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

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1978 and lives in Minneapolis, Minnesota, USA.

On 24 July 2009 the applicant and S. (a Ukrainian national) were married in Minneapolis.

On 28 August 2009 their son, M., was born there. The family lived in Minneapolis. A US passport was issued in M.’s name.

On 10 May 2010 S. obtained permanent resident status in the USA.

In June 2011 the family arrived in Ukraine for a holiday and to visit S.’s relatives.

On 13 July 2011 the applicant returned alone to the USA. The child stayed with S. in Ukraine.

In May 2012 S.’s US permanent resident card expired.

In June 2012 the applicant instituted proceedings before the Minnesota 4th Judicial District Family Court (“the Minnesota District Court”), seeking dissolution of the marriage and sole custody of M. In the course of the proceedings S. agreed to the dissolution of marriage. She argued, however, that the Minnesota District Court did not have jurisdiction with regard to the issue of M.’s custody pursuant to the Minnesota Statutes §518D.201 because the child had been in Ukraine for a period of more than six consecutive months.

In July 2012 the applicant spent a holiday in Ukraine with S. and M.

On 14 August 2012 the applicant asked the Ministry of Justice of Ukraine to order the return of M. from Ukraine to the USA in accordance with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention” – see paragraph 37 below).

On 24 September 2012 the Minnesota District Court dissolved the marriage between the applicant and S. The court reserved the issue of M.’s custody, finding that it did not have jurisdiction over that issue pursuant to Minnesota Statutes §518D.201.

On 19 March 2013 the Chernihiv Regional Department of the State Migration Service of Ukraine issued a certificate declaring M.’s citizenship of Ukraine pursuant to section 7 § 1 of the Citizenship Act 2001.

On 10 April 2013 the Chernihiv Regional Chief Department of Justice, acting in the applicant’s interests, lodged a claim with the Desnyansky District Court of Chernihiv (“the Desnyansky District Court”), asserting that M. had been wrongfully retained in Ukraine and must be returned to the USA in accordance with the Hague Convention.

The applicant submitted that he had expected S. and M. to return from Ukraine to the USA on 16 August 2011; however, S. changed her plans and decided to stay on with M. in Ukraine after that date. During the hearings the applicant stated that he was prepared to cover travel expenses for both the child and the mother if the latter were to be ordered to accompany the child to the USA.

S. objected and submitted that it was the applicant who had asked her to stay in Ukraine with the child beyond 16 August 2011. In that regard S. stated that on 9 August 2011 the applicant had sent her four parcels from Minneapolis containing all her and M.’s personal belongings, including toys and clothes. The applicant also sent her M.’s vaccination certificate for his admission to a child-care centre in Ukraine. In July 2012, despite the divorce action initiated by the applicant in the USA, S. agreed to spend a holiday with him and their son in Ukraine, trying to restore good relations. She further submitted that the applicant had arrived in Ukraine in 2013 and stayed for a considerable period of time but had not attempted to meet up with the child. S. therefore alleged that there was no factual child abduction or unlawful retention which would necessitate a return order under the Hague Convention.

On 19 June 2013 the Desnyansky District Court found that M. had arrived in Ukraine with both parents’ agreement, but that later the mother had retained the child in Ukraine without the father’s consent. The court found that such retention was wrongful within the meaning of the Hague Convention and that the child should be returned to the country of his habitual residence, the USA. No exceptions under the Hague Convention applied. Given the applicant’s verbal assurances, the court considered that there were no objective obstacles to the mother’s accompanying the child to the USA and resolving the custody dispute before the courts of that country. In the operative part of the decision, the court ordered that M. should be returned to the USA ‒ to the father’s home address in Minneapolis ‒ specifying that the child should be accompanied on the journey by both parents.

On 2 July 2013 the Desnyansky District Court issued an additional decision stating that if the child were not returned voluntarily, S. would be ordered to transfer the child to the applicant at his home address in Minneapolis.

S. appealed against those decisions, maintaining that there was no abduction or unlawful retention of the child and that, in any event, there were grounds to apply the exception provided by Article 13 (b) of the Hague Convention (see paragraph 37 below) as regarded the risk of psychological harm to the child and his being placed in an intolerable situation.

On 13 August 2013 the Municipal Centre of Social Services for Family, Children and Youth of Chernihiv issued a certificate stating their psychiatrist’s opinion that M. was “well settled in Ukraine and, having regard to the strong bond between the child and the mother and the need to avoid causing the child psychological trauma, it would be inappropriate to remove the child to the other place of residence”.

On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. The court considered there was a grave risk that M.’s return to the USA would expose him to psychological harm or would otherwise place him in an intolerable situation, as provided in Article 13 (b) of the Hague Convention. In that regard the Court of Appeal stated that M. was completely settled in his new environment, as he had been living in Ukraine since June 2011. M. had always lived with the mother and there were close ties between them. There was no realistic possibility for the mother to accompany M. to the USA and stay near him in that country. In addition, the Court of Appeal noted that the applicant had not provided any information regarding his actual place of residence in the USA, his current living conditions, or his level of income.

On 20 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Matters (“the Cassation Court”) quashed the decision of 14 August 2013 (see paragraph 24 above) and upheld the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above), noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the submissions concerning the risk of exposing M. to psychological harm unconvincing.

On 26 November 2013 the Desnyanskyy District Court issued a writ of execution in respect of its decisions of 19 June and 2 July 2013. On the same date S.’s lawyer contacted the USA Embassy in Kyiv and enquired about applying for a USA visa in the specific circumstances.

On 27 November 2013 the Desnyanskyy District Department of State Bailiffs Service instituted enforcement proceedings, resulting in the imposition of fines on S. for failure to comply with the return order.

In February 2014 S. submitted a request to the Supreme Court for review of the case on the grounds that the Hague Convention had been applied divergently in the cassation proceedings, resulting in inconsistent judicial practice. On 28 April 2014 the Cassation Court declared the request admissible and referred the case to the Supreme Court.

On 18 June 2014 the Supreme Court considered S.’s request for review of the Cassation Court’s decision of 20 November 2013 (see paragraph 25 above) on the grounds of divergent application of the law by the cassation courts. Having examined the domestic judicial practice, the Supreme Court found that Articles 3, 12 and 13 of the Hague Convention (see paragraph 37 below) had been applied divergently. It set out the principles which had to be followed when interpreting and applying those provisions. As regards the present case, the Supreme Court found that the domestic courts had failed to apply the provisions properly. In particular, there had been no clear stance on the question of whether or not the removal or retention of the child had been wrongful, and ‒ if that were the case ‒ at what moment it started to be wrongful, nor as to whether or not the father had consented to or subsequently acquiesced as regards the child’s retention, nor whether facts existed demonstrating that the child was settled in his current environment. The Supreme Court quashed the decision of 20 November 2013 and remitted the case to the Cassation Court for fresh consideration.

On 30 July 2014 the Cassation Court quashed the Court of Appeal’s decision of 14 August 2013 (see paragraph 24 above), on the grounds that the Court of Appeal had breached procedural rules and had failed to establish all the relevant facts. The case was remitted to the Court of Appeal.

On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had only complained about the wrongful retention of the child in Ukraine. The Court of Appeal then considered the applicant’s updated submissions, in which he no longer argued that the retention of the child had been wrongful as from 16 August 2011 but rather as from 20 June 2012, which was the date when he had first expressed his disagreement with the child’s retention in Ukraine. It was also established that in August 2011 the applicant had sent parcels to Ukraine containing the child’s belongings.

As regards the period commencing on 20 June 2012, the Court of Appeal considered that the applicant had continued to consent to the child’s retention in Ukraine as there was no express objection on that point before the request was made under the Hague Convention. The Court of Appeal found that on 20 June 2012 the applicant’s divorce claim was delivered to S.’s representative. In that claim the applicant also sought to establish sole custody of the child; however, that claim did not mean that the applicant disagreed with the child’s ongoing stay in Ukraine. Moreover, in July 2012, the applicant had spent a holiday with S. and M. in Ukraine and in August 2012, after his return to the USA, he had sent M.’s vaccination certificate in order to facilitate M.’s admission to a child-care centre in Ukraine. The Court of Appeal concluded that in these circumstances the applicant enjoyed custody rights in relation to M. and that he had failed to demonstrate that those rights had been violated. For those reasons the child’s retention in that period could not be considered wrongful within the meaning of the Hague Convention.

The Court of Appeal next stated that, even assuming that there had been a wrongful retention of the child, the return request could be rejected under the provisions of Articles 12, 13 and 20 of the Hague Convention (see paragraph 37 below). The Court of Appeal examined the evidence relating to the child’s place of residence in Ukraine, and the social and medical care provided to him in Ukraine, and found that M. was assured of all the conditions necessary for his proper development. Based on the evidence presented and having regard to the overall period during which the child had lived in Ukraine, the Court of Appeal found that M. was entirely settled in his current environment. It also considered that M.’s return to the USA without his mother – who no longer had legal basis for entering and living in the USA – would not be in the best interests of the child. The Court of Appeal therefore quashed the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated.

On 4 December 2014 the Cassation Court dismissed appeals on points of law brought by the applicant and the Ministry of Justice and upheld the decision of 5 September 2014 (see paragraphs 31–33 above).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Alvina Gyulumyan;André Potocki;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in 1986 and 1979 respectively and live in Saint-Josse-ten-Noode (a district of the Brussels-Capital region).

The applicants are brothers who live with their parents, their brother and two sisters next to the local police station of Saint-Josse-ten-Noode. They both complained that they had been slapped in the face by police officers – which allegation is disputed by the Government – one on 8 December 2003 and the other on 23 February 2004. They submitted that those events had taken place in the context of tense relations between their family and certain officers in the police station.

The applicants submitted that on 8 December 2003 at around 4 p.m. the first applicant had been standing with a friend in the street outside the door of the building where he lived with his family, and, since he had forgotten his keys, had been ringing the bell so that his parents would let him in, when a plain-clothes policeman, A.Z., had asked him to present his identity card. The first applicant had refused to comply, asking the officer to show his credentials. The officer had then grabbed him by his jacket – tearing it – and taken him to the police station. The first applicant had been placed in a room and, while he was alone with A.Z., the officer had slapped him in the face as he was protesting about his arrest.

The applicants provided a certificate issued at 7.20 p.m. on the same day by a general practitioner, attesting that the first applicant had been “in a state of shock” and had presented the following injuries: “erythema on the left cheek (disappearing)” and “erythema on the left-side external auditory canal”.

The Government submitted that, on account of the first applicant’s refusal to show his identity card, officer A.Z. had had no choice but to take him to the police station for identification. The first applicant had then caused a scene, claiming to have suffered an injustice and been subjected to an unlawful identity check, and had insulted an officer who was telling him to calm down. He had been allowed to leave the police station once his identity had been verified and after being informed by A.Z. that a police report would be filed against him for forceful resistance to a public officer, abusive behaviour and verbal threats. He had returned to the police station a few minutes later with his parents, accusing A.Z. of having struck him, but the officer had always denied this.

At 6 p.m. A.Z. had lodged a criminal complaint against the first applicant, alleging forceful resistance to a public officer, abusive behaviour and verbal threats. The record drawn up on that occasion showed that A.Z. had notified his superiors of the events at 5.30 p.m., and also one “Superintendent K.”.

The applicants indicated that on 23 February 2004, between 9.44 a.m. and 10.20 a.m. (as shown by the record of the second applicant’s questioning), while the second applicant was at the Saint-Josse-ten-Noode police station and officer P.P. was interviewing him about an altercation involving him and his mother together with a third party (and about which the latter had filed a complaint), P.P. had slapped him in the face after asking him not to lean on his desk. He had then forced him to sign his statement by threatening to put him in a cell.

The applicants provided a medical certificate issued on the same day by a general practitioner, who observed “bruising [on the] left cheek” of the second applicant. The certificate did not specify the time at which it had been drawn up, although it must have been before 11.20 a.m., the time at which it was presented to Committee P (see paragraph 25 below).

The Government explained that the second applicant had been very arrogant during his interview: slouching in his chair, leaning casually on P.P.’s desk, laughing without any reason and giving pithy answers to questions. He had also had his statement changed several times, saying that the police were paid to do that, and had threatened the officers on leaving by shouting that they would be hearing from him again. The Government emphasised that, in spite of the attitude shown by the second applicant, who had clearly been intent on conflict, P.P. had remained calm and patient.

In the applicants’ submission, their family had been harassed by the Saint-Josse-ten-Noode police force. They stated that the problems had begun in 1999, when one of the officers had suspected their brother N. of deliberately scratching his car. N. had subsequently been charged with threatening the same officer and committing robberies, on which charges he had been acquitted by the Brussels Youth Court on 21 April 2000. According to the applicants, the case against him had been entirely fabricated by members of the Saint-Josse-ten-Noode police by way of reprisal.

They added that on 24 June 1999 the first applicant, then aged 13, had been “beaten” by another police officer in the police station, where he had been taken following a fight in the street. He had sustained a perforated eardrum. His mother and one of his sisters, who had been in the waiting room, had been shaken and manhandled by police officers.

On 25 November 1999 one of their sisters had been verbally abused by an officer of the Saint-Josse-ten-Noode police force, and on 11 March 2000 their brother N. had been searched, jostled and verbally abused by police officers.

They further stated that in 2000 a “case ... initiated by the SaintJosse-ten-Noode police force had been opened against N. and entrusted to an investigating judge”, but the proceedings had been discontinued. In the same year the second applicant had been “wanted for questioning” and even though the Saint-Josse-ten-Noode police had announced on 23 July 2002 that he was being taken off the relevant “wanted” list, he had still had to make various applications to the prosecutor’s office and wait until March 2005 for the process to be completed, causing him a great deal of inconvenience.

On 6 April 2001 and 12 July 2001 respectively, their brother N. and the second applicant had been verbally abused by officers of the Saint-Josse-ten-Noode police.

The applicants explained that they had systematically reported to the judicial authorities or police all the incidents of which they had been victims, and had filed complaints.

At 9.42 a.m. on 9 December 2003 the first applicant filed a complaint with the standing committee for the oversight of police services (known as “Committee P”) and was interviewed by a member of the investigation department. A copy of the medical certificate drawn up the previous day was appended to the initial record.

The second applicant followed suit at 11.20 a.m. on 23 February 2004. He indicated in particular that he considered that the “general attitude of the Saint-Josse police vis-à-vis [his] family [had become] absolutely intolerable and excessive to the point [where they had envisaged] moving house”. A copy of the medical certificate drawn up the same day was appended to the initial record.

The applicants’ mother was also interviewed on 23 February 2004 by the investigation department of Committee P in relation to the second applicant’s complaints. She pointed out that as soon as they had returned home she had called one “Superintendent K.” (see paragraph 14 above) to ask him to persuade P.P. to apologise. Superintendent K. had immediately come to their house, where he had found himself in the company of the physician who had drawn up the medical certificate. The applicants’ mother also filed a complaint, indicating, moreover, that she herself had been treated with scant respect by officer P.P.

On 5 May 2004 officer P.P. was interviewed by the director of internal oversight of the local police force in relation to the complaints by the second applicant and his mother. P.P. stated in particular that the second applicant had been particularly disrespectful towards him during his interview and that, although he had grabbed the youth by the arm to make him leave the office, he had not slapped him in the face.

On 17 June 2004 the applicants applied to intervene as civil parties in respect of charges of harassment, arbitrary interference with fundamental freedoms, abuse of authority, arbitrary arrest and wounding with intent. They gave an overview of all their difficulties with the SaintJossetenNoode police, and expressly stated that they wished to intervene as civil parties in relation to the events of 8 December 2003 and 23 February 2004.

Officers A.Z. and P.P. were charged with using violence against individuals in the course of their duties and, in particular, with intentional wounding or assault, and with engaging in arbitrary acts in breach of the rights and freedoms guaranteed by the Constitution.

On 26 June 2004 an investigating judge of the Brussels Court of First Instance gave directions to the investigation department of Committee P asking it to take note of the applicants’ civil-party application, interview them in order to ascertain the details of their complaint, draft a report on the conduct of the Bouyid family, draw up a list of the cases brought against them and complaints filed by them and explain what action had been taken in that connection.

Having regard to the fact that it had already taken testimony from the applicants when they had filed their respective complaints (see paragraphs 24-25 above), the investigation department of Committee P decided not to interview them again. On 26 July 2004 it forwarded a report to the investigating judge, based on the documents from the internal oversight department of the police district covering Saint-Josse-ten-Noode, describing developments in the relations between the applicants’ family and the local police force. The report then listed the cases against the family, noting in this connection that the first applicant had been implicated in proceedings opened in December 2003 for abusive and threatening behaviour and for obstructing a police officer, and N. in seven sets of proceedings opened between October 1997 and June 1999. It then noted that, in addition to the applicants’ complaints at issue in the present case, three judicial complaints had been filed by members of their family (two with Committee P, in June 1999 and July 2001, and one with the “Youth Division” in 1999) and two complaints had been dealt with by the internal oversight department of the police district covering Saint-Josse-ten-Noode. Lastly, citing a report drawn up in the context of a case against the first applicant and the findings of administrative inquiries, it noted the problematic nature of the relations between the local police and the Bouyid family and commented on the “general behaviour” of the latter, observing as follows:

“In sum, according to the police officers, the Bouyid family (especially the women and the mother in particular) apparently refuse to admit that the children of the family bear any responsibility for the abusive conduct in question. They are thus supported in their behaviour by this protective attitude. More generally, the family members are said to behave aggressively and provocatively towards the police.

Following the incidents involving police officer [B.], a dialogue facilitator apparently failed in an attempt at reconciliation, owing to an intransigent attitude on the part of the women in the Bouyid family.

In 1999 and 2000 the situation required the appointment of a police cadet as a mediator for this family.”

On 3 August 2004 the investigating judge decided to close the investigation and sent the file to the prosecuting authorities.

On 16 November 2004 officer A.Z. was interviewed by a member of the investigation department of Committee P about the events of 8 December 2003. He stated in particular that he had not previously known the first applicant when he had taken him to the Saint-Josse-ten-Noode police station that particular day.

In an application of 10 November 2005 the Crown Prosecutor called for the discontinuance of the case on the ground that “the judicial investigation [had] not established that the facts constituted a serious or petty offence and [had] not adduced any evidence that would justify the taking of further measures”.

The applicants were informed that the case file would be finalised before the Committals Division of the Brussels Court of First Instance on 2 March 2006. On 1 March 2006 they sent an application to the investigating judge seeking twenty additional investigative measures. That request resulted in the adjournment sine die of the case before the Committals Division.

On 7 March 2006 the investigating judge ordered two of the requested measures and rejected the remainder of the application on the ground that it concerned facts that predated the events referred to him and that the measures sought were not necessary for establishing the truth. Consequently, recapitulating all their complaints against the SaintJossetenNoode police force, the applicants and other members of their family sent the investigating judge a request for an “extension of civil-party status”, but it was rejected. The two additional measures were performed on 25 April, 15 May and 24 May 2006.

In an order of 27 November 2007 the Committals Division, endorsing the grounds set out in the Crown Prosecutor’s application, discontinued the proceedings.

The applicants appealed against that order.

In an application of 3 December 2007 the Principal Crown Prosecutor requested that the discontinuance order be upheld.

On 5 February 2008 the applicants and other members of their family filed a complaint as civil parties in respect of all the facts that the investigating judge had considered not to have been referred to him (see paragraphs 43-44 below).

On 9 April 2008 the Indictments Division of the Brussels Court of Appeal, after refusing to join the case concerning the events of 8 November 2003 and 23 February 2004 to the new case that had been opened after the civil-party complaint of 5 February 2008, upheld the discontinuance order in a judgment that read as follows:

The facts of the case can be summarised as follows:

– On 8 December 2003 the defendant [A.Z.] is alleged to have engaged in illegal police conduct against the civil party Saïd Bouyid, described by the latter as follows: police officer [A.Z.], on stopping him outside his house, allegedly grabbed him by his jacket and tore it; he was then taken to the police station close by, where the same officer allegedly slapped him on the face with his right hand.

– On 23 February 2004 the defendant [P.P.] is alleged to have engaged in illegal police conduct against the civil party Mohamed Bouyid, described by the latter as follows: on stopping his car in front of his house so that his mother could take out her shopping, he had a row with the driver of the car behind; he was summoned to the police station following a complaint by that driver; during the interview, Mohamed Bouyid was allegedly slapped by the defendant [P.P.] (see the medical certificate issued by Dr ...), who threatened to put him in a cell if he did not sign his statement, when in fact he wanted to change it.

– The Bouyid family have apparently encountered great difficulties with certain members of the Saint-Josse-ten-Noode police force since March 1999, when police officer [B.] suspected Saïd Bouyid of having scratched his car, giving rise to a certain degree of tension and to persecution of this family by the police.

– There is said to be constant provocation on the part of the police of Saint-Josse-ten-Noode making the life of the Bouyid family unbearable.

Both the police’s internal oversight department for the police district [concerned] and the investigation department of Committee P conducted an in-depth investigation into the facts complained of by the civil parties.

It transpires from all the findings of the judicial investigation, and in particular from the inconsistent statements of the parties in question, that there is no evidence against the defendants such as to justify their committal on the charges listed in the submissions of the Principal Crown Prosecutor, in respect of the period in which the offences were said to have been committed.

The statements of the defendants, who deny the charges, are consistent; it is appropriate in this connection to refer to the detailed report concerning the general conduct of the civil parties’ family drawn up by Committee P, which sheds light on the general context of the case.

The civil parties have not adduced before the court, sitting as the Indictments Division, any new, relevant and convincing information not previously brought to the attention of the court below and capable of revealing the slightest evidence against the defendants that might justify their committal for trial.

Moreover, the judicial investigation did not bring to light sufficient evidence to show that a criminal offence had been committed by the defendants at the time of the incidents in which they were allegedly implicated.

In addition, it does not appear from the case file that the provisions of section 37 of the Police Act of 5 August 1992 have not been complied with.

As emphasised by the submissions of both the Crown Prosecutor of 10 November 2005 and those of the Principal Crown Prosecutor, and by the decision of the Committals Division, the facts of the present case do not constitute a serious or petty criminal offence.

An appeal on points of law lodged by the applicants – relying in particular on Articles 3, 6 and 13 of the Convention – was dismissed on 29 October 2008 by the Court of Cassation.

On 5 February 2008 six members of the Bouyid family, including the two applicants, had filed a civil-party complaint with an investigating judge of the Brussels Court of First Instance concerning all their accusations against the Saint-Josse-ten-Noode police officers, in particular relating to facts that predated the events of 8 December 2003 and 23 February 2004.

The civil-party complaint led to the appearance of six officers before the Brussels Court of First Instance, hearing the case on the merits. In a judgment of 30 May 2012 the court declared that the prosecution of the relevant offences was time-barred. It does not appear from the file that an appeal was lodged against that judgment.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1955 and lives in Moscow.

On 27 August 2002 the applicant brought civil proceedings against the Administration of the Mirninskiy Ulus of the Sakha (Yakutiya) Republic (“the Administration”), a private person S., her husband B., and a private company A. claiming a title to a flat, damages, and S.’s eviction from the flat.

On 18 September 2002 the Mirninskiy District Court of the Sakha (Yakutiya) Republic (“the District Court”) refused to consider his action, because there already had been a decision of 6 February 2001 taken by the District Court concerning the same dispute.

On 13 November 2002 the Supreme Court of the Sakha (Yakutiya) Republic overruled the refusal and remitted the case for a new examination, as the action included a new co-defendant, and, therefore, it could not be said that the dispute was among the same parties.

On 15 January 2003 the District Court ordered eviction of S. and her family from the flat and dismissed the claim against the Administration.

On 3 March 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the judgment on appeal and returned the case for a fresh examination, as the lower court had failed to address issues related S.’s property rights.

On 29 July 2003 the District Court ordered an expert examination of the flat in order to determine its market value.

On 14 August 2003 the court proceedings resumed.

In the meantime, the applicant amended his claims and sought to obtain compensation for his belongings allegedly stolen in 1999, nonpecuniary damage, legal costs, travel expenses and reimbursement of the rent he had to pay after his eviction from the disputed flat back in 1999.

On 29 August 2003 the District Court examined the case, ordered the Administration to pay the applicant 800,000 Russian roubles (RUB) in respect of the flat’s market value and dismissed the remainder of the claims. In particular, the claim for compensation for the allegedly stolen property was dismissed as unfounded.

On 20 October 2003 the judgment was upheld on appeal by the Supreme Court of Sakha (Yakutiya) and entered into force.

On 11 June 2004, upon the applicant’s request, the bailiffs initiated the enforcement proceedings.

On 27 August 2004 the District Court granted the Administration’s request for suspension of the enforcement of the judgment of 29 August 2003 until 15 January 2005 due to financial difficulties encountered by the debtor.

On 15 November 2004 the applicant’s appeal against the above decision was dismissed.

On 18 March 2005 the monetary award in accordance with the judgment of 29 August 2003 was paid to the applicant.

On 29 September 2005, upon the applicant’s extraordinary appeal, the Presidium of the Supreme Court of Sakha (Yakutiya) quashed the judgment of 29 August 2003 and the decision of 20 October 2003 and remitted the case for a fresh examination. The Presidium found that the courts had incorrectly applied the material law to various aspects of the case, and had failed to join the appropriate financial body as co-defendant.

It appears that the amounts paid to the applicant under the quashed judgment of 29 August 2003 have not been reclaimed.

On 15 November 2005 the District Court suspended the proceedings, due to B.’s illness and asked the applicant to clarify his claims.

On 21 December 2005 the applicant submitted the amended claims.

On 16 February 2006 the District Court joined, at the defendant’s request, the Ministry of Finance as co-defendant in the proceedings and suspended the examination of the case on account of B.’s poor state of health.

On 14 February 2007 the case was assigned to a different judge of the District Court, for the sake of the court’s impartiality.

On 21 March 2007 the District Court dismissed the applicant’s action.

On 4 June 2007 the Supreme Court of Sakha (Yakutiya) upheld the judgment on appeal except for the parts concerning the eviction of S. and B., reimbursement of the rent, payments for utility services, a commission fee, and recovering of the cost of the apartment. The decision in those parts was remitted for a fresh examination due to failure by the lower court to assess certain evidence and misapplication of the material law.

On 27 August 2007 the District Court suspended the proceedings pending S.’s return from vacation.

On 26 October 2007 the court ordered the applicant to clarify his claims and scheduled a new hearing on 23 November 2007.

On 23 November 2007 the court issued a special writ ordering the bailiffs to obtain clarifications of the claims from the applicant.

It appears that at some point the applicant provided the required information.

On 30 April 2008 the District Court dismissed the action as unfounded. The court explained that the applicant had other remedies to use under the civil law in order to protect his property rights. In particular, he could claim that an equivalent apartment or a compensation be provided to him.

By the final judgment of 13 August 2008 the Supreme Court of Sakha (Yakutiya) upheld the lower court’s findings on appeal.

In the meantime, the applicant sued the Administration for statutory interest for the delay in enforcement of the judgment of 29 August 2003.

On 7 February 2007 the District Court discontinued the proceedings as the judgment of 29 August 2003 had been quashed and a new decision in the case had not yet been adopted.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Angelika Nußberger;Vincent A. De Gaetano

All the applicants are relatives of Mr I. Cheban, as specified in the Appendix.

On 23 December 2000 I. Cheban was struck by a car when crossing a street in the city of Chernivtsi. Following the accident he died in a hospital.

On 30 December 2000 the Chernivtsi regional police department refused to open criminal proceedings in connection with the accident, noting that there had been no corpus delicti in the actions of T., the driver of the car.

On 16 January 2001 the Chernivtsi city prosecutor’s office quashed the decision of 30 December 2000 as unfounded and instituted criminal proceedings for causing death by careless driving.

On 16 March, 23 August, 17 September 2001, 15 May 2002, 11 July and 27 December 2003 the Chernivtsi regional police department terminated the investigations on the grounds that there had been no corpus delicti in the actions of T.

Following the applicants’ complaints, all those decisions were quashed by the supervising authorities as unsubstantiated and further investigations were ordered. When quashing those decisions, the supervising authorities held that the evidentiary basis had been incomplete and that the investigations had not been carried out thoroughly. In particular, on 10 February 2004 the Shevchenkivskyy District Court of Chernivtsi quashed the decision of 27 December 2003 as unfounded and noted that serious contradictions in the case file had still not been removed, despite numerous orders to the investigators dealing with the case. The court considered that it was necessary to carry out additional investigative measures and expert examinations.

On 6 April 2005 the Chernivtsi regional police department terminated the investigation on the grounds that there had been no corpus delicti in the actions of T. The police referred to the results of expert examinations suggesting that T. had had no technical possibility of avoiding the accident; at the same time the materials of the file suggested that I. Cheban had violated the traffic rules.

On 6 January 2006 the Shevchenkivskyy District Court of Chernivtsi upheld that decision, noting that it was lawful and substantiated.

On 14 March 2006 and 10 April 2007 the Chernivtsi Region Court of Appeal and the Supreme Court, respectively, upheld the judgment of the first-instance court.


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

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant, Mr Steingrim Wolland, was born in 1961 and lives in Oslo, Norway. He ran a law firm in his own name in Oslo until his licence to practice was suspended as a result of the opening of bankruptcy proceedings against him personally in April 2009.

On 9 March 2010, the prosecuting authority (Økokrim – The National Authority for Investigation and Prosecution of Economic and Environmental Crime) issued charges (siktelse) against the applicant for aiding and abetting fraud in connection with art sales (kunstbedrageri), an application for a bank loan (lånebedrageri), and forgery of documents in connection with the latter.

On 10 March 2010 the Oslo City Court (tingrett), finding that there were reasonable grounds for suspicion (skjellig grunn til mistanke) in respect of the charges, decided at the request of the prosecuting authority to authorise that a search be carried out at the applicant’s premises, including his office. The applicant did not lodge an appeal against the City Court’s decision.

On 23 March 2010 the police were at the applicant’s premises – his home and office. In accordance with Article 205 § 3 of the Code of Criminal Procedure (see paragraph 37 below) a third party – a lawyer acquaintance of the applicant – was present. As there was a presumption that some material would be covered by the applicant’s statutory legal professional privilege as a lawyer, and therefore be exempt from seizure pursuant to Article 204 § 1 (ibid.), documents were put in sealed bags instead of being searched for evidence by the police. The police also collected a hard disk and a laptop. The third party had no objections as to how the police had proceeded.

Mirror copies (speilkopier) of the hard disk and laptop were taken; the hard disk and laptop were returned to the applicant two days later.

On 3 May 2010, at the prosecuting authority’s office, the applicant went through the paper documents that had been collected and sorted out those which he considered to be covered by legal professional privilege. This material was stored separately and placed under seal.

On 5 January 2011 the prosecuting authority applied to the City Court to examine the paper material that had been collected at the applicant’s premises and to have those documents that could lawfully be seized made available to it for search. As to the mirror copies, the prosecuting authority proposed that the City Court authorise a staff member at Økokrim’s computer department to acquaint him or herself with the material. The prosecution authority would thereafter return to the City Court with an application for a decision on whether specific documents would be exempt from seizure owing to legal professional privilege. The City Court accepted this procedure (see, however, paragraph 31 below). Subsequently, the prosecuting authority, upon discussions with the applicant as to which keywords (søkeord) should be used when looking for documents on the mirror copies, made keyword-searches which gave results in 2,309 files.

By a letter of 16 February 2011 the applicant’s lawyer disputed the lawfulness of what he categorised as the “seizure” (“beslag”), arguing that there had been no reasonable grounds for suspicion against the applicant and requested that the City Court quash the “seizure” decision and order that the collected material be returned to him.

On 6 May 2011 the prosecuting authority submitted the 2,309 files from the mirror copies to the City Court for examination.

In response to the letter from the applicant’s lawyer of 16 February 2011 (see paragraph 12 above), the City Court wrote a letter of 11 May 2011, pointing out that the procedure applicable to material allegedly covered by legal professional privilege had been set out by the Supreme Court (Høyesterett) in its decision of 3 March 2011, reported in Norsk Retstidende (Rt.) 2011 page 296 (see paragraphs 38-39 below). In line with that procedure, there were no grounds on which the City Court could at that time hold a court hearing devoted to the discontinuation of any “seizure” and return of the material. No seizure had been decided – the court was at the time carrying out the task of reviewing the material collected in order to decide on what should be made available to the prosecuting authority for it to search. The City Court would obtain the views of the parties in a hearing before making a formal decision as to whether to authorise the search of the prosecution. Its decision would be amenable to appeal. Since the handling of the case so far had taken considerable time, the City Court’s examination would be expedited.

The applicant and his lawyer disagreed with the City Court’s description of the procedure to be followed. After further exchanges between the parties, the City Court reiterated in a letter of 22 July 2011 – which was formally a judicial decision amenable to appeal (see paragraphs 16-24 below) – that a decision on seizure had not yet been taken. There was a presumption to the effect that documents and other materials in the office of a private lawyer were subject to legal professional privilege. In such cases the court would first go through the material in order to examine what could be made available to the prosecuting authority for it to search. The City Court also informed the parties that it was about to complete this task, having examined each document. It also reiterated its disagreement with the applicant’s view that before carrying out its perusal of the material it ought to consider anew whether there were reasonable grounds for suspicion against him, failing which its examination of the material would be unlawful, and that in the absence of such grounds it ought to return all the material to him with the seals intact.

On 19 August 2011 the applicant appealed against the City Court’s decision of 22 July 2011 not to examine the merits of his request to quash what was in his view a “seizure”, and to return the material.

On 9 November 2011 the Borgarting High Court (lagmannsrett) dismissed the appeal.

The High Court, as had the City Court, reiterated that the relevant procedure for the search and seizure of material allegedly subject to legal professional privilege had been thoroughly examined by the Supreme Court in Rt. 2011 page 296 (see paragraphs 14 above and 38-39 below). The City Court was at the time in the process of sorting out which documents could be lawfully searched by the prosecuting authority, and there had been no decisions on seizure taken.

From the above it was apparent, in the High Court’s view, that the applicant was not at that stage of the procedure entitled to have the question of whether to maintain the “seizure” in force (spørsmålet om opprettholdelse av beslaget) under Article 208 reviewed (see paragraph 37 below), and it could not see how him disputing the existence of reasonable grounds for suspicion in his case could lead to a different result. The Supreme Court’s decision contained no statements suggesting that the procedure should be different in such cases. Nor could the High Court find that there were other grounds, even if regard were had to Articles 6, 8, 10 and 13 of the Convention, as invoked by the applicant, suggesting that the accused had a wider right to judicial review in cases where he or she disputed the grounds for suspicion.

The High Court also noted that the Code of Criminal Procedure contained several provisions conferring on the accused a right to judicial review in respect of enforcement measures taken in the form of search and seizure, inter alia could a decision by a court to the effect that documents were to be handed over to the prosecution authorities after perusal of the documents in accordance with Article 204 (see paragraph 37 below) – which was what the City Court was doing at the time – be appealed against. The High Court considered that the Convention did not give the applicant any rights to have the legality of searches and seizures judicially reviewed beyond what followed from the Code of Criminal Procedure. The search had been authorised by the City Court on 10 March 2010, finding that there were reasonable grounds for suspicion against the applicant. The applicant had not filed any timely appeals against the decision and the search had been effectuated.

From the reasoning above it also followed that the applicant’s alternative submission that he ought to have a right to judicial review of whether there was a legal basis for an “ongoing search” (om det er grunnlag for en “pågående ransaking”) could not succeed.

It was also clear that the accused did not on a general basis have a right to judicial review of the reasons for the charges brought against him, whether there were reasonable grounds for suspicion or not, regardless of the use of any enforcement measures. The existence of such reasons could be examined again but then only in connection with, for instance, future investigative measures where the latter were required. The Convention provisions relied on could not lead to any different result.

Against this background, the High Court concluded that the City Court’s procedure had suffered from no defects. Its decision of 22 July 2011 had been based on a correct approach to the handling of the material gathered at the applicant’s premises.

On 20 December 2011 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the applicant’s appeal in both respects.

On 25 January 2012 the City Court held a hearing (see paragraph 14 above) on the issue of which materials could be sent to the prosecuting authority for it to search. In the court records it was registered that the court had informed the parties that it was desirable if a decision could be reached as soon as possible and preferably within a month. In a decision of 11 May 2012, it ruled that 1,264 documents collected from the data carriers could be handed over. The applicant accepted the decision with respect to 858 of the documents, but appealed in respect of the remaining 406 and some of the paper documents. The prosecuting authority also appealed.

On 4 September 2012 the High Court dismissed the prosecuting authority’s appeal and rejected the applicant’s appeal except for one issue relating to a bank account transcript.

On 26 October 2012 the Supreme Court quashed the High Court’s decision in so far as it had rejected the applicant’s appeal (Rt. 2012 page 1639). It found, in essence, that the High Court had applied a too narrow understanding of what was lawyer’s work (egentlig advokatvirksomhet) that could bring legal professional privilege into play.

During its reconsideration of the case, the High Court, on 8 January 2013, concluded that thirty-six of the disputed 406 documents could be submitted to the prosecuting authority for it to search. On 22 May 2013 the Supreme Court rejected an appeal by the applicant against the High Court’s decision.

On 11 June 2012 the applicant applied to have some of the material, including the mirror copies, returned to him. The City Court, on 18 September 2012, refused his application in so far as it concerned the mirror copies, but granted the other parts thereof.

The applicant appealed against the decision to the High Court, which on 8 January 2013 ordered that the mirror copies were to be returned to the applicant unless the prosecuting authority promptly (relativt omgående) requested that the City Court examine them. It referred, inter alia, to the general obligation to ensure progress in investigations, as reflected in Article 226 of the Code of Criminal Procedure (see paragraph 37 below).

Upon an appeal by the prosecuting authority, the Supreme Court, on 27 June 2013 (Rt. 2013 page 968) agreed with the High Court that the prosecuting authority’s continued possession of and searches on the mirror copies (see paragraph 11 above) had been unlawful. The mirror copies should, like the paper documents, have been placed under seal and transferred to the City Court without the prosecution authority having accessed material on them through keyword-searches. Unlike the High Court, however, the Supreme Court did not for that reason find that the copies should necessarily be returned to the applicant. It quashed the High Court’s decision in order for that court to further assess the prosecuting authority’s submissions that the copies should instead be kept with the City Court, as the High Court had not sufficiently considered that possibility.

The prosecuting authority transferred the mirror copies to the City Court on 2 September 2013.

When, on 20 May 2014, the High Court contacted the prosecuting authority, its decision concerning the mirror copies having been quashed by the Supreme Court (see paragraph 31 above), the authority responded by informing the High Court of the developments in the criminal case against the applicant (see paragraph 35 below). It moreover stated that the seizure had been lifted on 28 May 2014 and requested that the case therefore be dismissed. The material could be deleted by the court or the data carrier could be handed over to the applicant. The applicant argued that the case should not be dismissed and requested that the High Court examine the merits of his application to have the mirror copies returned, in order for him to have a judicial review of whether his Convention rights had been violated.

In a letter of 25 June 2014 the High Court set out its views on the matter. It stated, inter alia, that the case concerned the applicant’s application to have the mirror copies returned. This request would be met if the copies were actually returned, which was what the prosecuting authority had proposed. This made it difficult to see why the applicant should have legal standing to require that the courts examine his application. Moreover, the court assumed that the applicant could obtain a review of his Convention claims in other ways. The case as concerned the mirror copies was ultimately dismissed on 22 August 2014. There is no information about the applicant having appealed against this decision.

On 10 January 2013 the City Court acquitted the applicant of having obtained credit by way of fraud (lånebedrageri) (see paragraph 6 above). On 12 June 2013 the High Court convicted him for having shown gross negligence in that respect. This judgment became final when the Supreme Court’s Appeal Committee refused leave to appeal on 18 October 2013. The charges concerning forgery of documents (ibid.) were dropped on 11 February 2013. Some of the charges concerning aiding and abetting art fraud (kunstbedrageri) (ibid.) were dropped on 16 February 2011 and the remainder on 21 August 2013.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

The applicants were born in 1942 and 1963 respectively and live in Budapest.

At the material time, Mr Vajnai was Vice-President and Mr Horváth was a member and activist of the Workers’ Party (Munkáspárt), a registered left-wing political party. The party had no known intention of participating in Hungarian political life in defiance of the rule of law.

Mr Vajnai was the editor of the Party’s web page containing news and articles related to the Hungarian and European Communist movements. On 18 November 2003 Mr Vajnai placed a five-pointed red star and a sickle-and-hammer logo on the web page.

On 3 April 2004 the applicants participated in a peaceful demonstration commemorating the 1945 Soviet liberation of Hungary from Nazi occupation. Mr Vajnai wore a five-pointed red star on his jacket, whilst Mr Horváth wore a sweater ornamented with five-pointed red star and a sickle-and-hammer pattern.

Subsequently, criminal proceedings were instituted against them for the offence of having worn totalitarian symbols in public. In the context of these proceedings, the public prosecutor summoned the applicants. On 10 September 2004 they appeared in the public prosecutor’s office wearing five-pointed red stars on their jackets.

On 11 March and 2 June 2004 and 16 November 2005, in the context of other criminal proceedings against him, Mr Vajnai appeared in court wearing a five-pointed red star on his jacket. On 5 November 2004, the applicant spoke on the national television about his Party’s political aims and the criminal proceedings against him. On that occasion he wore a five-pointed red star on his jacket.

On 2 July 2005 the applicants participated in a peaceful demonstration in the National Cemetery. Mr Vajnai wore a five-pointed red star on his jacket, whilst Mr Horváth wore a five-pointed red star on his rain coat.

On 22 March 2007 the applicants were convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn totalitarian symbols in public. The court observed that the applicants had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance.

Mr Vajnai was sentenced to a criminal fine of 120,000 Hungarian forints (HUF) and ordered to pay another HUF 45,000 in criminal costs. In the case of Mr Horváth, the court refrained from imposing a sentence for a probationary period of one year.

On 10 June 2008 the Budapest Regional Court upheld this judgment.

On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by Mr Vajnai on account of a previous conviction similar in nature (see Vajnai v. Hungary, no. 33629/06, 8 July 2008). The Court held that prosecution for having worn a red star amounted to a violation of the applicant’s freedom of expression enshrined in Article 10 of the Convention.

Subsequently, the applicants challenged the Regional Court’s judgment before the Supreme Court. Relying on section 10(2) of the Criminal Code, they claimed that their conduct did not represent danger for society in the face of the Vajnai judgment.

On 23 June 2011 the Supreme Court dismissed the applicants’ petition for review.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicant was born in 1989 and lives in Arad.

At around 4 a.m. on 8 August 2010, the applicant and his friends were involved in a fight with a group of people outside a bar. S.L., who was inside the bar, called the police. When the police arrived the group of aggressors ran away. The applicant and his friends were taken to the police station to give statements and possibly complain against their aggressors.

While he was waiting inside the police station, the applicant saw a police officer who was behaving roughly with an arrestee who had just been brought in. He commented loudly that the police officer represented the State authority and should not hit people. D.C.I., the police officer in question, became angry and asked a colleague, M.C., to “take him [the applicant] to the toilets to teach him how to speak”. The applicant, who resisted entering the toilets, was taken outside and then into a back office where the two police officers, D.C.I. and M.C., handcuffed him to a radiator and started punching and kicking him. Alerted by the applicant’s screaming, another police officer entered and put an end to the hitting. At that point, one of the officers who had assaulted the applicant warned him not to say anything or he would find him and beat him again. The applicant and his friends were then escorted home by police officers.

On 8 August 2010 the police were called in order to stop a fight between several people on a street in Arad. By the time the police arrived, the applicant and his friends had had their clothes torn and had already been injured. They were accompanied to the police station to make statements. The police officers took statements from S.L. and D.V.

S.L. declared that he had been in a bar when he had seen that his brother, S.N., was involved in a fight outside. He called the police emergency number and then went outside to help his brother. He and his brother received blows to their bodies. He further stated that he did not wish to lodge a complaint against the aggressors at that time but reserved his right to do so later. D.V. stated that when he had left the bar he had seen some people fighting. Someone was throwing stones, one of which hit him in the leg. He stated that he did not wish to lodge a complaint.

Afterwards the applicant and his friends were all escorted home by the police in order to avoid further violent incidents.

An investigation was opened nonetheless in order to clarify the circumstances surrounding the incident. However, after a discussion on 20 August 2010 with the bar attendant and a sales woman at a nearby store, who said they had not seen or heard anything, the case was closed on 23 August 2010.

Later on 8 August 2010, the applicant went to the emergency unit of Arad County Hospital, where he was diagnosed with maxillofacial trauma, and contusion of the lower lip and of the thorax. His injuries were treated.

On 9 August 2010 a forensic medical certificate was issued by the Arad County Forensic Service at the request of the applicant. According to the certificate, the applicant had a sutured cut on the lower lip and bruising on the upper lip, bruising on the left side of the chest, two excoriations on the left side of the back, grazes and bruising on the right elbow, right leg and the left knee. The applicant also had two excoriations covered with brown scabs measuring 1 by 0.2 cm to 2 by 0.2 cm on the back of each wrist. The injuries may have been caused by an impact with or on a hard object on 8 August 2010. The injuries would require nine days of medical treatment if no complications developed.

On 15 September 2010 the applicant lodged a complaint against the two officers who had assaulted him, accusing them of abusive investigative conduct and bodily harm. He lodged his complaint with both the Arad Police and the Prosecutor’s Office of the Timişoara Military County Court. He requested that S.L., S.N. and K.E., who had been taken to the police station with him, be called to testify as witnesses.

On 23 September 2010 the applicant was heard at the Timişoara Military Prosecutor’s Office. He declared that he had been taken to the police station after a street brawl. Once inside the police station, the applicant drew an officer’s attention to his disrespectful behaviour towards someone else. The police officer in question and another colleague of his became angry with him and tried to drag him into the toilets, but he resisted. They then told him to go outside, where one of them, officer D.C.I., punched him in the mouth. He was then handcuffed with his hands behind his back and taken to a room where he was punched and kicked. The applicant further stated that he had suffered severe injuries, for which he was submitting a forensic medical certificate and claiming civil damages from his aggressors.

On 27 September 2010 the Timişoara Military Prosecutor’s Office decided that the Prosecutor’s Office of the Arad County Court should deal with the case because the two police officers in question were not members of the military.

In February 2011 the applicant, S.L. and S.N. were heard by a prosecutor from the Prosecutor’s Office of the Arad County Court. In a statement dated 1 February 2011, handwritten in front of the prosecutor, S.L. stated that he had been taken to the police station on 8 August 2010 following a dispute with a group of people in the street. Once inside the police station he was taken to the second floor together with his brother. Half an hour later, he overheard through an open window a person screaming with pain outside the building and recognised the applicant’s voice. Afterwards he was taken home together with his brother in a police car. Later that day they met the applicant in front of his house and he told them that he had been handcuffed and beaten up by police officers. The applicant showed them his injuries and the marks on his hands. S.L. declared that he knew for sure that the applicant had been beaten up at the police station because he had seen him when they were leaving the police station. On 8 February 2011 S.L.’s statement was typed on a witness statement form bearing the heading of the Prosecutor’s Office of the Arad County Court and S.L. signed it. In addition to the facts described in the previous handwritten statement, the typewritten statement included the following phrase: “... one of my friends, V., came to me and told me that some ... were beating up my brother and Miclea Alexandru.” In that statement S.L. also mentioned that, after he had heard the applicant shouting outside the police station, he had received on his mobile phone a message from the applicant who was telling him that he was being “beaten by policemen”. At that point he wanted to go outside but he was not allowed to and one hour later he was taken home in a police car together with his brother.

On 1 February 2011 S.N. also gave a handwritten statement in front of the prosecutor. He declared that he had been taken to the police station following a street fight. The applicant was with him. After his arrival at the police station, while he was upstairs to give a statement, he heard the applicant screaming outside. Approximately one hour later he was taken home in a police car together with his brother. Later that day he met the applicant in front of his house. The applicant told him and his brother that he had been beaten up by police officers. He showed them the injuries on his lips and hands. Like his brother, S.N. also stated that he knew the applicant had been beaten inside the police station because he had seen him when they were taken home. That statement was subsequently typed on a witness statement form bearing the heading of the Prosecutor’s Office of the Arad County Court and was signed by S.N. on 17 February 2011.

On 8 February 2011 the applicant declared that he maintained the account he had given in his initial complaint as well as in his statement of 23 September 2010.

On 15 March 2011 the Prosecutor’s Office of the Arad County Court decided to join the applicant’s complaint to two complaints lodged by other individuals who claimed that they had been physically assaulted by the same police officers on a previous date. Subsequently, the prosecutor decided not to institute criminal proceedings for abusive investigative conduct as requested by the applicant, since he had not been under investigation at the relevant time. Lastly, the prosecutor held that the investigation for the three counts of abusive behaviour of which D.C.I. and M.C. were accused would be continued by the Prosecutor’s Office of the Arad District Court, which was the competent authority in view of the defendants’ functions within the police force.

On 22 June 2011 an officer in charge of internal affairs at the Arad County Police took statements from the two police officers who had allegedly physically assaulted the applicant. D.C.I. stated that in the early hours of 8 August 2010 he had taken an arrested person to the police station. When he entered the waiting room he saw a group of six people who were drunk, had had their clothes torn and were visibly injured. They were arguing and swearing at each other. When he asked them politely to wait outside, one of them swore at him.

M.C. stated that he had accompanied D.C.I. on the night of the incident. When he saw a group of people in the police station waiting room, he asked what had happened to them and they replied that they had been beaten up by some people on the street and were waiting to give statements. Then he asked them to wait outside.

On 22 July 2011 the police officer in charge of the investigation took statements from T.I., G.S.S. and B.I.M., three of the police officers who had responded to the emergency call.

Officer T.I. stated that he had gone to the scene of the incident accompanied by two police patrols. He found a group of people who claimed to be the injured parties. Amongst them was the applicant. They said that they wished to lodge a criminal complaint against their aggressors, so he accompanied them to the police station. There he took statements from S.L. and D.V., but he did not know whether any of the police officers physically assaulted any of the above-mentioned people. T.I. also stated that after statements had been taken, the applicant had been taken home by officer G.S., while he had accompanied the others home in order to avoid further possible conflicts if they decided to go back to the scene of the incident.

G.S. stated that he was a member of one of the police patrols that had been called to the scene of the incident. When he arrived S.L. told him that he had been physically assaulted by a group of people who had then run away. He maintained that he did not recognise any of the aggressors. The officer further stated:

“... I accompanied to the police station the person who had been assaulted [S.L.] and Mr D.V., who was also at the scene when the incident took place. The accompanied people had injuries on their bodies, probably caused by the stones with which they had been aggressed and their clothes had also been torn as a result of the incident. ... Subsequently, I was asked by T.I. to accompany home another person involved in the incident in order to avoid other unpleasant incidents, this person was Miclea Alexandru. While I was with Miclea Alexandru and until reaching his home ..., he did not tell me that he had been beaten by a police officer, he had traces of violence on his face, his tee-shirt was torn but I did not ask him where this came from, I assumed it had come from the street fight.”

B.I.M. declared that the applicant could not have been assaulted by police officers since he was one of the people who had been injured in the street fight.

On 12 January 2012 the Prosecutor’s Office of the Arad District Court decided not to pursue the criminal proceedings with respect to the three counts of abusive behaviour for which officers D.C.I. and M.C. had been investigated. As for the applicant’s complaint, the prosecutor held that the statements given by the applicant and the two persons accompanying him on the day of the incident had been contradicted by the statements of the officers under investigation as well as by those of three other police officers, namely T.I., G.S. and B.I.M. Therefore, it could not be established with certainty that the applicant had been assaulted by the two police officers.

The applicant complained against that decision, claiming that the statements of the two police officers and their colleagues were subjective and should have been corroborated by other evidence. He requested again that K.A. (referred to as K.E. in the initial complaint) be called as a witness and gave his address. He added that K.A.’s testimony would have been relevant, since he had witnessed the applicant receiving a punch from D.C.I. outside the police station.

On 7 February 2012 the applicant’s complaint against the decision not to bring charges was dismissed by the head prosecutor of the Prosecutor’s Office of the Arad District Court with the same reasoning, namely that the statements of the injured party had not been corroborated by the statements of the alleged perpetrators and their colleagues.

The applicant contested the prosecutor’s decision before the court, requesting non-pecuniary damages for the injuries sustained. In his submission before the court, the applicant emphasised that as he had been escorted to the police station by only two officers, the statement of the third officer should not have been taken into consideration. In addition, the applicant complained that the prosecutor had overlooked important evidence. The only pieces of evidence he had taken into account were the statements of the two officers under investigation and the statements of their colleagues, who could not have been impartial. The applicant argued that K.A., who had accompanied him to the police station on the day of the incident, should also have been heard by the prosecutors, as he had partially witnessed the alleged ill-treatment.

The applicant’s complaint, together with the other two complaints against the two police officers, were analysed jointly and rejected as manifestly ill-founded by a final decision of the Arad District Court on 18 April 2012.

The court considered that the evidence administered during the criminal investigation had sufficed to conclude that “it had not been proven beyond reasonable doubt that on 8 August 2010 the defendants had physically abused [the applicant]”. The court based its verdict on the discrepancies found between the applicant’s account of the events and the statement given by S.L. More specifically, S.L. declared that he had heard the applicant screaming outside the police station, whereas the applicant claimed that he had been beaten inside. S.L. also declared that the applicant had told him that he had been handcuffed with his hands behind his back, whereas the applicant stated that he had been handcuffed to a radiator. In addition, the injuries on the applicant’s body may very well have been caused during the street brawl. That fact had been confirmed by the three police officers who had intervened at the scene, namely T.I., G.S. and B.I.M., as well as by the witness, S.L., who had declared in his statement of 8 February 2011 that he had been told when he was inside the bar that a group of people were “beating up my brother and Miclea Alexandru”.


CASE OF AVIAKOMPANIYA A.T.I., ZAT v. UKRAINE

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant company was a Ukrainian joint-stock company registered in Kyiv. At the relevant time it operated a commercial air carrier business (see East West Alliance Limited v. Ukraine, no. 19336/04, § 7, 23 January 2014).

On 12 March 2003 the applicant company brought a claim for damages, in particular loss of profit, against the State Aviation Safety Department. The claim was based on a delay on the defendant’s part in issuing a safety certificate, which the Department had been required to issue in 2001 by a court judgment.

On 16 August 2005 the Kyiv City Commercial Court allowed the claim in part.

On 18 October 2005 the Kyiv Commercial Court of Appeal quashed the first-instance court’s judgment and rejected the claim, mainly on the grounds that the applicant company had failed to prove the loss of profit it had claimed. It considered the estimates of the loss profit speculative.

On 21 February 2006 the Higher Commercial Court reversed the ruling of the Court of Appeal and upheld the judgment of the first instance court. The Higher Court held that because the defendant’s inaction prevented the applicant company from operating its business as from 2001, the first instance court was correct in accepting the information about the applicant company’s gross income for 1999 and 2000.

On 6 June 2006 the Supreme Court quashed the ruling of the Higher Commercial Court and upheld the ruling of the Court of Appeal. The Supreme Court considered that no causal connection has been proven between the defendant’s culpable inaction and the alleged loss of profit. It held, in particular, that the applicant company had failed to prove that it had realised a profit, rather than gross income, prior to 2001, or that its income for the preceding years came from operations which required a safety certificate.

Following communication of the case and unsuccessful friendly settlement negotiations, on 2 September 2014 the Government informed the Court of their intention to resolve the issue raised by the application. They produced a unilateral declaration, in which they acknowledged a breach of Article 6 § 1 of the Convention and offered to pay the applicant company a sum to cover any pecuniary and non-pecuniary damage together with any costs and expenses. The Government requested that the Court strike out the application in accordance with Article 37 § 1 of the Convention.

On 7 November 2014 the applicant company objected to the striking out of its application, wishing to have its merits determined with a view to obtaining appropriate redress. It argued, in particular, that under domestic law the unilateral declaration, unlike a Court’s judgment finding a violation, would not provide grounds for reexamination of its case by the Supreme Court. The Government’s unilateral declaration would therefore not lead to actual restoration of the applicant company’s rights.

The Government were invited to comment and on 10 July 2015 informed the Court of the relevant domestic legislation (see paragraphs 15 and 16 below). They submitted a letter from the Supreme Court informing the Government Agent there was no relevant domestic caselaw on the matter.

On 3 November 2015 the applicant company’s only shareholder, East/West, informed the Court that on 2 October 2014 the Kyiv City Commercial Court had declared the applicant company bankrupt and opened liquidation procedure and on 8 October 2015 had declared it liquidated. Accordingly, East/West requested that any just satisfaction award due to the applicant company be paid to East/West. Asked to comment, the Government responded on 18 January 2016 that they “do not object against the applicant’s request as to the payment to its sole shareholder the awarded compensation and, thus, leave this question on the Court’s discretion”.


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

The applicant states that he is a Somali national, born in 1993. At the time of the introduction of the application, he was in the Netherlands. On an unspecified date after 16 January 2012, he was removed to Italy. He was initially represented before the Court by Mr C. Chen, a lawyer practising in Alkmaar, who was succeeded by Ms P. Kramer-Ograjensek, a lawyer practising in Sittard.

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

On 17 May 2009, the applicant applied for asylum in the Netherlands under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000), stating that his name was M.O.S.H., that he was a Somali national and that he was born in Mogadishu in 1993. The examination and comparison of his fingerprints by the Netherlands authorities generated a Eurodac report, indicating that on 29 September 2008 he had entered Italy where on 4 November 2008 he had applied for asylum.

In his interviews with the Netherlands immigration authorities he stated, inter alia, that he had arrived in Lampedusa (Italy) on 29 September 2008 and that under another identity – namely Y.J.N., born in 1989 – he had been granted a residence permit in Brindisi (Italy) on 27 January 2009 with a validity of three years. He had also been provided with an Italian travel document for refugees. After his arrival in the Netherlands, he had given these documents to a person who had taken them to Italy. The applicant further stated that, directly after having taken out of the water near Lampedusa, he had been taken to a reception centre in Policoro where he had stayed for two weeks and he had subsequently been taken to another centre in Brindisi where he had stayed for another three months pending the outcome of his request for a residence permit. After having obtained this permit, he had been asked to leave the reception centre which he had done. After having stayed in Florence and Turin, he had traveled to the Netherlands. He had told the Italian authorities that he was twenty years old because he had wanted to work in Italy. He had not succeeded in finding work and had given his real age to the Netherlands authorities.

On 21 May 2009, the Deputy Minister of Justice informed the applicant of her intention to reject his asylum request. The applicant filed his written comments (zienswijze) on this intention on 25 June 2009.

On 17 June 2009 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having implicitly acceded to that request.

The applicant’s asylum request filed in the Netherlands was rejected on 15 July 2009 by the Deputy Minister, who found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Deputy Minister found that the applicant had not demonstrated facts and circumstances on the basis of which the Netherlands could not rely on the principle of mutual interstate trust in respect of Italy. The Deputy Minister did not find it established that Italy fell short of its international treaty obligations in respect of asylum-seekers and refugees, and rejected the applicant’s argument that he risked treatment in breach of Article 3 of the Convention in Italy.

The applicant’s appeal against this decision, filed on 16 July 2009, and his accompanying request for a provisional measure (voorlopige voorziening) were rejected on 27 November 2009 by the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague sitting in Zwolle. The judge rejected the applicant’s claim that his removal to Italy would be in violation of his rights under Articles 3 and 8 of the Convention and held that the applicant had not established that Italy would fail to respect its international treaty obligations vis-à-vis the applicant.

Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). Such a further appeal does not have automatic suspensive effect. Suspensive effect can be requested by applying for a provisional measure to the President of the Administrative Jurisdiction Division. A request for a provisional measure does not have automatic suspensive effect either.

On 9 December 2014, the applicant’s representative informed the Court that the applicant had been removed to Italy by the Netherlands authorities without specifying on what date this removal had taken place. She further stated that she was still in contact with the applicant. Her letter contained no information about the applicant’s whereabouts or current situation.

The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, 4 November 2014); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy ((dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).


CASE OF EGILL EINARSSON v. ICELAND (No. 2)

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

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

The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known personality in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms.

Some of the applicant’s published views attracted some attention, as well as controversy. These included, inter alia, his views about women and their sexual freedom. In some instances his criticism had been directed towards named individuals, often women, and in some cases his words could have been construed to mean that he was in fact recommending that they should be subjected to sexual violence. The applicant had often justified such conduct by stating that the material had been meant in jest and that those who criticised him lacked a sense of humour (see Egill Einarsson v. Iceland, no. 24703/15, § 16, 7 November 2017).

In November 2011, an 18-year-old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about false accusations made against him by the two women. This case was also dismissed.

On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page, and in the interview the applicant discussed the rape accusation against him. The applicant stated several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl’s name to be disclosed and that he was not seeking revenge against her. He accepted that, having placed himself in the media spotlight, he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl’s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy.

On the same day a Facebook page was set up for the purpose of protesting about the interview and encouraging the editor of Monitor to remove the applicant’s picture from its front page. Extensive dialogue took place on the site that day. Later that day, X posted a comment on the abovementioned Facebook page which stated, inter alia: “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ... It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...”.

On 28 November 2012, the applicant’s lawyer sent a letter to X requesting that she withdraw her statements, admit they were unfounded, apologise in the media and pay the applicant punitive damages, which would be donated to charity. By letter the following day, X’s lawyer opposed the applicant’s claims and submitted that the impugned statements were not defamatory. Furthermore, the lawyer informed the applicant’s lawyer that X had removed the statement in question from Facebook.

On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for her to be punished, under the applicable provisions of the Penal Code, for publishing the statements in question. The applicant further requested that the statements “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ...” and “It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...” be declared null and void. Moreover, the applicant requested that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for the cost of publishing the main content and the reasoning of the final judgment in the case in the media under Article 241 of the Penal Code, and the applicant’s legal costs.

By a judgment of 1 November 2013, the District Court found that X’s comment on Facebook had been defamatory and declared the statements null and void. However, the court dismissed the applicant’s claim for the imposition on X of a criminal punishment under the Penal Code, as well as rejecting the claim to have X carry the cost of publishing the main content and reasoning of the judgment in a newspaper. Furthermore, the District Court did not award the applicant non-pecuniary damage and concluded, finally, that each party should bear its own legal costs.

The judgment contained the following reasons:

“... The [applicant] claims damages in the amount of ISK 1,000,000 and bases his demand on the general rules of tort law and on Article 26 of Act no. 50/1993 [Tort Liability Act]. According to the aforementioned, it is clear that [X] made defamatory insinuations about [the applicant]. However, when assessing the damage suffered by [the applicant], it has to be taken into account how [the applicant] has built a certain reputation by his conduct in public. Notwithstanding the extensive disputes about his comment made under the name of Gillz, it cannot be seen that he took a clear stand against sexual violence until complaints against him materialised. Nevertheless [the applicant] had full reason to clarify his situation in this respect, taking into account that material stemming from him is often very ambiguous and provocative, and could easily be interpreted as an incitement to this type of violence.

When assessing the possible damage to [the applicant], the distribution of the comments which was, as stated before, limited to the distribution entailed in publications on the said Facebook page, together with hundreds or thousands of other comments, has to be taken into account. Additionally, the comments were removed from the website when [the applicant] so requested.

Lastly, it should be considered that by declaring the comments null and void, as this judgment concludes, [the applicant] has received full judicial satisfaction.

In light of all the above-mentioned considerations there is no reason to order [X] to pay non-pecuniary damages.

Furthermore, [the applicant’s] claim to have [X] carry the cost of publishing the main content and the reasoning of the judgment in a newspaper will not be accepted. The impugned comment was published on a Facebook page and therefore it is not necessary to incur the costs of publishing the judgment in any other way.

In light of the conclusion of the judgment, and taking account of all the facts, it is appropriate that each party bears its own legal costs [er rétt að málskostnaður falli niður].”

By judgment of 18 December 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court’s decision to declare the statements null and void. Furthermore, the Supreme Court upheld the District Court’s decision not to award damages to the applicant and that each party should bear its legal costs. In its assessment regarding that issue the Supreme Court referred to Article 73 (3) of the Constitution, the principle of proportionality and the reasoning of the District Court.

The dissenting judge agreed with the majority to declare the impugned statements null and void. However, the judge found that the criteria set out in the Tort Liability Act for the granting of non-pecuniary damages were fulfilled in the case and the applicant should be awarded 200,000 ISK in non-pecuniary damages as well as his legal costs before the District Court and the Supreme Court.