful” income. Accordingly, allowing the action brought before it in part, the Sofia Regional Court ordered the forfeiture of property of that value, namely the flat in Varna, the share in a plot of land in Sofia and approximately one-quarter of the flat in Sofia.

Both parties lodged appeals.

On 17 March 2008 the second-instance Sofia Court of Appeal gave a judgment. It found that the applicants had not established all the income considered proven by the Regional Court, in particular as concerns the family’s farming business. According to the Court of Appeal it was unacceptable to prove such income on the basis of the evidence presented before the lower court, without any further documents showing, for example, expenditure and revenue received. It also considered unproven two monetary gifts, one of them allegedly made by the first applicant’s parents and the other allegedly received on the occasion of her wedding to Mr Dimitrov in 1997.

The Court of Appeal calculated that the expenditure of the first applicant and her husband for the period from 1990 to 1999 had exceeded their income by approximately USD 286,000. It considered further that the properties for which the prosecution authorities sought forfeiture had been acquired with this “unlawful” income, and accordingly ordered the forfeiture of the flats in Sofia and Varna and the office, the garage and the share in a plot of land in Sofia. As to the remaining properties at issue, namely a holiday house in Borovets and a car, given that they had in the meantime been transferred to third parties, the Court of Appeal ordered the applicants to pay their monetary value to the State.

The applicants lodged an appeal on points of law. In a final decision of 28 July 2008 the Supreme Court of Cassation refused to accept the appeal for examination.

On the basis of the judgment of 17 March 2008, on 28 January 2010 the regional governor of Varna issued a decision declaring the flat in Varna State property. Similar decisions concerning the properties in Sofia were issued by the Sofia regional governor on 27 July and 4 August 2011. Following these decisions the applicants surrendered possession to the State.

On 20 July 2010 the applicants paid 178,815 Bulgarian levs (BGN) to the State budget, representing the value of the remaining forfeited properties, namely the holiday house in Borovets and the car, and the court fees and other costs due by them. In the domestic proceedings they had been ordered to pay BGN 14,019.34 in total in fees and other expenses.

In 2003 and 2004 the relevant tax authorities carried out probes into the income received by the first applicant and her husband between 1997 and 2002. Their decisions, calculating the income tax due, were given on 23 June and 26 November 2004.

In respect of the first applicant the respective decision was partly quashed on 20 June 2007 by the Supreme Administrative Court.