Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1948 and lives in Essex. The facts of the case, as submitted by the parties, can be summarised as follows.

The applicant was arrested in the Netherlands on 31 January 1999. On 3 February 1999, following transfer to the United Kingdom, he was charged with the attempted importation of 163 kilograms (compressed weight) of cocaine with a potential street value of GBP 11 million.

Prior to trial, in order to seize and preserve the applicant’s assets for future confiscation in the event of a conviction, the prosecution applied for and obtained a restraint order and the appointment of a receiver under section 26 of the Drug Trafficking Act 1994 (“the 1994 Act”). The receiver sought to sell the applicant’s horses immediately and this was successfully challenged by the applicant. In its judgment dated 23 July 1999 the Court of Appeal confirmed that the purpose of the 1994 Act was to preserve the value of assets for the purpose of future confiscation proceedings.

Also prior to trial, the applicant sought to challenge the admissibility of telephone interception evidence obtained in the Netherlands. He ultimately pursued an appeal to the House of Lords, which delivered its judgment against the applicant on 24 March 2000.

The trial subsequently commenced in the Crown Court in June 2000. However, after the jury had already retired to consider their verdict a prejudicial document was discovered within the jury bundle. The fault for this lay with the prosecution, a matter admitted at the time. Consequently, on 31 August 2000 the jury were discharged.

A retrial commenced on 6 April 2001. At the start of the retrial the applicant’s counsel pursued an unsuccessful application to stay the proceedings on grounds of hardship suffered as a result of the prosecution’s negligence in causing the first trial to be abandoned.

On 5 June 2001 the applicant was found guilty of the offences charged. On 6 June 2001 he was sentenced to fourteen years’ imprisonment. He lodged an appeal against sentence, which was unsuccessful. In 2004 he lodged an out-of-time appeal against conviction. He was released from prison in February 2006 and, on 17 November 2006, he abandoned his appeal (see further paragraph 29 below).

The 1994 Act provides for the making of a confiscation order in the event of a conviction for drug trafficking offences. Accordingly, prior to the sentencing hearing, the prosecution served notice under section 2 of the Act of its intention to seek a confiscation order and a statement under section 11 of the Act containing the prosecution’s assessment of whether the applicant had benefited from drug trafficking and the value of his proceeds of drug trafficking.

At the sentencing hearing on 6 June 2001, the judge ordered the defence to serve a written response to the prosecution’s statement within six weeks. The defence failed to serve its response within the six-week period. At the prosecution’s request, a further procedural hearing took place on 9 October 2001. At this hearing, the judge was informed that the delay in serving the defence response had been caused by the applicant moving prisons and wishing to instruct new solicitors. The prosecution drew the judge’s attention to section 3 of the 1994 Act, which provided a six-month deadline in respect of the confiscation proceedings. Prosecution counsel indicated that an extension of the deadline might be required. Defence counsel confirmed that the applicant wished to apply for a transfer to new solicitors and agreed that an extension would probably be required as it was unlikely that a fresh legal team would be ready by 6 December 2001 when the current deadline was due to expire. The judge granted a short adjournment of 28 days to resolve the matter of transferring representation.

On 6 November 2001 the court granted a defence application for the transfer of legal aid. The new defence representative sought an adjournment of three weeks to allow new counsel to receive the papers and take instructions from the applicant. The prosecution did not oppose the application but reminded the judge that under section 3 of the 1994 Act, the judge needed to find “exceptional circumstances” before the timetable could be extended beyond the six-month deadline. Defence counsel was unable to address the judge on the point of “exceptional circumstances” owing to his lack of familiarity with the case. Accordingly, the matter was adjourned to 4 December 2001 to review progress.

On 4 December 2001 defence counsel indicated to the judge that, owing to the complexities of the case, he would not have a defence response prepared before Easter 2002. He also indicated that a contested hearing, which the parties now appeared to consider necessary, would require a two-week time estimate. The judge was again referred to section 3 of the 1994 Act and it was decided with the agreement of all parties to postpone the confiscation timetable to the end of May 2002 pursuant to the court’s powers under that section. The judge suggested a provisional date of 20 May 2002 for the substantive confiscation hearing.

At a hearing on 25 January 2002, the defence gave notice that it wished to challenge the validity of the postponement of the confiscation hearing on the basis that the Crown Court had no jurisdiction because procedural requirements had not been properly followed by the judge at the hearing on 4 December 2001. The judge set a timetable for the service of skeleton arguments on the jurisdiction point and fixed 14 March 2002 for legal argument on the matter.

In early March, as a result of informal discussions between junior counsel for both sides regarding a case pending before the Court of Appeal on the jurisdiction point, the 14 March 2002 date was vacated. In the event, the pending appeal case was subsequently conceded by the prosecution so no oral argument took place in that case. A review hearing in the applicant’s case was scheduled for 22 March 2002.

Prior to the hearing on 22 March 2002 it became apparent that the parties had misunderstood each other in agreeing to vacate the 14 March 2002 date. Counsel for the defence had understood that if the appeal in the other case was decided in the appellant’s favour, the prosecution in the applicant’s case would terminate the confiscation proceedings against him. Counsel for the prosecution denied that such an undertaking was ever made. Counsel for the defence indicated his intention to argue abuse of process on the basis that an undertaking had been given and was then reneged upon.

On 22 March 2002, the prosecution indicated its intention to proceed with the confiscation hearing on 20 May 2002, as planned. The defence requested that legal argument on jurisdiction and abuse of process be postponed to suit the diary of leading counsel. The judge noted that it was “a supreme irony frankly ... that this case was adjourned solely for Mr Piper’s benefit and he now has the temerity to say that there is no jurisdiction to try him.” He also commented that since the prosecution had produced its statement under section 11 of the 1994 Act before the sentencing hearing on 6 June 2001, Mr Piper had done absolutely nothing. The judge indicated his preference for retention of the May date for the substantive hearing with any legal argument to take place beforehand, suggesting that alternative leading counsel could be found. Defence counsel proposed instead that the May date be set down for legal argument and after that, unless the confiscation proceedings had fallen away, the defence would serve their response by the end of May. The judge reluctantly put back the substantive confiscation proceedings until 13 June 2002, noting that he was “very loath to have further slippage than is absolutely necessary”.

On 22, 23 and 27 May 2002 two defence applications submitted by newly instructed leading counsel were heard. The first was to stay the confiscation proceedings on grounds of abuse of process; the second was for an order declaring that there was no jurisdiction to continue the confiscation proceedings on account of the judge having failed to observe the proper procedural requirements when he postponed the confiscation hearing on 4 December 2001.

In his ruling of 27 May 2002 the judge found, in relation to the jurisdiction point that the original adjournment was to afford the defence more time, that no defence response had been forthcoming to the prosecution statement and that further delay had been caused by the applicant wishing to instruct new solicitors. He indicated that he had listed the case on 4 December 2001, two days before the six-month time-limit expired, and that on that date he had postponed the listing to 31 May 2002 in compliance with section 3 of the 1994 Act. He further found that no prejudice had been caused to the applicant as a result of the postponement. Accordingly, he concluded that the court had jurisdiction to deal with the confiscation proceedings. On the issue of abuse of process, the judge ruled that there had been a misunderstanding between counsel as to whether any undertaking had been given and that no abuse therefore arose. Following the ruling, the confiscation proceedings were adjourned and fixed for September 2002 to allow the defence to prepare their case.

Further argument then took place in relation to the jurisdiction point following a Court of Appeal judgment on 27 June 2002 in which a confiscation order was quashed following a finding that a Crown Court judge had not complied with the requirements of section 3 of the 1994 Act. The applicant asked the judge to reconsider his ruling of 27 May 2002. The judge considered the applicant’s case to be distinguishable on the facts. However, on the request of the defence and following advice from both parties that an interlocutory appeal could be completed quickly and that the September 2002 confiscation hearing would not need to be vacated, he certified the point as fit for appeal to the Court of Appeal.

The applicant duly lodged an appeal on the jurisdiction point. For unknown reasons, matters proceeded more slowly than the parties had expected and the September confiscation hearing did not go ahead. A further judgment in a similar appeal was handed down by the Court of Appeal on 16 December 2002 (R v Knights (Richard Michael) and others [2002] EWCA Crim 2954). An appeal against that judgment was lodged with the House of Lords.

The applicant’s case was adjourned further in December 2002 and February 2003 on application by him under section 3 of the 1994 Act, the “exceptional circumstances” being the pending House of Lords appeals. The parties were requested to keep the court updated. The applicant was subsequently informed by letter from the Court of Appeal dated 24 March 2003 that a question had been certified for the House of Lords in the case of Knights and others and that all similar appeals, including his own, would be held in abeyance until that appeal had been decided by the House of Lords.

As a result of this, and disclosure issues in relation to the receiver, the matter was further postponed in September 2003 until 9 January 2004 by which time the House of Lords had not issued a judgment in Knights and others. The judge allowed a one-week adjournment to obtain an update from the judicial office of the House of Lords. He was reminded by the applicant that he would again need to formally postpone the confiscation hearing. The judge proposed a further six-month postponement, on the proviso that he be provided with more up to date information in a week’s time and that if the proceedings could be listed and dealt with before the six-month period had expired, the parties should arrange this. Both counsel agreed.

Further hearings took place in June and July 2004. However, the House of Lords had still not issued a judgment. Further postponements were ordered.

On 27 September 2004 the judge was informed that the applicant had lodged an out-of-time appeal with the Court of Appeal against his conviction. Accordingly, there was little point in fixing a date for a substantive hearing in the confiscation proceedings. The applicant suggested a postponement to June of 2005. The judge agreed to the postponement on condition that the parties kept him informed of any progress in the meantime.

On 21 July 2005 the House of Lords handed down their judgments in two jurisdiction appeals (R v Knights and others [2005] UKHL 50; and R v Soneji and another [2005] UKHL 49). It upheld the confiscation orders, stating that any prejudice caused to the defendants by delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process.

On 28 July 2005 a procedural hearing was held in the Crown Court in the applicant’s case. The applicant’s counsel acknowledged that the House of Lords judgment effectively ruled out the prospect of a successful appeal on jurisdiction. The applicant requested a further adjournment to allow the parties to discuss matters further and agree amongst themselves a convenient date in September for the next hearing. The judge agreed to an adjournment. It is unclear whether a hearing took place in September or whether further adjournments were agreed in light of the applicant’s pending appeal against conviction.

In the meantime, from October to December 2005, separate hearings were held in the Court of Appeal relating to the applicant’s appeal against conviction. On 1 February 2006, the applicant was released from prison, having served half of his sentence. On 17 November 2006, apparently following adverse outcomes on various issues relating to his appeal, the applicant abandoned his appeal against conviction.

On 8 December 2006 at a review hearing in the confiscation proceedings, the applicant informed the court that he had a large number of witnesses and a great deal of work was yet to be done. The applicant’s counsel gave notice of a potential abuse argument arising from the deaths of two of his witnesses. The judge fixed a timetable for further proceedings, including the lodging of an amended “section 11 statement” by the prosecution and reply by the applicant. The matter was listed for a hearing in late January 2007. The prosecution served the amended statement in January 2007. At the hearing on 25 January 2007 it was agreed to seek suitable dates in April 2007.

At a directions hearing on 16 April 2007 the applicant’s counsel again raised issues relating to the volume of work and requested until the end of May to respond to the prosecution’s “section 11 statement”. The judge extended the deadline to 1 June 2007 and ordered that the prosecution serve any further response within four weeks. A procedural hearing was agreed for 6 July 2007. The judge further extended the deadline for the confiscation hearing on the grounds of “exceptional circumstances”, stating that this was “a wholly exceptional case”.

At the procedural hearing on 6 July 2007 the applicant proposed November 2007 for the substantive confiscation hearing and assured the judge that the hearing would not last longer than a week. The judge was scheduled to start a complex trial on 12 November 2007 to last until Christmas. He therefore listed the applicant’s case for 6 November 2007. On 1 November 2007 the parties appeared before the judge. The applicant’s counsel informed the judge that, contrary to previous advice to the court, one week would be insufficient for the substantive hearing as he now wished to call more witnesses than had originally been indicated. The judge’s other commitments precluded a rescheduled hearing taking place before Christmas and counsel could not agree on dates after Christmas. The judge decided to keep the hearing fixed for 6 November 2007 to clarify the situation as to dates. The matter was further adjourned at hearings that took place in November 2007 and December 2007. The substantive hearing was listed for 20 July 2008, with a time estimate of two weeks, but in fact lasted four days from 22 to 24 July 2008.

The judge delivered his ruling on the confiscation on 19 December 2008. He identified the total amount of the applicant’s benefit from criminal conduct as GBP 1,840,563. He found the principal realisable asset to be a farm, which was valued at GBP 690,000. A confiscation order was made, with a three-year term of imprisonment to be served consecutive to the main sentence in default of payment. In his judgment, the judge also addressed the question of delay, noting that the delay incurred resulted partly from the applicant’s desire to challenge the jurisdiction of the court, partly from his appeal to the Court of Appeal and partly from his decision to change his legal representatives.

On 11 February 2009 the applicant requested the judge to vary the confiscation order and reopen his findings on the delay issue on the basis of the judgment of this Court in Bullen and Soneji v. the United Kingdom, no. 3383/06, 8 January 2009. The judge declined, noting that it was now for the applicant to seek other remedies.

The applicant applied, out of time, to the Court of Appeal for leave to appeal the confiscation order. He argued, first, that the judge had erred in including the current value of the farm within the benefit figure of the proceeds of drug trafficking; and, secondly, that the delay in the disposal of the confiscation proceedings had breached his right to a fair trial and to a trial within a reasonable time under Article 6 § 1 of the Convention.

An oral hearing took place before the full court to decide upon both leave to appeal and the merits on 17 March 2010. The Court of Appeal granted leave to appeal but dismissed the appeal itself, upholding the confiscation order and finding no violation of Article 6 § 1. As regards the delay complaint, the court considered the whole period from the applicant’s arrest in January 1999 to the making of the confiscation order in December 2008. It indicated that the delay:

“3. ... raises a prima facie case of a significant breach of Article 6. Unless there is a satisfactory explanation for it, it is a chronology which is way, way below the standards which are expected and achieved in the courts of this country. ...

... We start with the proposition that the passage of such a length of time as we have described calls for the most careful investigation and detailed justification. It is simply on the face of it well beyond acceptable.”

The court found that the period from the applicant’s arrest in January 1999 to the conclusion of his first trial on 31 August 2000 was wholly unexceptional and reasonable. As to the period between the discharge of the jury in the first trial to the conclusion of the second trial in June 2001, a period of ten months, the court accepted that the abandonment of the first trial was the fault of the prosecution, noting:

“11. ... The trial had to start all over again. It was not concluded by conviction at the end of the second trial until 5th June 2001. There is thus a period of 10 months from 31st August 2000 until 5th June 2001 which was an unnecessary delay attributable to the error, although in good faith, made on behalf of the prosecution by some junior clerk. That period is therefore potentially available to be considered as the responsibility of the State.”

The court then examined the delay from the end of the second trial in June 2001 until July 2005, when the House of Lords’ judgment in the jurisdiction appeals was handed down. It observed that at the outset of this period, the confiscation proceedings were moving in good time. The court considered that there would have been a hearing of the confiscation question in about the spring or early summer of 2002, if that probable timetable had not been overtaken by the applicant’s challenge to the court’s jurisdiction, of which the court noted;.

“14. ... He was entitled to do so. The issue was raised before the trial judge in the early part of 2002 ... The controversy as to the correct construction of the confiscation legislation was not resolved until the decision of the House of Lords in R v Bullen and Soneji ... In fact the question raised and decided went further than simply the confiscation legislation. It bore on a broader question of when technical failure to abide exactly by prescribed procedure has the effect of nullifying the subsequent actions of courts which is, of course, a very large general question.”

The Court of Appeal considered that it was in the applicant’s interests to await the eventual authoritative ruling of the House of Lords. It therefore concluded that the delay that arose in this respect could not be criticised.

In the period from July 2005 until the applicant abandoned his appeal against conviction in November 2006, the court considered that the delay was the result of the appeal lodged “long out of time”, noting:

“17. ... Whilst an appeal against conviction was outstanding there could not of course sensibly be a confiscation hearing because if the defendant’s conviction disappeared so would any prospect of confiscation.”

The court observed that the applicant had engaged a third counsel for the appeal, and pursued it on grounds that had never been supported by those who had conducted his trial. It further noted that the various grounds advanced by the applicant fell away one by one over that period, but one of them remained and was not finally laid to rest until November 2006. The court concluded:

“19. ... The simple fact is that the appeal on this ground, as on the others, had always been without any proper basis or merit. It is this additional period to which we referred prospectively earlier on as an example of the defendant taking the course that he is quite entitled to do – leaving no legal stone unturned – but adding to the passage of time as a result. We are satisfied that nothing in that period can be called unreasonable delay attributable to the act or omission of the State.”

As regards the period between November 2006 and December 2008, when the confiscation order was eventually made, the Court of Appeal noted that the parties had returned promptly to the Crown Court for the resumption of the confiscation issue within a fortnight of the abandonment of the appeal against conviction. It was apparent at the hearing of 8 December 2006 that the prosecution was pressing for a short timetable. The applicant’s representatives, on the other hand, wanted a longer timetable and were seeking additional time on the grounds that they had an enormous volume of work and would be calling a large number of witnesses, and might even be mounting an abuse argument on the grounds that some potential witnesses had died. Hearings were adjourned owing to the applicant’s applications. Although the Court of Appeal did not blame the applicant for his conduct, the court made it clear that any additional passage of time as a result of that conduct was not attributable to any act of the State. It observed in particular that:

“20. ... At one such hearing, in January 2007, the defendant through his lawyers indicated that there would be no less than 49 witnesses necessary to be examined at the confiscation hearing ... [that] was eventually set down for November, taking into account the potentially large number of witnesses and time that would be needed. At that stage the estimate, which according to English practice will have been an estimate contributed to by both parties, was five days. That is a very long time for a confiscation hearing but if the time has to be found it has to be found. However, that date had to be broken on the application of the defendant because they assured the judge that they had so many witnesses to call that in fact 14 days would be needed, that is three court weeks, to hear the confiscation question. In the end, the defendant called five (not 49) witnesses and one of those was himself.”

The court commented on the time taken by the Crown Court judge to deliver his ruling (some four and a half months after the conclusion of the confiscation hearing) as follows:

“22. ... We do not doubt that that will be attributable to the demands made on the judges at the Central Criminal Court, but it is too long and that period, or at least part of it, is no doubt the responsibility of the State. Judgments of this kind ought to be delivered within, at the very least, two or three months.”

Looking at the passage of time as a whole, the court concluded that there had not been in the applicant’s case unreasonable delay attributable to the acts of the State. The court also considered the impact of the passage of time upon the applicant, and acknowledged that he and his wife lived throughout this time with the uncertainty of whether they would lose his family home. However, given that his assets remained the same throughout the whole period and that he continued to enjoy his home which might have otherwise been taken from him earlier, the court had very little doubt about where the balance of advantage lay. It concluded:

“25. The reality of this case is that this was a defendant of resourceful approach who deployed every possible legal stratagem to delay the confiscation process. He cannot now be heard to say that as a result of his having succeeded in delaying it, it has become unfair for the confiscation order to proceed. If there had been unreasonable delay attributable to the State, in the absence of any possible damage to the defendant beyond the very limited uncertainty that we have mentioned we are quite satisfied that this could not possibly have been a case in which the appropriate remedy would have been a stay of the confiscation process for abuse of process. There would simply have been nothing remotely unfair about the defendant eventually having to disgorge the confiscation which was the consequence of his offending. The appropriate remedy would, hypothetically, as it seems to us, have been a declaration. But that does not in the end arise. It follows that the substantive ground ... in relation to Article 6 fails.”

Since the lodging of his application to this Court, a further judgment has been handed down by the High Court on 7 December 2011, substantially reducing the amount of assets payable under the confiscation order (CPS v Piper [2011] EWHC 3570 (Admin)).


Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Mladost Turist a.d. (hereafter “the applicant company”), is a commercial (joint stock) company incorporated under Serbian law, with its seat in Belgrade. It was represented before the Court by Ms R. Andrić, an advocate practising in Belgrade.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The Government of Serbia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right.

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

The legal system of the former Socialist Federal Republic of Yugoslavia (SFRY) distinguished between two types of ownership: private ownership (privatno vlasništvo) and social ownership (društveno vlasništvo). While owners of property in private ownership were private individuals (natural persons) and some private legal entities called “civil legal entities” (građanske pravne osobe) such as foundations, associations and religious communities, the owner of property in social ownership was not defined. Nevertheless, the federal State, the constituent Republics, municipalities being local government units and other various legal entities called “social legal entities” (društvene pravne osobe), among which the most important ones were companies, known at the time as “organisations of associated labour” (organizacije udruženog rada) and later on as “socially owned companies” (društvena poduzeća), were during the socialist period given certain quasi-ownership rights over property in social ownership, such as the right to use it (pravo korištenja), the right to administer it (pravo upravljanja) or the right to dispose of it (pravo raspolaganja).

The applicant company was established in 1978 in Belgrade as an “organisation of associated labour”. On 30 April 1991 it transformed itself under Serbian law into a commercial (joint stock) company whose shareholders were all private individuals.

The applicant company claimed that during the socialist period it had held a quasi-ownership right over eleven plots of land in social ownership (društveno vlasništvo) located in Tisno (Croatia), namely the right of use (pravo korištenja) of that land. At the time, the plots in question had formed the “Beograd” Children and Youth Resort operated by the applicant company.

On 8 October 1991 Croatia declared independence and severed all ties with the Socialist Federal Republic of Yugoslavia (hereafter “the SFRY”).

By a number of decrees adopted in the period between 17 July and 1 October 1991 the Government of Croatia prohibited companies or other legal entities with their seat in other republics of the former SFRY from undertaking any transactions involving assets (including immovable property) located in Croatia.

By Government of Croatia decree of 26 June 1992, which entered into force on the same day, all such assets of legal entities with their seats in Serbia or Montenegro were transferred to the State (see paragraph 23 below).

Relying on subsequent legislation that entered into force on 19 April 1994 (see paragraph 24 below), the Šibenik Municipal Court (Općinski sud u Šibeniku) on 8 June 1994 recorded in the land register the State as the owner of the plots of land at issue.

With the entry into force on 1 January 1997 of the Property Act, holders of existing quasi-ownership rights over socially-owned property (the rights to administer, use and dispose of it) ex lege became its owners (see paragraph 25 below). This did not apply to such rights which had been extinguished before that date, primarily by virtue of earlier legislative acts whereby social ownership of certain types of property (such as flats, agricultural land and sports facilities) was transformed into private ownership.

By a gift contract of 18 April 2001 the State transferred ownership of the land in question to the V.K. elementary school (hereafter “the elementary school”). On the basis of that contract, on 31 May 2002 the Šibenik Municipal Court registered the school as the owner of the land.

On 2 June 2004 the Agreement on Succession Issues between the successor States to the SFRY (hereafter “the Succession Agreement”) entered into force (see paragraph 26 below, and, for further details, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, §§ 61-67, ECHR 2014). Annex G to the Agreement deals with private property and acquired rights. Article 2 § 1 of Annex G provides that successor States will recognise, protect and restore the rights to immovable property located on their territory to which citizens or other legal entities of the SFRY were entitled on 31 December 1990, and that anyone who is unable to enjoy such rights will be entitled to compensation. It also provides that any purported transfer of rights to immovable property made after 31 December 1990 will be deemed null and void (see paragraph 27 below).

Following an application by the relevant land-survey (geodetic) authorities of 21 November 2005, the Šibenik Municipal Court, by a decision of 22 February 2007, joined the eleven plots of land in question to form a single cadastral plot and recorded the change in the land register.

In 2007 the applicant company brought a civil action against the State and the elementary school (see paragraph 12 above) in the Šibenik Municipal Court, seeking restitution of the land in question. In particular, since all existing rights of use had been abolished and transformed into rights of ownership (see paragraph 11 above and paragraph 25 below), the applicant company sought to be declared the owner of the land. In the alternative, the company sought 4,000,000 euros (EUR) in compensation. It relied on Article 2 § 1 of Annex G to the Succession Agreement (see paragraph 12 above and paragraphs 26-27 below).

By a judgment of 30 September 2009 the Municipal Court dismissed the applicant company’s action. It found that during the socialist period the applicant company had held the right of use only in respect of one of the eleven plots of land which at the time had formed the “Beograd” Children and Youth Resort (see paragraph 6 above). During the socialist period the right of use in respect of the remaining plots had belonged to the Municipality of Belgrade (nine plots) and to the Belgrade Scouts Association (one plot). When the company had instituted civil proceedings in 2007, that plot had no longer existed as it had been joined to the remaining ten plots to form a single cadastral plot (see paragraph 14 above). This meant that the applicant company’s action had to be dismissed because it had been brought in respect of an inexistent item of property.

The applicant company appealed, arguing that during the socialist period the Municipality of Belgrade and the Belgrade Scouts Association had transferred to it the right of use in respect of the ten plots of land. It provided some documentary evidence to that effect. In any event, it was evident that the applicant company had operated and used the resort in the period before 1990 for more than ten years and thereby, under the legislation in force at the time, had acquired the right of use in respect of those ten plots by the operation of law. As regards the remaining plot in respect of which the Municipal Court had acknowledged that it had had the right of use, the applicant company argued that its civil action should not have been dismissed just because that plot had been joined with the remaining ten to form a single plot of land.

On 28 February 2011 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicant company’s appeal and upheld the firstinstance judgment. It held that the applicant company had not provided sufficient evidence to overturn the Municipal Court’s finding that the company had not held the right of use in respect of the ten plots of land. The County Court, however, agreed with the applicant company’s argument that its civil action regarding the remaining plot of land should not have been dismissed on the grounds stated by the Municipal Court. Nonetheless, the applicant company’s action had to be dismissed because the State had lawfully become the owner of that plot on the basis of the decree of 26 June 1992 and the legislation of 19 April 1994 (see paragraphs 9-10 above and 2122 below). The applicant company’s right of use had thereby been extinguished and thus could not have been transformed into a right of ownership on the basis of the transitional provisions of the 1996 Property Act, which had entered into force on 1 January 1997 (see paragraphs 11 above and 25 below). Lastly, the applicant company could not have relied on Annex G of the Succession Agreement either, because that agreement was not directly applicable.

By a judgment of 16 January 2013 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed a subsequent appeal on points of law (revizija) lodged by the applicant company. The relevant part of that judgment reads as follows:

“Pursuant to section 362(1) of the Property Act the owner of a socially-owned immovable property is the [legal entity] recorded in the land register as the holder of the right to administer, use or dispose of that immovable property.

However, this statutory presumption does not operate in favour of the plaintiff.

The plaintiff’s right of use ... could not have been transformed into a right of ownership with the entry into force of the Property Act (1 January 1997) because the plaintiff had already lost the right of use before that, on the basis of section 3(1) of the [Government] Decree [of 26 June 1992].

In the light of the foregoing, the right of use ... was extinguished and was transformed into a right of ownership of the first defendant [i.e. the State] before the entry into force of the Property Act.

Lastly, as regards the application of Annex G to the Succession Agreement, on which the plaintiff relies, its provisions do not entitle the plaintiff to seek from the [first] defendant recognition of its [i.e the plaintiff’s] right of ownership, ... deletion of the [second] defendant’s right of ownership or [to make] further claims under the law of obligations [i.e. to seek compensation].

The plaintiff did not acquire the right of ownership on the basis of the Succession Agreement itself because that right still needs to be recognised. This clearly follows from the last sentence of Article 2 § 1 subparagraph (a) of Annex G which reads: ‘Persons unable to realise such rights shall be entitled to compensation in accordance with civil and international legal norms.’

Therefore, the plaintiff’s right of ownership still has to be recognised, whereupon the competent authority should decide either to return the property or to recognise the right to compensation.

In this connection it should be mentioned that under section 3(1) of the Succession Agreement Ratification Act, its implementation is within the jurisdiction of the State authorities citied therein and not of the courts.”

The applicant company then lodged a constitutional complaint against the Supreme Court’s judgment. It relied on Articles 48 and 50 of the Croatian Constitution (see paragraph 22 below) and on Article 1 of Protocol No. 1 to the Convention.

By a decision of 14 May 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant company’s constitutional complaint. It held that the case did not raise any constitutional issues.

The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90, with subsequent amendments) read:

“The right of ownership shall be guaranteed.

Ownership entails obligations. Owners and users of property shall contribute to the general welfare.”

“1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to the payment of compensation equal to the market value.

Entrepreneurial freedom and ownership rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”

“International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...”

The relevant provision of the Government Decree of 26 June 1992 prohibiting transactions with, and taking over assets of, certain legal entities on the territory of Croatia (Uredba o zabrani raspolaganja i preuzimanja sredstava određenih pravnih osoba na teritoriju Republike Hrvatske, Official Gazette no. 40/92 with subsequent amendments), reads as follows:

“The assets of business units and other organisational forms of legal entities with their seat in the territory of Serbia or Montenegro and the autonomous provinces of Kosovo and Vojvodina ... are [hereby] transferred to the Republic of Croatia.”

On 24 March 1994 Croatian Parliament passed legislation with the same name (Zakon o zabrani raspolaganja i preuzimanju sredstava određenih pravnih osoba na teritoriju Republike Hrvatske, Official Gazette no. 29/94). The relevant provision of that Act reads as follows:

“The courts shall of their own motion record [in the land register] the immovable property of which the Republic of Croatia became the owner on the basis of section 3(1) of the [Government] Decree [of 26 June 1992].”

The relevant transitional provisions of the Ownership and Other Rights in Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/96 with subsequent amendments – “the 1996 Property Act”), in force since 1 January 1997, are set out in the case of Trgo v. Croatia, no. 35298/04, § 28, 11 June 2009.

The relevant articles of the Agreement on Succession Issues between the successor States to the SFRY read as follows:

“(1) A Standing Joint Committee of senior representatives of each successor State, who may be assisted by experts, is hereby established.

(2) This Committee shall have as its principal tasks the monitoring of the effective implementation of this Agreement and serving as a forum in which issues arising in the course of its implementation may be discussed. The Committee may as necessary make appropriate recommendations to the Governments of the successor States.

“(1) Differences which may arise over the interpretation and application of this Agreement shall, in the first place, be resolved in discussion among the States concerned.

(2) If the differences cannot be resolved in such discussions within one month of the first communication in the discussion the States concerned shall either

(a) refer the matter to an independent person of their choice, with a view to obtaining a speedy and authoritative determination of the matter which shall be respected and which may, as appropriate, indicate specific time-limits for actions to be taken; or

(b) refer the matter to the Standing Joint Committee established by Article 4 of this Agreement for resolution.

(3) Differences which may arise in practice over the interpretation of the terms used in this Agreement or in any subsequent agreement called for in implementation of the Annexes to this Agreement may, additionally, be referred at the initiative of any State concerned to binding expert solution, conducted by a single expert (who shall not be a national of any party to this Agreement) to be appointed by agreement between the parties in dispute or, in the absence of agreement, by the President of the Court of Conciliation and Arbitration within the OSCE. The expert shall determine all questions of procedure, after consulting the parties seeking such expert solution if the expert considers it appropriate to do so, with the firm intention of securing a speedy and effective resolution of the difference.

(4) The procedure provided for in paragraph (3) of this Article shall be strictly limited to the interpretation of terms used in the agreements in question and shall in no circumstances permit the expert to determine the practical application of any of those agreements. In particular the procedure referred to shall not apply to

(a) The Appendix to this Agreement;

(b) Articles 1, 3 and 4 of Annex B;

(c) Articles 4 and 5(1) of Annex C;

(d) Article 6 of Annex D.

(5) Nothing in the preceding paragraphs of this Article shall affect the rights or obligations of the Parties to the present Agreement under any provision in force binding them with regard to the settlement of disputes.”

“The Annexes to this Agreement and the Appendices to the Agreement and Annexes are an integral part of the Agreement.”

“This Agreement, together with any subsequent agreements called for in implementation of the Annexes to this Agreement, finally settles the mutual rights and obligations of the successor States in respect of succession issues covered by this Agreement. The fact that it does not deal with certain other non-succession matters is without prejudice to the rights and obligations of the States parties to this Agreement in relation to those other matters.”

“Each successor State, on the basis of reciprocity, shall take the necessary measures in accordance with its internal law to ensure that the provisions of this Agreement are recognised and effective in its courts, administrative tribunals and agencies, and that the other successor States and their nationals have access to those courts, tribunals and agencies to secure the implementation of this Agreement.”

“This Agreement shall be implemented by the successor States in good faith in conformity with the Charter of the United Nations and in accordance with international law.”

The relevant Articles of Annex G to the Succession Agreement read as follows:

“Private property and acquired rights of citizens and other legal persons of the SFRY shall be protected by successor States in accordance with the provisions of this Annex.”

(1) (a) The rights to movable and immovable property located in a successor State and to which citizens or other legal persons of the SFRY were entitled on 31 December 1990 shall be recognised, and protected and restored by that State in accordance with established standards and norms of international law and irrespective of the nationality, citizenship, residence or domicile of those persons. This shall include persons who, after 31 December 1990, acquired the citizenship of or established domicile or residence in, a State other than a successor State. Persons unable to realize such rights shall be entitled to compensation in accordance with civil and international legal norms.

(b) Any purported transfer of rights to movable or immovable property made after 31 December 1990 and concluded under duress or contrary to sub-paragraph (a) of this Article shall be null and void.

“The successor States shall take such action as may be required by general principles of law and otherwise appropriate to ensure the effective application of the principles set out in this Annex, such as concluding bilateral agreements and notifying their courts and other competent authorities.”

Section 3(1) of the Succession Agreement Ratification Act (Zakon o potvrđivanju Ugovora o pitanjima sukcesije, Official Gazette – International Agreements no. 2/04) entrusts its implementation to the Ministry of Finance, the Croatian National Bank, the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry of Health and Social Welfare, the Ministry of Justice, the Ministry of Culture, the State Archive and other State authorities responsible for the issues covered by the Agreement.

At the meetings of the Standing Joint Committee, established under Article 4 of the Succession Agreement (see paragraph 23 above) held on 1718 September 2009 and 11-12 November 2015, the committee adopted recommendations concerning, inter alia, Annex G to the Agreement. The committee noted that the application of the provisions of Annex G was not efficient enough, and recommended that the interested successor States conclude bilateral agreements for the purpose of the efficient implementation of those provisions. It also advised them to refrain from passing any legislation or undertaking any steps contrary to the provisions of Annex G, and to adopt, should they deem it necessary, measures intended to enable the effective application of Annex G standards.

In decision no. U-I-1777/2003 of 17 March 2009 the Constitutional Court held as follows:

“... The Constitutional Court notes that the entry into force of the [Succession] Agreement did not remove the legal effects associated with taking over the assets of certain legal entities on the territory of Croatia produced by the entry into force of the [Government of Croatia] Decree [of 26 June 1992] ... nor did the Contracting Parties by that Agreement explicitly undertake to return those assets. They only established the principle of equal protection of the property of natural [persons] and legal [entities] with the nationality of, or their seat in, the territory of the other Contracting party [thereby granting them the same level of protection] as the one enjoyed by their nationals and legal entities.

The said Agreement merely constitutes a basis for the conclusion of further agreements between the Contracting Parties with a view to regulating the procedure for exercising the right to compensation for damaged, destroyed or lost property, but is not an instrument suitable for direct application in each particular case.

The Constitutional Court ... reiterates that Annex G stipulates only the fundamental principles underlying the succession issues related to private property and acquired rights of citizens and other legal entities. This undoubtedly stems from Article 4 of Annex G, which stipulates that the successor States should take such measures as may be required by general principles of law and otherwise appropriate to ensure the effective application of the principles set out in that Annex, such as concluding bilateral agreements and notifying their courts and other competent authorities.

... [these] measures entail the adoption of appropriate legislation and subordinate legislation, concluding international agreements and the like. In so doing, all the successor States are obliged to implement the Agreement in good faith, in accordance with the UN Charter and international law.”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Dmitry Dedov;Egidijus Kūris;Erik Møse;Guido Raimondi;Jon Fridrik Kjølbro;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Yonko Grozev;Ksenija Turković

The applicant was born in 1987 and lives in Kuršanec.

In a judgment of the Čakovec County Court (Županijski sud u Čakovcu) of 19 June 2008, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for armed robbery.

On 2 July 2010 the Čakovec Municipal Court (Općinski sud u Čakovcu) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010.

Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account those two convictions and sentenced him to a single term of two years and eleven months’ imprisonment.

On 16 October 2009 the applicant was transferred from a semi-open regime in Turopolje State Prison (Kaznionica u Turopolju) to Bjelovar County Prison (Zatvor u Bjelovaru) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 10 above). The reason for the transfer, as indicated in a report of Turopolje State Prison, was the applicant’s inappropriate behaviour and threats of escape.

The applicant remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin County Prison (Zatvor u Varaždinu) following a decision by the Ministry of Justice Prison Administration (Ministarstvo pravosuđa, Uprava za zatvorski sustav) of 11 March 2011.

According to the applicant, during his stay in Bjelovar Prison he was placed in overcrowded cells. He alleged in particular that for a period of fifty days in total he disposed of less than 3 square metres (sq. m) of personal space, including for a period of twenty-seven consecutive days. There were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 17 below).

The applicant further submitted that the cells in which he had been held were badly maintained, humid, dirty and insufficiently equipped with lockers and chairs for all inmates. The sanitary facilities were in the same room as the living area, from which they were not fully separated. Those facilities were about half a metre away from the dining table and there was a constant smell in the cell. Moreover, he had not been given any opportunity to engage in prison work and in general was not provided with sufficient access to recreational and educational activities. The prisoners were allowed to move freely outside the locked part of the prison between 4 and 7 p.m., and the out-of-cell facilities were inadequate and insufficient, particularly given that there was only an open recreation yard. The nutrition was poor and the hygiene conditions were inadequate, especially since the toilet was not separated from the living area. The inmates did not have sufficient access to hot water and were allowed to shower only once or sometimes three times per week.

According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 sq. m of personal space. He was held in four different cells, the conditions of which are detailed in the table below.

The measurements of the cells indicate their overall size (as provided by the Government) and with the in-cell sanitary facility deducted (based on the methodology enunciated in paragraph 114 below). That calculation is based on an approximate measurement of the sanitary facility (1.9 sq. m) according to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant.

The Government further explained that each cell in which the applicant had been accommodated had had windows allowing in natural light and fresh air. Artificial light was also secured and all cells were heated by a central heating system and equipped with a communication system enabling the inmates to contact prison staff immediately in case of need. All cells had a toilet fully separated from the living area and equipped with its own ventilation system. All cells had direct access to drinking water. The cells were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, July 2009 and May-July 2010, as well as in 2011, 2012 and 2013. Furthermore, the inmates were provided with all necessary hygiene and sanitary facilities. This included a shower three times per week and after sports activities. Every inmate was also regularly provided with the necessary toiletries and cleaning supplies for keeping the cells clean. The inmates were provided with clean bedding and bedspreads every fifteen days, or more often if necessary. In addition, the inmates were provided with the necessary clothing although they were allowed to use their own clothes. Nutrition was based on an assessment by experts and the quality of the food was constantly monitored by the competent State authorities. The inmates were provided with three meals per day meeting the necessary nutrition requirements, as supervised by the prison doctor. Meals could be taken to cells or eaten in a common room.

The Government also explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. Specifically, in the ordinary daily regime, the inmates would wake up at 7 a.m. on working days and at 7.30 a.m. on weekends and public holidays. They would then wash, tidy their beds, and have breakfast, followed by the morning cleaning of the cell. Leisure time was scheduled afterwards, until 1 p.m., when they had an opportunity to take part in a number of activities. Leisure time was followed by lunch served between 1 and 2 p.m. The period after lunch was usually set aside for various group activities and meetings with lawyers and prison staff. Between 4 and 7 p.m. all cell doors were opened again, enabling the inmates to move about within the prison and to use its facilities as they saw fit. Dinner was served from 7 p.m., followed by the evening tidying and cleaning of the cells and other rooms in the prison.

The Government submitted that Bjelovar Prison was equipped with a recreation area located in the courtyard, which, in addition to the asphalted parts, included a lawn. The surface area of the courtyard was 305 sq. m. There was also direct access to drinking water and artificial light as well as protection from inclement weather available in the recreation area. The gym was open between 8 a.m. and 12.30 p.m. and between 2 and 6 p.m., and the basketball court was open on working days between 3 and 4 p.m. and at the weekends in both the morning and the afternoon. The recreation area was also equipped with a badminton court and ping-pong tables. The inmates were able to borrow books and use other services of the Bjelovar library, which were regularly available in the prison. The prison administration also organised religious ceremonies and contacts with cultural and religious associations. Each cell was equipped with cable television, which could be watched between 7 a.m. and 11 p.m. during working days, and between 7.30 a.m. and midnight at weekends and on public holidays. There were also radio receivers in the cells and the possibility of borrowing and watching films from a collection available in Bjelovar Prison. In addition, the inmates were allowed to socialise by playing board games. There was also a room for spousal visits and the inmates were allowed to obtain various goods from outside the prison. Bjelovar Prison also offered a possibility of education in prison but the applicant had decided not to avail himself of that opportunity. Remunerated work in prison was available in accordance with the economic possibilities, which were at the time limited due to the general economic crisis. A possibility of work outside the prison existed but the applicant’s previous threats to escape and his inadequate behaviour in detention had not made him eligible for this possibility. During his stay in Bjelovar Prison, the applicant had regularly received medical treatment. He had seen his family four times while standing trial for another offence in Čakovec and had been allowed to speak to them by telephone twenty minutes per week, with an additional ten minutes on public holidays.

The Government substantiated their arguments with photographs taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits by various officials to the prison, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison and the applicant’s health care and nutrition.

On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons.

On 26 April 2010 he complained to the Ministry of Justice Prison Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored and that the prison food had been inadequate.

The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons, particularly his family’s lack of financial means, which made it difficult for them to visit him.

On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family by telephone and while attending the court hearings in March, April and July 2010 in the criminal proceedings against him, that he had not been engaged in any work because there had been an insufficient number of work posts in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor.

On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court (Županijski sud u Bjelovaru). He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, in particular, that his request to engage in prison work had not been answered. He was being detained with seven other inmates in cell no. 8, which measured 18 sq. m in total and was inadequately equipped and maintained. Hygiene conditions were poor, given that he had been allowed to take a shower only three times per week.

Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention.

After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant had sufficient personal space at his disposal, given that four other persons were at the time placed with him in the same cell. The sentence-execution judge also found that the applicant was provided with sufficient hygiene and sanitary facilities, and that he was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison.

On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 had been occupied by up to eight inmates.

On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standard for personal space under the Enforcement of Prison Sentence Act, namely 4 sq. m, was the recommended minimum standard that should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with. In view of the fact that a reduction in the applicant’s personal space in cell no. 8 had only been temporary, the three-judge panel considered that there had been no violation of his rights.

On 5 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months following his arrival at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 sq. m, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 sq. m. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 sq. m, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates.

On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. He also relied on section 74(3) of the Enforcement of Prison Sentences Act, guaranteeing adequate personal space to detainees, and alleged that this provision had not been complied with in his case.

On 26 November 2010 the applicant complained to the Ombudsperson (Pučki pravobranitelj) that he had not been granted a transfer to a prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate.

Meanwhile, in November 2010 the applicant joined a group of inmates who complained to the sentence-execution judge about inadequate general conditions in Bjelovar Prison.

By a letter of 7 December 2010 the Ombudsperson invited the applicant to further substantiate his complaints.

The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and the three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted 4 sq. m of personal space in detention as required under the Enforcement of Prison Sentences Act.

In March 2011 the applicant saw a psychiatrist, who found that the applicant was frustrated with his internment and the impossibility of seeing his family.

On 12 April 2011 the Ombudsperson replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsperson also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that, just like ninety-two other inmates, the applicant had not been engaged in prison work, as there had been an insufficient number of work posts for all prisoners.

On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 32 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads:

“In his constitutional complaint, the complainant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide upon ... ”

The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)

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

The applicant was born in 1951 and lives in Rostov-on-Don, Russian Federation. She is the sister of Seyran Ayvazyan, who was born in 1961 and was killed by police officers on 6 March 2006. He had been suffering from a mental disorder (paranoid-type schizophrenia) and at the material time had been living alone in the village of Odzun, in the Lori Region of Armenia.

The circumstances of Seryan Ayvazyan’s fatal shooting, as established by the decision issued by the investigator on 3 October 2006 following the end of the investigation (see paragraph 30 below), are as follows.

On 6 March 2006 at around 11 a.m. Seyran Ayvazyan went to a local shop, where he took out a knife and, for no reason, stabbed H.Ch., a shop assistant, in the arm, and E.P., a customer entering the shop, in the cheek. He then went home.

Some time later, after a telephone call made from the Odzun Medical Centre to the police station of the nearby town of Tumanyan, four police officers, A.A., V.B., A.E. and M.V., arrived at Seyran Ayvazyan’s house. As they approached, Seyran Ayvazyan was in the garden and, having seen the police officers, ran towards the house. The police officers started chasing him. As Seyran Ayvazyan entered the house and was about to shut the door, police officer V.B. reached him and started to push the door open. At that moment Seyran Ayvazyan stabbed V.B. in the arm and cheek with the knife, through the half-open door, and managed to shut the door. V.B. was taken by car to hospital, while A.A. and A.E., who remained at the house, called Tumanyan police station and reported the incident. Then they tried to persuade Seyran Ayvazyan to come out, but the latter refused to do so, threatening to kill anybody who tried to approach the house and sharpening his knives in full view. They contacted one of Seyran Ayvazyan’s sisters, who lived in the same village, but she refused to come. Having received the call from A.A. and A.E, nine more police officers, including A.S., N.N., G.M., R.M., H.Gev., and H.Gri, led by Major A.B., the chief of Tumanyan police station, arrived at the house and surrounded it. The mayor of Odzun, an ambulance and the fire brigade were also called. Another attempt was made to have Seyran Ayvazyan’s relatives, who lived in the same village, come to the scene in order to persuade him to surrender, but they refused to come. Then for about five hours the police officers tried to persuade Seyran Ayvazyan to surrender, but he continued to display the same threatening behaviour as earlier. In the meantime, the police officers contacted the head of Vanadzor Psychiatric Hospital, who told them that it would only be possible to tranquillise Seyran Ayvazyan only in hospital.

At around 5 p.m. it was decided to neutralise and apprehend Seyran Ayvazyan by spraying him with water from the hose of a fire engine. After the fire hose had been turned on, six police officers, A.S., N.N., G.M., R.M., H.Gev. and A.A., upon an order from the chief of Tumanyan police station, pushed open the door and entered the house. H.Gev., who was the first to enter, held a small wooden table in front of him as a shield against a knife attack. After the police officers entered, they saw that the way from the corridor into the room had been barricaded with furniture. The police officers decided on the spot to leave the house and the entire group went out. Having seen that the police officers were leaving, Seyran Ayvazyan moved towards them with a knife in each hand, reached H.Gev. by the door to the porch, and stabbed him in the head with one of the knives. H.Gev. immediately fell as a result of the stabbing. As he was lying on the ground, Seyran Ayvazyan tried to stab him again, but at that moment another police officer, H.Gri., who was guarding the entrance, fired a warning shot in the air from his automatic rifle and, seeing that Seyran Ayvazyan was still trying to stab H.Gev., shot at Seyran Ayvazyan’s legs. At the same time, and independently of those actions, police officers A.S., A.A. and R.M., seeing that H.Gev. had fallen as a result of the assault and that Seyran Ayvazyan was trying to stab him again, started to shoot with their pistols at Seyran Ayvazyan’s legs. A.S. fired eight shots, while A.A. and R.M. fired three shots each. As a result of the shooting, Seyran Ayvazyan was wounded, fell and died.

During the subsequent on-site inspection, two knives were found in the porch, as well as a hand grenade and one more knife in the corridor.

During an inspection of Seyran Ayvazyan’s clothes, two more knives and a medical lancet were discovered.

As a result of being assaulted by Seyran Ayvazyan, civilians H.Ch. and E.P. and police officers V.B. and H.Gev. received injuries that were of minor or medium severity, but not life-threatening.

The applicant contested these facts and alleged that in reality Seyran Ayvazyan had not posed a threat to police officer H.Gev.’s life and that the police officers had simply executed him in retaliation for his having injured one of their colleagues.

On the date of the incident the Lori regional prosecutor’s office decided to institute criminal case no. 55200706 for attempted murder under Article 104, in conjunction with Article 34 of the Criminal Code (CC), on account of Seyran Ayvazyan’s actions, namely his armed assaults on civilians and police officers.

On the same date an inspection of the crime scene was conducted and a report produced, which included sketch maps. The house had two rooms, one behind the other, divided by a wall, with a passageway on the right. All along the front of the house there was a porch, which measured 3 by 1.8 metres. There were windows onto the porch on the left, and the main entrance was on the right, in front of the abovementioned passageway. The house also had windows on the right side. The sketch map also noted the positions of Seyran Ayvazyan and police officer H.Gev. at the time of the incident. Seyran Ayvazyan appears to have been on the porch just outside the main entrance and police officer H.Gev. appears to have been next to him. Police officers H.Gri. and R.M. were also on the porch to the left of the main entrance, while police officers A.S. and A.A. were outside the porch in front of the main entrance.

On 7 March 2006 an autopsy was conducted. According to the results, Seyran Ayvazyan had received wounds from ten bullets, nine of which had hit him in his calves and thighs and his left forearm and one of which had hit him in the chest. Six bullets had been shot at Seyran Ayvazyan from behind. The direct cause of Seyran Ayvazyan’s death had been severe internal bleeding resulting from a bullet wound to the chest, which had damaged the lower part of the heart and a lung. Death had occurred shortly after Seyran Ayvazyan being wounded.

On 11 April 2006 An.A., one of Seyran Ayvazyan’s four sisters, was granted victim status in the instituted criminal proceedings. This decision indicated that, as a result of a crime, physical damage, namely death, had been inflicted on Seyran Ayvazyan.

On 18 April 2006 a ballistic examination of cartridge cases and bullets retrieved after the incident was conducted. It was established that they had come from police ammunition. The weapons that had been used were three Makarov pistols and one Kalashnikov automatic rifle.

On 16 June 2006 a forensic examination concluded that the five knives and the medical lancet did not fall into the category of “bladed weapons”. All of the knives but one were homemade.

On 22 June 2006 a forensic examination report was released. According to the report, Seyran Ayvazyan’s clothes had been damaged by at least twelve bullets shot at close range.

On 10 August 2006 a medical expert produced his opinion regarding Seyran Ayvazyan’s mental health, according to which, Seyran Ayvazyan had suffered from a mental disorder – paranoid schizophrenia, and had received treatment for his condition in various mental health institutions since 1993.

The investigator took statements from five of the seven police officers involved in the arrest operation and the fatal shooting (A.S., H.Gev., H.Gri., N.N., A.A., G.M. and R.M.). Three of the four police officers who had fired shots, A.S., H.Gri. and A.A., were questioned on 6, 14 and 16 March 2006 respectively, while H.Gev. (who had been injured in the incident) and N.N. were questioned on 7 and 15 March 2006 respectively. The police officers were asked to provide an account of the incident.

Police officer A.S.’s account was as follows. Seyran Ayvazyan was in the second (rear) room when the six police officers entered the house. The door was barricaded with an armchair and a wardrobe. As they were entering, he proposed that Seyran Ayvazyan come out of the room but he held the knife as if he wanted to throw it and kept threatening to stab him. Realising that it was not possible to remove him from the room and that he could harm someone, A.S. told the other five police officers that they should all go outside and find another way to neutralise Seyran Ayvazyan. They left the house; the last one to leave was H.Gev., who was holding a table to protect himself in case a knife was thrown. A.S. went down from the porch and was already in the yard when those of his colleagues who had gathered there shouted “He has come out and attacked.” H.Gev. was holding a table, defending himself against Seyran Ayvazyan. A.S. ran towards them and saw Seyran Ayvazyan stab H.Gev. in the head, so he shot at Seyran Ayvazyan’s legs. Seyran Ayvazyan fell down and, while lying on the ground, he threw the same knife at H.Gev. Then he took out another knife and threw it at the police officers. A.S. fired again in his direction. Seyran Ayvazyan then took out a third knife, rolled over, while shouting, and tried to throw the knife in A.S.’s direction. A.S. fired again and Seyran Ayvazyan dropped the knife. The police officers approached and handcuffed him.

Police officer H.Gev.’s account was as follows. After the six police officers had entered the house, Seyran Ayvazyan threatened them and told them to leave. They left – that is to say he noticed that the others had already gone out. Realising that he was alone, he tried to leave the house while holding the table. He had not yet reached the door when suddenly Seyran Ayvazyan screamed and ran towards him with a knife in his hand. Seeing this, he tried to move faster towards the door. Seyran Ayvazyan reached him and stabbed him with the knife in the head. This happened in the doorway. Seyran Ayvazyan managed to stab him because he (that is to say Seyran Ayvazyan) was taller, although he (that is to say H.Gev) had managed to a certain extent to push Seyran Ayvazyan back with the table. He fell down on the porch. As he was lying on his side, facing the door and bleeding, he saw Seyran Ayvazyan trying to stab him a second time with the same knife, again in the head. Seyran Ayvazyan was still standing at a distance of one metre away while he (that is to say H.Gev) continued to use the table to defend himself. After Seyran Ayvazyan had tried to stab him for a second time, he heard a number of shots, but could not remember how many. He saw that the shots had hit Seyran Ayvazyan in the legs. Seyran Ayvazyan fell down, with his legs lying next to his own. Seyran Ayvazyan then took out another knife. Seyran Ayvazyan must have thrown the first knife either in his direction or in the direction of those who were behind him, but he could not tell how far away the knife had been thrown. Seyran Ayvazyan subsequently wanted to get up and stab him again, but then he heard other shots. Seyran Ayvazyan was screaming loudly, but while the shots were being fired the others dragged him away from Seyran Ayvazyan and transported him to the hospital.

Police officer H.Gri.’s account was as follows. Seyran Ayvazyan hid behind the wardrobe with a knife in his hand and made death threats when the six police officers tried to approach. At that time he was standing with his rifle next to the porch windows. Then he heard Seyran Ayvazyan screaming and saw the others come out of the house and Seyran Ayvazyan, with a knife in his hand, run towards and reach H.Gev. (who had been the last to leave) and stab him in the head. H.Gev. squatted and started bleeding. With the same knife Seyran Ayvazyan tried to stab H.Gev., who was at that time lying on the ground, one more time. He fired a warning shot in the air but seeing that Seyran Ayvazyan was trying to stab H.Gev. again he fired at Seyran Ayvazyan’s left leg, with the aim of neutralising him. Seyran Ayvazyan did not fall after his shot but stumbled back with a knife in his hand. One of the police officers at that moment managed to drag H.Gev. away from Seyran Ayvazyan, who then threw a knife at them and took out another knife to throw again. Seyran Ayvazyan was still standing. He heard a number of other shots but could not tell who had fired them, how many there had been and at which parts of Seyran Ayvazyan’s body the shots had been fired. He did not fire any other shots apart from the above-mentioned two. Then the other police officers managed to approach and disarm Seyran Ayvazyan, who was already on the ground.

Police officer N.N.’s account was as follows. Police officer H.Gev. was the first to enter the house, holding a table as a shield, since Seyran Ayvazyan was holding a knife by its blade and was threatening to throw it. He and the others following H.Gev. entered the first room. Seyran Ayvazyan retreated into the second room and barricaded the door with an armchair, which prevented them from entering the second room. Seyran Ayvazyan refused to give up and would not allow them to advance, threatening them with a knife. They were forced to leave the house. While they were still on the porch, he N.N. heard the others saying “He’s coming”. He turned around and saw that Seyran Ayvazyan, having left the house, in the doorway stabbed H.Gev. in the head with a knife. H.Gev. immediately started bleeding. He had tried to defend himself with a table, but Seyran Ayvazyan had managed to stretch his hand over it and stab H.Gev., who had fallen down. As far as N.N. could recall, Seyran Ayvazyan then fell; after falling he threw the knife at them. Then Seyran Ayvazyan took out another knife and wanted to stab H.Gev. again. At that moment N.N. heard shots but did not see who was firing. Then they managed to handcuff Seyran Ayvazyan.

Police officer A.A.’s account was as follows. Once the fire engine had started working, they broke down the door and entered the house. H.Gev. was the first to enter – or rather they all entered together, with a small table in front of them for protection. At that moment the fire engine was spraying water at Seyran Ayvazyan, who had barricaded himself in with a wardrobe and moved the wardrobe to protect himself from the water. Seyran Ayvazyan had also placed an armchair between the two rooms, so that they could not enter the second room. They tried to persuade him to throw down the knife, but he continued to threaten them. As Seyran Ayvazyan was not coming out and was refusing to calm down, A.A. received an order to leave the house in order that an alternative plan could be devised. As the six police officers were leaving, Seyran Ayvazyan unexpectedly ran towards them, screaming loudly. A.A. could not see whether Seyran Ayvazyan had a knife since he (that is to say A.A.) was facing the main entrance. He heard somebody outside say “Careful, he’s about to strike”. He then jumped out of the house and over the porch into the yard. Before rolling away, he heard two shots and saw H.Gev. lying in the porch on his back, facing the main entrance. Seyran Ayvazyan was squatting with a knife in his hand and was trying to stab H.Gev., who had already been injured. Thinking that the shots fired earlier had not touched Seyran Ayvazyan and that, if he did not shoot, Seyran Ayvazyan would strike again and kill H.Gev., he took out his weapon, took aim at Seyran Ayvazyan’s legs and fired three shots at them. While shooting, he heard other shots and saw Seyran Ayvazyan fall next to H.Gev. He then saw two knives in Seyran Ayvazyan’s hands.

The investigator posed between two to four questions to each of the police officers. A.S. was asked (a) whether it would have been possible to neutralise Seyran Ayvazyan without the use of firearms (answer: negative) and (b) how many firearms had been used for that purpose (three). H.Gev. was asked how much time had elapsed between their entering the house and the stabbing (three to four minutes). H.Gri. was asked who had been beside him at the time of the shooting (police officer A.S.) and how many knives Seyran Ayvazyan had had (at least three). N.N. and A.A. were asked whether they had received an order to shoot before they had entered the house (both: negative). A.A. was also asked (a) who had been beside him at the time of the shooting (he could not remember) and (b) to provide further details of the shooting incident. H.Gev., H.Gri., N.N. and A.A. were also asked whether they had noticed a grenade in Seyran Ayvazyan’s hands or whether he had made threats with a grenade (all four: negative).

Between 20 March and 30 July 2006 the investigator took statements from six other police officers who had been present at the scene. Police officers H.Grig. and L.K., who had witnessed the shooting incident, were asked to provide accounts. Police officer D.K. submitted, inter alia, that neighbours and other villagers had been present and had watched the entire incident; this was confirmed by H.Grig. Police officer S.A. submitted, inter alia, that there had been between ten and twenty police officers at the scene. All the above-mentioned police officers submitted that the fire brigade and an ambulance had been called to the scene. L.K. further submitted that he had seen another police officer, A.T., filming the incident but was not sure whether he had been filming during the shooting. A.T., when asked about the video, submitted that no material was available since he had been mistakenly filming without a tape in the camera, which he had discovered only later.

On 3 October 2006 an investigator of the Lori regional prosecutor’s office, decided to discontinue criminal case no. 55200706 in the light of the death of Seyran Ayvazyan. By the same decision the investigator refused to institute criminal proceedings against police officers A.S., A.A., R.M. and H.Gri. The wording of the decision first outlined the facts, as established by the investigation (see paragraphs 7-12 above), and concluded that the police officers had employed their service weapons in the light of the exigencies of the situation for the purpose of repelling a life-threatening attack on police officer H.Gev. Thus, their actions had been lawful, as they had been undertaken in compliance with the requirements of sections 32 § 2 and 33 of the Police Act.

On an unspecified date the applicant, together with An.A. and her two other sisters, lodged a complaint with the Lori regional prosecutor seeking to quash the part of the decision of 3 October 2006 relating to the refusal to institute criminal proceedings against the police officers.

On 16 November 2006 the Lori regional prosecutor informed them by letter that there were no legal grounds for quashing the decision of 3 October 2006 since it had been taken on the basis of an accurate

The applicant and her three sisters then lodged a similar complaint with the General Prosecutor’s Office of Armenia.

On 19 January 2007 the General Prosecutor’s Office informed them that there were no grounds for quashing the decision of 3 October 2006 since, following a thorough and objective investigation, the actions of the police officers had been determined to have been lawful.

On 27 June 2007 An.A. lodged a complaint in her capacity as a victim with the Lori Regional Court against the decision of 3 October 2006, seeking to have invalidated the part of the decision concerning the refusal to institute criminal proceedings against the police officers for killing her brother. In particular, she complained that, despite the fact that her brother had been deliberately killed by the police officers, no separate criminal proceedings had been instituted and no criminal investigation had been conducted into the fact of his killing. She also complained that the police officers had opened fire on Seyran Ayvazyan in a situation where there had been no threat to life or limb for any of them. As to the finding of a grenade in Seyran Ayvazyan’s house, An.A stated that this could not serve as justification for the police officers’ actions, since it had been discovered only after the fatal incident had taken place, and her brother had never threatened the policemen that he would use it.

On 29 June 2007 the Lori Regional Court admitted the complaint for examination as having been lodged in compliance with Articles 185 and 263 of the Code of Criminal Procedure (“the CCP”).

On 12 September 2007 the Lori Regional Court, relying on the facts, as established by the investigation, examined the complaint and decided to dismiss it, finding that the use of firearms by the police officers had been justified as they had opened fire to prevent, and protect themselves from, Seyran Ayvazyan’s unlawful violent actions. It concluded that the police officers had acted in necessary defence, as provided for by Article 42 of the CC, and also in compliance with sections 32 § 2 and 33 of the Police Act. The Regional Court moreover held that there was no need to institute separate criminal proceedings concerning Seyran Ayvazyan’s killing, since the investigation into that incident had been carried out within the framework of criminal proceedings instituted in relation to Seyran Ayvazyan’s unlawful actions. Separately, the Regional Court found that the complaint against the refusal to institute criminal proceedings had been lodged outside the one-month time-limit prescribed by Article 290 of the CCP.

On 27 September 2007 An.A. lodged an appeal against the decision of the Regional Court raising the same arguments as those contained in her original court complaint. She also alleged that she had lodged her complaint in compliance with the procedural rules since neither of the applicable Articles of the CCP, namely Articles 185 and 263 (as in force at the material time), had provided any time-limit for lodging a complaint.

On 23 October 2007 the Criminal Court of Appeal examined the merits of the appeal and dismissed it, upholding the findings of the Regional Court concerning the lawfulness of the police officers’ actions. It then also examined the question of the compliance of An.A.’s court complaint with the procedural rules and found that it had not been lodged in compliance with Article 290 of the CCP.

On 1 February 2008 An.A. lodged an appeal on points of law against the decision of the Court of Appeal, raising the same arguments regarding both the admissibility and the merits of her court complaint.

On 4 March 2008 the Court of Cassation declared the appeal admissible.

On 23 May 2008 the Court of Cassation examined the appeal. Turning to the question of compliance with domestic time-limits, it found that the appeal procedure pursued by An.A. was indeed governed by Article 263 § 2, which at the material time had not prescribed any time-limits for contesting the prosecutor’s refusal before the courts. However, the onemonth time-limit prescribed by Article 290 was applicable to her case. The appeal had only been lodged on 27 June 2007 – namely outside that one-month timelimit. Thus, both the Regional Court and the Court of Appeal had exceeded their temporal jurisdiction by examining the merits of An.A.’s complaint. This in itself was sufficient grounds for rejecting the appeal; however, the Court of Cassation found it necessary – taking into account the fact that (a) both courts had examined the merits of the case and had reached findings on the merits, and (b) it was called upon to ensure uniform application of the law – to express a number of legal positions on the matter, which could provide guidance to lower courts in similar cases.

The Court of Cassation first examined the question of whether any criminal proceedings had been instituted and any investigation carried out into the killing of Seyran Ayvazyan. Referring to Articles 27 § 1, 175 and 182 §§ 1 and 2 of the CCP, the Court of Cassation concluded that it was impossible to answer that question unequivocally. In particular, a number of factors suggested that criminal case no. 55200706 had been instituted on account of the acts committed by Seyran Ayvazyan rather than his killing. Firstly, the proceedings had been instituted only under Article 104 § 2 (1), in conjunction with Article 34 of the CC (namely in respect of attempted murder of two or more persons) and therefore could not legally be characterised as applying to his killing. Secondly, the wording of the decision to discontinue the proceedings also contained a refusal to institute criminal proceedings against the police officers implicated in his shooting, which confirmed that no criminal proceedings had been instituted on account of that incident.

On the other hand, a number of factors suggested that the proceedings instituted had also been based on the fact that he had been killed, and an investigation had been carried out in that connection. Thus, the descriptive part of the wording of the decision to institute proceedings had mentioned the fact that Seyran Ayvazyan had been taken to hospital and had died. Furthermore, Seyran Ayvazyan’s sister, An.A., had been granted victim status in the criminal case by decision of the investigator, moreover, that decision had stated that Seyran Ayvazyan had been deprived of his life “as a result of a crime”. Lastly, certain investigative measures taken in the course of the criminal proceedings had been aimed at obtaining evidence concerning the circumstances of Seyran Ayvazyan’s death, including the inspections of the crime scene, of Seyran Ayvazyan’s body and of his clothes, the autopsy, the forensic examination of his clothes and the interviews with the police officers who had shot at Seyran Ayvazyan or witnessed the shootings. This suggested that some investigation into his death had nevertheless been carried out. Having reached this conclusion, the Court of Cassation decided in any event to examine the question of whether the investigation had been adequate.

The Court of Cassation firstly noted that there had been no eyewitnesses to the shooting, other than the police officers. However, not all the police officers who had witnessed the shooting had been questioned. In particular, two of the six officers who had been present at the time of the shooting, namely G.M. and R.M, had not been questioned. Thus, the investigating authority had failed to secure all the evidence relating to the incident. As regards those officers who had been questioned, H.Gri. had been questioned eight days, N.N. nine days and A.A. ten days after the incident. No measures had been taken in the meantime to isolate them from each other. While there was no evidence to suggest that the police officers had colluded with each other, the fact that no steps had been taken to minimise such risk constituted a significant shortcoming in the investigation. Furthermore, no adequate assessment had been made of the direction of the bullets fired at Seyran Ayvazyan. In particular, no reasonable explanation had been determined by the investigation for the fact that six bullets had been fired at Seyran Ayvazyan from behind.

On the basis of those findings, the Court of Cassation concluded that the investigation into the killing of Seyran Ayvazyan had not been adequate. Nevertheless, the Court of Cassation decided to dismiss the appeal on points of law on the ground that neither the Lori Regional Court nor the Criminal Court of Appeal had had temporal competence to examine the complaint against the decision of 3 October 2006.

On an unspecified date Seyran Ayvazyan’s sister, An.A., died.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)

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

In disputes between the applicants and the domestic pension authorities, the firstinstance courts ruled in their favour, ordering increases of their pensions based on the rise in the average wages in the country since their retirement.

The defendant authorities appealed to the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”).

Under domestic law (see paragraph 18 below), when an appeal arrived at the Court of Appeal, a judge rapporteur of that court, if he or she believed that it complied with the necessary formal requirements, had to issue a ruling opening appeal proceedings (“the ruling”) and send it to the applicants together with a copy of the appeal.

The Government and the applicants disagree as to whether those documents were actually sent to the applicants (see paragraphs 11 to 13 below).

On various dates set out in the Appendix, the Court of Appeal quashed the judgments in the applicants’ favour, dismissing their claims for pension increases holding that the domestic law did not require the pensions to be increased in case of rise in the average wages in the country following retirement. In the fifth applicant’s case the Court of Appeal held a hearing in his presence (see paragraph 14 below). In the other applicants’ cases the court sat in camera without summoning the parties.

In the second to sixth applicants’ cases the Court of Appeal’s decisions became effective immediately since no further appeal lay against them (see the related legislative provisions in paragraph 16 below). The first applicant lodged an appeal on points of law with the Higher Administrative Court. On 26 October 2012 it upheld the Court of Appeal’s decision, without commenting on the complaint she had presented that she had not been informed of the appeal proceedings.

According to the applicants, the domestic courts did not send them either (i) a copy of the defendants’ appeals or (ii) a copy of the rulings opening appeal proceedings in their cases. They therefore had no knowledge of the appeal proceedings prior to the Court of Appeal’s decisions in their cases. They learned of those decisions later, notably after their pensions had been reduced based on the Court of Appeal’s decisions.

According to the Government, the applicants were duly informed of the appeal proceedings.

It can be seen from the material before the Court that:

On 23 June 2012 the Court of Appeal sent the fifth applicant a summons to attend a hearing on 1 November 2012. The delivery slip is in his domestic case file. At the hearing, which he attended, the court examined the pension authority’s appeal in its absence and quashed the first-instance court’s judgment.