Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1967 and lives in Kharkiv.

Late in the evening of 15 August 2010 the applicant had a fight with his neighbour. The neighbour complained to the police that the applicant had injured him.

On the morning of 16 August 2010 the police took the applicant to the Kyivskyy District police station in Kharkiv (“the district police”). The applicant was at the police station from 7 a.m. to 9.45 a.m. and gave evidence in relation to the fight with his neighbour. The applicant claimed that he had acted in self-defence. According to the Government, at 9.45 a.m. the applicant left the police station and had no further contact with the police during the period at issue. His presence at the police station from 7 a.m. to 9.45 a.m. was noted in the police’s records.

According to the applicant, at 9.45 a.m., as he left the police station, police officers took him and drove him to a forest where they beat him up and tortured him using handcuffs and an electric shock device. The police officers then took the applicant to another part of the police station that he had just left, where they continued to ill-treat him. During that time the police officers put pressure on the applicant to admit that he had intended to murder his neighbour. On 19 August 2010 they released him.

On 21 August 2010, following the applicant’s complaint to the internal security unit of the Kharkiv Region police, he was examined by a forensic medical expert. The latter found that the applicant had sustained bruises on his head, nose, upper lip and chest. The expert considered those injuries as being minor and that they could have been caused by blunt, solid objects during a period of three to five days before the medical examination.

On 25 August 2010 the assistant prosecutor of the Kyivskyy District prosecutor’s office of Kharkiv (“the prosecutor’s office”) inspected the premises of the police station where the applicant had allegedly been ill-treated. He found traces of a brown substance on the floor, wall, and balcony, as well as on the pillowcase and two mattress covers. Samples of the substance were taken and submitted to an expert for examination.

On 26 August 2010 the expert stated that the brown substance was blood.

The prosecutor’s office then questioned police officers A., M.B., M.A. and G. They all denied the allegations of ill-treatment and submitted that the applicant had sustained the injuries before being taken to the police station, namely during the scuffle with his neighbour. The officers stated that the applicant’s nose had been injured before and that it bled from time to time, that he had been offered an antiseptic tissue, that he had declined an offer by the police officers to go to a hospital and that he had continued voluntarily to give evidence about the fight with his neighbour. They also mentioned that the applicant had gone on to the balcony to have a smoke where he might have left traces of blood.

On 7 and 8 October 2010 the applicant submitted further complaints of ill-treatment to the internal security unit of the Kharkiv Region police and the prosecutor’s office.

On 29 October 2010 the prosecutor’s office, having completed its pre-investigation inquiry, refused to initiate criminal proceedings concerning the applicant’s allegations that he had been ill-treated by police officers between 16 and 19 August 2010. According to that decision, the applicant had only been present at the district police station between 7 a.m. and 9.45 a.m. on 16 August 2010 and there had been no evidence suggesting that the police officers had been involved in any alleged illtreatment or unlawful detention. The applicant challenged that decision in the courts.

On 23 February 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) found that the decision of 29 October 2010 by the prosecutor’s office had been lawful and substantiated. The applicant appealed.

On 11 April 2011 the Court of Appeal upheld the District Court decision of 23 February 2011. The applicant lodged an appeal on points of law.

On 9 February 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the District Court decision of 23 February 2011 as unfounded and remitted the case to the District Court for fresh consideration.

On 10 May 2012 the District Court reversed the decision of the prosecutor’s office of 29 October 2010, finding that the measures taken to examine the applicant’s allegations had been insufficient. The court ordered a further pre-investigation inquiry to establish the applicant’s whereabouts between 16 and 19 August 2010 and the circumstances in which he had sustained his injuries.

On 27 June 2012 the prosecutor’s office refused to initiate criminal proceedings against the police officers for lack of corpus delicti. According to the decision, which referred to the explanations by the police officers and other evidence, the applicant had left the police station at 9.45 a.m. on 16 August 2010 and there had been no involvement of the officers in any unlawful action in relation to the applicant.

On 19 May 2014 the applicant lodged a complaint under the Code of Criminal Procedure of 2012 (“the CCP of 2012”), alleging that he had been ill-treated by police officers.

On 11 August 2014 the Kharkiv Region prosecutor’s office commenced a pre-trial investigation in relation to the alleged events of 16 to 19 August 2010.

On 13 November 2014 a forensic medical expert issued a report repeating the findings of the forensic report of 21 August 2010 as regards the documented injuries.

On 15 December 2014 the Kharkiv Region prosecutor’s office terminated the investigation, finding that the applicant’s allegations had been refuted by the statements of the police officers, other witnesses, and documentary and medical evidence which suggested that the applicant might have sustained minor injuries during his fight with the neighbour on 15 August 2010.

On 15 September 2010 a forensic medical expert issued a report stating that the applicant’s neighbour had sustained three incised wounds, one of which had been on the neck.

On 23 September 2010 the district police opened criminal proceedings in relation to the moderately severe injuries sustained by the applicant’s neighbour during the fight of 15 August 2010. Subsequently, the case was classified as attempted murder.

At 2.45 p.m. on 9 December 2010 an investigator with the district police arrested the applicant on suspicion of attempted murder. The investigator relied on Article 115 of the Code of Criminal Procedure of 1960 (“the CCP of 1960”). As regards the grounds for the applicant’s arrest without a court decision, the investigator cited the three sub-paragraphs of the first paragraph of Article 106 of the CCP of 1960 (see paragraph 45 below). He further noted in his report that the applicant had been suspected of attempted murder, that he had a record of serious offences, and that his arrest would prevent the applicant from absconding and impeding the execution of a judgment. The investigator then charged the applicant and questioned him in relation to the case.

On 10 December 2010 the District Court ordered the applicant’s pretrial detention. It stated that the applicant had been charged with a serious crime, that he had two criminal offences on his record, and that he had no official income. The court concluded that there was a risk that if the applicant remained at liberty he might impede the establishment of the truth, hide evidence, influence the investigation, abscond or reoffend. The court further considered that a personal guarantee, which had been offered by an NGO in respect of the applicant, would not ensure his proper conduct during the criminal proceedings. Furthermore, there had been no suggestion that the applicant could not be held in a detention facility for health reasons.

On 16 December 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant against the decision of 10 December 2010, finding that there were sufficient grounds to keep him in custody.

On 4 February 2011 a bill of indictment was approved by the prosecutor and the case file was sent to the District Court.

On 25 February 2011 the District Court committed the applicant for trial on a charge of attempted murder. As regards the preventive measure, the court ruled that the applicant should be held in custody. It stated that the applicant had been charged with a serious offence, that he was unemployed, had refused to admit his guilt, and that he had two serious offences on his criminal record. The court pointed out that no new information had been added to the material which had been examined earlier by the District Court and the Court of Appeal when deciding on keeping the applicant in custody.

On 11 May, 1 July and 29 September 2011 the District Court dismissed applications by the applicant for a change in the preventive measure and maintained its earlier decision to keep him in custody. The court stated that the applicant had been charged with a serious offence, was unemployed, had a criminal record, and had refused to admit his guilt. As to the question of bail, the court noted that no document had been produced to suggest that any funds were available for that purpose.

On 12 March 2012 the applicant was released from custody after giving a written undertaking not to abscond. The District Court stated that the trial was in its final stages so the applicant could no longer impede the establishment of the truth. The applicant also had a permanent place of residence where he lived with his family.

On 13 August 2012 the District Court convicted the applicant of inflicting minor bodily injuries on his neighbour. The court found that attempted murder had not been established during the trial. It sentenced the applicant to two years of restriction of liberty. Having regard to the period of the applicant’s pre-trial detention, the court found that the sentence had been served.

On 14 February 2013 the Kharkiv Court of Appeal upheld the judgment of 13 August 2012.

On 9 December 2010, following his arrest and questioning (see paragraph 26 above), the applicant was placed in a police cell. According to the applicant, on the evening and night between 9 and 10 December 2010 police officers beat him up at the police station.

As the applicant had complained about his health, he was examined late in the evening of 9 December 2010 by a panel of doctors who found no injuries on his body.

On 10 December 2010 the hearing before the District Court concerning the preventive measure in the applicant’s case was interrupted because the applicant had to be provided with medical care. The ambulance team which arrived at the court stated that the applicant had concussion, a haematoma by the left eye and a bruise on his chest. The applicant complained that the injuries had been inflicted by police officers.

On the same day the deputy prosecutor of the Kyivskyy District of Kharkiv ordered that the applicant be examined and asked the medical expert to detail, among other things, the nature, quantity, location, and severity of his injuries. He also asked the expert to state whether the injuries could have been inflicted by the applicant himself.

On 11 December 2010, following the court decision of 10 December 2010 to hold the applicant in custody (see paragraph 27 above), he was taken under escort to the Kharkiv pre-trial detention centre. Upon arrival he was examined by the medical staff who documented the following injuries: a haematoma by the left eye, bruises on the left abdominal area and neck, a haematoma on the right thigh, and swelling in his genitals.

On 13 December 2010 a doctors’ panel examined the applicant and found that he had sustained bruising on the soft tissue of his head and had a haematoma on his left eyelid.

On 14 December 2010 the applicant was examined by a forensic medical expert as requested (see paragraph 38 above). In his report of 15 December 2010 the expert stated that the applicant had sustained bruises on his face, neck, chest, left shoulder, right leg and right shin. The expert considered the injuries to be minor and that they had been inflicted by blunt, solid objects during a period of between three to six days before the examination. The expert added that all the injuries could have been selfinflicted.

On 21 December 2010 the prosecutor’s office, having concluded its pre-investigation inquiry, refused to open criminal proceedings concerning alleged police brutality against the applicant on 9 and 10 December 2010. According to the decision, there had been no evidence suggesting that the applicant’s injuries documented after the alleged ill-treatment had been caused by police officers. The decision referred to the police officers’ statements that the applicant had inflicted the injuries on himself.

The applicant challenged that decision before the District Court, but received no reply. In 2012, 2013 and 2015 he made applications to the District Court in relation to his complaint, but to no avail.


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

The applicant company is a limited liability company registered in 2004 in Ukraine, with its registered office in Kyiv.

On 12 April 2005 the applicant company and another company, S., concluded an agreement by which the applicant company undertook to provide information and analytical services to S., and the latter undertook to pay for those services. On 24 November 2005 the parties concluded an additional agreement for supplementary services to be provided to S. by the applicant company.

On 27 April 2006 the applicant company lodged a claim against S. with the Kyiv Commercial Court, seeking recovery of an alleged debt under the above agreement, as well as the payment of penalties and legal fees.

On 9 June 2006 the Kyiv Commercial Court opened the proceedings in the case.

On 11 September 2006, during a hearing in the case, S. submitted a counterclaim, seeking that the agreement be declared void. The court adjourned the hearing until 14 September 2006 without deciding on the admissibility of the counterclaim.

On 14 September 2006 the judge hearing the case accepted S.’s counterclaim for joint consideration with the original claim by the applicant company. At the same hearing, the judge granted S.’s counterclaim in part and rejected the original claim of the applicant company in full. According to the record of the hearing, the hearing lasted ten minutes.

On 13 October 2006 the applicant company lodged an appeal on points of law against the judgment of 14 September 2006 with the Higher Commercial Court of Ukraine (“the HCCU”). It argued that the proceedings before the first-instance court had not been adversarial, and had not complied with the principle of procedural equality between the parties: the first-instance court had not provided the applicant company with an opportunity to prepare and submit observations as to S.’s counterclaim or collect and provide evidence in defence. The applicant company requested that the impugned judgment be quashed and the case remitted to the first-instance court for fresh consideration.

On 9 November 2006 the HCCU returned the applicant company’s appeal on points of law to it without considering the appeal on the merits, because the relevant court fee had not been paid in full.

On 21 November 2006 the applicant company resubmitted its appeal on points of law with proof of having paid the full court fee. The appeal on points of law was submitted together with a cover letter. In the cover letter, the applicant company set out the circumstances which had resulted in its missing the deadline for appealing on points of law, and asked the HCCU to extend the relevant time-limit and consider the appeal. Apart from that information, the cover letter contained the date, name and address of the court to which it was addressed, the case reference number, the parties’ contact details, and the disputed amount which was the subject of the case. The letter ended with a list of enclosures, the applicant company’s lawyer’s details, his signature and a stamp.

On 19 December 2006 the HCCU found that the applicant company had submitted the second appeal on points of law outside the time-limit provided for by Article 110 of the Code of Commercial Procedure, and had failed to enclose an application for an extension. Relying on sub-paragraph 5 of Article 111-3 § 1, the HCCU declined to consider the applicant company’s appeal on points of law.

On 4 January 2007 the applicant company challenged the decision of 19 December 2006 before the Supreme Court, arguing that on 21 November 2006 it had in fact applied for an extension of the time-limit for lodging the appeal on points of law with the HCCU. The application had been included in the text of the cover letter accompanying the appeal on points of law.

On 22 February 2007 the Supreme Court upheld the decision of 19 December 2006.


CASE OF PEREKRESTOV AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicants complained of the excessive length of their pre-trial detention. In application no. 45912/16 the applicant also raised a complaint under Article 5 § 4 of the Convention.


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

On 8 July 1991 the Spanish State instituted proceedings before the Ciudad Real Judge of first instance No. 1 to obtain an order that the Ruidera Lakes (Lagunas de Ruidera), located on part of the land which belonged, partly, to the applicant’s mother (and which he inherited after her death), should be considered the source to the Guadiana River and was therefore in the hydraulic public domain.

On 27 March 2002 the Ciudad Real Judge ruled in favour of the applicant’s mother (and several other defendants) and declared that the Ruidera Lakes fell into the private domain. However, on 6 November 2003 the Ciudad Real Audiencia Provincial quashed that judgment and declared that the Ruidera Lakes had to be classified as being in the public domain.

The applicant’s mother, along with the other co-defendants, lodged an appeal on points of law (recurso de casación) with the Supreme Court. On 2 July 2004 the Ciudad Real Audiencia Provincial sent the complete file, along with the appeals lodged by the parties, to the Supreme Court. On 22 June 2009 the Supreme Court issued a judgment ruling against all the appellants and upholding the judgment of the Ciudad Real Audiencia Provincial.

On 4 September 2009 the applicant (as his mother’s heir with locus standi) lodged an amparo appeal with the Constitutional Court complaining, inter alia, of the excessive length of the proceedings. By a decision of 28 July 2010, served on the applicant on 2 September 2010, the Constitutional Court dismissed the appeal on the grounds that it had no constitutional relevance.


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


No violation of Article 6+6-2 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-2 - Presumption of innocence)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Skuodas. He worked as a traffic police officer in the Skuodas Region.

On 7 November 2007, at around 2 p.m., three ten-year-old children were hit by a car in the village of Aleksandrija in the Skuodas Region. Two of the children died at the scene and the third died later that day in hospital. The car left the scene of the crash immediately. A criminal investigation was opened the same day.

The following morning, at around 7 a.m., the applicant turned himself in to the police and confessed that he had been driving the car. The applicant submitted that he had not drunk any alcohol before the accident and that he was unable to give the exact speed he had been going. He stated that he had seen a group of children walking in front of him and “had briefly lost control of the car”, the car had gone off the road and “hit something”. The applicant submitted that he did not remember hitting the children “because everything had happened very fast”. Nor did he remember anything that had happened after the accident because he “had been in shock”. He stated that the only thing he remembered was waking up in a summer house the morning after the accident, after which he had gone to the police to confess.

On the same day the applicant was served with an official notice that he was suspected of a breach of road traffic safety regulations which had resulted in the death of other persons (Article 281 § 5 of the Criminal Code) and of a failure to provide assistance to persons in a life-threatening situation (Article 144 of the Criminal Code). He was detained on remand and suspended from his post as a police officer.

The accident attracted considerable media attention. On 8 November 2007 one of the biggest national newspapers, Lietuvos rytas, published an article entitled “A police officer’s BMW crushed fourthgraders” (Policijos patrulio BMW traiškė ketvirtokus). The article stated that it was “suspected that the car was being driven by the police officer S. Paulikas” because the car belonged to his mother. It published interviews with several of the village’s residents, who described the details of the accident and alleged that the applicant may have been drunk. The article also mentioned that two years previously another police officer had caused a traffic accident in the Skuodas Region in which two children had received fatal injuries, but that the criminal proceedings against the officer had been discontinued.

On the same day the website of Lietuvos rytas carried an article headlined “After horrific accident in Skuodas Region [the Minister of the Interior] suggests [the Police Commissioner General] should resign”. It quoted a statement made by the Minister:

“Apologies will not suffice. The chief of the police must assume personal responsibility for this terrible incident. Especially as this was not the first time that police officers, who are supposed to stop traffic violations, have themselves caused terrible accidents. If I do not receive any reaction from the police chief, I believe that further efforts to improve the work of the police will be impossible and I will be ready to step down myself.”

The Police Commissioner General told journalists that he “accepted responsibility” because “the chief is responsible for what happens in the police organisation”. However, he expressed doubts whether “every such incident” should lead to the resignation of senior police officers.

The article also quoted the President’s spokesperson as questioning “how many more victims of the war on the roads will it take for politicians and State officials to finally notice and start solving the problems on the roads”. The article stated that the President was awaiting a response from the Ministry of the Interior and from the police on whether they had been making sufficient efforts to create “an atmosphere of absolute intolerance” for officers and public officials who abused intoxicating substances.

On 9 November 2007 Lietuvos rytas published a photograph of the applicant on its front page, with a caption reading “the man who caused the horrific accident (kraupios avarijos kaltininkas), S. Paulikas, turned himself in only after it was no longer possible to detect if he had been driving while drunk”. It also published an article entitled “Both [the Police Commissioner General] and [the Minister of the Interior] must resign”, providing comments from the leaders of the main political parties about who should take political responsibility for the accident and for the “ineffective road traffic safety policy”. That day and the day after Lietuvos rytas published details of over a dozen traffic accidents which had been caused by police officers since 2000, where it had been suspected that the officers had driven while being drunk and where people had been killed or seriously injured but the officers had received mild sentences or had escaped criminal liability altogether.

On 12 November 2007 the Police Commissioner General and the Minister of the Interior resigned. In an official statement issued on the same day, the President of Lithuania stated:

“Over the past few days the whole of Lithuania has shared the pain of [the three families] who lost their children in an accident caused by a police officer. The seventh of November was not only the day of their tragedy but also reflected a serious crisis within the police force. The tragedy in the Skuodas Region emphasised the problems ingrained in the system of interior affairs and further diminished public trust in the police. The loss of children’s lives, the crime committed by an officer and its circumstances require clear answers why that happened, and determined solutions. It is intolerable that crimes committed by officers are justified or punished by relatively mild sentences.

A police officer must feel a higher degree of responsibility than an ordinary citizen and he must by his actions set an example to society because he has been obliged by the State to protect public order and thus ensure the safety of society. A crime committed by an officer cannot be a simple statistical fact. It must be thoroughly examined and especially strictly evaluated (kruopščiai ištirtas ir itin griežtai įvertintas).

The rest of the statement discussed problems within the police force, such as a lack of qualified personnel, inadequate training and low pay. It also urged all police officers to act in accordance with their mandate and asked the general public not to judge all officers on the basis of offences committed by a few.

Many more articles in the press reported on the accident, the suspicion that the applicant had driven while being drunk, the funerals of the three children, reactions within the village, public protests in front of Skuodas police station, previous traffic accidents caused by police officers, and the resignations of the Minister of the Interior and the Police Commissioner General.

On 29 December 2007 the applicant was charged with a breach of road traffic safety regulations while being under the influence of alcohol which resulted in the death of other persons (Article 281 § 6 of the Criminal Code) and with a failure to provide assistance to persons in a life-threatening situation (Article 144 of the Criminal Code).

According to the rules of territorial jurisdiction, the case against the applicant should have been examined by the Skuodas District Court. However, it was transferred to the Klaipėda District Court because two of the Skuodas District Court judges had participated in the pre-trial investigation and the chairperson of the court had previously worked with the applicant’s father.

On 31 January 2008 the Klaipėda District Court began its examination of the applicant’s case. The court heard testimony from the applicant, his colleague M.K., who had been in the car with the applicant at the time of the accident, and another colleague V.J., who had been driving in a different car and had helped the applicant to leave the scene of the accident. It also heard other workmates who had seen the applicant before or soon after the accident, as well as the waitress from the restaurant where the applicant and M.K. had had lunch before the accident, the parents of the three children who had died, residents of the village who had witnessed the accident, and several court-appointed experts.

The applicant admitted that he had been driving the car and that the three children had died as a result of the accident. However, he stated that he had not been drunk and had not exceeded the speed limit. He also argued that the accident had been caused by the weather and the reckless actions of some of the children.

All the hearings were held in public as none of the parties had asked for them to be closed, and several newspapers reported on the witness evidence. In a number of publications the applicant was called “a killer of children” (vaikų žudikas) and mocked for “suddenly losing his memory” (staiga sutriko atmintis) when testifying in court. The colleagues who testified in favour of the applicant were collectively called “defenders of the killer of children” (vaikų žudiko užtarėjai) who were “trying to get him off” (bando išsukti). The newspapers also expressed sympathy to the children’s families for having to “relive those cruel events”. Excerpts of the testimony of many of the witnesses, both in favour of and against the applicant, as well as the applicant’s final statement, were reprinted word-for-word.

On 17 March 2008 the Klaipėda District Court found the applicant guilty of both charges. The court established that the accident had occurred when the applicant had been under the influence of alcohol. It examined a video-recording from the restaurant where the applicant and M.K. had had lunch before the accident, showing that the two men had each drunk half a bottle of vodka. Another video-recording from the petrol station in which the applicant and M.K. had stopped after lunch showed the applicant buying two more bottles of vodka. Several witnesses – the waitress from the restaurant, some of the applicant’s colleagues, and people who had been present when the accident had happened – stated that the applicant had looked and sounded drunk. On the basis of that evidence, the court found that before the accident the applicant had consumed between 200 and 250 grams of alcohol. A court-appointed expert stated that after consuming so much alcohol the alcohol level in the applicant’s blood must definitely have been above the legally permitted threshold of 0.4 per mille (see paragraph 29 below). The court also noted that even though tests of the applicant’s blood and urine had not detected any traces of alcohol, they had not been reliable because they had been taken more than seventeen hours after the accident. The court held that since the applicant had deliberately hidden from the authorities during that period and had only given himself up the morning after the accident (see paragraph 7 above), he could not use the negative blood and urine tests to his advantage.

The Klaipėda District Court also established that at the time of the accident the applicant’s car must have been going at a speed of at least 105 km/h. A court-appointed expert examined the tyre marks at the scene of the accident, the damage done to nearby objects and the positions in which the three children had been found, and reconstructed the course of events of the accident. The applicant’s colleague V.J., who had been driving in the car behind the applicant, testified that he himself had been going at around 100 km/h but had been unable to keep up with the applicant. Several people who had been present at the accident also stated that the noise made by the applicant’s car had indicated a very high speed. The court noted that the speed limit in the village was 50 km/h and that this must have been known to the applicant, who had worked as a police officer in the area. The court concluded that the accident had been caused by the excessive speed of the applicant’s car and not by the weather or the actions of the children.

The Klaipėda District Court also found the applicant guilty of failing to provide assistance to persons in a life-threatening situation. The court noted that the applicant had not shown any interest in the condition of the three children or called an ambulance but had immediately fled the scene of the accident. The court observed that the obligation to help people in lifethreatening situations was enshrined in the Law on Police Activity, with which the applicant had had to comply. By failing to do so, he had breached Article 144 of the Criminal Code (see paragraphs 29-30 below).

The court found no mitigating circumstances in the applicant’s favour. However, the fact that the victims had been minors was considered as an aggravating circumstance. The court also took the applicant’s character and his behaviour during and after the accident into account: he had been under the influence of alcohol, three people had died as a result of his actions, he had fled from the scene of the accident, had not expressed any remorse, had attempted to mislead the court by providing contradictory testimony, and his actions had discredited the authority of the police. As a result, the Klaipėda District Court held that the applicant’s punishment should be close to the maximum provided by law (see paragraph 29 below). He was given a consolidated sentence of ten years’ imprisonment, prohibited from driving a vehicle for three years, and ordered to pay a total of 3,000,000 Lithuanian litai (LTL, approximately 870,000 euros (EUR)) in non-pecuniary damages to the families of the three children.

Reporting on the sentence, Lietuvos rytas quoted excerpts from the judgment and published a brief statement by the mother of one of the children, who expressed her overall satisfaction with the judgment but stated that criminal laws should be changed to provide for stricter punishments.

The applicant appealed against the judgment. Among other things, he argued that he had not received a fair trial because of a media campaign against him. He argued that the media had ridiculed and discouraged the witnesses who had testified in his favour and that journalists and high-level State officials had urged the court to order the strictest sentence possible. The applicant stated that this had prevented the first-instance court from examining his case objectively. The applicant also argued that he had been given a stricter punishment because he was a police officer, which had constituted discrimination on the grounds of social status.

On 5 December 2008 the Klaipėda Regional Court partly amended the first-instance judgment. It upheld the lower court’s findings concerning the applicant’s drunkenness and the speed of his car, and dismissed the applicant’s complaint concerning discrimination. However, the Klaipėda Regional Court accepted the applicant’s argument that the age of the victims should not have been considered as an aggravating circumstance because the criminal offence had not been premeditated. Accordingly, the court reduced the consolidated sentence to nine years’ imprisonment. It also considered that the amount of non-pecuniary damages awarded by the first-instance court had been excessive and not reasonably related to the applicant’s means. Instead, the court awarded a total of LTL 900,000 (approximately EUR 261,000) to the three families. The prohibition on driving a vehicle for three years was upheld.

In response to the applicant’s complaints concerning the lack of a fair trial, the Klaipėda Regional Court stated that the media interest in the case had been understandable owing to its sensitive nature and that the media could not be prevented from reporting on public hearings. However, the court held that the first-instance judgment had been well-reasoned and based on reliable evidence, so there were no grounds to find that the judges had been influenced by the media or the statements of any of the officials.

On 8 May 2009 the Supreme Court dismissed a cassation appeal by the applicant and upheld the judgment of the Klaipėda Regional Court. It stated that the appellate court had provided an adequate examination of the applicant’s complaints concerning the fairness of his trial and that there was no need to re-examine them.

In January 2015 the applicant was released on probation. According to the Government’s observations submitted to the Court on 21 June 2016, the applicant had up to that date paid a total of LTL 2,268 (approximately EUR 657) in non-pecuniary damages to the victims’ families.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

At the relevant time all applicants were employed in a company called Kombinat aluminijuma Podgorica.

On 4 November 2003, 5 November 2003, and 28 January 2004 the applicants brought separate civil claims against their employer in the First Instance Court in Podgorica, seeking payments of the difference between the salaries which they had received and those which they had allegedly been entitled to on the basis of the Collective Labour Agreement (Kolektivni ugovor o radu).

On 7 March 2009 the first instance court in Podgorica joined and dismissed the applicants’ cases.

On 26 March 2009 the applicants lodged an appeal with the High Court in Podgorica. On 25 September 2009 the High Court upheld the decision of the first instance court.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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

The applicants were born in 1974 and 1979 respectively and are serving whole life sentences in Burgas Prison.

The facts of the case can be summarised as follows.

In November 2001 both applicants were arrested on suspicion of murder and were remanded in custody. In September 2002 they were transferred to Burgas Prison. In December 2004 the trial court, Burgas Regional Court, found them guilty of murder resulting from terrorist activity and sentenced them to whole life imprisonment, to be served initially under the “special regime”. In April 2006 the appellate court, Burgas Court of Appeal, upheld that sentence which was further upheld by the Supreme Court of Cassation in a final judgment of 16 January 2008.

The applicants have been serving their sentences under the “special regime” in Burgas Prison, in permanently locked individual cells measuring 1.5 by 3 metres, under heightened security supervision. Both applicants have been allowed out of their cells for between one and two hours a day to take exercise in the open, which they have been spending walking in the prison courtyard.

The parties diverge in respect of the material conditions in which the applicants have been kept.

According to the applicants, the daylight in the cells has been scant and a light bulb attached to the ceiling has been on 24 hours a day. There is so little unencumbered space in the cell that the applicants are forced to spend most of the day either lying or sitting on their beds. There are no toilets in their cells and, since the beginning of 2008, the prison authorities have allowed them to use the common sanitary facilities three times a day. The rest of the time they use a bucket to satisfy their physiological needs. Hygiene is rather poor: the prison premises, including the canteen and kitchen, are infested with cockroaches and rats. The food is of inadequate quality and insufficient quantity. The medical service in the prison lacks even the most basic medical supplies. Mr Dimitrov caught psoriasis in prison and because of the absence of adequate treatment his condition has deteriorated into psoriatic arthritis.

According to the Government, the applicants’ cells are equipped with toilets and the light is sufficient for them to read and write. In addition, the prison premises are cleaned every day and a thorough cleaning is carried out weekly by a specially designated individual. The authorities employ the services of an external company which regularly cleans and disinfects all prison areas. The prison director supervises the quality and quantity of the food offered to the inmates who receive meat dishes six times a week and a vegetarian dish once a week. The prisoners have access to a bathroom with hot running water six times a day. Sometimes they spend up to two hours a day in the open. They can visit the prison library, the prison chapel, as well as take part in – unspecified – group activities. Mr Ribov has tended to participate in them happily, while Mr Dimitrov has refused to do so without giving any reason for that.


CASE OF MILLBANK AND OTHERS v. THE UNITED KINGDOM

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election;Vote)

Paul Mahoney;Pauliine Koskelo;Robert Spano

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

The applicants, who are convicted prisoners, complained about their ineligibility to vote in elections.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

The applicant was born in 1963 and lives in Pyatigorsk.

The applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently registered disabled by Ukrainian authorities, becoming entitled to various social benefits.

In September 1999 the applicant settled in Russia. The welfare authorities rejected re-establishing the applicant’s disability status. The applicant challenged the rejection before the courts.

On 30 August 2005 the Pyatigorsk Town Court granted the applicant’s claim and ordered the Administration of Labour and Social Security of the Population of Pyatigorsk to issue a certificate of benefits.

On 20 September 2009 the judgment became final.

On 18 October 2005 the applicant was issued with the certificate of benefits.

On 1 November 2006 the Presidium of Stavropol Regional Court allowed the defendant authority’s application for supervisory review and quashed the judgment of 30 August 2005, considering that the lower courts misapplied the material law. The case was remitted for fresh consideration.

On 13 December 2006 the the Pyatigorsk Town Court discontinued the proceedings since the parties failed to appear.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Síofra O’Leary;Yonko Grozev

The applicant was born in 1954 and is currently residing in Kostyantynivka. Before his arrest the applicant was the managing director of a private company, A.

A. concluded a contract with E., a Russian company, undertaking to export a certain amount of ferromanganese to Russia.

During the period from March 2000 to April 2001 the applicant, in his capacity as the director of A., concluded contracts with four Ukrainian companies, F., T., M. and Sh. (“the seller companies”) According to those contracts A. would buy the goods from the companies and pay them sums which included value added tax (VAT).

On a number of occasions between March 2000 and April 2001 A. exported ferromanganese to Russia, delivered it to E. and received payment for it. Subsequently, A. claimed and, in April 2002, received from the Ukrainian authorities a refund of the VAT mentioned in the contracts with the seller companies.

In 2002 criminal proceedings were instituted against the applicant. According to the investigating authorities, the contracts which A. had concluded with the four seller companies were fictitious and had been concluded for the sole purpose of obtaining export VAT refunds. In fact those companies had not sold ferromanganese to A. Instead, the applicant and his co-defendants had bought the ferromanganese from private persons, without concluding any contracts with them and without paying VAT on those transactions. The applicant had then forged certificates of quality and fraudulently obtained certificates of origin for the goods. Using all the above documents, A. had exported the goods to Russia. He had then obtained or applied for VAT refunds based on the fictitious documents.

The applicant stated that the contracts had not been fictitious and the certificates had not been forged. A. had legally bought ferromanganese from the private companies, exported it to Russia and received tax refunds.

During the pre-trial investigation, the investigating authorities questioned managers of the four seller companies and the owner of a lorry which had been used for transporting the goods. They made certain statements the domestic courts subsequently found to be incriminating. In particular, managers of the four seller companies said that the contracts had been either forged or fictitious and that no actual shipments of the goods had taken place. Some of the managers repeated those statements in the course of confrontations with the applicant conducted in the course of the pre-trial investigation. Detailed information about the statements of the witnesses and confrontations can be found in the Table set out in paragraph 17 below.

On an unspecified date the investigation was completed and the case was referred to the Kostyantynivka Court for trial.

On at least five occasions between 28 November 2003 and 27 August 2004 the court ordered the Donetsk regional police to bring the witnesses listed in the Table below to court hearings, but the police failed to do so for various reasons.

On 27 August 2004 the police informed the court, in response to its latest order to bring the witnesses to court, that S., K. and R. (see Elements 1-3 in the Table below) were away from Donetsk on holiday.

At the court hearing held on the same day the prosecutor, in the light of the above-mentioned information from the police, asked the court to read out the pre-trial statements of the witnesses who had failed to appear, including all those listed in the Table below. The defence did not object and the statements were read out. The court then proceeded to examine the documents in the file.

On 29 September 2004 the applicant’s lawyer requested the court to summon S., K. and R. again (see Elements 1-3 in the Table below), because the examination of documents had revealed inconsistencies in their pre-trial statements and because the reasons for their failure to appear had not been established. The trial court refused the request on the grounds that the statements of those witnesses had already been read out at the trial.

On 24 December 2004 the court found the applicant guilty of smuggling (export of ferromanganese based on forged documents), misappropriation accompanied by abuse of office (receipt of tax refunds on the basis of fictitious and forged documents), abuse of office, and forgery of documents. For the charge of misappropriation accompanied by abuse of office the applicant was sentenced under the Criminal Code of 2001 to seven years and six months’ imprisonment with a ban on holding managerial positions for two years. He was also sentenced to various other more lenient punishments under the Criminal Code of 2001, but the court held that the most severe of the applicant’s punishments absorbed the more lenient ones. The final sentence was thus seven years and six months of imprisonment with a ban on holding managerial positions for two years.

In convicting the applicant the court relied, in particular, on the statements of a number of witnesses given during the pre-trial investigation, as shown in the below Table:

Table. Witness evidence

The trial court also relied on certain inconsistencies between the official records of the applicant’s company and the shadow accounting records discovered by the authorities.

The applicant and his lawyer appealed. They stated, inter alia, that the trial court had relied on the evidence of witnesses who had not been examined at the trial and that he should have been tried for smuggling under the Criminal Code of 1960.

On 4 March 2005 the Donetsk Regional Court of Appeal held that the applicant should be deemed to have been convicted for smuggling under the Criminal Code of 1960 instead of the Criminal Code of 2001. Otherwise, the Court of Appeal upheld the findings of the first-instance court and the applicant’s sentence.

According to the applicant, the appellate court did not give him a copy of the decision of 4 March 2005, despite his numerous requests.

In March 2005 the applicant’s lawyer appealed on points of law to the Supreme Court against the decisions of 24 December 2004 and 4 March 2005 and enclosed copies of those decisions with her appeal. In May, June and August 2005 the applicant lodged his own appeals with the Supreme Court, stating, inter alia, that the trial court had relied on evidence of witnesses who had not been examined at the trial. The applicant also stated that he should have been tried for misappropriation, abuse of office and forgery under the Criminal Code of 1960, rather than the Code of 2001, but did not provide any details.

On 6 September 2005 the Supreme Court heard the case in the presence of the prosecutor but in the absence of the applicant and his lawyer, who were not informed of the date and time of the hearing. The Supreme Court dismissed the appeals lodged by the applicant and his lawyer, stating that the lower courts’ findings had been based on a substantial amount of evidence, in particular the statements of the directors of the seller companies made at the investigation stage.

On 15 May 2009 the applicant was released from detention following a presidential pardon.


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

Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in 1975 and lives in Norilsk.

The applicant was convicted in 1998 and 2000; having partially served his sentence of 2000, he was released on parole.in 2002.

On 14 October 2003 the police carried out a test buy of drugs from the applicant, searched his flat and seized, in particular, the drugs, an audio system and 9,000 Russian roubles (RUB).

On 21 November 2003 the Norilsk town court (“the town court”) retroactively upheld the seizure of the audio system and RUB 9,000 for securing an eventual confiscation order. A sum of RUB 1,500 was also seized on an unspecified date. The investigator deposited the audio system to the police warehouse; the sum of RUB 10,500 was deposited onto the police bank account.

The applicant was charged with drug-related crimes. On an unspecified date the investigation file was transferred to the town court for trial.

On 3 March 2004 the applicant’s retained lawyer Mr B. failed to attend a trial hearing. The town court rescheduled the hearing on 12 March 2004.

On 12 March 2004 Mr B. again failed to attend the hearing; the trial court appointed Ms V., a legal-aid lawyer, to represent the applicant. It follows from the trial record that the applicant did not indicate any failings on the part of Ms V. to the trial court.

At some point between 12 and 30 March 2004 the applicant decided to replace Mr B. with Ms M. as his retained lawyer.

On 30 March 2004 the town court held the second hearing. It convicted the applicant of a drugrelated offence and procurement and possession of firearms and sentenced him to ten years’ imprisonment. The town court ordered that RUB 10,500 and the audio system be confiscated as “unlawfully acquired”.

On 6 July 2004 the Krasnoyarsk regional court (“the regional court”) quashed the conviction for procurement and possession of firearms and reduced the applicant’s sentence for the drugrelated crime to nine years and six months’ imprisonment. In the remaining part the judgment of 30 March 2004 was upheld and became final and enforceable.

On 3 November 2004 the applicant sent an introductory letter to the Court in which no specific complaint was raised.

On 15 November 2004 the sum of RUB 10,500 was added to the State budget.

On 6 June 2005 the applicant sent to the Court a completed application form complaining for the first time that Mr B. had not represented him on 12 March 2004.

On 3 November 2005 the audio system was sold for RUB 2,274.30; the proceeds were added to the State budget.

On 21 April 2006 the town court brought the applicant’s sentences for the crimes committed in 2000 and 2004 into conformity with the amendments in law; the decision was upheld on appeal on 20 June 2006.

On 20 June 2007 the applicant complained to the Court for the first time about the order to confiscate his property contained in the judgments of 30 March and 6 July 2004.

On 11 November 2007 the presidium of the regional court delivered two separate supervisory review rulings: one in respect of the decisions bringing the sentences of 2000 and 2004 into conformity with the new law, by which it mitigated the sentences on technical grounds, and one in respect of the judgments of 30 March and 6 July 2004. In the latter the presidium briefly confirmed lawfulness of the applicant’s conviction and declared the judgments unlawful in the part concerning confiscation of the applicant’s property, which it remitted for a fresh examination in the first instance.

On 5 May 2008 the town court decided that RUB 10,500 should be repaid and the audio system should be returned to the applicant. The decision became final and enforceable. On the same date a writ of execution was issued.

On 11 July 2008 the bailiffs’ service opened enforcement proceedings in respect of the writ of 5 May 2008. No further actions to ensure enforcement were taken.

The final decision of 5 May 2008 remained unenforced as the audio system had been sold and the money sent to the State budget.

On 29 April 2009 the Registry of the Court requested the applicant to produce a copy of the trial record.

The applicant asked the town court for a copy; the request was denied as the applicant had already been provided with a freeof-charge copy and had failed to pay a court fee for an additional one as required by domestic regulations.

On 29 May 2009 the applicant informed the Court that he had been trying to obtain a copy of the record. Later he succeeded at that.

On 8 November 2010 the Norilsk town prosecutor’s office criticised the bailiffs’ failure to act and issued an instruction ordering them to take measures to enforce the decision of 5 May 2008.

On 24 November 2010 the town court changed the manner of execution of the decision of 5 May 2008 in respect of the audio system and decided that the applicant should be paid RUB 2,274.30, the sum for which the audio system had been sold.

The decision of 5 May 2008 remained unenforced.


CASE OF ARTYUSHKOVA AND OTHERS v. RUSSIA

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. In application no. 20435/09, the applicant also raised other complaints under Article 6 of the Convention.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1952. Until his death in 2016 he was detained in correctional colony no. 14 in the village of Olovyannaya, Zabaykalsk Region.

On 29 January 2014 the Fokino Town Court of the Primorskiy Region convicted the applicant of murder and sentenced him to six and a half years’ imprisonment. On the same day he was taken into custody.

Prior to his detention the applicant sustained several spinal injuries and lost the ability to walk unaided. Since 2013 he has been confined to a wheelchair.

On his admission to a remand prison in January 2014, the applicant was given a general medical check-up by the doctor on duty, to whom he complained of lower back and joint pain. The doctor provisionally diagnosed him with spinal tuberculosis. No drugs were prescribed.

According to the applicant’s submissions, which were not disputed by the Government, he was put in an ordinary cell not equipped for wheelchairusing detainees. As a result he suffered various inconveniences, including restricted access the toilet.

Several days later he was seen by a medical specialist, who amended his diagnosis to osteoporosis with compression fractures of two discs of the lumbar spine.

In February 2014 he was examined by a neurologist, who noted that one of his diagnoses was paraplegia, impairment in motor function of the lower extremities. He was advised to undergo various medical examinations and tests, including magnetic resonance imaging (MRI) of the spine and a hip X-ray.

In April 2014 a prison surgeon established that the osteoporosis affected not only the applicant’s spine, but also his legs. He was prescribed pain relief medication and advised to undergo several medical tests.

There is no information in the applicant’s file to suggest that the remand prison authorities gave him medication, an MRI scan or radiography. According to the applicant, even painkillers were unavailable in the remand prison.

On 9 April 2014 the applicant was sent to serve his sentence in correctional colony no. IK-14/7. On his arrival he was seen by a prison doctor who, in addition to the spinal and joint conditions, diagnosed him with coronary heart disease, angina pectoris and moderate hypertension disease. He was prescribed and provided with comprehensive drug treatment.

The Government did not provide any evidence to show that the correctional colony had any special facilities to accommodate wheelchairusing prisoners.

On 30 July 2014 the applicant was sent to prison hospital no. 1 in Chita, Zabaiykalsk Region, for an in-depth medical examination to establish whether he was entitled to early release on medical grounds.

A hip X-ray revealed that he suffered from an old displaced fracture of the cervical hip with full avulsion of the greater trochanter.

On 27 August 2014 a specialist medical panel of the prison hospital concluded that the applicant was not eligible for early release, because none of his illnesses were included in the governmental decree containing a list of illnesses precluding offenders from serving their sentences. On the same day the applicant was discharged from the prison hospital.

On 2 October 2014 the Olovyannaya District Court dismissed the applicant’s application for early release, referring to the medical report of 27 August 2014. That decision was upheld on appeal by the Zabaiykalsk Regional Court on 16 December 2014.

In the meantime the applicant lodged several complaints with the head of the prison medical authorities, the Federal Service for the Execution of Sentences and the Federal Supervisory Service for Healthcare and Social Development of the Russian Federation. The latter authority found a shortcoming in the applicant’s treatment, namely a failure to ensure he was examined by an orthopaedic traumatologist.

On 25 March 2015 the applicant was seen by a traumatologist, who diagnosed him with an inguinal hernia and recommended surgery to be performed at a later date. The doctor also stated that he should be provided with a walking stick and a walking frame.

Over the months that followed the applicant was regularly seen by prison doctors and provided with hypotensive drugs and pain relief drugs.

In the meantime he brought a civil claim against the medical authorities seeking compensation for damage to his health caused by inadequate medical treatment.

On 15 June 2015 the Central District Court of Chita dismissed the claim. Having looked at the list of medical services provided to the applicant, the court concluded that he had been afforded adequate medical treatment. It appears that no appeal followed.

On 1 September 2015 a neurologist ordered the applicant’s admission to the prison hospital, which would involve a train journey. The applicant refused, arguing that prison train carriages were not equipped to transport wheelchair-using detainees.

On 27 June 2016 the applicant died of a heart attack.


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

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1933 and lives in Innsbruck.

The applicant was the manager of Alpenland Holland B.V., a company registered in the Netherlands dealing with artwork.

On 11 May 1994 the Innsbruck Tax Authority first informed the Innsbruck Public Prosecutor of the suspicion of tax fraud by the applicant in connection with the sale of several pieces of artwork by Alpenland Holland B.V.

On 16 May 1994 the Innsbruck Regional Court issued an order for the applicant’s home to be searched. The search was conducted on 30 May 1994, which is also the date when the applicant was first notified of the investigations against him.

On 26 February 1997 the Innsbruck Tax Authority submitted its final report to the Innsbruck Public Prosecutor.

On 8 June 1998 the Innsbruck Public Prosecutor issued an indictment against the applicant concerning the suspicion of tax fraud during the years 1989, 1990 and 1992, alleging that the applicant had evaded taxes amounting to 6.87 million. Austrian Schilling (equivalent to approximately 500,000 euros (EUR)).

The Innsbruck Regional Court held oral hearings on 19 November 1998, 14 January 1999 and 5 October 2000. On the latter date it acquitted the applicant of the charges. On 22 November 2001 the Supreme Court quashed the judgment upon a plea of nullity by the Innsbruck Tax Authority and referred the case back to the first instance for a re-trial.

After having held oral hearings on 5 June 2002, 9 September 2002 and 14 October 2002, the Innsbruck Regional Court convicted the applicant of tax fraud and sentenced him to a fine of EUR 120,000, EUR 40,000 of which was suspended on probation. The judgment was served on 16 November 2002. The applicant lodged a plea of nullity.

On 11 September 2003 the Supreme Court again quashed the judgment and referred the case back to the first instance.

In March 2003 the Innsbruck Regional Court commissioned an expert to determine the assessment base for the calculation of the taxes.

On 18 and 19 November 2004 and on 23 December 2004 further oral hearings were held. The Innsbruck Regional Court remarked in a note to the file dated 14 February 2005, quoting the case Hennig v. Austria (no. 41444/98, 2 October 2003), that the length of the proceedings was already considerable, and admitted that this was attributable to the court system.

In March 2004 the expert opinion was delivered. During the oral hearing of 18 May 2006 the Innsbruck Regional Court requested the expert to supplement his report, as it had turned out to be incomplete and did not answer the most relevant questions. A revised expert opinion was received in March 2007.

During the oral hearing on 29 May 2009, at which the applicant was heard, the Innsbruck Public Prosecutor withdrew the indictment because the statutory time-limit for the prosecution of the offence had expired. Consequently, the Innsbruck Regional Court acquitted the applicant of the charges (judgment delivered orally on 29 May 2009, served on the applicant’s counsel on 25 February 2010). The written judgment contained, inter alia, the following wording:

“The above-mentioned sales transactions solely aimed at the commission of tax fraud in Austria. No levies were paid in the Netherlands in connection with the sale of the paintings. The profits made constitute income deriving from a business according to Section 23 of the Income Tax Act [Einkommenssteuergesetz], which from an economic point of view are attributable to the applicant according to Section 21 of the Federal Tax Rules [Bundesabgabenordnung]. Taking into account the expenses incurred, tax loads and therefore tax evasion amounting to ATS 975,122.09 (EUR 70,864.89) turnover tax, ATS 4,104,950.75 (EUR 298,318.40) income tax and ATS 1,495,319.40 (EUR 108,669.09) business tax arose.

The accused was determined to effect these transactions in order to mask his tax liability in Austria and thereby commit tax fraud. ...

From a legal point of view, it follows from the facts that the accused was to be acquitted even though the elements of the offence were fulfilled, as the Public Prosecutor withdrew the indictment ...”

Following the Court’s notification of the present application to the Government, the latter informed the Court that, on 18 September 2014, the Procurator General’s Office had lodged a plea of nullity for the preservation of the law regarding the judgment of the Innsbruck Regional Court of 29 May 2009.

On 6 November 2014 the Supreme Court held that the judgment in question had violated the applicant’s rights under Article 6 § 2 of the Convention, namely the right to be presumed innocent until proved guilty, on the grounds that the Innsbruck Regional Court had stated in its reasoning that it considered the applicant to be guilty, even though it acquitted him.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained under Article 5 § 3 of the Convention of the excessive length of their pre-trial detention. The applicant in case no. 29899/09 also complained under Article 5 § 4 of the Convention about the domestic courts’ failure to speedily examine his appeals against a number of detention orders.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

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

The applicant was born in 1965 and lives in Rastatt.

He has a daughter, H., born on 29 June 2003. He and the child’s mother, who were not married, separated shortly after the birth. The child lives with her mother, who has sole parental authority.

Since the end of 2003, the parents have argued about contact. In April 2004, the applicant lodged his first request for contact with the Neustadt/Weinstraβe Family Court. During a hearing in June 2004 the parents agreed to him having supervised contact, which took place until October 2004. On 8 December 2004 the parents reached a further agreement for supervised contact, which was approved by the Family Court.

On 21 February 2005 the applicant requested that the supervising Youth Office, which had refused to continue to be involved due to the parties’ behaviour, be replaced by another child protection association. On 11 July 2005 the Family Court granted this request. By a letter of 21 October 2005, the appointed child protection association refused to act upon the Family Court’s instructions because of the mother’s behaviour.

On 28 October 2005 the applicant requested the Family Court to impose a coercive fine on the mother in order to enforce contact rights. On 17 May 2006 the parents agreed on a court-approved contact arrangement. On 18 September 2006 the Family Court, upon the applicant’s request, appointed an access facilitator (Umgangspfleger). The order was subject to a time-limit expiring on 31 December 2006. Subsequently, the contactarrangement was implemented in a more or less regular way.

On 8 May 2007 the applicant asked the court to extend contact, reappoint a custodian ad litem (Verfahrenspfleger) and impose a coercive fine on the mother. In reply, the mother requested that contact be suspended for two years. On 22 December 2008, after having again heard an expert, the Family Court suspended contact until 31 December 2009. The applicant’s constitutional complaint (no. 2084/09) was to no avail.

On 22 January 2010 the applicant requested an extension of contact following the end of the suspension period. After hearing the child in person, on 12 April 2010 the Family Court granted the applicant contact on a fortnightly basis. At the same time it gave specific directions about the contact and set out sanctions to be applied if the parents did not comply with the order. Contact did not take place.

On 2 September 2010, after having heard the child again, the Family Court, at the mother’s request, suspended the applicant’s contact until the conclusion of the main proceedings and rejected his requests for a coercive fine.

On 15 April 2011 the Family Court heard both parents, the child and the child’s custodian ad litem. Relying on the opinion of a psychiatrist, Dr B., submitted both in writing and explained orally, it granted the applicant contact of two hours every fortnight. It appointed a guardian, who was given specific directions as to how the child should be prepared for contact and how the meetings should be organised.

The mother appealed against this decision. The applicant pursued his request for contact and furthermore requested that the Zweibrücken Court of Appeal order the mother to supply regular information on the child’s development.

The Court of Appeal obtained further written submissions from Dr B., who, with regard to the development, was now of the opinion that a suspension of the applicant’s contact was, at the moment, the less damaging approach and therefore in the child’s best interest. Contact with the applicant as such was not found to be damaging, but the circumstances of the conflict rendered a different solution at the moment impossible. As regards the parents’ conflict, the expert pointed out that the applicant had agreed on mediation, but the mother refused such a procedure. He declined any possibility for the applicant to positively and actively arrange any contact at the moment. In her written submission to the Court of Appeal, the child’s guardian expressed her view according to which, to prevent longtime damages of the child, a minimum contact with the applicant should be guaranteed in any event by allowing him to send letters and presents to the child.

On 19 October 2012 the Court of Appeal heard from the parents, the child’s guardian, the child and Dr B., it rejected the applicant’s request and suspended all contact between him and his daughter indefinitely, pursuant to Articles 1696 and 1684 § 4 of the Civil Code (see paragraphs 23 and 24 below).

The Court of Appeal observed at the outset that the court-approved contact agreement of 17 May 2006 was still valid. It considered, however, that contact had to be permanently suspended because ordering contact would affect the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that he had become a stranger to her. This had been confirmed, in particular, by the courtappointed expert. When heard in court, the child had clearly stated that she did not want to see her father. She only had limited, bad memories of him. The child, who appeared to have developed properly in relation to her age, had given the impression that she knew what was at stake and what she wanted. In spite of her young age, she had clearly and firmly expressed the desire to have her own wishes respected, suggesting that she would not accept being forced into doing something she did not want. The guardian submitted that he had not succeeded in breaking the child’s aversion to her father. According to him, the child had cried and left the room when he had started talking about her father.

The Court of Appeal considered that the child’s attitude had been influenced by the loyalty she felt towards her mother, who continuously talked negatively about the father. The child felt obliged to feel the same way as her mother. She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties. She saw rejecting her father as the only way to preserve at least her mother’s love. Relying on the expert’s findings, the Court of Appeal observed that the child was mature enough to make a conscious decision and be aware of its consequences. She found herself in a psychological dilemma caused by the communication troubles between her parents, without yet having developed post-traumatic stress disorder. On the one hand, the loss of contact with a parent generally led to a disturbance of psychological development which affected a child’s welfare, but on the other, forced contact in the context of a continuing dispute between parents could also seriously affect the child.

The Court of Appeal noted that the expert, in his opinion submitted to the Family Court, had explained that contact with the father did not in itself jeopardise the child’s welfare. However, the expert considered it necessary to prepare the parents by improving their communication before reinstating contact. The Family Court’s decision had failed to take this “prerequisite” into account. The parents had not undertaken any steps in this direction. When heard in the Court of Appeal on 6 September 2012, the expert had clarified that if the parents did not change their way of communicating, which would necessitate at least some form of professional help such as mediation, it would cause more harm to attempt to reinstate contact than to exclude it altogether.

The Court of Appeal continued:

“Against the background of the parents’ previous conduct both in and outside the courtroom, the [Court of Appeal’s] chamber rules out the possibility that the parents will be able successfully to have recourse to mediation in the foreseeable future. As a mandatory result, the father cannot be granted access to H. at present (derzeit) and the only available option is to exclude [him] from contact. It is not possible to solve the child’s dilemma by specifying the arrangements for contact ... or by appointing a custodian.

It is up to the mother to overcome her aversion to the father, and up to the father to learn that contact can only be reinstated through patience, restraint and understanding of both the mother’s and child’s feelings. It is furthermore not ruled out that the child, with advancing age and maturity, will be able to detach herself from her parents’ dispute and seek contact with her father herself. The present decision does not exclude these options.”

By a judgment given on 6 February 2013 (no. 1 BvR 4/13), the Federal Constitutional Court refused to entertain a constitutional complaint lodged by the applicant regarding the decisions taken in the main proceedings, without providing reasons.

After the applicant lodged his application with the Court and the application had been communicated to the Government, the family case file was sent to the Ministry of Justice and then back to the Family Court. On 18 July 2014, after its return from the Ministry, the case file was presented to a judge, who ruled: “1. Seen. Nothing to be done. 2. To be stored” (1. Gesehen. Nichts zu veranlassen. 2. Weglegen”).