Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The facts of the cases, as submitted by the applicants, may be summarised as follows.

Mr V. is a Netherlands national who was born in 1987. He is currently detained in a custodial clinic in Utrecht. He is represented before the Court by Mr L. van Vliet, a lawyer practising in Amsterdam.

On 4 January 2007 Mr V., who was then resident in an institution for persons with developmental problems, sexually assaulted a female member of institution staff, fondling or touching her breasts and lower body against her will. On 22 July 2007, while detained as a suspect in a custodial institution for juveniles, he sexually assaulted a fellow inmate, a fourteenyear-old boy, inter alia by rubbing his crotch.

In the course of the criminal proceedings, Mr V. was examined by a psychiatrist and a psychologist. The psychiatrist found the applicant to be suffering from a disorder in the autistic spectrum and mild mental deficiency. The psychologist also found indications of mild mental deficiency, in addition to pervasive development disorder and attention deficit hyperactivity disorder. Neither the psychiatrist nor the psychologist came to the conclusion that criminal responsibility was entirely absent.

On 16 December 2008 the Roermond Regional Court (rechtbank) convicted Mr V. of “indecent assault” (feitelijke aanranding van de eerbaarheid, Article 246 of the Criminal Code (Wetboek van Strafrecht)) and “committing lewd acts out of wedlock with a person below the age of sixteen” (met iemand beneden de leeftijd van zestien jaren buiten echt ontuchtige handelingen plegen, Article 247 of the Criminal Code). It ordered him to be placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning:

“The acts committed by [Mr V.], namely indecent assault and lewd acts with a child, are crimes which according to their statutory definition, carry maximum prison terms of eight years and six years respectively and for which a TBS order may be imposed.

In view of the findings of the experts, the nature and seriousness of the acts found proven and the person of [Mr V.], as apparent from the examination of the case at the hearing, the Regional Court considers that a TBS order is justified in this case. [Mr V.] is after all afflicted with a serious disturbance on the basis of which it can be said that the safety of others or the general safety of persons requires the imposition of the measure. Moreover, [Mr V.] has committed criminal acts which admit of the imposition of such a measure. In addition, the Regional Court considers that these grounds justify confinement in a custodial clinic. In view of the above, the Regional Court will follow the advice of the experts and will impose a TBS order with confinement in a custodial clinic.

The Regional Court agrees with the public prosecutor and counsel for the defence that it would serve no purpose at all to impose a punitive sentence on [Mr V.] in addition to the TBS order. ...”

Neither the prosecution nor the defence appealed against this judgment, which thus became final fourteen days later. The TBS order, which was valid for an initial period of two years, accordingly entered into force on 31 December 2008.

On 5 January 2011 the Roermond Regional Court extended the TBS order for a further two years. The decision stated that the crimes committed by Mr V. were indictable offences directed against, or endangering, the physical integrity of one or more persons. No appeal was lodged against it.

The TBS order next came up for review two years later, in December 2012. The public prosecutor sought a further extension. Having held a hearing on 13 December 2012, the Roermond Regional Court gave a decision on 27 December 2012 refusing to extend the order further. Its reasoning was as follows:

“In order to answer the question whether or not the TBS order is limited in duration, in which event the possibility of indefinite extension does not exist, it is necessary to consider the judgment of the European Court of Human Rights in Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, and the decision of the Arnhem Court of Appeal of 1 October 2012 (LJN (Landelijk Jurisprudentie Nummer, National CaseLaw Database Number) BX8788).

In the present case the TBS order with confinement in a custodial institution was ordered by a judgment of this court of 16 December 2008 in relation to the indictable offences (misdrijven) ‘indecent assault’ and ‘committing lewd acts with a person below the age of sixteen’. This judgment lacks reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering). As the European Court of Human Rights held in that judgment, it is not for the court ruling on the extension of the TBS order to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons (‘a crime of violence’), and accordingly whether or not the TBS order is limited in duration. If the prescribed reasoning is absent, then the TBS order cannot be unlimited in duration and it must, according to the European Court of Human Rights, be assumed that the TBS order is limited to a maximum duration. The Arnhem Court of Appeal has held in its aforementioned decision that there is no such interpretation if on the basis of the conviction, the qualification and the reasoning of the measure, considered in context (in onderling verband en samenhang bezien), it is self-evident to anyone that the crime in issue is a crime of violence.

In view of the latter decision of the Court of Appeal the Regional Court must answer the question whether in this case it is self-evident that the facts for which the TBS order was imposed constitute ‘crimes of violence’.

In the present case it is not self-evident from the conviction, the qualification and/or the reasoning that the crimes in issue are ‘crimes of violence’. Since such a conclusion could be reached only by way of interpretation of the judgment of 16 December 2008 and – in view of the further circumstances – it cannot be ruled out that the trial court intended to limit the TBS order in duration to a four-year maximum, the Regional Court considers that in this case the TBS order is limited in duration, so that there is no longer any possibility of extending the order further. The public prosecutor’s request for an extension of the TBS order will therefore be refused.

The above findings do not alter the Regional Court’s understanding, which is shared by all concerned, including Mr V. himself, that Mr V. will nonetheless need further treatment and/or assistance.”

The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal (by this time the successor to the Arnhem Court of Appeal).

Having held a hearing on 14 March 2013, the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem, gave a decision on 28 March 2013 extending the TBS order by a further two years. Its reasoning was as follows:

“TBS order limited in duration?

In the judgment of the Supreme Court (Hoge Raad) of 12 February 2013, LJN BY8434, the view was taken that the sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defence put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order.

The Court of Appeal finds that [Mr V.] – given the conviction and the qualification – was convicted of:

indecent assault;

committing lewd acts out of wedlock with a person below the age of sixteen.

The Court of Appeal has had regard in this connection to the Regional Court’s considerations in imposing the sentence and the measure.

On the above grounds, the Court of Appeal considers that it is implicit in the judgment of the Roermond Regional Court of 16 December 2008 that the TBS order was imposed in connection with crimes of violence and that accordingly it cannot be said that the possibility of extension of the measure after four years was not reasonably foreseeable for [Mr V.]. The defence made by counsel is therefore dismissed.

Mental disturbance and danger of reoffending

It appears from the case file that [Mr V.] is a mentally deficient man with an autism spectrum disorder. The danger of reoffending is estimated to be high absent present levels of security and care. There has lately been a clearly positive development. The clinic indicates that it has been possible to make follow-up arrangements with P., a work and residential institution for young adults with mild intellectual impairment and serious behavioural disorders. The clinic indicates that it is important to prepare the transfer to the successor institution properly and carry it out painstakingly and gradually, in order to limit as far as possible the loss of structure and control.

Extension

In view of the danger of reoffending, which still exists, and [Mr V.’s] pathology the Court of Appeal considers that the safety of others or the general safety of persons requires the TBS order to be extended. In view of the expected duration of further treatment and resocialisation work the Court of Appeal considers that a two-year extension is indicated. The Court of Appeal assumes that the resocialisation work now begun will be pursued diligently.”

Mr Mohamed Elgouille was born in 1978 and has both Netherlands and Moroccan nationality. He is currently detained in a custodial clinic in Nijmegen. He is represented before the Court by Mr F. Holthuis, a lawyer practicing in The Hague.

On 17 January 2004 Mr Elgouille punched his girlfriend in the face. When he was arrested later that day, cocaine was found on his body. On 6 February 2004 Mr Elgouille robbed an acquaintance of his bank card and his bunch of keys, assaulted him and cut him with a razor, and then left him in a helpless condition. The acquaintance was later found dead. On 11 February 2004 Mr Elgouille violently forced another acquaintance to hand him cocaine and money.

On 4 November 2004 the Regional Court of The Hague convicted Mr Elgouille of “causing bodily harm” (mishandeling, Article 300 of the Criminal Code), “robbery with violence” (diefstal met geweldpleging, Articles 311 and 312 of the Criminal Code), “manslaughter” (doodslag, Articles 287 and 288 of the Criminal Code) and “attempted extortion” (poging tot afpersing, Articles 45 and 317 of the Criminal Code). It sentenced him to 14 years’ imprisonment.

Mr Elgouille appealed against this judgment. On 28 September 2006 the Court of Appeal of The Hague quashed the decision of the Regional Court and acquitted Mr Elgouille of the manslaughter in the absence of a proven causal link. It convicted him of the other offences, sentenced him to five years’ imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning:

“[Mr Elgouille] has committed a property offence, in which he did not recoil from using brute force against the victim by beating and kicking him, in order to deprive him of his bunch of keys and bank card. Furthermore, some days later, [Mr Elgouille] attempted to extort cocaine and money from a person by beating, kicking and threatening the victim. Acts such as these are generally experienced by the victims as exceedingly threatening and moreover these acts also cause anxiety and feelings of insecurity in society. In addition, [Mr Elgouille] assaulted another person and held cocaine in his possession. Besides, it has been established that, according to an extract from the Criminal Records Register dated 16 August 2006 relating to him, [Mr Elgouille] has been convicted of property offences and violent offences before, which apparently did not deter him from committing the present offences.”

Mr Elgouille appealed on points of law to the Supreme Court. On 17 June 2008 the Supreme Court quashed the judgment of the Court of Appeal for technical reasons and reduced the term of imprisonment to four years and seven months in view of the excessive length of the proceedings; for the remainder it endorsed the judgment of the Court of Appeal.

The TBS order entered into force on 7 August 2008.

The Regional Court of The Hague extended the TBS order by two more years by decision of 28 September 2010. The decision stated that the crimes committed by Mr Elgouille were indictable offences directed against, or endangering, the physical integrity of one or more persons. Appealing against this decision, the applicant asked for a new diagnosis; in the alternative, for a conditional suspension of his compulsory confinement; in the further alternative, for an extension of only one year not two. His appeal was dismissed and the Regional Court’s decision was confirmed by the Arnhem-Leeuwarden Court of Appeal on 2 May 2011.

The Regional Court of The Hague extended the TBS order by a further two years on 9 October 2012. The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013.

On 9 October 2012 the Regional Court of The Hague reviewed if further extension for two more years was allowed. The court answered this question in the affirmative. Its reasoning was as follows:

“The measure of placement in a custodial clinic has been applied in respect of:

- theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft;

- attempted extortion;

- assault;

- deliberately acting in breach of the prohibition contained in Article 2, paragraph 1, under C of the Opium Act.

Accordingly, crimes (of violence) that are directed against and endanger (the physical integrity of) persons.

Pursuant to the foregoing, the court considers that the safety of others and the general security of persons or property demand the extension. Since it appears from the advice and the deliberations in chamber that the treatment involving learning new behaviour is still in the early stages and no start has yet been made with the rehabilitation, the court is of the opinion that the TBS order should be extended for two more years. The court sees no reason to give the clinic indications concerning the way in which the treatment should take place.”

The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013. The court considered the following:

“Custodial placement not limited in duration

The Court of Appeal finds that the judgment of the Court of Appeal of The Hague of 28 September 2006 convicted [Mr Elgouille] of, inter alia:

- theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft; and

- attempted extortion.

In accordance with the judicial findings of fact, the qualification and the reasons given for the imposition of the penalty and measure, considered in their interrelationship, that judgment implies that the TBS order has been imposed in connection with crimes of violence within the meaning of Article 38e § 1 of the Criminal Code and that on that account it cannot be said that the possibility of extension of the measure after four years has not been reasonably foreseeable for [Mr Elgouille]. Moreover, the Court of Appeal takes into consideration that both offences involved physical violence against the victim by among other things beating and kicking the body. Counsel’s defence was rejected.”

Mr Edward Cornelis Willem Leonardus Kuiters is a Netherlands national who was born in 1968. He is currently detained in a custodial clinic in Poortugaal. He is represented before the Court by Mr P. Scholte, a lawyer practising in Amsterdam.

On 20 June 2007 Mr Kuiters smashed the windows of the house of his neighbour, one Mr de V., with a baseball bat. At the relevant time, Mr de V. was present on the first floor of his house. It is noted that apart from this incident, Mr Kuiters had on an earlier occasion shot through the windows of Mr de V.’s car with a crossbow.

The Breda Regional Court convicted Mr Kuiters on 15 October 2007 of “threatening grievous bodily harm” (bedreiging met zware mishandeling, Article 285 of the Criminal Code) and “carrying a weapon” (een wapen dragen, section 27(1) of the Arms and Ammunition Act (Wet wapens en munitie)). As relevant to the case before the Court, it imposed a TBS order with confinement in a custodial clinic.

Mr Kuiters appealed against this judgment to the ‘s-Hertogenbosch Court of Appeal. On 20 January 2009 the Court of Appeal quashed the judgment of the Regional Court on a technicality and gave a new judgment. As had the Regional Court, it convicted Mr Kuiters of threatening grievous bodily harm and carrying a weapon. Finding that Mr Kuiters could not be held criminally responsible, it excused him punishment but imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning:

“The Court of Appeal finds, in view of the circumstances set out above and also taking earlier events into account:

that the suspect’s violent behaviour was highly threatening for Mr de V.;

that Mr V. had good reason to conclude that if he did not give in to the suspect’s wishes, he ran a serious risk of incurring grievous bodily harm

that the suspect’s intent was directed to this end, at any rate inasmuch as he understood that such would be the necessary consequence of his behaviour.”

and

“Having regard to the foregoing, particularly having regard to [Mr Kuiters’s] fascination with weapons in combination with his long-term mental disorder, the Court considers that the likelihood of reoffending should be estimated high and that, to reduce this chance, clinical psychiatric treatment is required.”

and

“In the view of the Court of Appeal, [the safety of others and/or the general safety of persons or goods] necessitates a TBS order and also requires [Mr Kuiters] to be confined in a custodial clinic. In so finding, the Court of Appeal has also considered the content of [the various reports] that have been prepared on the subject of [Mr Kuiters’s] personality, in addition to the seriousness of the first criminal act found proven [i.e. threatening grievous bodily harm]. That act is an indictable offence (misdrijf) that, according to its statutory definition, carries a prison sentence of more than four years.”

The TBS order entered into force on 4 February 2009.

After an initial period of two years, the Breda Regional Court extended the TBS order with two more years on 11 February 2011. Mr Kuiters did not object to such an extension. It is reflected in the decision that the institution in which Mr Kuiters was being held did not expect that it would be possible to terminate the TBS order after the end of that term.

The TBS order came up for review again in early 2013. The public prosecutor sought a further two-year extension.

Having held a hearing on 12 February 2013, the Zeeland-West-Brabant Regional Court (by this time the successor to the Breda Regional Court) gave a decision extending the TBS order by one year. Its reasoning included the following:

“Is the TBS order limited in duration?

First of all, the Regional Court must ascertain whether or not the TBS order in the present case is limited in duration. Therefore, the question must be answered whether the TBS order was imposed in connection with a crime of violence within the meaning of Article 38e § 1 of the Criminal Code.

The Regional Court will first determine the framework for review on the basis of which this question should be answered. In this respect, recent developments in case-law are of particular importance.

Article 38e § 1 of the Criminal Code provides that the total duration of a TBS order with confinement in a custodial clinic shall not exceed a period of four years, unless the TBS order is imposed in connection with a crime that is directed against, or endangers the physical integrity of one or more persons.

Article 359 § 7 of the Code of Criminal Procedure provides that, if the confinement in a custodial clinic has been imposed in connection with a crime that is directed against, or endangers, the physical integrity of one or more persons, the judgment shall state the reasons for so doing.

The Court of Appeal of Arnhem, referring to the judgment of the European Court of Human Rights (ECHR) of 31 July 2012 [Van der Velden v. the Netherlands], has held in its decision of 1 October 2012 [see below] that it is not for the court ruling on the extension of the TBS order, in the event that the judgment or decision in which the imposition of the TBS order has been given does not contain the reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure, to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons, and accordingly whether or not the TBS order is limited in duration. The Court of Appeal has furthermore considered that it is not a matter of interpretation of the judgment of the court which imposes the TBS order if, on the basis of the judicial finding of facts, the qualification and the reasons given for the imposition of the penalty or measure, it is self-evident that the crime in issue is such as referred to in Article 38e § 1 of the Criminal Code.

In its judgment of 12 February 2013, the Supreme Court held that the aforementioned judgment of the Court of Appeal of Arnhem is partly incorrect. The Supreme Court considers, first and foremost, that it is the court which imposes the TBS order that decides whether or not this order is limited in duration. The Supreme Court furthermore considers that it will be relatively simple to establish whether the order has been imposed in connection with a crime of violence if the court which imposed the TBS order, in giving reasons for so doing, has stated that the measure was imposed in relation to a crime of violence. If such explicit reasoning is missing, this does not mean that the measure cannot be extended, if this means that the TBS will last longer than four years. What is important is whether the TBS order has been imposed for a crime of violence. Whether or not this is so can also be deduced from the other contents of the final judgment of the court that imposed the TBS order – considered in context if need be –, such as the judicial findings of fact, evidence, qualification, reasoning of the rejection of defences put forward and reasons given for the sanctions imposed. If on that basis it is evident that the crime was one of violence, it cannot be said in any event that the possibility of extension of the measure after four years was not foreseeable for the person subject to the TBS order.

If explicit reasoning is absent and it is not evident from the judgment of the court that imposed the TBS order that it concerns a crime of violence, the court that decides on the request for extension of the TBS order will have to form an opinion about the question whether – having regard to all the facts and circumstances that were known at the relevant time – the crime can be regarded as such a crime of violence. In so doing the court that decides on the request for extension has to take into account all relevant circumstances; in addition, information besides that mentioned in the final judgment can also be taken into account. In the case of a threat the court that decides on the request for extension can take into consideration whether the threat was preceded, accompanied or followed by non-verbal aggressive behaviour towards the threatened person, or was in any (other) way reinforced, and also whether it was plausible at the relevant time that the threat would be carried out. According to the Supreme Court, the point is that the finding of the court that decides on the request for extension that the TBS order was originally imposed for a crime of violence should be reasonably foreseeable and thus should not come as a surprise for the person subject to the TBS order.

Agreeing on this point with defense counsel, the Regional Court is of the opinion that it is not self-evident from the judgment of the Court of Appeal that the crime in issue was a crime of violence. The Regional Court will interpret the judgment of the ‘s-Hertogenbosch Court of Appeal on the basis of the relevant facts and circumstances. The Regional Court deems the following of importance.

The ‘s-Hertogenbosch Court of Appeal, in its special considerations regarding the evidence, held that on 20 June 2007 in Prinsenbeek Kuiters had smashed the windows of the house of Mr de V. with a baseball bat. He had, given the parked car in front of the door, drawn the conclusion that V. was at home and wanted to make a statement. A reporting officer observed that the glass was scattered over a distance of 10 metres. The Court of Appeal has furthermore taken notice of the history between Kuiters and Mr de V. On 16 May 2003 Mr de V. reported attempted manslaughter and destruction. One night a brick had been thrown through his bedroom window, which brick landed next to him on his bed. On 4 February 2007 he furthermore reported destruction and threat, after Kuiters had shot through the windows of Mr de V’s car with a crossbow.

Furthermore, the ‘s-Hertogenbosch Court of Appeal has found, inter alia, that [Mr Kuiters’s] violent actions had been highly threatening for Mr de V. and that for him there were good grounds to conclude that, if he did not yield to the desires of [Mr Kuiters], he would run a serious risk of sustaining serious bodily injury.

The Regional Court concludes from the foregoing that the Court of Appeal was of the opinion that there was a justified fear that at some point Kuiters would direct his aggression directly against Mr de V. and that the latter would run a risk of sustaining serious bodily injury. In view of that, and the circumstances cited by the Court of Appeal, the history and the terms used, the Regional Court is of the opinion that the Court of Appeal meant to impose the TBS order in connection with an indictable offence directed against, or endangering, the physical integrity of a person as referred to in Article 38e § 1 of the Criminal Code. Having regard to the foregoing, in the view of the Regional Court it cannot be said that, in the light of the judgment of the Supreme Court, it was not reasonably foreseeable that the TBS order was imposed in connection with such a crime of violence. This means that the TBS order with compulsory treatment in the present case is not limited in duration.”

Mr Kuiters appealed to the Arnhem-Leeuwarden Court of Appeal. Having held a hearing on 6 June 2013, the Court of Appeal gave a decision on 20 June 2013 endorsing the Regional Court’s decision, including its reasoning, in its entirety.

As relevant to the case, the Criminal Code provides as follows:

Article 37a

“1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:

1º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... and

2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods.

In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.”

The offences of which the applicants were variously found guilty include, in each case, at least one indictable offence carrying a maximum sentence of four years or more.

Article 37b

“1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...”

Article 38d

“1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final.

Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.”

Article 38e

“1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons.

If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.”

As relevant to the cases, the Code of Criminal Procedure provides as follows:

Article 359

“1. The judgment shall state the charges and the public prosecutor’s sentence request (vordering).

The decisions referred to in Articles 349 § 1 [preliminary issues] and 358 §§ 2 and 3 [substantive issues] shall be reasoned. If the decision deviates from positions explicitly argued by the suspect or the public prosecutor, the judgment shall indicate, in particular, the reasons (geeft ... in het bijzonder de redenen op) for so doing.

If Article 9a of the Criminal Code [the decision not to impose a sentence or non-punitive measure] or Article 44a of the Criminal Code [reduction of sentence in exchange for giving evidence against another suspect] is applied, the judgment shall state the special reasons (geeft.... in het bijzonder redenen op) that have led to that decision.

The judgment shall state, in particular, the reasons (geeft in het bijzonder de redenen op) that have determined the sentence or led to the non-punitive measure.

In imposing a sentence or non-punitive measure involving deprivation of liberty, the judgment shall state, in particular, the reasons (geeft ... in het bijzonder de redenen op) which have led to the choice of this type of sentence or non-punitive measure. In addition, the judgment shall indicate, as far as possible, the circumstances taken into account in setting the length of the sentence.

If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the physical integrity of one or more persons, the judgment shall so indicate, giving reasons (geeft het vonnis dit onder opgave van redenen aan).

All on pain of nullity.”

The following passages are excerpts from the drafting history of Article 38e of the Criminal Code and Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering):

“... I [i.e. the Deputy Minister of Justice (Staatssecretaris van Justitie)] propose to let the court which imposes the TBS order with confinement in a custodial clinic decide whether that order is subject to a maximum or not. That court knows the case file well and is best placed to get an idea of the interaction between the act and the actor (daad-dadercomplex). It will then be determined from the outset whether it is subject to a maximum or not. Moreover, it is desirable both from the perspective of treatment and from that of the legal position of the person subject to the order that it be foreseeable at the time when the TBS order is imposed whether the TBS order is subject to a maximum or not. The treatment plan can be drawn up accordingly. The person subject to the TBS order will then know, if the order is subject to a maximum, what its maximum duration will be.

The court which imposes the TBS order with confinement in a custodial clinic will have to decide, giving reasons, whether the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. ... In opting for this solution it will have to be taken as part of the deal that in a number of cases the question whether the TBS order is subject to a maximum or not will be the object of an appeal or an appeal on points of law.” (page 9)

and

“The proposed amendment of Article 359 [of the Code of Criminal Procedure] can be seen as a logical consequence (pendant) of the proposed amendment of Article 38e of the Criminal Code. The court which imposes the TBS order with confinement in a custodial clinic must indicate in its judgment, giving reasons, whether it considers that the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. It is thus clear from the start whether the TBS order is subject to a maximum or not. As a rule, it will be enough for the court to point to the nature of the indictable offence as found proven and qualified. The prescribed reasoning will therefore not normally be subject to such stringent requirements. However, in certain circumstances the court will have to give reasoning setting out the specific facts or circumstances.” (page 13)

“The court which imposes the [TBS order with confinement in a custodial clinic] at the same time decides whether it shall be limited in time or not. The court to which it falls to consider whether the order should be extended or not is dispensed from making that choice.” (pages 1-2)

and

“The current maximisation arrangement [i.e. the arrangement existing until the entry into force of the legislation here in issue] differs from that proposed as regards the moment at which it is decided whether the duration of the TBS order shall be determined in advance or not. The decision on the question whether the TBS order is subject to a maximum will be taken, pursuant to the proposed Article 38e of the Criminal Code, when the order is imposed and is to be based on the trial court’s view of the nature of the crime. In considering the request to extend the TBS order it is no longer an issue whether the crime belongs to the exceptions enumerated in the first paragraph of Article 38e; the court which imposed the order will already have determined that, giving reasons in accordance with the additional requirements set out in Article 359 [of the Code of Criminal Procedure]. The current arrangement allows the court [which decides on the extension of the TBS order] to express its views on the seriousness of the crime for which the order was imposed in its decision.” (page 5)

The Explanatory Memorandum gives a non-exhaustive enumeration of indictable offences for which the maximum four-year term is not intended to apply. Offences listed include, amongst others, rape (Article 242 of the Criminal Code), indecent assault (Article 246 of the Criminal Code); committing lewd acts out of wedlock with a person below the age of sixteen (Article 247 of the Criminal Code); manslaughter (Article 287 of the Criminal Code); murder (Article 289); causing grievous bodily harm (Article 302 of the Criminal Code); and robbery with violence (Article 312 of the Criminal Code).

In a decision of 1 October 2012, LJN BX8788, the Arnhem Court of Appeal, reversing its earlier case-law in response to the Van der Velden judgment of this Court, held that it was not for the court called upon to decide on the extension of a TBS measure (on appeal) to supplement the judgment of the trial court by interpretation and decide, retrospectively, whether or not a TBS order had originally been imposed in connection with a crime of violence.

However, it was not “interpretation” to find that in view of the conviction, the qualification and the reasoning on which the sentence and/or the TBS order was grounded, considered in context, it was self-evident to anyone that the crime in issue was one of violence.

The case itself concerned a person convicted of threatening to kill someone with a knife.

The Procurator General (procureur-generaal) to the Supreme Court lodged an appeal on points of law “in the interests of the law” (cassatie in het belang der wet) against the Court of Appeal’s decision of 1 October 2012.

The Supreme Court gave judgment on 12 February 2013 (LJN BY8434). As relevant to the case before the Court, it held as follows:

“4.1. The points of law argue essentially that the Court of Appeal erred in refusing the request to extend the TBS order or did so on inadequate grounds.

4.2. The Supreme Court notes that the [Van der Velden judgment] concerned a case in which the court which imposed the TBS order (opleggingsrechter) had not expressed a view on the question whether the indictable offence in issue had been one directed against, or endangering, the physical integrity of one or more persons (referred to hereafter, for the sake of brevity, as a ‘crime of violence’), and in which the court which had initially decided on the request for extension of that measure (verlengingsrechter) had found that the crime in issue was not a crime of violence in that sense. It was only the court which was called upon on appeal to consider the extension of the TBS order which came to a different conclusion and found the criminal act in connection with which the measure had been imposed to be a crime of violence.

The Supreme Court understands this decision of the European Court of Human Rights, in which the interest of legal certainty is stressed where it concerns deprivation of liberty, in the sense that the conditions which must be met for a deprivation of liberty to be considered ‘lawful’/’régulière’ within the meaning of Article 5 § 1 of the Convention must be clearly circumscribed and that the way in which they are applied must be reasonably foreseeable. This means, in cases such as the present, that the view taken by the court which imposes the TBS order concerning the question whether the TBS order is imposed in connection with a crime of violence is decisive for the question whether the measure is amenable to extension by the court which decides on extension of the measure, as provided for by Articles 38d and 38e of the Criminal Code. It is thus the court which imposes the TBS order which decides – in brief – whether the TBS order imposed by it is limited in duration or not.

4.3. It will, as a rule, be relatively simple to establish that decision if the court which imposed the TBS order, in giving reasons for so doing – preferably in the words of Article 359 § 7 of the Code of Criminal Procedure –, has stated that the measure was imposed in relation to a crime of violence, or not as the case may be. That is of particular importance if the crime in relation to which the TBS order was imposed cannot without further explanation be characterised as a crime of violence – i.e. as an indictable offence that was directed against, or endangered, the physical integrity of one or more persons – as in the case of threatening (bedreiging, Article 285 of the Criminal Code), or stalking (belaging, Article 285b of the Criminal Code), in relation to which the measure here in issue can be imposed pursuant to Article 37a § 1 (a) of the Criminal Code.

4.4. The sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defences put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order.

4.5. The opinion of the Court of Appeal that, except in cases as referred to above, it is not for the court that decides on the extension of the measure to determine retroactively ‘by interpretation of the judgment of the court which imposed the TBS order’ whether or not the TBS order was imposed in relation to a crime of violence is not, however, borne out by the said judgment of the European Court of Human Rights and moreover cannot be accepted as correct. There is no rule of law that prevents the court which decides on the extension of the TBS order from coming to the conclusion, based also on other information than that contained in the final judgment [of the trial court] – such as the proceedings of the hearing of the court which imposed the TBS order, as apparent from the official record made of that hearing – that the TBS order was imposed in relation to a crime of violence; it cannot, moreover, be ruled out that other documents available to the court which imposed the TBS order are conclusive on this point.

4.6. Consultation of these documents will be indicated especially if the final judgment does not contain sufficiently clear reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure or otherwise does not give sufficient pointers (aanknopingspunten) to conclude that the fact for which the TBS order was imposed must be characterised ipso facto as a crime of violence, like the threat of lethal violence held proven in the instant case. In such a situation the court that decides on the extension of the TBS order will have to arrive at a conclusion as to whether – in view of all the facts and circumstances that were known at the time – the threat constituted such a crime of violence. In this connection, it is worth noting that – contrary to the point of departure that seems to have been chosen by the Court of Appeal – the court which decides on the extension of the TBS order must take into consideration all relevant circumstances. In so doing it will be in a position to consider, among other things, whether the threat was preceded, accompanied, or followed by non-verbal aggressive behaviour against the person threatened or in some (other) way reinforced, and whether at the time it was likely that the threat might be carried out.

There is no rule of law that prevents the court which decides on the extension of the TBS order from considering the finding that the crime in issue was one of violence implicit in the final judgment of the court which imposed the TBS order.

In this way, it can be avoided that in those cases in which the court which imposed the TBS order failed to provide adequate clarity, either as prescribed by Article 359 § 7 of the Code of Criminal procedure or in some other way, as to whether the TBS order was limited in duration, this oversight (verzuim) by itself should prevent the measure from being extended, even if it is clear to all concerned that the TBS order was imposed for a crime of violence and it therefore merely concerns an oversight by the court which imposed the TBS order. What is decisive in cases such as the present is that the finding of the court which decides on the extension of the TBS order that the TBS order was at the time imposed in relation to an indictable offence that was directed against, or endangered, the physical integrity of one or more persons should be reasonably foreseeable and therefore should not come as a surprise to the person on whom the order was imposed.”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Extradition)

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

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

The applicant, Mr Manuel Rogelio Gallardo Sanchez, is a Venezuelan national who was born in 1965 and lives in Cape Town (South Africa).

On 19 April 2005, the applicant, who had been accused of arson by the Greek authorities, was taken into custody pending extradition by the Rome police on the basis of an arrest warrant issued by the Athens Court of Appeal on 26 January 2005 under the European Convention on Extradition of 13 December 1957.

On 22 April 2005 the Court of Appeal of L’Aquila validated the applicant’s arrest and ordered his detention.

On 26 April 2005 the Ministry of Justice asked the Court of Appeal to extend his detention.

At the hearing of 27 April 2005, the President of the Court of Appeal, ruling under Article 717 of the Code of Criminal Procedure (see paragraph 25 below), established the applicant’s identity and asked if he gave his consent to his extradition. He did not consent.

On 9 June 2005 the Minister of Justice informed the Court of Appeal that, on 25 May 2005, the Greek authorities had sent a request for extradition together with all the requisite supporting documents.

On 21 June 2005 the public prosecutor’s office asked the Court of Appeal to grant the extradition request.

The hearing was scheduled for 15 December 2005. At the request of the applicant’s representative, it was postponed until 12 January 2006.

Without any prior investigation the Court of Appeal approved the extradition by a decision of 12 January 2006, deposited on 30 January 2006. It verified the conformity of the extradition request with the European Convention on Extradition and compliance with the ne bis in idem and double criminality principles, and it ruled out the possibility that the proceedings had been brought for any discriminatory or political reasons.

On 3 March 2006 the applicant appealed on points of law, arguing in particular that the request for his extradition had been sent by the Greek authorities after the forty-day time-limit provided for in Article 16 § 4 of the European Convention on Extradition, which meant in his view that his detention had been unlawful. He further argued that the charges laid against him by the Greek authorities were not based on serious indications of guilt. He submitted that he should therefore be released.

In a judgment of 11 May 2006, deposited in the registry on 18 September 2006, the Court of Cassation dismissed the appeal with only one page of reasoning, in particular because it found that the extradition request had been received within the time-limit provided for in the European Convention on Extradition and that it did not have jurisdiction to examine whether serious indications of guilt had been adduced.

In the meantime, on three occasions between June and September 2005, the applicant had applied to the Rome Court of Appeal, unsuccessfully, to obtain his release. In its last decision of 27 October 2005, adopted in private in compliance with the adversarial principle, and without any prior investigation, the Court of Appeal found that there was no reason to depart from the two previous rejection decisions, having regard to the on-going risk that the applicant might abscond, even though the authorities had taken away his passport, and to the State’s obligation to comply with its international commitments.

On 9 October 2006 the Minister of Justice signed the extradition order.

On 26 October 2006 the applicant was extradited to Greece.


CASE OF HUTCHINSON v. THE UNITED KINGDOM

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

András Sajó;Angelika Nußberger;Branko Lubarda;Erik Møse;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Yonko Grozev;Ksenija Turković

The applicant was born in 1941 and is detained in Her Majesty’s Prison Durham.

In October 1983, the applicant broke into a family home, where he stabbed to death a man, his wife and their adult son. He then repeatedly raped their 18 yearold daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with these offences. At trial he pleaded not guilty, denying the killings and claiming that the sexual intercourse had been consensual. On 14 September 1984, he was convicted of three counts of murder, rape, and aggravated burglary.

The trial judge sentenced the applicant to a term of life imprisonment and, in accordance with the rules on sentencing then in force, recommended a minimum period (tariff) of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”. On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”. On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term.

Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his sentence, arguing that he should receive the 18-year tariff mentioned at his trial. On 16 May 2008, the High Court gave its judgment. It found that there was no reason to depart from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. A number of very serious aggravating factors were present, and no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.


Violation of Article 2 - Right to life (Article 2 - Expulsion;Article 2-1 - Death penalty) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

According to the applicant, he is a Russian national, A.L., born in 1972. According to the Government, the applicant is a Chinese national, X.W., born in 1973. He lives in Elista.

On 19 March 2014 the applicant was arrested in St Petersburg on suspicion of murdering a Chinese policeman in 1996. He was in possession of a Russian national passport in the name of A.L., born in 1972 in the Primorskiy region of Russia.

On 21 March 2014 the Smolninskiy District Court of St Petersburg ordered the applicant’s detention until 17 April 2014, pending receipt of an official extradition request from the Chinese authorities. The District Court noted that the applicant had been identified by means of photographic comparisons as X.W., a Chinese national born in China in 1973. His name was on Interpol’s list of wanted persons. The Chinese authorities had issued an arrest warrant in his name dated 15 December 2011 from which it was apparent that he was suspected of a criminal offence under Article 232 of the Chinese Criminal Code. That offence was punishable by the death penalty, life imprisonment or at least three years’ imprisonment, and the limitation period was twenty years. The limitation period in respect of a comparable criminal offence in the Russian Criminal Code was fifteen years, but this was suspended if the suspect had fled from justice. The court further noted that a Russian national passport in the name of A.L. had apparently been unlawfully obtained by the applicant after he submitted false information to the competent Russian authorities. It was clear that he was not a Russian national but a Chinese national and could be therefore extradited to China.

The Chinese authorities failed to submit an official extradition request within the thirty-day time-limit established by the Bilateral Treaty on Extradition of 26 June 1995.

On 17 April 2014 the St Petersburg Transport Prosecutor ordered the applicant’s release. At the same time he noted that it was necessary to start administrative removal proceedings against the applicant on the grounds that his residence in Russia was unlawful.

Despite the release order, the applicant remained in detention.

On 18 April 2014 the St Petersburg transport police drafted a report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code (unlawful residence in Russia of a foreign national, see paragraph 47 below).

On the same day, 18 April 2014, the Smolninskiy District Court found the applicant guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences and ordered his administrative removal to China. The court took note of a letter dated 21 March 2014 by the Federal Migration Service which showed that it was impossible to establish whether or not the applicant was a Russian national. He had received a Russian national passport in the name of A.L. in 2000 after declaring that he had lost his previous passport, which had been issued in 1988. However, according to the Federal Migration Service, the allegedly lost passport never existed. The court further relied on the extradition casefile, from which it was apparent that the applicant was in fact a Chinese national, X.W., rather than a Russian national A.L. Being a Chinese national, he was residing in Russia unlawfully without a valid visa or residence permit. The court noted that the applicant was sought by the Chinese authorities on suspicion of murder. He was therefore dangerous and it was necessary to sentence him to administrative removal from Russia. Lastly, the court observed that, although the applicant had a Russian wife, he did not have any children who were minors living in Russia. In such circumstances, and taking into account his dangerousness, the public interest outweighed his personal interest in maintaining his family life in Russia.

The applicant appealed. He submitted, in particular, that his passport as a Russian national had never been cancelled and was therefore still valid. He further argued that his administrative removal was extradition in disguise. The fifteen-year limitation period established by Russian criminal law had expired and he could no longer be lawfully extradited to China. If he was administratively removed to China he would be immediately arrested and very probably subjected to the death penalty. His removal to China would therefore be in breach of Articles 2 and 3 of the Convention.

On 24 April 2014 the Federal Migration Service found that the applicant was not a Russian national. He had obtained the Russian national passport in the name of A.L. unlawfully.

On 28 August 2014 the St Petersburg City Court quashed the judgment of 18 April 2014, finding that the administrative offence report of 18 April 2014 had been procedurally defective, and remitted the case to the District Court for a new examination. These proceedings were later discontinued.

On 29 August 2014 the Krasnoselskiy District police drafted a new report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code.

On 30 August 2014 the Krasnoselskiy District Court of St Petersburg discontinued the administrative offence proceedings against the applicant, finding that the administrative offence report of 29 August 2014 had been procedurally defective.

On 31 August 2104 the applicant was released. His passport, seized upon arrest, was not returned to him. He was served with a decision by the St Petersburg and Leningrad Region Interior Department, dated 29 August 2014, declaring the undesirability of his presence in Russia (the “exclusion order”) which read in its entirety as follows:

“On 27 August 2014 the Interior Ministry of the Russian Federation decided that your presence (residence) in Russia was undesirable in accordance with section 25 of [the Entry and Exit Procedures Act]. You must therefore leave the Russian Federation before 3 September 2014.

If you do not leave before the stated deadline, you will be deported.

In accordance with section 27 of [the Entry and Exit Procedures Act], if a decision declaring the undesirability of an individual’s presence (residence) in the Russian Federation has been issued, that individual may no longer enter the Russian Federation.”

The applicant challenged the exclusion order before the Smolninskiy District Court. He also complained that his passport had been unlawfully seized. He submitted that he could not cross the Russian border without a passport and could not therefore comply with the exclusion order by leaving Russia for another country. In these circumstances, the exclusion order would automatically entail his deportation to China. If he was deported to China he would be immediately arrested and very probably subjected to the death penalty. His deportation would therefore be in breach of Articles 2 and 3 of the Convention.

On 12 November 2014 the Smolninskiy District Court found that the exclusion order had been lawful. It had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons. Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there were sufficient reasons to find that he represented a real threat to public order and security. The court further noted that the applicant did not dispute the above facts. The thrust of his complaint was that his deportation to China would expose him to a risk of being subjected to the death penalty that amounted to inhuman treatment. Those arguments could not, however, serve as grounds for annulling the lawfully adopted exclusion order. The court also held that the applicant’s argument that the exclusion order would automatically entail his deportation to China was unconvincing. Firstly, deportation was not automatic and required a separate administrative decision that could be challenged before a court. Secondly, the applicant had the possibility of avoiding deportation to China by leaving Russia for another country.

The court further held that the seizure of the applicant’s passport in the name of A.L. had been lawful. By the decision of 24 April 2014 the Federal Migration Service had found that that passport had been issued unlawfully and that the applicant was not a Russian national. Those were lawful grounds for seizing a passport. The procedure prescribed by law had been respected.

The applicant appealed. He submitted, in particular, that the domestic law did not require a separate administrative decision on deportation. The exclusion order alone constituted a sufficient legal basis for deportation and his failure to leave Russia before the stated deadline could therefore entail automatic deportation to China. He did not have any remedies with suspensive effect in such a situation. He further reiterated his argument that he could not leave Russia for another country because his passport had been seized by the authorities and he did not have any other identity documents. Lastly, he argued that his deportation to China would amount to a breach of not only Articles 2 and 3 of the Convention, but also of Article 8, because he was married to a Russian national.

On 25 February 2015 the St Petersburg City Court upheld the judgment of 12 November 2014 on appeal, finding that it had been lawful, well-reasoned and justified. It added that a genetic test had established that the applicant’s genetic profile matched the genetic profiles of X.W.’s parents. There was therefore no doubt that the applicant’s real name was X.W. It further agreed with the District Court that the applicant could avoid deportation to China by leaving Russia for another country using his Chinese passport.

From 18 April to 29 August 2014 the applicant was detained in a detention centre for aliens (Центр для содержания иностранных граждан) located in Krasnoye Selo in St Petersburg.

From 18 to 21 April 2014 the applicant was held in a punishment cell. From 18 to 20 April 2014 he was handcuffed. The cell had no windows and was empty. It had no bunk or chair and the applicant had to stand or remain in the squatting position all the time. There was no lavatory bowl or running water. His requests to allow him to use the toilet were refused and he had to relieve himself in a plastic bottle. He was given food only once during that period but was anyway unable to eat it because of his handcuffs.

On 21 April 2014 the applicant was transferred to solitary confinement cell no. 412 on the fourth floor where he remained until 2 July 2014. The cell measured 9 sq. m and was equipped with a bed, a bedside cabinet, a table, a sink and a lavatory bowl that stank. The window did not open so the applicant could not air his cell. The window was also covered with paint which blocked the daylight. The artificial lights were dim. The cell was damp and cold and the applicant had to sleep with his coat on. The cell was swarming with mice.

From 2 July to 29 August 2014 the applicant was held in solitary confinement cell no. 413. The conditions of detention in that cell were similar to those in cell no. 412.

Both cells nos. 412 and 413 were locked and the applicant remained alone all the time. Neither the other inmates nor the warders ever entered the cells. The cells were not equipped with a radio or TV set. The applicant was not given any books or newspapers. He was not allowed to use his mobile telephone. As he was in total isolation, he counted the days by drawing sticks on paper.

It was not until 5 June 2014 that he was allowed to take walks in the yard. In particular, he was allowed to go out in the yard on 10, 11, 12, 14, 15, 17, 18, 21 and 30 June, 13, 7, 11, 13, 15, 19, 27 and 29 July and 3, 6, 9, 11, 12, 18, 21, 24 and 25 August 2014. The walks lasted between ten minutes and half an hour. The exercise yard measured 30 m by 8 m and was enclosed by a three-metre-high fence. The applicant was always alone in the yard.

It was very difficult to get permission for family visits. He was allowed only four visits from his wife, each time for less than half an hour and in the presence of warders.

The detention centre had no canteen and the food was brought from other detention facilities. It was always cold and did not contain any vegetable, fruit, meat or dairy products. The warders gave him food through a small window in the door. No drinking water was provided and the applicant had to drink tap water which was of poor quality.

During his four-month stay in the centre the applicant was allowed to take a shower only five times. The water in the shower was cold. There was no laundry service and the applicant had to wash his clothes himself.

According to the Government, the applicant was held in cell no. 412 which measured 27.4 sq. m. The cell had windows, artificial light and central heating. It was equipped with a lavatory bowl, running hot and cold water, a bed, a bedside cabinet and a dining table.

Inmates were provided with hot meals three times per day. They could walk in the exercise yard every morning in accordance with applicable regulations.

The detention centre for aliens had a library which the applicant was allowed to use on request.

The detention centre for aliens had no punishment cells and its warders never used handcuffs.

On 29 August 2014 the applicant was transferred to an administrative detention cell at Krasnoselskiy District police station no. 9 where he remained until 31 August 2014.

The applicant was placed in a cell at about 4.30 p.m. on 29 August. However, he remained handcuffed until 11.30 p.m. of the same day.

The cell measured 3.75 sq. m. It had concrete walls and ceiling and no windows. There was an opening in the wall measuring 40 cm by 60 cm blocked by a metal sheet with ventilation holes.

The cell was equipped with a narrow wooden bench. There was no table, chair, sink or lavatory bowl. The applicant was not given any food or water. He was not allowed to go to the toilet until about 1 p.m. on 30 August before a court hearing. He remained handcuffed from 1 to 5 p.m. on 30 August 2014 during the entire court hearing and until his return to the police station.

The applicant’s representatives were not allowed to visit him.

The applicant was released at about 4.30 p.m. on 31 August 2014.

The Government submitted the floor plan of police station no. 9. It is apparent from the plan that there were three administrative detention cells, two of them measuring 7.55 sq. m and one measuring 6.5 sq. m. Each cell was equipped with two benches. There was no other furniture and no lavatory facilities in the cell.

The Government confirmed that the windows were blocked by metal screens with holes in them.

According to the police officers’ statements, the applicant was given food but refused to eat it. He preferred to eat food brought by his wife. He was allowed to go to the police station toilet on request. The applicant was not handcuffed.


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

Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicant was born in 1948 and lives in Yerevan. She is unemployed and receives state welfare benefit.

On 10 October 1991 the Republic of Armenia Executive Committee of the Mashtots District Council of People’s Deputies decided to allocate a flat to the applicant in a building in Yerevan, which was to be constructed by Kanaz Aluminium Factory (hereafter - the Factory).

It appears that the foundation of the future building was laid but, as the Soviet Union collapsed, the construction of the building was stopped.

On an unspecified date the Factory went bankrupt and a liquidation commission (hereafter - the commission) was set up.

It appears that on 8 May 2007 the applicant lodged a request with the commission seeking to be allocated a flat or to receive money equivalent to its value.

On 10 May 2007 the head of the commission rejected the applicant’s request on the ground that the building, of which one flat was to be allocated to the applicant, had not been constructed due to the lack of financial means. He stated that the Factory had carried out construction activities with direct financial support from the Soviet Government and that after the Soviet Union collapsed it had to stop construction projects for lack of financial means.

On 13 June 2007 the applicant, who was not represented by a lawyer, lodged a claim with the Arabkir and Kanaker-Zeytun District Court of Yerevan seeking to oblige the Factory to allocate a flat to her or provide her compensation equivalent to its value.

On 19 July 2007 the District Court dismissed the applicant’s claim on the same grounds as those relied on by the head of the commission. It also found that the Factory had been declared bankrupt and had no legal successor as such.

On 23 July 2007 the applicant, still unrepresented, lodged an appeal against this judgment.

On 15 October 2007 the Civil Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the District Court.

The applicant did not lodge an appeal on points of law with the Court of Cassation. She alleges that she was unable to do so as she could not afford to hire an advocate authorised to act before that court, whose services were costly. She further claims that she applied to many lawyers with a request to provide her with free legal services as regards her application to the Court of Cassation. However, her requests were turned down on the ground that the issue concerned an apartment and legal aid was not available for this type of a dispute.


CASE OF VARDANYAN AND NANUSHYAN v. ARMENIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Equality of arms;Impartial tribunal);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary damage - reserved (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - reserved (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants are a family who lived in Yerevan in a house on a plot of land measuring 1,385.6 sq. m. in total and situated at 13 Byuzand Street. The second and third applicants are the first applicant’s wife and son.

On an unspecified date the first applicant lodged a request with the Spandaryan District People’s Court of Yerevan seeking to invalidate an agreement concluded in 1933 between his grandparents and a state agency according to which their house, comprising the house itself and the plot of land, was transferred to that state agency. He thus sought recognition of his ownership rights for the above-mentioned house and the plot of land.

On 19 August 1994 the Spandaryan District Court granted the claim by annulling the above agreement and recognising the applicant as the owner of the house and the plot of land. No appeal was made against this judgment and it became final.

It appears that on 3 November 1994 an ownership certificate for the house and the plot of land was issued to the applicant by virtue of the judgment of 19 August 1994.

Upon application by the First Deputy to the President of the Supreme Court, on 9 February 1995 the Civil Panel of the Supreme Court quashed the judgment of 19 August 1994.

On 8 December 1995 the first applicant lodged a claim with the Civil Panel of the Supreme Court seeking recognition of his inheritance and ownership rights in respect of the house situated at 13 Byuzand Street. In the concluding part of the claim, the first applicant mentioned that he sought recognition of his inheritance rights both in respect of the house and the plot of land.

On 11 December 1995 the Civil Panel of the Supreme Court of Armenia examined the first applicant’s claim and decided to dismiss it.

On 22 September 1997 the Presidium of the Supreme Court quashed the judgment of 11 December 1995 and decided to grant the claim.

On 29 December 1998 the Plenary Session of the Court of Cassation (the highest judicial instance established by the Constitution of 1995 and functioning since 10 July 1998) examined the decision of 22 September 1997 upon a supervisory appeal lodged by the General Prosecutor’s Office and decided to leave it in force.

It appears that the first applicant was given a new ownership certificate in respect of the house and the plot of land which mentioned the decision of 22 September 1997 as a ground for the ownership right.

On an unspecified date the first applicant lodged a claim against third persons who owned two small premises situated on his plot of land.

On 18 July 2000 the Kentron and Nork-Marash District Court of Yerevan granted the first applicant’s claim. In particular, it found that the applicant’s ownership right to the plot of land situated at 13 Byuzand Street had been restored by the decision of of the Presidium of the Supreme Court of 22 September 1997, therefore any premises situated on it had to be recognised as being under his ownership as well.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, “the Agency”) was set up to manage the implementation of the construction projects.

On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street to a private company, Vizkon Ltd. The latter was authorised to negotiate directly with the owners regarding the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State seeking forcible expropriation of such property. It appears that on 8 December 2004 Vizkon Ltd reached an agreement with Tosp Ltd, a valuation agency, for the latter to carry out a valuation of the immovable property situated at 13 Byuzand Street.

On 19 May 2005 Tosp Ltd carried out a valuation, according to which the market value of the applicants’ house was 54,494,000 Armenian Drams (AMD), while that of the plot of land was AMD 276,230,000.

On 15 April 2005 the Agency held a meeting of its governing board, which included representatives of the Government, the State Real Estate Registry (the SRER), the Ministry of Finance and Economy, the Mayor’s Office and the Police Department, at which it was decided to issue a new type of ownership certificate to the first applicant for the house and the plot of land situated at 13 Byuzand Street.

On 13 May 2005 a new ownership certificate for the house and the plot of land was issued to the first applicant. As a ground for registration of the ownership right, it mentioned the judgment of the Spandaryan District People’s Court of Yerevan of 19 August 1994, the decision of the Presidium of the Supreme Court of 22 September 1997, the decision of the Plenary Session of the Court of Cassation of 29 December 1998 and the judgment of the Kentron and Nork-Marash District Court of Yerevan of 18 July 2000.

On 22 November 2005 Vizkon Ltd lodged a claim on behalf of the Mayor of Yerevan against the SRER, seeking to invalidate the registration of the first applicant’s ownership of the plot of land, claiming that it had never been recognised by any judicial act. It also requested that the first applicant be involved in the proceedings, as a third person whose rights were affected by the claim.

On 13 January 2006 the Kentron and Nork-Marash District Court of Yerevan granted the claim, finding that the first applicant’s ownership of the plot of land had never been recognised by a judicial act.

On 24 January 2006 the first applicant lodged an appeal against this judgment.

On 27 February 2006 the Court of Appeal dismissed the claim as unsubstantiated. In particular, it found that the first applicant’s right to the plot of land had been recognised by the decision of the Presidium of the Supreme Court of 22 September 1997 and the judgment of the Kentron and Nork-Marash District Court of 18 July 2000.

On an unspecified date, Vizkon Ltd lodged an appeal on points of law against this judgment.

On an unspecified date, the rapporteur, Judge H. of the Court of Cassation, presented to the first applicant an agreement of a friendly settlement with the Agency, Vizkon Ltd and the SRER. According to the proposal, the first applicant was to receive USD 390,000, a flat measuring 160 sq. m. and office premises measuring 40 sq. m. in the centre of Yerevan in exchange for his revocation of ownership of the house and the plot of land.

On 19 April 2006 the applicant sent a reply to the judge informing her of his refusal to sign a friendly settlement.

On 21 April 2006 the Court of Cassation held a hearing of the appeal with the participation of the parties. Having heard that the first applicant had refused to sign a friendly settlement with the Government, the Chairman of the Civil Chamber of the Court of Cassation, Judge M., who ex officio presided over the examination of the appeal, stated:

“Each party should come to a solution through compromise... If we continue dragging out this dispute, we will celebrate its hundredth anniversary... Name the day and the hour when it is convenient for you to come and express all your ideas in the presence of the parties before Judge H...but try to have an efficient discussion before Judge H. ... you have a lot of time until [then]. Have a meeting and a discussion, and try to find common points in the friendly settlement so that your discussion is efficient.”

With this, Judge M. closed the hearing.

On 5 May 2006 the Court of Cassation held another hearing of the appeal. On learning that the first applicant still refused to sign a friendly settlement, Judge M. stated:

“You have many times participated in the Chamber hearings and must have noticed that the Chamber always attaches importance to the fact of which party has refused to sign a reasonable friendly settlement. So this is the last time that we, the Chamber, give you an opportunity until the next hearing ... to discuss once more [the friendly settlement] issues and submit your reply to ... [Judge] H.”

With this, Judge M. closed the hearing.

It appears that the first applicant persisted in his reluctance to sign a friendly settlement.

On 28 July 2006 the Civil and Economic Chamber of the Court of Cassation, composed of Judge M., president, and Judges H., G. and A., quashed the judgment of 27 February 2006 and remitted the case for a fresh examination. The relevant parts of this decision read as follows:

“...It follows from the examination of [the relevant court decisions] that no ownership right of [the first applicant] had ever been recognised in respect of any plot of land, therefore there are no legal grounds for the registration of [the first applicant’s] ownership to the land.

In these circumstances, the arguments with regard to the violations of the substantive and procedural law raised in the appeal on points of law are substantiated since the above-mentioned court decisions have not recognised [the first applicant’s] ownership right to any plot of land, therefore there are no legal grounds for the registration of [the first applicant’s] title. Moreover, [the first applicant’s] title had been registered in respect of State-owned land without any legal basis.”

On 15 September 2006 the Civil Court of Appeal examined the claim anew and granted it, finding that the first applicant’s ownership right to the plot of land had not been recognised. In particular, it held:

“... it follows from the examination of [the relevant court decisions] that no ownership right of [the first applicant] had ever been recognised in respect of any plot of land ... Therefore, [the first applicant’s] ownership right in respect of the Stateowned plot of land was registered without any legal ground.”

On 12 February 2007 the first applicant lodged an appeal on points of law against this judgment arguing, inter alia, that the Court of Appeal had not been independent and impartial since it had been bound by the findings of the Court of Cassation expressed in the decision of 28 July 2006.

On 2 March 2007 the Court of Cassation declared the appeal inadmissible for lack of merit.

On 25 December 2005 Vizkon Ltd informed the first applicant that the house he owned was situated within an alienation zone. It also informed him that his house had been valued by a licensed valuation organisation at AMD 54,494,000 and offered him, as the owner, this sum as compensation for alienation. An additional sum would be paid to him as a financial incentive in accordance with Government Decree no. 759-N of 19 May 2005, if he agreed to sign an agreement and to hand over the property within one month.

It appears that the first applicant did not accept the offer.

On 26 January 2006 the Yerevan Mayor’s Office instituted proceedings against the first applicant, seeking to terminate his ownership of the house by paying him compensation and to have him evicted. Vizkon Ltd also joined these proceedings as a third party.

On 18 April 2006 the Constitutional Court declared, inter alia, Government Decree no. 1151-N of 1 August 2002 and Article 218 of the Civil Code (the CC) to be unconstitutional, but decided that the impugned legal provisions had to remain effective until a law establishing a legal regime for expropriation was adopted but that, in any event, the latest date on which they would lose their legal force was 1 October 2006.

On 22 August 2006 the Kentron and Nork-Marash District Court of Yerevan examined the claim in the presence of the first applicant and a representative of the Mayor’s Office. The District Court decided to grant the claim, awarding the first applicant 54,494,000 Armenian drams and ordering his eviction. The District Court based its findings on Articles 218221 and 283 of the Civil Code.

On 4 September 2006 the first applicant lodged an appeal, which was scheduled to be examined by the Civil Court of Appeal on 25 September 2006.

During the night of 24 to 25 September 2006 the first applicant felt unwell and was taken by ambulance to hospital, where he was diagnosed with impaired cardiac function.

On 25 September 2006, before the beginning of the hearing, the Court of Appeal received a written request lodged by the first applicant seeking adjournment of the hearing because of his health problems. It appears that a hospital certificate stating that he was in hospital was attached to the request.

On 25 September 2006 the Court of Appeal held a hearing in the absence of the first applicant and his representative but in the presence of representatives of the Mayor’s Office and Vizkon Ltd, who made their submissions in relation to the first applicant’s appeal, asking that it be rejected. As regards the first applicant’s request to reschedule the hearing, according to the record of the hearing, the Court of Appeal refused to adjourn it on the ground that the first applicant had a representative who had participated in the proceedings before the District Court. By the judgment adopted on the same date the Court of Appeal upheld the judgment of 22 August 2006 confirming the amount awarded by the District Court. The judgment stated that the first applicant had failed to appear despite having been duly summoned to the hearing.

On 2 October 2006 the first applicant, having undergone medical treatment, was discharged from the hospital.

On 20 December 2006 the first applicant lodged an appeal on points of law against the judgment of 25 September 2006.

On 16 January 2007 the Court of Cassation declared the first applicant’s appeal inadmissible for lack of merit.

The judgment of the Court of Appeal of 25 September 2006 entered into force at the time of its delivery and was immediately enforceable.

In May 2007 the first applicant sought to terminate the enforcement proceedings in respect of the judgment of 25 September 2006 with reliance on the Constitutional Court’s Decision of 18 April 2006, which had found Governmental Decree no. 1151-N and Article 218 of the CC incompatible with the Constitution.

On 11 June 2007 the Department for Execution of Judicial Acts enforced the judgment by demolishing the house.

On 6 July 2007 the Court of Appeal dismissed the first applicant’s application, finding that on 11 June 2007 the judgment had been enforced and the enforcement proceedings had been terminated.

On 18 May 2007 the second and third applicants lodged an appeal with the Court of Cassation against the judgment of the Court of Appeal of 25 September 2006 alleging that they had learned of the house expropriation proceedings against the first applicant only on 19 February 2007. In the appeal, the second and third applicants argued that they enjoyed the right of use of accommodation in respect of the first applicant’s house, therefore the expropriation proceedings also affected their proprietary rights. They thus claimed that the authorities had failed to make them parties to these proceedings and that the alleged deprivation of their property was not lawful and in the public interest.

On 24 July 2007 the Court of Cassation declared the appeal of 18 May 2007 inadmissible for lack of merit finding, inter alia, that the second and third applicants’ rights were not affected as the first applicant was the sole owner of the house in question.


CASE OF CHRISTIAN BAPTIST CHURCH IN WROCŁAW v. POLAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione materiae;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant is a legal entity, a local community of the Christian Baptist Church in the Republic of Poland operating on the basis of the Act of 30 June 1995 on Relations Between the Republic of Poland and the Christian Baptist Church Act (ustawa o stosunku Państwa Polskiego do Kościola Chrześcijan Baptystów w RP – hereinafter “the 1995 Act”) with its seat in Wrocław.

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

The case concerns a property with a four-storey building and another building dedicated to sacral purposes in Wrocław. Before World War II the property was used by the Baptist Commune belonging to the Bund Evangelisch-Freikirchlicher Gemeinden in Deutschland operating on the territory of the German Reich. The property number was 1077/42. It measured 0.785 ha.

On 4 September 1946 the Wrocław Governor (Wojewoda Wrocławski) decided that the property in question should become subject to the applicant church’s management (przejęcie w zarząd) on the basis of section 2(4) of the 1946 Decree on abandoned property (dekret o majątkach opuszczonych i poniemieckich – hereinafter “the 1946 Decree”).

In 1956 the applicant church lodged a request to be registered in the land and mortgage register as the owner of the property and the request was granted. The property was registered under the number 945.

On 23 April 1959 the Minister of the Economy announced a new interpretation of section 2 (4) of the 1946 Decree.

On 23 June 1959 the District Residential Buildings Board for Wrocław-Krzyki (Dzielnicowy Zarząd Budynków Mieszkalnych) decided that all kinds of property which were subject to the church’s management were to pass into the ownership of the State and ordered that the applicant church transfer the property in question to the State. The order did not concern the part of the property which was dedicated exclusively to sacral purposes.

On 19 August 1966 a new land-register entry 35905 was opened for the property no. 1077/42. The land-register entry 945 was however not closed.

In 1968 the property was registered under the land-register number 35905 was given a new plot number 9 and its area was recalculated. The new measurement was 0.371 ha. It appears that the plot number 9 constituted only a part of the previous property number 1077/42 and comprised only the building dedicated to sacral purposes.

The remaining part of the original property number 1077/42, which comprised the four-storey building, was given new plot numbers 39 and 33/5. It measured 0.325 ha and a new land-register entry 63650 was opened for it. In 1977 the State was registered as the owner of this property and, after the reform of the local governments of 1990, the property was transferred to the City of Wrocław.

The present application concerns the right to the property referred to above in paragraph 14.

On 9 May 1996 the applicant church requested that the Wrocław Governor issue a decision confirming the applicant church’s ownership of the property in question. It relied on the newly enacted 1995 Act (see paragraphs 47-50 below).

On 12 September 1996 the Wrocław Governor refused to issue a decision which would confirm that the property in question belonged to the applicant church. The Governor found that the applicant church had failed to satisfy a requirement laid down in section 39 of the 1995 Act, specifically that it had not possessed the property in question on the day of entry into force of the Act relied upon. The Governor further held that:

“... , section 40 of the Act likewise cannot be applied because the property in question is located on territory which was not part of Poland before 1 September 1939. The fact that the property was owned by an organisational unit of the Baptist Church operating in the German Reich does not constitute a basis to claim return of ownership because its ownership was transferred to the State under the [1946 Decree].”

On 23 September 1996 the applicant church appealed against this decision to the Minister of the Interior and Administration.

On 18 February 1998 the applicant church sent a letter to the Minister, specifying that the time-limits laid down in the Code of Administrative Proceedings had been exceeded and requested that the Minister issue a decision.

On 1 July 1998 the Minister replied that the length of the proceedings was attributable to amendments of the 1995 Act and informed the applicant church that the relevant decision would be issued by 15 August 1998.

This time-limit was not respected and therefore, on 12 January 1999, the applicant church lodged with the Supreme Administrative Court a complaint in respect of the alleged inactivity of the administrative authority.

On 5 March 1999, before examination of the applicant church’s complaint, the Minister of the Interior and Administration issued a decision, annulling the challenged decision and ordering the return of the case to the Governor. The Minister ordered that, when re-examining the case, the Governor should take into account the amended section 4 of the 1995 Act.

In view of the fact that the Minister had issued a decision, on 28 April 1999 the applicant church withdrew the complaint of 12 January 1999 concerning the inactivity of the administrative authority.

After remittal of the case, on 24 March 1999, the Governor of Lower Silesia (Wojewoda Dolnośląski) asked the Wrocław Commune whether there was any property available which could be granted to the applicant church in return for the property in question. It appears that the Governor’s letter was left without reply.

On 29 May 1999 the Governor requested from the Minister of the Interior and Administration an official interpretation of the amended section 4 of the 1995 Act “in view of the many doubts as regards the proper interpretation of this provision”.

On 20 June 2000 the Minister replied that, since the administrative authorities were bound by provisions of law binding on the day of decision, it was irrelevant that the applicant church’s original request had been lodged when section 4 of the 1995 Act had had different wording.

On 21 July 2000 the applicant church asked the Governor to issue a decision in its case, pointing out that the time-limits laid down in the Code of Administrative Proceedings had been exceeded.

On 20 October 2000 the applicant church lodged a complaint (zażalenie) with the Minister of the Interior and Administration that the Governor had exceeded the statutory time-limits and had failed to issue a decision on the merits or to justify the delay in the proceedings.

On 7 December 2000 the applicant church lodged a complaint with the Supreme Administrative Court about the alleged inactivity of the Governor.

On 1 March 2001 the Minister of the Interior and Administration found the applicant church’s complaint of 20 October 2000 well founded and ordered the Governor to issue a decision on the merits before 30 April 2001.

On 30 April 2001 the Governor stayed the proceedings.

On 7 July 2001 the applicant church appealed against the decision to stay the proceedings.

On 17 December 2001 the Minister of the Interior and Administration allowed the appeal, finding that the proceedings should not have been stayed, annulled the challenged decision and returned the case to the Governor.

On 12 March 2002 the Supreme Administrative Court examined the applicant church’s complaint against the inactivity of the administrative authority and ordered the Governor of Lower Silesia to issue a decision on the merits within the time-limit of thirty days.

On 21 June 2002 the Governor’s office gave a decision and refused to return the property in question to the applicant church. It found that the applicant church, although registered as owner under the land-register number 945 and treated in the past by the administrative authorities as owner, had never in fact owned the property, which had only been left under the applicant church’s administration (oddane w zarząd).

On 12 July 2002 the applicant church appealed.

On 23 September 2002 the Minister of the Interior and Administration annulled the challenged decision and returned the case for re-examination to the Governor. The Minister found, among other things, that the Governor had had no right to question the validity of the entry in the land register.

On 23 February 2003 the applicant church complained to the Governor about the delay in the proceedings.

On 8 February 2007 the Governor’s office gave a procedural decision in which it held that owing to the particularly complicated nature of the case, the decision on the merits could not be issued within the statutory time-limits and set a new deadline for decision of 30 June 2007.

On 18 June 2007 the Governor of Lower Silesia gave a decision on the merits and refused to return to the applicant church the property in question. The Governor relied on the amended 1995 Act and found that the applicant church had failed to satisfy the requirements laid down in section 4 of the Act, namely that it could not be a legal successor of the Church which had not operated on the territory of Poland before 1 September 1939.

On 11 July 2007 the applicant church appealed.

On 6 February 2008 the Minister of the Interior and Administration upheld the challenged decision.

On 11 March 2008 the applicant church lodged a complaint with the Warsaw Regional Administrative Court.

On 12 September 2008 the Warsaw Regional Administrative Court dismissed the applicant church’s complaint.

On 10 November 2008 the applicant church lodged a complaint against the Regional Administrative Court’s judgment with the Supreme Administrative Court.

On 13 October 2009 the Supreme Administrative Court dismissed the applicant church’s complaint. The judgment was served on the applicant church’s lawyer on 6 January 2010.