Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The first applicant was born in 1978 and lives in Tsentrelnye Koryaki in the Kamchatka Region.

On 20 June 2005 at approximately 3.30 a.m. he was arrested by traffic police while driving a vehicle which had been declared stolen earlier in the evening, and was taken to the local police station.

On the same day at 3.00 p.m. he gave a confession statement.

Later on at approximately 6.00 p.m. a record of his arrest was drawn up. This document indicated that he had been apprehended at 6.00 p.m. by an investigator, Mr S.

On 22 June 2005 the Yelizovskiy District Court (“the District Court”) authorised the first applicant’s detention. The court found that there were grounds to believe that he would abscond, because he was suspected of having committed an offence punishable by more than two years’ imprisonment, was unemployed and without any source of income, and did not reside at his official address. It further referred to the risk that the first applicant might continue his criminal activities on the grounds that, having been released on parole on 17 June 2005, he had been apprehended three days later on suspicion of an offence similar to that for which he already had a conviction.

On 29 June 2005 the first applicant was charged with theft.

On 19 July 2005 the detention order of 22 June 2005 was upheld on appeal.

By a judgment of 1 March 2006, upheld on appeal on 2 May 2006, the District Court convicted the first applicant as charged and sentenced him to ten years’ imprisonment.

The second applicant was born in 1976 and lives in Vladimir.

On 10 April 2005 Ms F. complained of having been raped by three unidentified individuals.

A criminal investigation into the rape was opened at 12 noon on 11 April 2005 and the second applicant was apprehended on the same day. He and the Government provided differing versions of how he was arrested.

According to the second applicant, at around 12 noon he was stopped in the street by police and escorted to the local police station. Between 12.25 p.m and 12.33 p.m. he took part in an identification parade, as a result of which he was identified by the victim as one of the individuals who had raped her. Between 3.10 p.m. and 4.20 p.m. he was questioned by an investigator. A record of his arrest was not drawn up until 11.35 p.m.

According to the Government, the second applicant was taken to the police station as a witness. They have provided no indications as to when he was taken there or why he was considered to be a witness for the purposes of the investigation. The Government further claimed that the second applicant was interviewed as a witness between 3.10 p.m. and 4.20 p.m., and that the identification parade during which he was identified by the victim took place between 10.25 p.m. and 10.33 p.m. At 11.25 p.m. he was arrested as a criminal suspect and ten minutes later an arrest record was drawn up.

During the above procedures, the second applicant waited in different offices of the police station. Had he tried to leave, he would have been stopped by the police officers who were standing guard at the doors of the offices. As soon as the record of arrest was compiled, he was incarcerated.

At 6.25 p.m. on 13 April 2005 the Gus-Khrustalnyy Town Court of the Vladimir Region (hereinafter “the Town Court”) remanded the second applicant in custody on the basis of Article 108 of the Russian Code of Criminal Procedure (hereinafter “the CCrP”) (see paragraph 34 below). It found that he was suspected of having committed a serious criminal offence, had been identified by the victim, had escaped from the scene of the crime, did not work and had a recent criminal record, and that for those reasons he might abscond, reoffend, influence the victim and the other parties to the proceedings, destroy evidence, or otherwise obstruct the proper administration of justice. The Town Court did not address the second applicant’s allegation that he had been unlawfully detained for more than forty-eight hours without judicial authorisation.

On 15 April 2005 the second applicant appealed. Among other things, he complained that his detention was unlawful, on the grounds that he had been brought before a judge more than forty-eight hours after his actual arrest and the Town Court had not established any “exceptional circumstances”, as required by the CCrP in order to place a suspect in detention (see paragraph 33 below).

On 16 May 2005 the Vladimir Regional Court (“the Regional Court”) upheld the order of 13 April 2005. It considered that the second applicant had been apprehended as indicated in the arrest record. It further found that the Town Court had based its decision on sufficient grounds. Lastly, as regards his argument concerning the absence of “exceptional circumstances”, the Regional Court held as follows:

“The exceptional nature of remanding a criminal suspect in custody implies that he must be charged not later than ten days from the time of his arrest. Otherwise, he should be immediately released.”

In the meantime, on 19 April 2005 the second applicant was charged with aggravated rape.

On 20 December 2005 the Town Court found him guilty as charged and gave him a custodial sentence.

On 3 March 2006 the Regional Court upheld the judgment on appeal.

Between 20 April 2005 and 22 March 2006 the second applicant was held in Vladimir Prison T-2 in connection with the criminal proceedings against him. He submitted that the facility had been severely overcrowded and in an appalling sanitary condition. The detainees did not have access to fresh air, sunlight or drinking water.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1959 and lives in Enschede.

On 21 May 2010 the applicant was convicted of shoplifting. The Almelo Regional Court (rechtbank) imposed the measure of placement in a Persistent Offenders Institution (inrichting voor stelselmatige daders) for the duration of two years on him. It took into account the statements of different police officers and probation officers who had had direct contact with the applicant. From these statements it appeared that the applicant was a drug addict who would not voluntarily cooperate with treatment plans. The Regional Court further decided that the measure would be reviewed six months from the date the judgment became final (5 June 2010).

On 1 December 2010 the Regional Court reviewed the measure and decided not to terminate it, because it was deemed that there was still a high risk of the applicant reoffending. The applicant appealed against this decision on 6 December 2010, but on 19 April 2011 the Arnhem Court of Appeal (gerechtshof) dismissed the appeal.

On 19 May 2011 G.D., the applicant’s personal case officer, issued a progress report about the applicant, containing, amongst other things, the following:

“[The applicant] is currently residing in FPA De Cederborg. The placement is progressing reasonably well. (...)

If the measure should be terminated, [the applicant] will immediately find himself in a situation where he has no income, housing or daily activities. The risk of reoffending is consequently high. To lower the risk of reoffending the measure should be continued.”

On 9 June 2011 the Regional Court decided to prolong the measure further, holding that there was a considerable likelihood that the applicant would reoffend after his release.

The applicant lodged an appeal against that decision on 15 June 2011. On 8 November 2011 counsel for the applicant made inquiries with the Court of Appeal about the progress of the appeal and requested that its examination be given priority. Prior to the hearing before the Court of Appeal, counsel for the applicant requested in a letter of 18 November 2011 that, for the benefit of the applicant, an interpreter be present who spoke Aramaic or Assyrian, and he gave the name of an interpreter who spoke the correct language.

On 12 December 2011 a hearing took place before the Court of Appeal. It appeared that the applicant was unable to understand the interpreter who spoke Assyrian. With the applicant’s agreement, the case was adjourned for a maximum period of three months to allow counsel for the applicant to put written questions to certain of the applicant’s counsellors. It was also determined that case officer G.D. should be heard as an expert witness and that an interpreter speaking Aramaic should be present at the next hearing.

After a period of three months had elapsed, counsel for the applicant inquired with the Court of Appeal into the progress of the proceedings on 13 March and again on 2 April 2012. The proceedings were resumed on 10 May 2012, when a hearing took place. On that occasion case officer G.D. declared the following:

“[The applicant] is no longer addicted to substances. The risk of reoffending is maximally reduced at this moment. The parole board has made several attempts to include [the applicant] in a treatment plan, but unfortunately this has not been sufficiently achieved. The clinical features of [the applicant] play an important role in this, but Cederborg [the institution] could have signalled earlier that there were no further possibilities to treat [the applicant]. The measure has contributed to the protection of society since [the applicant] is no longer addicted, thus reducing the risk of him reoffending. [The applicant] is now residing in a halfway house and has been placed on the waiting list for sheltered accommodation.”

It would appear that sheltered accommodation became available for the applicant on 11 May 2012.

On 16 May 2012 the Court of Appeal delivered its decision, holding, amongst other things, the following:

“No violation of Article 6 ECHR

The Court of Appeal considers that in the present case it cannot be said that the appeal was dealt with speedily within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It took more than ten months after the appeal was lodged before it was dealt with on the merits. Unlike counsel [for the applicant], the court is of the opinion that the decision to accept that a violation of the Convention has occurred in itself constitutes sufficient satisfaction for the outrage to his sense of justice.

Termination

The Court of Appeal has held that the execution of the measure has not been sufficiently expeditious in all stages. The Court of Appeal deems that the difficult progress of the measure cannot only be attributed to [the applicant] and finds that FPA De Cederborg could have signalled the difficult progress of the measure earlier.

Having regard to the fact that [the applicant] currently has accommodation where he can stay as well as a prospect of placement in appropriate sheltered accommodation where he can also stay if the measure is terminated, and the fact that partly due to this the risk that the termination of the measure will lead to endangerment, nuisance and degradation of society is small, the Court of Appeal considers that continuation of the measure is no longer necessary.”


CASE OF S.C. ANTARES TRANSPORT S.A. AND S.C. TRANSROBY S.R.L. v. ROMANIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

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

The applicants are commercial companies authorised to provide services in the area of passenger transport. They are located in Râmnicu-Vâlcea.

On 23 September 2004 Vâlcea County Council adopted a decision which set out a programme of passenger transport for the local area for a period of three years. Within the programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was considered as an individual route. Following a public tender, an association consisting of two companies was granted a licence to transport passengers along that route.

On 15 April 2005 Vâlcea County Council modified its previous decision and adopted a new programme of passenger transport for a period of three years, covering 2005 to 2008. Within the new programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was grouped together with six other routes. Another public tender took place, and the applicant companies submitted a tender for the group. They subsequently received licences to operate public transportation services for the seven routes in the group.

On 24 May 2005 one of the two companies which lost their licence for the Drăgăşani – Băbeni – Râmnicu-Vâlcea route asked the courts to annul Vâlcea County Council’s decision of 15 April 2005, and to oblige the local authorities to adopt a new decision in which the route in question could again be considered as an individual route.

The first applicant company requested (and was granted) leave to intervene in the proceedings in order to defend its own interests. Through its submissions, the applicant company argued that the decision adopted by the council on 15 April 2005 was in accordance with the law, and asked the Argeş County Court to dismiss the action.

On 13 February 2006 the Argeş County Court held that, by grouping routes together, the county council had acted arbitrarily and had limited access for other competitors in the public transport market. The court considered that the routes had been grouped together without any economic or geographical considerations. The court therefore ordered the county council to re-analyse route no. 047 (the Drăgăşani – Băbeni – Râmnicu-Vâlcea route), and to proceed to a new public tender of the route as an individual route. The court used the following terms:

“We consider that, by grouping together these routes, the creation of a monopoly on the road transport market was encouraged, thereby breaching the principles of free competition.

In conclusion, the court holds that it is necessary to partially revoke decision no. 63/15.04.2005 on the approval of the programme for passenger transport... for the period 2005 to 2008 in respect of offer 27, group of routes no. 11, route no. 047 Drăgăşani– Băbeni– Râmnicu-Vâlcea.

Considering that ... Order no. 1842/2001 was repealed by Order no. 1987/2005 ..., it follows that the defendant should re-analyse route 047 Drăgăşani-Băbeni-Râmnicu-Vâlcea as an individual route in view of these legal provisions and, taking into account the results, proceed to a new public tender.”

The first applicant company lodged an appeal on points of law (recurs) against this judgment, arguing that the plaintiff had not proved the existence of a legitimate interest for its request, and that the partial annulment of a public tender would be unlawful.

On 28 June 2006 the Piteşti Court of Appeal rejected the first applicant company’s appeal on points of law with final effect. The court explained that there were preconditions imposed by law which had to be fulfilled before a decision to group together certain transport routes could be taken by a local authority. Bearing in mind that in the current case those requirements had not been observed, the lower court had correctly annulled the administrative decision in question in the context of the request before it, namely in respect of route no. 047. The Court of Appeal explained that the lower court had ordered the county council to conduct an analysis of whether or not route no. 047 might be grouped together with other routes, in compliance with the legal provisions in force. Lastly, the court held that non-compliance with those obligations would give those whose interests had been negatively affected the right to request reparation for any consequent damage.

On 6 July 2006 Vâlcea County Council adopted a new decision; modifying the programme of public transport for the period 2005-08 by putting out to public tender all seven routes from group no. 11 as individual routes. Consequently, on 26 July 2006 the applicant companies received a letter from the Romanian Traffic Authority (Autoritatea Rutieră Română) informing them that they had to hand over their licences for the entire group of seven routes within thirty days of the final decision in a new public tender.

On 15 June 2007 the new public tender was organised for the seven routes in question. The applicant companies did not participate.

On 2 October 2006 the applicant companies lodged administrative proceedings requesting the annulment of the decision made by Vâlcea County Council on 6 July 2006. They argued that the Argeş County Court, by its judgment of 13 February 2006, had ordered the analysis as an individual route of only one route out of the group of seven. They further alleged that, by withdrawing their licences for the remaining six routes and organising a new public tender for all of the routes in the group, the authorities had acted unlawfully.

On 23 January 2007 the Vâlcea County Court rejected the applicant companies’ complaint. The court held that the contested decision had been adopted in accordance with the judgment of 13 February 2006, but also in compliance with new regulations adopted by the Ministry of Transport; regulations which no longer provided for the possibility of grouping routes together for economic or geographic purposes.

The applicant companies’ appeal on points of law against that judgment was rejected with final effect by the Timişoara Court of Appeal on 6 December 2007. The Court of Appeal considered that the lower court had made a correct analysis of the facts.

The president of the panel of three judges added a separate dissenting opinion to the judgment on the appeal on points of law. He considered that, by adopting the decision of 6 July 2006, Vâlcea County Council had not properly enforced the judgment of 13 February 2006, and had therefore breached the applicant companies’ right to property guaranteed by Article 1 of Protocol No. 1 to the Convention. The judge explained that the applicant companies had participated in a public tender, and had won the right to exploit the group of seven routes in question. Although the county council had been ordered by final judgment to reanalyse only one of the routes above as an individual route, they had adopted without any legal basis a new decision which considered all of the routes individually.

On 5 October 2006 the first applicant company requested before the administrative court the annulment of the Romanian Traffic Authority’s decision of 26 July 2006 to withdraw its licences for the entire group of routes. The first applicant company also requested that the enforcement of that decision be suspended pending the delivery of a final judgment in the case.

The first applicant company argued that the contested decision prevented it and its associate (the second applicant company) from participating in the next public tender for the same route. The applicant companies further argued that the withdrawal of their licences had not been in compliance with Article 65 of Order no. 1987/2005, which set out the grounds on which licences could be withdrawn.

On 18 December 2006 the Piteşti Court of Appeal rejected the action as submitted by the first applicant company. The court held that the applicant had not proved the alleged damage caused by the decision of the Romanian Traffic Authority, since it could participate in the new tender. In addition, there was no proof that the applicant company would be prevented from participating in the new tender. The court further explained that, should the applicant company consider itself prejudiced by the administrative act which was in dispute, it could request damages from those responsible for any consequent loss.

The first applicant company lodged an appeal on points of law against that judgment. It alleged that the licences for the entire group of routes could not be lawfully withdrawn, since not all of them had been annulled by a court judgment. The first applicant company argued that, in accordance with Article 66 of Order no. 1987/2005, a company whose licence for a certain route had been withdrawn could not participate in a new tender for the same route.

On 25 April 2007 the High Court of Cassation and Justice decided to allow the first applicant company’s request, and partially annulled the decision of the Romanian Traffic Authority, which was upheld only in respect of the licence for route no. 047. The High Court considered that the licences held by the applicant company for the other six routes of offer 27, group no. 11 constituted “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention, and that there was no reason to order their remittal through an administrative act.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in 1969 and lives in Astrakhan.

At approximately 8 p.m. on 15 June 2004 the applicant was arrested on suspicion of attempted fraud. On the same day at 11.37 p.m. criminal proceedings were instituted against him.

On 16 June 2004 at 12.58 a.m. a record of the applicant’s arrest was drawn up by the investigator. The record indicated that the applicant’s arrest took place at 11.05 p.m. on 15 June 2004.

On 17 June 2004 the Leninskiy District Court of Astrakhan (“the District Court”) authorised the applicant’s detention pending investigation. The court noted as follows:

“[The applicant] is charged with a serious offence representing an increased danger to society; the material submitted contains sufficient data about [his] involvement in the crime, including the testimony of the victim ... [The applicant] is an acting police officer, and under such circumstances the court finds that the Prosecutor has made a well-founded argument about the necessity to isolate [the applicant] in view of the risk of [his] absconding and obstructing the establishment of the truth in the early stage of the investigation by putting pressure on witnesses using his [status].”

On 25 June 2004 the Astrakhan Regional Court (“the Regional Court”) upheld the above decision on appeal. The appeal hearing was held in the applicant’s absence. The applicant’s lawyer was present.

On 13 August 2004 the applicant was informed that the investigation had been completed and that the case file had been submitted to the District Court for trial.

In the meantime, on 15 August 2004, the two-month time-limit for the applicant’s detention pending investigation expired. The applicant, however, remained in detention.

On 25 August 2004 the District Court scheduled a preliminary hearing and ordered that the preventive measure applied to the applicant should remain unchanged until a date for the opening of the trial had been set.

The applicant challenged the above decision in a supervisory review procedure. He argued that since there had been no valid court order authorising his detention from 15 August to 25 August 2004, the decision to retain the custodial measure unchanged had been unlawful.

On 9 September 2004 the District Court scheduled the opening of the trial and ordered that the preventive measure remain unaltered.

On 16 February 2005 the District Court extended the applicant’s detention pending trial for two months, until 16 April 2005, noting as follows:

“[The applicant] is charged with a serious crime, representing an increased danger to society. The crime, according to the charges brought, was committed in abuse of office. So far [the applicant] has not been suspended from [his post]. Under these circumstances, if released, [the applicant] may put pressure on the victim and the witnesses. The sanction for the offence with which [the applicant] is charged varies from 5 to 10 years’ imprisonment; therefore the arguments of the prosecution that [the applicant] may abscond from justice and render the examination of the case on the merits impossible are well-founded.”

On 7 April 2005 the District Court dismissed the application for release and extended the applicant’s detention pending trial for another two months, until 16 June 2005. The decision mentioned that an appeal could be lodged within three days to the Regional Court and the applicant appealed. However, on 20 May 2005 the Regional Court discontinued the examination of the applicant’s appeal. Referring to Article 355 § 5 of the Code of Criminal Procedure, the Court held that rulings rendered by a court in the course of the trial were not amenable to separate appeal.

On 15 June 2005 the District Court extended the applicant’s detention for three months, until 15 September 2005. The court applied the same reasoning as in its decision of 16 February 2005. On 21 July 2005 the Regional Court upheld the above decision on appeal.

On the same day, the Regional Court dismissed the applicant’s application to quash the decision of 25 August 2004 by means of supervisory review. The court held, inter alia, that the applicant’s detention from 16 August to 25 August 2004 had been lawful and that the decision of 25 August 2004 should stand.

On 14 September 2005 the District Court, applying the same arguments as in its previous decisions, extended the applicant’s detention until 15 December 2005. During the hearing, the applicant requested that the court let his sister represent him. However, in view of the fact that the applicant was already represented by two professional advocates, the court dismissed the request. On 27 October 2005 the Regional Court upheld the above decision on appeal.

On 15 December 2005 the District Court extended the applicant’s detention until 15 March 2006. The court again relied on the gravity of the charges against the applicant, his position and the risk of his putting pressure on the victim and witnesses, and of absconding and obstructing justice. One of the applicant’s lawyers was absent from the hearing. On 26 January 2006 the Regional Court upheld the above decisions on appeal.

On 13 March 2006 the District Court extended the applicant’s detention until 15 June 2006, noting that the grounds for detention had not changed.

The applicant lodged another application for release, relying on a deterioration of his health and the unavailability of adequate medical assistance in the remand prison. However, on 11 April 2006 the District Court dismissed the application.

The applicant appealed, but on 25 May 2006 the Regional Court, relying on Article 355 § 5 of the Code of Criminal Procedure, discontinued the appeal proceedings.

On 9 June 2006 the District Court extended the applicant’s detention until 15 July 2006.

On 29 June 2006 the District Court convicted the applicant of attempted large-scale fraud in abuse of office and sentenced him to six years and six months’ imprisonment and a fine. During the hearing the applicant was kept in a metal cage.

On 11 January 2007 the Regional Court upheld the judgment on appeal.

On 27 January 2009 the applicant obtained a conditional early release.

From 17 June 2004 to 22 January 2007 and from 5 May 2007 to 25 February 2008 the applicant was held in remand prison IZ-30/1 in the Astrakhan Region. He claimed that the facility had been severely overcrowded and that the cells had been in a poor sanitary condition.

In the above periods, the applicant was transported between the remand prison and the District Court on no less than one hundred occasions. He claimed that the conditions of his transport to and from the courthouse had been appalling.

Upon the applicant’s arrival at IZ-30/1 remand prison in June 2004 he underwent a mandatory medical examination, including clinical laboratory tests and an examination by medical specialists. No abnormalities were found. The applicant subsequently underwent scheduled health examinations.

On 16 April 2006 the applicant sought medical assistance. In connection with this application, on 21 April 2006 he was referred to the prison hospital in IK-2 correctional colony for examination and treatment. The examination showed that the applicant was suffering from the initial stages of a cardiovascular disease. He was prescribed and provided with the necessary treatment and his condition improved. The applicant was discharged on 10 May 2006 in a satisfactory condition with a recommendation to continue outpatient supervision. Upon return to IZ-30/1 the applicant was put under outpatient supervision and given the recommended treatment.

From 30 August to 27 September 2006, from 30 May to 29 June 2007 and from 20 July to 27 August 2007 the applicant underwent subsequent scheduled courses of inpatient treatment in IK-2 correctional colony’s prison hospital. The applicant’s health condition remained satisfactory and no complications were noted.

Despite the Court’s request to submit a copy of the applicant’s medical file, the Government’s account was not supported by any relevant documents.

Several times during his detention in IZ-30/1 the applicant applied for treatment for acute toothache. However, he was informed on each occasion that there was no dentist on the medical staff of the remand prison. In October 2005 a dentist was recruited by the remand prison. The only treatment available was extraction and there was a three-week waiting list.

A medical certificate issued by the applicant’s dentist (who had provided dental care to the applicant since 2001, up to his detention) confirmed in January 2009 that there were no traces of dental care having been provided to the applicant in the period between June 2004 and January 2009 and noted a serious worsening of the state of the latter’s teeth. It also stated that the applicant needed treatment for tooth decay (nine teeth) and a dental prosthesis.

The applicant also complained on numerous occasions about hypertension. He was given unidentified pills and a prescription for a more effective and costly medicine, with reference to the facility’s lack of finance. The applicant could not afford to buy the medication prescribed.

The applicant developed chronic gastritis while in remand prison.

At the request of the applicant’s lawyer, on 14 December 2005 the doctor at IZ-30/1 remand prison issued a medical certificate reading as follows:

“During his detention in IZ-30/1 [the applicant] repeatedly turned to the medical unit of the [remand prison] for medical assistance. He was examined by a physician and diagnosed with neurocirculatory dystonia of a hypertonic type, and chronic gastritis of type B at the stage of unstable remission.

Appropriate treatment was prescribed with the medicine available at the remand prison. Furthermore, a prescription was given to the applicant to purchase more efficient medication.

At the present moment [the applicant’s] state of health is relatively satisfactory.

In the event of a worsening of his state of health the applicant can be transferred to the regional prison hospital for inpatient treatment.”

An ambulance was called for the applicant at the court hearings on several occasions and he was given treatment for high blood pressure. The applicant submitted a medical certificate dated 14 December 2005, which shows that the ambulance was called for him on that date during the court hearing and that he was provided with the necessary medical assistance for a hypertensive crisis.

Following numerous complaints about inadequate medical assistance in the remand prison, the applicant was transferred on several occasions to the hospital in the IK-2 correctional colony in the Astrakhan Region. However, no effective treatment was available in the hospital either, because the applicant was not transferred there when his health required, that is following his hypertensive crises, but in accordance with an unclear schedule fixed by the administration of the remand prison.

As is apparent from the documents submitted by the applicant in support of his allegations, on 19 September 2006 an inspection of IZ-30/1 was carried out by the prosecutor’s office of the Astrakhan Region. The inspection revealed, inter alia, that there was a problem of deficient health care in the remand prison.

The applicant brought the issue of inadequate medical assistance before various domestic authorities, including the head of the remand prison, the Astrakhan regional prosecutor’s office, the Ombudsman and a judge of the District Court, but all to no avail.


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

The applicants were born in 1976 and 1948 respectively and live in Požega.

They were employed by Raketa-Putnički Saobraćaj AD, a socially-owned company based in Užice (hereinafter “the debtor”).

On 26 June 2006 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 7 July 2006.

On 15 August 2006 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs.

On 22 September 2006 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 8 October 2006.

On 19 October 2006 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs.

On 22 January 2008 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final by 2009.

On 24 September 2009 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs.

On 19 June 2006 the Požega Municipal Court ordered the debtor to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 5 July 2006.

On 21 August 2006 upon the second applicant’s request to that effect, the Požega Municipal Cour ordered the enforcement of the said judgment and further ordered the debtor to pay the second applicant the enforcement costs.

On 21 September 2006 the Požega Municipal Court ordered the debtor to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 6 October 2006.

On 17 October 2006 upon the second applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the second applicant the enforcement costs.

The debtor, which operated as a socially-owned company, was privatised on 27 December 2002.

On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations.

Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company.

On 11 December 2008 the State sold its shares to a private company.

On 12 July 2010 the Užice Commercial Court opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were stayed.

The applicants duly reported their respective claims based on the above-mentioned judgments to the insolvency administration.

On 8 June 2011 the Commercial Court recognized a part of the applicants’ claims.

In March 2014 and July 2014 some of the judgments at issue had been partially enforced in the insolvency proceedings.

The insolvency proceedings are still ongoing.


Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The case originated in seventeen applications (43928/13, 43934/13, 44107/13, 44132/13, 44136/13, 44140/13, 44147/13, 44150/13, 44152/13, 44153/13, 44522/13, 44526/13, 44535/13, 44542/13, 44548/13, 44611/13 and 44632/13) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-five Albanian nationals on 30 April 2013.

The applicants were represented by Mr D. Matlija and Mr T. Alexandridis, two lawyers practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office.

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

The applicants, whose personal details are set out in the appended table, are Albanian nationals. They have been grouped according to the family they are part of.

During the communist period, families lived in State-owned housing in accordance with lease agreements. Private dwellings which passed into State ownership through legislation on nationalisation were given by the communist government to other families, who as a rule worked for State institutions at the time. In such cases, the local authorities issued occupancy authorisations, which had the effect of granting the right to a tenancy of a flat (“secure tenancy”). A secure tenancy agreement was concluded between tenants and the State-owned Housing Maintenance Company (Ndërmarrja Komunale Banesa – “the Housing Company”).

In 1992, following the end of communist rule, the Privatisation of State-Owned Housing Units Act provided for the privatisation of all Stateowned housing in favour of occupying families. No provision was made for the privatisation of private dwellings which had been nationalised and were occupied by tenants (see “Privatisation of the State-Owned Housing Units Act” below for detailed information).

In 1993 the Property Restitution and Compensation Act was enacted. Former owners or their heirs were entitled to claim restitution of expropriated or nationalised properties as well as compensation. The restitution of dwellings occupied by tenants did not affect the secure tenancy agreements concluded in the meantime, which remained controlled by law (see the “Property Act 1993” section below for detailed information).

In 2004 and 2006 the legislature introduced a time-limit within which tenants had to vacate the dwellings restored to former owners. The said provisions were struck down by the Constitutional Court in 2005 and 2007, respectively (see Constitutional Court’s decisions nos. 26/05 and 11/07 below for detailed information).

The applicants had been living as tenants for many years (between twenty-one and sixty-seven years) in housing units that, following the fall of communism, were restored to the former owners. The applicants had been paying State-controlled rent in accordance with domestic law (see “Relevant domestic law” below).

On 1 August 2012 the Government introduced a Normative Act ordering tenants to vacate dwellings which had been restored to the former owners (“the Normative Act 2012”).

On 13 September 2012 Parliament enacted a law endorsing the Normative Act 2012.

On 20 August 2012 the Association of Tenants living in Expropriated Properties (Shoqata e Qiramarrësve në Shtëpitë Shtetërore Ish Pronë Private – “the Association”) challenged the constitutionality of the Normative Act 2012.

On 31 October 2012 the Constitutional Court rejected the Association’s constitutional complaint and declared the Normative Act 2012 constitutional. The reasoned decision became public on 6 February 2013 (see “Domestic proceedings” in the “Normative Act 2012” section below for detailed information).

Pursuant to the Normative Act 2012, eviction orders as well as enforcement writs were issued against the applicants.

On 12 December 2012 the Association and 638 tenants, including all the applicants, addressed a petition to the Council of Ministers, claiming that the Normative Act 2012 did not provide effective measures for provision of housing for them. They further called upon the authorities to postpone their eviction until after the Christmas holidays. The end of the letter read as follows: “the appellants, some members of the Association” (kërkuesit, disa anëtarë të Shoqatës së Qiramarrësve në Banesat Shtetërore Ish Pronë Private). No reply was given by the Council of Ministers.

None of the applicants possessed any real estate or other alternative housing at the time the eviction orders and the enforcement writs were issued against them. The applicants’ economic status is briefly described in Appendix 1 hereto.

In 2013 and 2014 the National Commercial Bank (“the Bank”) (see “Normative Act 2012” section below for more information) concluded agreements for zero-interest loans with seven families, namely Bakiu (application no. 43928/13), Toqi (application no. 43934/13), Kovaci (application no. 44132/13), Ilirjan Subashi (application no. 44153/13), Paja (application no. 44535/15), Vladimir Dhimitri (application no. 44611/13) and Kadareja (application no. 44632/13), respectively on 11 September 2013, 28 June 2013, 20 March 2013, 2 August 2013, 25 March 2014, 24 June 2013 and 23 May 2013, disbursing loans in the amounts of 37,000 euros (EUR), EUR 40,700; EUR 28,260; EUR 31,500; EUR 25,440; EUR 40,700; and EUR 18,000, respectively.

The applications for a zero-interest loan submitted by the Batku (application no. 44107/13), Xhillari (application no. 44147/13), Vincani (application no. 44150/13), Spahiu (application no. 44522/13) and Fikaj (application no. 44548/13) families were refused by the Bank on the grounds that they did not meet its requirements to obtain a loan.

The Reci (application no. 44526/13) and Lulzim Dhimitri (application no. 44542/13) families were classified as “homeless” (i pastrehë) but failed to complete the documentation necessary to obtain a loan. The authorities did not have any other information in respect of the three remaining families, namely Meta (application no. 44136/13), Nikolla (application no. 44140/13) and Bujar Subashi (application no. 44152/13).

As the file was lacking some information concerning the individual situations of the applicants at the time of the communication of the case to the Government, the Court asked the applicants to submit factual information as regards: the size of the dwelling, the estimated value of the dwelling, the location of the dwelling, the monthly rent paid, the average monthly rent and their monthly earnings. They were further asked to inform the Court whether the eviction orders had been enforced. They were also asked to provide information about their housing situation at that time and how they intended to find long-term accommodation.

Only some of the applicants replied in writing, giving some of the information requested by the Court. Detailed information is set out in Appendix 2 hereto.

In reply to the Court’s question whether the eviction orders had been enforced, only the Bakiu (application no. 43928/13), Reci (application no. 44526/13) and Paja (application no. 44535/13) families submitted bailiff records according to which the first two families were evicted on 30 January 2013, whereas the Paja family was evicted on 12 February 2013. The remaining applicants did not submit bailiff’s records indicating the exact date of their eviction.

The applicants submitted to the Court, amongst other information, the following.

The applicants constituting the Bakiu family (application no. 43928/13) submitted that a 0% loan had been taken by their niece, who was not a member of the family, since they had not met the Bank’s requirements for obtaining a loan. They had subsequently bought an apartment, where they were living at the time of the submission.

The applicants constituting the Bujar Subashi family (application no. 44152/13) submitted that a 0% loan had been granted but they had not been able to use it. Instead, some of the members were renting a flat; the remaining members were accommodated by their relatives.

The applicants constituting the Ilirjan Subashi family (application no. 44153/13) had received a 3% loan from Tirana Municipality. Since the loan was not adequate they were obliged to solicit the help of another person to obtain another loan from a bank. It would appear that the applicants bought an apartment, where they were living at the time of the submission.

The applicant Mr Reci (application no. 44526/13) was renting an apartment as he was unable to take a loan from the Bank for failure to meet the relevant requirements.

The applicant Paja (application no. 44535/13) was granted a 0% loan. It would appear that she bought an apartment where she was living at the time of the submission.

The applicants constituting the Lulzim Dhimitri family (application no. 44542/13) were renting an apartment at the time of the submission as they did not meet the Bank’s requirements to obtain a loan.

The applicants constituting the Fikaj family (application no. 44548/13) were renting an apartment at the time of the submission. Their applications for a 0% loan and social housing had been rejected by the authorities for failure to meet the relevant requirements.

The applicants constituting the Kadareja family (application no. 44632/13) had received a 0% loan. They had subsequently bought an apartment, where they were living at the time of the submission.

The remaining applicants informed their legal representatives that they had been accommodated by relatives, often under cramped conditions. They noted that due to their indigence, they did not have any possibilities of securing alternative housing for themselves and their families other than being provided with social housing.

Article 59 of the Constitution provides, amongst other things, that the State, within its constitutional powers and the means available to it, and with the aim of helping private industry and entrepreneurship, aims to fulfil the housing needs of its citizens. It further provides that the fulfilment of social objectives cannot be claimed directly through the courts. It is the law which defines the conditions under which and the extent to which a person may claim the realisation of this objective.

Article 101 of the Constitution empowers the Council of Ministers to introduce Normative Acts in cases of necessity and urgency. Normative Acts contain provisional measures. They have to be endorsed by Parliament in order to have the force of law.

Other relevant provisions at the material time read, as follows:

Article 17

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

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

Article 122

“1. Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. The amendment and repeal of laws approved by a majority of all members of the Assembly is done by the same majority for the purposes of the ratification of an international agreement.

An international agreement ratified by law has priority over the laws of the country that are incompatible with it.

The norms issued by an international organization have priority, in case of conflict, over the law of the country when the direct application of the norms issued by the organization is expressly contemplated in the agreement ratified by the Republic of Albania for participation therein.”

Article 131

“The Constitutional Court shall decide on:

(a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122

(c) the compatibility of Normative Acts introduced by central and local authorities with the Constitution or international agreements

(f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

Article 134 §§ 1 (f) and 2

The Constitutional Court may initiate proceedings only at the request of:

(f) political parties and other organisations;

(g) individuals.

The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.”

Under Article 609 of the CCP a debtor may seek before the domestic courts to have an executable decision (titull ekzekutiv) declared invalid or to have it declared that the obligation does not exist or that it exists in a smaller amount or that it has later ceased to exist.

Under Article 610 of the CCP parties may complain to a court of an act or failure to act by a bailiff within five days of the said act or omission.

Article 611 of the CCP at the material provided that the appeal before the court against the bailiff’s acts or omissions had no suspensive effect on the execution. There was a right of appeal against the court decision.

The Act was intended to privatise State-owned housing units and to create a free market for housing, thus enabling tenants to become owners. Families living in State-owned flats, pursuant to a lease agreement, could purchase those flats and become owners subject to completion of a set of actions, such as payment of the full privatisation price and registration of the property at the relevant land registry office.

Section 16 of the Act provided that homeless citizens were entitled to receive loans from financial institutions to resolve their housing needs. The interest payments would be borne by the State through the National Housing Agency (Enti Kombëtar i Banesave – “the NHA”).

Section 19 stated that rents for housing units which had previously been private property would be liberalised from December 1995.

Section 21 provided that State-owned housing units which had previously been private property were not privatised under the Act.

Section 25 stated that the State would provide rental housing, which would be constructed in the future, to, inter alia, tenants [who should vacate the housing unit as a result of its return to the former owner] living in dwellings belonging to former owners.

In decision no. 11 of 27 August 1993 the Constitutional Court held, inter alia, that no discrimination had resulted from the existence of two categories of tenants, as provided for under domestic laws. The decision, in so far as relevant, reads:

“The [Constitutional] Court observes that [the Privatisation of State-Owned Housing Units Act] and [the Property Restitution and Compensation Act] govern the problems of the privatisation of State-owned housing units and of the restitution of properties to former owners or compensation for them.

Under both laws, tenants of State-owned housing units have the right to take them into private ownership in compliance with the conditions prescribed by the law. In order to resolve their housing needs, tenants of dwellings that have been restored to former owners have been granted the right to receive loans from financial institutions, the interest payments on which ... are to be borne by the State, as expressly provided for in section 16 of the Act, or, alternatively, are to be accommodated as tenants in housing units to be constructed by the State under section 25 of the said Act.

The different solutions to the housing problems that concern these categories of tenants do not arise from any type of discrimination between them, but are a result of the different statuses they enjoy: the first are tenants of State-owned housing units, the second are tenants of dwellings that have been restored to former owners.”

According to the Property Act the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim their ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in one of the forms provided for in law.

Other relevant provisions of the Property Act are set out below.

The relevant provision of the Property Act 1993 provided:

Section 14

“The relationship between tenants and former owners who become owners/landlords pursuant to this law shall be governed by [the Privatisation of State-Owned Housing Units Act].

If ... the former owner provides the tenant with housing within the same localgovernment area, consisting of a surface area in accordance with the housing norms in force, ... the tenant shall be obliged to vacate the dwelling.

The State is obliged to resolve the housing needs of current tenants in accordance with the current housing norms, by giving priority to families with limited financial means.

At their request former owners may be compensated in one of the forms determined by this law.”

In so far as relevant, the Property Act 2004, replacing the Property Act 1993, provided:

Section 9

“1. Properties which are the property of former owners shall be vacated by tenant(s) within three years. The tenants shall continue to pay the rent set by the Council of Ministers for two years after the entry into force of this Act. The Council of Ministers shall be responsible for housing homeless tenants by providing a dwelling at a low rent, a low-interest loan or a dwelling whose rent is borne by the State.”

In its decision no. 26 of 2 November 2005, the Constitutional Court struck down section 9(1) of the Property Act 2004. It attached importance to the fact that the relevant provision had worsened the status of tenants compared to the provisions that had existed before the Property Act 2004 had entered into force. It found therefore that the amendment to the legislation had not respected the principle of legal certainty. It concluded that a limitation on tenants’ right to shelter could not be justified by the public interest in upholding former owners’ property rights.

Following the above-cited Constitutional Court decision, in 2006 the legislature amended section 9 of the 2004 Act to read as follows:

Section 9

“1. Properties which are the property of former owners and which were leased to tenants by the State before the entry into force of [the State-Owned Housing Units Act], which are used for housing needs, shall be transferred to the possession of the former owner(s) when one of the following conditions is met:

a. The housing needs of the tenants have been met in any other lawful way;

b. The former owner provides the tenants with a dwelling that has a surface area no smaller than the dwelling they already use and which is in an approximately similar condition and within the same local-government area, until such time as the tenants’ housing needs are met in one of the other ways provided by this section.

c. The tenants conclude a loan contract with a financial institution, in accordance with the first and second paragraphs of section 25 of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act];

d. The tenants benefit from housing or a plot of land as provided for by section 25 (3) of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act]”

Homeless persons who are tenants in dwellings which are the property of former owners and who have not concluded a loan contract in accordance with sub-paragraph (c) of the first paragraph of this section, or have not yet been provided with housing in accordance with subparagraphs (a), (c) and (d) of the first paragraph of this section, shall lose their right to possess the dwelling by 31 December 2008. They shall be offered social housing programmes, in accordance with section 4 of the Social Programmes for the Housing of Inhabitants of Urban Areas Act. The former owner is entitled to take lawful possession of the dwelling under his legal title.

The rent for dwellings occupied by homeless persons as provided for in paragraph 1 of this section is indexed according to INSTAT data on the basis of annual price and salary increases. Its aim is to cover the expenses of the owner for the maintenance and good administration of the dwelling ...”

In decision no. 11 of 4 April 2007 the Constitutional Court struck down section 9 of the Property Act 2006. It followed the same line of reasoning as in its decision no. 26/05. It recommended that the Council of Ministers introduce new legislative measures to fill the legal vacuum.

On 1 August 2012 the Government introduced the Normative Act for the vacation of former owners’ properties which were occupied by tenants. Only those tenants whose names had been transferred to the Bank to obtain a zero-interest loan for a period of thirty years to buy a flat would be evicted. The list of homeless tenants in line to obtain a loan would be drawn up by the NHA and submitted to the Bank by 5 September 2012. The deadline to voluntarily vacate the properties was set as 1 November 2012.

In the event of a failure to vacate a flat voluntarily within the prescribed time-limit, the NHA, upon written notification of the former owner, would issue an eviction order, which would be considered an executable decision within the meaning of the Code of Civil Procedure. The NHA would then ask the District Court to issue an enforcement writ for the vacation of the flat. Section 3 bars a stay of execution of the enforcement writ.

In addition to a zero-interest loan for a period of thirty years, section 4 of the Normative Act also provides for social rental housing provided by municipal councils and placement of old people who are unable to care for themselves or who do not have the means to pay for social rental housing in retirement homes.

On 10 September 2012 the Ombudsman issued a public opinion in relation to the Normative Act 2012. He gave the opinion that the legal vacuum resulting from the striking down of section 9 of the Property Act 2006 should have been filled by Parliament instead of by the Government, that there had been no detailed study as regards the status of homeless families, that the time-limits fixed by the Normative Act were extremely short, that no stay of execution was allowed and that no public interest justified a breach of the principle of legal certainty. In the end, he concluded that the Normative Act 2012 was incompatible with the Constitution.

On 13 September 2012 Parliament endorsed the Normative Act. According to the hearing record of the same day, the ruling majority members of parliament (“MPs”) stated that there were 3,157 families living as tenants in dwellings returned to former owners, of these 1,000 had applied for a loan at the Bank, out of whom 285 had already obtained a loan. The programme of granting a zero-interest loan, meaning that interest payments were to be borne by the State, had been in existence since 2009.

According to opposition MPs, the passing of the Normative Act was hasty and required specialised and broader discussions. They requested that the Ombudsman’s opinion be circulated to MPs.

On 20 August 2012 the Association lodged a constitutional complaint with the Constitutional Court, challenging the constitutionality of the Normative Act 2012 and the Law of 13 September 2012 endorsing it. The Association submitted that the solutions provided for by the Normative Act 2012 were incompatible with the principle of legal certainty. They were detrimental to tenants by removing the State’s obligation to provide housing for this category. They were further discriminated against vis-à-vis those tenants who had obtained housing under the State Contribution to Homeless Families Act 1995.

The Association also averred that the situation should have been governed by an Act of Parliament instead of a Normative Act introduced by the Government. It further took issue with the lack of a possibility to challenge the stay of the enforcement and the fact that tenants had to voluntarily vacate the flats within a short time-limit, specifically by 1 November 2012.

In their additional submissions of 23 October 2012 the Association stated that the Normative Act 2012 did not provide effective solutions on the following grounds: local-government units did not possess the necessary funds and means to provide social housing; the Bank did not possess sufficient funds to provide loans to every homeless family; the majority of the applicants, owing to their age, insufficient earnings, previous criminal records and the lack of collateral, would never become eligible for a loan.

In their written submissions of 23 October 2012 to the Constitutional Court, the Ministry of Public Works and Transportation submitted that since 2008 the Government had been implementing a financing scheme of zerointerest loans to homeless families living in housing belonging to former owners. The statistics showed that out of 3,157 registered homeless families, 999 of them had applied for zero-interest loans, out of which only 285 had concluded contracts for disbursement with the Bank. Even though loans had been approved in respect of the remaining homeless families, they had delayed signing the paperwork for their disbursements. Having regard to the delays by homeless families in applying for zero-interest loans and in subsequently signing the paperwork for their disbursement, the Government had introduced the Normative Act as a matter of urgency. The Normative Act had remedied the former owners’ property-rights issues in accordance with Article 1 of Protocol No. 1 to the Convention and avoided making the State liable to payment of high reparation claims. In their view, there had been no breach of the principle of legal certainty, since the problem of homeless families had been the subject of discussions for the previous twenty years. Moreover, the Normative Act provided for social rental housing provided by local-government units or for accommodation at retirement homes for old people who did not meet the requirements to obtain a loan.

On 31 October 2012 the Constitutional Court informed the Association that it had unanimously dismissed its constitutional complaint. The reasoned decision became available on 6 February 2013 (decision no. 1/13).

The Constitutional Court found that the Association had legal standing having regard to its statute, act of incorporation, the nature of its activity and the nature of the Normative Act which it had challenged. It found that there was a connection between the aim for which the Association had been established and the constitutional issue brought for examination before the Constitutional Court.

In respect of the merits of the case the Constitutional Court found that, pursuant to Article 101 of the Constitution, there was a necessity and urgency to introduce the Normative Act 2012. This was dictated by the fact that former owners had been waiting for twenty years to have title to the dwellings returned to them. It had also been conditioned by the implementation of the Strasbourg Court’s pilot judgment in the case of Manushaqe Puto and Others (cited above) as regards the enforcement of final decisions recognising former owners’ right of restitution of their properties or compensation in lieu. It further referenced the Strasbourg Court’s findings in the cases of Beshiri and Others v. Albania (no. 7352/03, 22 August 20060), Driza (cited above) and Ramadhi and Others (cited above) and noted the systemic failures of the domestic system to respect former owners’ right of peaceful enjoyment of possessions. It therefore considered that the Normative Act had struck the right balance between the tenants’ rights and the former owners’ right of property.

As to the proportionality test, the Constitutional Court held that the Normative Act provided for a thirty-year loan at 0% interest, as the payments would be borne by the State. The interest to be paid would exceed the principal to be taken as a loan by a tenant. Furthermore, the Normative Act laid down other positive obligations for the State, such as the provision of social housing to such tenants by local-government units, priority to be given to social rental housing, as well as placement of old people who were not capable of taking care of themselves or had no one else to attend to them in retirement homes. In the court’s view, this showed that the State had made sufficient provision for vulnerable groups. Housing these individuals was a shared task between the State and the individuals themselves. The proposed measures could not be said to be arbitrary, unfair or based on an unreasonable assessment. Neither could they be considered to be more stringent; on the contrary, they were more favourable. The obligation for tenants to vacate the dwellings was necessary and the interference was justified by the public interest.

The Constitutional Court rejected the Association’s complaint that the courts could not stay the enforcement on the grounds that its powers of constitutional review did not extend to issues concerning the interpretation, implementation and harmonisation of domestic laws.

On 23 December 2013 the Ministry of Urban Development (Ministria e Zhvillimit Urban) issued an order (“the Ministry’s order”) pursuant to which the NHA, before the submission of the request to the District Court for the issuing of the enforcement writ, had to check whether the tenants had obtained a loan and/or housing in accordance with domestic law. It was also decided that such a request could not be submitted during the winter period. It further provided several safeguards in the event of a family including elderly people, children, disabled persons, or if the housing conditions were outside of normal lifestyle standards. In such a case the family was provided with social rental housing or a housing bonus. The NHA, in implementing section 4 of the Normative Act 2012, had to urgently request that the municipal councils make social rental housing available. It appears that following this order, the NHA suspended the enforcement proceedings in respect of eighteen tenant families.

On an unspecified date F.B. and Sh.B., tenants, instituted judicial proceedings under Articles 609, 610 and 611 of the CCP, challenging the NHA’s eviction order, the District Court’s enforcement writ and the ensuing bailiff’s actions carried out following the introduction of the Normative Act 2012. In that case F.B. and Sh.B. and the former owners had concluded a lease agreement on the basis of a final court decision which had obliged the tenants to pay a rent, as set out by the Council of Ministers in favour of the former owners.

F.B. and Sh.B. claimed before the domestic courts that they were not obliged to vacate the dwelling as the lease agreement was valid and still in force. Furthermore, the eviction order had been issued by the NHA, which had no jurisdiction to decide on the civil dispute at issue. Subsequently, the bailiff actions had been invalid too. Also the enforcement writ as issued by the District Court was invalid as the NHA had not been the creditor. Only former owners should have asked the district court to issue an enforcement writ. The tenants further claimed that the Normative Act 2012 did not protect in a proportionate manner the right of tenants to respect for their homes. They were further unable to receive a 0% loan due to their lack of financial means (they were unemployed and did not own any immovable property) and age. They also submitted that the bailiff actions carried out were in breach of Article 8 of the Convention as they had not been proportional in that they had not strike a balance between the former owners’ and the tenants’ interests. They finally asked the District Court to stay the enforcement proceedings and to send the case for trial before the Constitutional Court on account of the unconstitutionality of the Normative Act 2012.

On 12 April 2013 the Tirana District Court rejected the action reasoning that upon the entry into force of the Normative Act 2012 the lease agreement concluded between the tenants and the former owner no longer had any legal binding effect. Subsequently, the eviction had been lawful and the tenants were obliged to vacate the dwelling in favour of the former owners. The District Court also noted that the tenants had submitted supporting documents to substantiate their claim that they did not own any immovable property or any other financial mean and they were indeed receiving a retirement and disability pension. However, it reasoned that these were not grounds to challenge an executable decision under Article 609 of the CCP.

The District Court rejected the appellants’ claim against the enforcement writ on the ground that the NHA was eligible under the Normative Act 2012 to ask a district court the issuance of an enforcement writ.

The District Court also rejected the action under Article 610 of the CCP against the bailiff’s actions on the ground that the execution had already taken place, namely the dwelling had already been vacated in favour of the former owner. Furthermore, it reasoned that since the tenants had challenged the bailiff actions on the ground that the executable decision was invalid, as long as that decision was valid, so were the bailiff actions.

As regards the tenants’ application to send the case for trial before the Constitutional Court, the District Court dismissed it as manifestly illfounded in that the Constitutional Court had already examined the constitutionality of that Act in its decision no. 1/13.

As regards the stay of the enforcement proceedings the District Court in the first hearing had already rejected the request by way of an interlocutory decision on the grounds that in the meantime the tenants had already been evicted. Moreover, the tenants had not provided any evidence to prove the existence of irreparable harm. In its decision of 12 April 2013 on the merits of the case the District Court reasoned that Article 611 of the CCP as regards the stay of enforcement proceedings had prevalence over section 3 of the Normative Act 2012, which barred any stay of enforcement.

The District Court’s decision was upheld by the Court of Appeal on 7 October 2014. However, the Court of Appeal noted that the District Court’s assessment concerning the stay of enforcement had been erroneous since the Normative Act 2012, as lex specialis, had prevalence over the provisions of the CCP. The tenants did not lodge an appeal with the Supreme Court on the grounds that the building had in the meantime been demolished.

On two other occasions other tenants had instituted judicial proceedings under Articles 609-612 of the CCP challenging the NHA’s eviction order, the District Court’s enforcement writ and the ensuing bailiff’s actions. The tenants’ representative had lodged complaints with the Ombudsman about the unreasonable length of the judicial proceedings. However, one of the cases was discontinued on the ground that the tenants had not been present at the court hearing without any reason whatsoever. On the other case the tenants had not provided the district court with an adequate address. It appears that both decisions had become final.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1951 and lives in Klaipėda.

The applicant’s husband, V.B., born in 1953, worked as a mechanic in cargo ships. On the morning of 24 October 2007, while on a work voyage to Brazil on the private ship Vega, he was found dead in his cabin. He was lying on his back in bed, with the blanket drawn up to his chest, his right hand bent and pressing his chest. On the same day, the ship’s captain assembled a commission to investigate the death. Having inspected V.B.’s cabin, the captain sent a report about the death to his superiors in Klaipėda, the Limarko shipping company.

The following day, 25 October 2007, a Brazilian doctor, P.C.J., gave acute heart attack (ūmus miokardo infarktas) as V.B.’s cause of death. The Brazilian authorities also issued an authorisation to preserve V.B.’s body (žmogaus palaikų konservavimo aktas). The authorisation noted that there were no indications against preserving the body, and therefore V.B.’s remains were set to be embalmed with the help of chemicals (phenol, formalin and others) at 8 a.m. that day. Afterwards, the body of the applicant’s husband’s was put in a zinc coffin and shipped to Lithuania, which it reached on 1 December 2007.

On 25 October 2007 the ship’s captain and chief engineer were questioned by the Brazilian police authorities. The police also inspected the cabin where V.B. had been found dead. Considering that no crime had taken place and that V.B. had died of a heart attack, the Brazilian police sent the investigation material to a local court.

The death certificate issued by the Brazilian authorities on 5 November 2007 gave heart attack as V.B.’s cause of death.

On 25 October 2007 a Lithuanian prosecutor opened a criminal investigation on the basis of Article 176 of the Criminal Code (see paragraph 51 below), after receiving notification of V.B.’s death from Limarko. The prosecutor ordered the Klaipėda Seaport Police to conduct the investigation.

On 9 November 2007 Limarko provided the investigators with the following documents: the captain’s service report; an extract from the ship’s logbook of 24 October 2007; a report on the circumstances of V.B.’s death, signed by the captain and two assistant captains; two reports (one by the captain and one by the chief engineer) to the Brazilian authorities; statements by twelve members of the crew; the death certificate issued on 5 November 2007 in Brazil; documents about the work instructions given to V.B.; his qualifications and photographs from his cabin.

On 21 November 2007 the applicant requested that the prosecutor and the State Labour Inspectorate (Valstybinė darbo inspekcija, a State body responsible for safety at work, hereinafter – “the SLI”) examine her husband’s body and investigate the cause of his death and his working conditions on the ship. She submitted that conditions on the Vega were dangerous, and could have led to her husband’s death.

In the meantime, on 16 November 2007 the applicant was granted victim status in the criminal proceedings.

On 29 December 2007 the prosecutor refused to continue the criminal investigation, finding that there had been no signs of a crime or anything to disprove a finding that the victim had died because of a heart illness. In particular, the forensic report from Brazil had shown no sign of poisonous chemicals in V.B.’s body fluids; there had also been no traces of alcohol, and V.B.’s body had been embalmed because there had been no indications against such a procedure. Preservation of the body by chemical means irreparably altered the chemical composition of the blood, and therefore there had been no reason to carry out a further examination of the body. The prosecutor noted that in April 2007 V.B. had passed medical check, which showed that he had been fit to serve at sea. The Vega’s logbook had had no entry about V.B. ever complaining about his health.

After a complaint by the applicant, that decision, however, was quashed by the Klaipėda Regional Court on 13 February 2008. The court held that the prosecutor had failed properly to investigate the applicant’s submission that her husband had died because of dangerous conditions on the Vega. The pre-trial investigation resumed.

Between January and April 2008, the Klaipėda Seaport Police questioned as witnesses the sailors who had worked on the Vega with V.B. The sailors testified that V.B., who was a refrigerator mechanic, worked in the machinery section of the ship, where the refrigerators were placed. There had been frequent fires in the machinery section of the ship during the voyage by the Vega. When fires broke out, there was a strong smell of fumes. When there was a fire in the machinery section, the air conditioning in the ship’s cabins did not work, and the temperature would rise as high as 50˚C. In the run up to 24 October 2007, the ship had been preparing to have goods loaded. For that reason, V.B. had worked for about a week prior to his death in the machinery section preparing refrigerators for the shipment. The applicant’s husband was seen working in the machinery section both with and without a gas mask. In the week before his death, V.B. had worked intensively and rested little. No repairs in the machinery section had been carried out until V.B.’s death. After the death, the ship had been repaired in a Brazilian port, after which there had been no smell of gas in the machinery section. The witnesses also stated that V.B. had not complained about his health or stated that he had any heart problems.

The applicant was also questioned. Citing conversations with her late husband, the applicant said that in reality the conditions of work on the Vega had been very difficult as the ship had been in a bad technical state and its mechanics had had to deal permanently with fires and leaks of gas, without any adequate protection.

The SLI’s report of 27 March 2008, no. SD-5662, stated that the SLI had examined the possible cause of V.B.’s death. The SLI held that the reasons for V.B.’s death were not connected to his work. The SLI discontinued its investigation, on the grounds that V.B.’s death certificate had indicated that he had died of a heart attack, and that the authorisation to preserve his body had read that there had been no indication against such an action. When examining the applicant’s complaint, the SLI had obtained internal correspondence between Limarko and the Vega, which showed that the working conditions on the ship had been hard – the ship’s machinery, including the main engine, would often break down, and the engine emitted combustion gases into the ship; there had also been frequent fires. However, according to the SLI, V.B.’s duties did not include repairs to the main engine or extinguishing fires, and he had not done such jobs. The SLI did not have any other proof that the working conditions on the Vega had been harmful. The SLI also observed that they had not performed any readings on the ship, because they had not been able to check it when it was at sea.

On 7 April 2008 Limarko stated that it had been informed about a breakdown of the main engine, which could have led to a worsening of the working conditions on the Vega. Repairs had taken place in the summer of 2007, and the problems had finally been solved in November 2007.

On 31 December 2008 the pre-trial investigation was discontinued by the prosecutor for a second time. The prosecutor held that no crime had taken place and that the applicant’s husband had died of a heart attack, when ‘the ship was on a voyage in the Atlantic Ocean near the Brazilian port of Imbituba’. The prosecutor also relied on the testimony given by an expert, V.A. during the hearing in April 2008 before the Klaipėda Regional Administrative Court (see paragraph 49 below). On the basis of V.B.’s medical record of 15 June 2001 that expert had testified that V.B. had a partial blockage of the nerve in the heart which makes the heart contract. If the nerve did not work properly, heart arrhythmia could occur, which could in turn cause a heart attack. The position of V.B.’s body was typical of someone who had died of a heart attack. According to that expert, fire could cause a heart attack if a person had been in a smoky environment or a closed space, and there had been a lack of oxygen. However, a heart attack would happen at a slower pace than a person would die of suffocation. Death from a heart attack caused by a fire could not take a day or week to happen.

The prosecutor noted that, according to the Brazilian authorities who had considered that the cause of death was a heart attack, no poisons or other toxic materials had been found in the applicant’s body fluids. The prosecutor also pointed out that V.B.’s health had been checked on 24 April 2007, and it had been concluded that he had been “fit to work in the fleet”.

Following a request by the applicant, on 8 January 2009 she was allowed access to the entire criminal case file, which by then comprised 279 pages.

On 16 January 2009 the applicant appealed against the prosecutor’s decision to discontinue the criminal investigation. She argued that there had been many flaws in the investigation and that the conclusions as to her husband’s death had been unclear. In particular, the applicant submitted that the SLI’s decision not to treat the death as an accident at work had been hasty. The applicant was also dissatisfied that the SLI had not inspected the Vega itself, nor had it questioned the crew members, who could have confirmed the unsafe working conditions on board. There had also been no autopsy, nor any test for toxins in her husband’s skin or hair. The body had been embalmed too quickly, without such examinations. The applicant further submitted that Lithuanian diplomats had not been present when the body had been embalmed. The applicant also pointed out that her husband had been healthy: he had been examined by a doctors’ commission in April 2007 and that that conclusion was valid for one year; moreover, her husband had not complained about any heart issue. The applicant also maintained that even local journalists in the town in Brazil where V.B.’s death had been given as a heart attack had not been able to find contact data for doctor P.C.J., thus raising doubts about his credentials.

On 21 February 2009 the Klaipėda City District Court granted the applicant’s appeal. The court observed that on 10 September 2008 the applicant had asked the prosecutor to order an expert examination to establish whether the constant breathing of combustion gases could cause a heart attack, and to ask the Brazilian authorities to provide the report on her husband’s autopsy and the results of blood tests, as those documents had not been present among those brought back with V.B.’s body. She had also asked for documents confirming whether it had been verified that V.B. could have died of poisoning by combustion gases; for the questioning of doctor V.G., who had signed the conclusion of the doctors’ commission (of April 2007) as to V.B.’s health; and for other investigative actions. Given that the applicant had had the status of a victim, the prosecutor had been under an obligation to take a decision on those requests. However, he had ignored the applicant’s requests for three months, until he had taken the decision to discontinue the criminal investigation, which had been in breach of Article 178 of the Code of Criminal Procedure (see paragraph 52 below).

On 20 March 2009 the Klaipėda Regional Court upheld the lower court’s decision. It emphasised that what was at issue was a criminal investigation into charges of a violation of requirements to protect health and safety at work. Having examined the pre-trial investigation material, the regional court concluded that the kind of breaches alleged by the applicant had not been properly examined during the criminal investigation. Furthermore, as could be seen from the SLI’s report of 27 March 2008, the inquiry performed by that body had not been sufficiently comprehensive either (see paragraph 17 above). Accordingly, it could not be stated that the pre-trial investigation into the circumstances of V.B.’s death had been performed thoroughly. In the opinion of the Klaipėda Regional Court, it was therefore vital to continue the pre-trial investigation and to eliminate the doubts raised by the applicant as to the reliability of the results of the medical examination of V.B.’s body, and to establish whether V.B. had indeed worked in harmful conditions during the voyage, including whether regulations on hours of work had been observed. Should breaches of working conditions be established, it was also necessary to order a forensic expert to perform an objective investigation and to establish whether such breaches had had any impact on V.B.’s death. Without a comprehensive examination of those aspects, it had not been reasonable or lawful to discontinue the pre-trial investigation.

On 24 March 2009 the prosecutor ordered the Klaipėda Seaport Police to establish the whereabouts of the Vega and whether it was possible to inspect the ship; to question everyone who worked on it, including about working conditions, as noted in the applicant’s complaint; to obtain documents from Limarko related to safety at work; and to ask the SLI whether they had examined the actual working conditions on the ship. The prosecutor also asked the Klaipėda Seaport Police to prepare a request to the Brazilian authorities for legal assistance.

On 31 March 2009 the Klaipėda Seaport Police asked Limarko for documents about the technical state of the ship on 24 October 2007, information about the ship’s whereabouts, and whether it was possible to inspect it.

On 10 April 2009 the shipping company Limarko replied that the ship usually worked in the region of south west Africa; currently it was near the coast of Namibia. The ship had passed its yearly check by authorised certification company Det Norske Veritas on 21 August 2007 in Walvis Bay port in Namibia, and the inspector of that company had had no remarks as to the technical state of the ship’s machinery. That report was given to investigators.

On 9 June 2009 the prosecutor again asked the Klaipėda Seaport Police to “take active measures” to question everyone who had been working on the ship at the relevant time. It was also necessary to obtain V.B.’s medical records and question the doctor who on 15 June 2001 had diagnosed V.B. with a heart problem, and to obtain documents from Limarko related to repairs in the machinery section of the ship, to fires on board and to issues of safety at work.

In reply to the investigators’ inquiry of 26 May 2009, on 16 June 2009 the SLI wrote that its inspectors had not examined the working conditions on the Vega because, as far as they knew, the ship had not returned to Lithuanian ports after V.B.’s death. It had not been technically possible to examine the ship in the ports of other countries. The SLI noted that the circumstances of V.B.’s death had been examined on the basis of the documents provided by Limarko and on the experts’ conclusions.

On 22 July 2009 the applicant wrote to the prosecutor, questioning why Limarko had not requested that the Brazilian authorities perform a test for toxic substances in the body as such an examination could have been performed within four to six weeks. She stated that she had not been asked whether any other reports by experts should have been done, yet V.B.’s body had been taken straight away to a funeral parlour on 24 October and embalmed at 8 a.m. the following day. The applicant emphasised that the ship at that time had been put up for sale. She asked that the ship’s documents up to the time of the sale be examined to establish whether there were any toxic gases in the machinery room or other factors that made for unsafe working conditions. She mentioned the records in the logs of the machinery room; the service reports to Limarko by the captain and chief mechanic; the description of repairs to the main engine; and the work which her husband performed on the ship. Lastly, the applicant asked the prosecutor to inform her whether and when Limarko had been ordered to keep copies of its communications with the ship during its voyage.

Between April 2009 and August 2010 investigators questioned crew from the Vega, some of them repeatedly.

In addition, on 7 July 2009 doctor V.G. stated that from February 2001 he had worked as chief doctor at the sailors’ health-care centre (Jūrininkų sveikatos priežiūros centras) in Klaipėda. On 15 June 2001 V.B. had passed a medical board exam as being fit to serve at sea. The conclusion of the medical board examination had been signed by doctor V.G. himself, and it meant that the applicant’s husband was healthy enough to work at sea. The partial blockage of the nerve on the right side of his heart, as seen in the cardiogram, had no effect on V.B.’s health, nor on his ability to work at sea. In the doctor’s opinion, inhalation of combustion gases could lead to poisoning, but not to an acute heart attack.

On 9 September 2009 another witness, V.S., stated that he had been a chief mechanic on the Vega in June 2007, but had later refused to work on the ship because of poor working conditions. Failures of the main engine meant that fires on the ship had been frequent, happening almost daily. All the fires and repairs had been registered in the machinery logbook. Limarko had been notified of those facts. The crew had worked in the machinery room wearing respirator masks, but no gas masks had been provided. V.B. would spend about four hours (per day) in the machinery room.

On 13 October 2009 the Klaipėda Seaport Police transferred the criminal file to the applicant so that she could acquaint herself with it. By then, the file comprised 418 pages.

On 7 January 2010, in reply to a request made the same day by the prosecutor, the Lithuanian Maritime Safety Administration (Lietuvos saugios laivybos administracija) noted that the Vega had been taken off the register of Lithuanian ships, because a foreign company, Pantex Trading Limited (Nevis), had bought the ship.

In reply to a question from the Klaipėda Seaport Police of 18 January 2010, Limarko confirmed that it had sold the Vega to a third party. It noted that the records from the ship’s machinery room, which the investigators had been seeking, had been destroyed before the ship had been transferred to the new buyers, and thus could not be provided.

On 25 February 2010 the investigators again provided the case file to the applicant. It by then comprised three volumes and 565 pages.

On 26 May 2009 the Klaipėda Seaport Police sent documents to Klaipėda prosecutors concerning a request for legal assistance to be sent to the Brazilian authorities. The police stated that in order to establish whether V.B.’s death had been caused by dangerous conditions on the Vega, it was important to establish whether an autopsy of V.B. had been performed and his blood tested (and, if so, to provide the results of the autopsy and the tests), and whether the Brazilian authorities had inspected the Vega after the death to examine the working conditions on board.

On 13 October 2010 the Klaipėda Seaport Police submitted a fresh request to the Klaipėda prosecutors for legal assistance from the Brazilian authorities, this time adding a request that doctor P.C.J. be questioned. The prosecutor then returned the documents, because they had not met the right requirements. On 1 February 2011 the General Prosecutor’s Office sent a request for legal assistance to the Brazilian authorities.

On 3 December 2010 a response to the request for legal assistance was received from the Brazilian authorities. However, according to the Lithuanian investigators, the documents contained only internal correspondence between the Brazilian authorities about the fact that V.B. had died. As a result, there had been no new information relevant for the investigation.

On 24 August 2010 the Klaipėda Seaport police asked experts from the State Forensic Medicine Service (Valstybinės teismo medicinos tarnyba) to answer the following questions: 1) what is characteristic evidence that a person has died from an acute heart attack and is it possible to conclude that a person has died from a heart attack without an autopsy; 2) could a dangerous working environment in a non-ventilated ship machinery room (where emission gases were present) have had an impact on V.B.’s death, that is, could such conditions have caused an acute heart attack; 3) how long must a person work in a harmful working environment, where there is an elevated level of emission gases, before getting a heart attack.

On 7 December 2010 the forensic experts J.R. and R.S. prepared a report stating that they had not been provided with any medical documents about V.B.’s autopsy (if one had ever been performed), any blood results or other medical records. Neither were they provided with documents, confirmed by special diagnostic methods, about the exact level of combustion gases on the ship. Therefore, they could rely only on the testimony of the crew who had worked on the ship with V.B.

Proceeding on that basis, the experts stated that, in medical practice, death certificates without an autopsy were delivered only when there was documented medical data that the person had been ill with a long-term disease (sirgo lėtine liga), that the circumstances of death were clear, and that there was no evidence that the cause of death could have been due to physical injuries or other external factors.

For the experts, it was known from the criminal case file that V.B. had been found dead in a cabin. Without examining the body, and in the absence of any data about V.B.’s state of health, or information about any physical injuries or external factors (for example, acute gas poisoning), which could have caused his death, it was possible only to state (galima tik teigti) that the cause of V.B.’s death was that his heart had stopped for unknown reasons. In that case, it was impossible to either confirm or deny that an acute heart attack had been the cause of V.B.’s death. Accordingly, it was not possible to establish a possible link between V.B.’s working in harmful conditions and his death.

The experts also stated that the main reason for an acute heart attack was a failure of arterial blood vessels. That happened when physical exhaustion or nervous tension caused the heart muscle suddenly to need a lot of oxygen. Long working hours, in an environment where there were elevated levels of emission gases, was not a risk factor for a heart attack.

The prosecutor then discontinued the investigation on 14 December 2010, concluding that no crime had been committed ‘on the ship, which sailed under a Lithuanian flag’. According to him, although the existence of harmful working conditions and leaks of gases in the engine room of the ship had been confirmed, they could not have caused the victim’s heart failure.

That decision was upheld by a higher prosecutor, and then by the Klaipėda City District Court on 11 August 2011. The first instance court noted, inter alia, that the cause of V.B.’s death had already been established by final decisions in administrative courts.

The applicant appealed against the decision to discontinue the criminal investigation, arguing that the report by the specialist, J. R., had not definitely confirmed that her husband had died of a heart attack, given that no autopsy had been carried out. She pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, and the lack of documents concerning safety at work on the ship. The applicant also pointed out that the ship’s logbooks had not been obtained, and that the ship had not been inspected.

By a final ruling of 12 September 2011, the Klaipėda Regional Court dismissed the appeal. The court noted that the cause of death had already been established by the final and binding decision of 5 February 2009 by the Supreme Administrative Court in the administrative case (see paragraph 50 below). In addition, the criminal court held that the investigation had been wide-ranging, that numerous witnesses and experts had been questioned and that the necessary forensic examinations had been carried out. As concerned the applicant’s argument about the collection of additional evidence, it was considered as serving no purpose given the amount of time which had elapsed. The criminal court also noted that at certain stage the expert, V.A., had been questioned by the first-instance court of criminal jurisdiction, and had testified that V.B. could have died from his heart condition.

In parallel to the ongoing criminal investigation, the applicant also started administrative court proceedings, asking that her husband’s death be recognised as a work accident.

By a decision of 7 April 2008, the Klaipėda Regional Administrative Court acknowledged, on the basis of the SLI report of 18 December 2007, that work conditions on Vega were bad, and the main engine would often break down, causing leaks of dangerous gases. For that reason many mechanics had left the ship. However, the administrative court also took into account the conclusion by a forensic expert V.A. about V.B.’s earlier heart condition and that fire or smoke on the ship, even if they had been present, could not have caused V.B.’s heart attack (see paragraph 19 above). As a result, the applicant’s claim before the administrative courts for her husband’s death to be recognised as a work accident was dismissed.

On 5 February 2009 the Supreme Administrative Court upheld the lower court’s decision.