CASE OF HROMADKA AND HROMADKOVA v. RUSSIA

Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The first applicant was born in 1970 and lives in Prague, the Czech Republic. The second applicant was born in 2005. She currently lives in Russia with O.H., her mother.

On 5 June 2003 the first applicant married a Russian national, O.H. The couple decided to settle in Prague.

On 28 January 2005 their daughter, the second applicant, was born.

In 2007 the first applicant and O.H. decided to separate.

On 1 November 2007 O.H. filed for divorce in the Czech Republic. Both O.H. and the first applicant sought custody of the child.

In April 2008 O.H., unbeknownst to the first applicant, obtained a onemonth Russian visa for the second applicant, and on 17 April 2008, together with the latter, left for Russia (Vologda Region). Upon the expiry of the visa on 12 May 2008 O.H. did not bring the second applicant back to the Czech Republic. Instead, on 20 May 2008 she obtained a temporary residence permit for the second applicant from the Russian Federal Migration Service, and on 27 May 2008, Russian citizenship for the latter. On an unspecified date O.H. and the second applicant left for St Petersburg.

On 7 July 2009 O.H. applied to the Federal Security Service Border Control (Пограничное управление Федеральной службы безопасности Российской Федерации по городу Санкт-Петербургу и Ленинградской области) in order to restrict the second applicant’s travel outside Russia.

As of 10 July 2009 the second applicant’s travel abroad was restricted.

Since 29 May 2011 the first applicant has had no contact with the second applicant, because O.H. prevented him from either seeing the second applicant or communicating with her by telephone. The Russian authorities have been unable to establish O.H.’s and the second applicant’s whereabouts since then.

The interim decision of Prague 4 District Court of 30 April 2008 as amended by the interim decision of Prague Municipal Court of 21 July 2008 granted the first applicant temporary custody of the second applicant pending the outcome of the divorce proceedings. The Prague Municipal Court thereby obliged O.H. to hand the child over to the first applicant, not to leave the Czech Republic and not to remain outside the territory of the Czech Republic with the minor. The interim decision entered into force on 8 August 2008.

On 2 June 2011 Prague 4 District Court issued a final custody judgment by which custody of the second applicant was granted to the first applicant. O.H. was obliged to pay the first applicant 5,000 Czech korunas – about 200 euros (EUR) – monthly in alimony. The court held as follows:

“The father loves [his daughter] very much; in the opinion of the experts he is better developed emotionally in comparison to the mother, is more capable of self-control and handling [stress] so as to not spoil the relationship between the mother and [the child] or otherwise turn [the child] against her mother. It was established that the interests of [the child] require that she be placed in her father’s care [as he] was established to be a more suitable caregiver; at the same time it was established that as a result of [the child’s] separation from her father the former’s psychological well-being [has been affected]. It was established that for the last three years the father, unlike the mother, has been cooperating with [the custody and guardianship authority], and the [guardian] had therefore had a real possibility to examine the father’s living conditions and his situation; ... it was established that he can provide [the child] with normal accommodation ... The father is financially stable, which enables him to provide [the child] with the material [items] and non-material values necessary for her health, mental, cultural and physical development. [The child] will soon go to primary school and the father, in view of his education and indisputable interest in [the child], is capable of providing her, along with the possibility of school education, with everything she needs. ... Despite the fact that the father was and is still being prevented from communicating with [the child], he [supports the child financially by giving money directly to the mother and making deposits into the child’s bank account], and in addition to alimony the father gives [the child] presents whenever he has the possibility to meet her.

The mother, on the contrary, was characterised as unstable, authoritative, unfriendly to the father and inclined to impulsive aggression and rash behavior. While carrying out her parental duties she harms [the child], she has abused her parental authority since November 2007 at least ... Therefore, she acts both unlawfully and contrary to the interests of [the child] and the court’s decision. While exercising her parental authority the mother consciously and purposefully acts in total disregard of the recommendations of the experts and her lawful duties; she completely prevented communication between the father and [the child], at first without any reason. Subsequently, under an invented pretext, in April 2008 she took [the child], without the permission of the father, the court or [the custody and guardianship authority] abroad to the Russian Federation, where she has kept [the child] until now. At the same time the mother has not complied with the decision of the court pursuant to which she should have handed [the child] over to the father, to render to the father [the child’s] travelling passport and not to remain [with the child] outside the territory of the Czech Republic. [It was established that the decision in question] was served on [the mother] first of all through her representative in the Czech Republic, and thereafter to her personally in the course of the proceedings at the courts in St Petersburg and Moscow. Furthermore, the mother refuses to send an invitation for visiting Russia to the father, [who] has to go through demanding procedures to obtain Russian entry visas, and when the father succeeds in obtaining a visa and goes to Russia the mother often hides [the child] and refuses to communicate with the father[.] [S]he does not even allow the father to talk to [the child] on the telephone, and even if she lets them talk she purposefully manipulates the father’s and [the child’s] mindset according to the situation. Therefore, the court believes that the mother has, in disregard of the law of the Czech Republic, willfully interfered with [the child’s family life], her right to know her father and her right to be in her father’s custody. She has interfered with [the child’s] right to freedom of movement and to choose her place of residence, and her right to free entry to her homeland, the Czech Republic. Thereby the mother has breached the rights guaranteed by the State in the framework of Conventions on Human Rights, including the Convention on the Rights of the Child. The mother, unbeknownst to the father, the court or [the custody and guardianship authority] and without their consent in contravention of the legal order of the Czech Republic, applied to Russian administrative authorities to grant [the child], a national of the Czech Republic, Russian citizenship, on the basis of which in a record-breaking short term of five days the latter was granted Russian citizenship.

Regarding the father’s claim for termination of the mother’s parental rights, the court has decided to dismiss it [since termination of parental rights is the most serious interference in relations between parents and children, when the violation of parents’ duties is so serious that the termination of parental rights is the only possible solution to protect the interests of the child]. The court has arrived at the conclusion that termination of the mother’s parental rights would be in contradiction with the father’s own statement in his final speech that [the child] should have both parents.

The case was examined in the absence of O.H. The District Court established that on 10 May 2011 consul T. of the Czech Consulate General informed O.H. by telephone about the venue and the time of the hearing, that is, 2 June 2011 at 1 p.m. in Prague 4 District Court, but O.H. did not say anything in reply and hung up. Nobody answered the phone when the consul tried to reach O.H. again. The telephone was subsequently switched off. The International Department for Civil Matters of the Czech Ministry of Justice did not receive confirmation from the Russian authorities on whether the request of October 2010 for the delivery of a court summons to O.H. had been complied with. The District Court therefore considered that O.H. had been duly notified and that she had failed to appear in court without valid reason. It therefore proceeded in her absence.

On 10 February 2012 that judgment became final.

The judgment remains unenforced to this day.

The first applicant challenged the decision of the Russian Federal Migration Service of 20 May 2008 granting the second applicant a temporary residence permit (see paragraph 11 above).

On 13 February 2009 Vologda Town Court dismissed the first applicant’s claims. The court held that the temporary residence permit had been granted to the second applicant in accordance with the procedure established by law, and that the relevant procedure did not require the applicant’s consent.

On 24 April 2009 Vologda Regional Court upheld the above judgment on appeal.

The first applicant challenged the decision of the Russian Federal Migration Service of 27 May 2008 granting the second applicant Russian citizenship (see paragraph 11 above).

On 6 July 2009 Vologda Town Court dismissed the first applicant’s claim. The court held that the granting of Russian citizenship to the second applicant had been carried out in compliance with the procedure provided for by the Russian law and did not require the consent of the first applicant as O.H., the second applicant’s mother, had Russian citizenship and the second applicant, having received a Russian temporary residence permit, was considered to be residing in Russia at the moment when the relevant decision had been taken by the competent authorities. The court held that the Russian Constitution allowed for dual citizenship, and that the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics of 6 June 1980 on prevention of dual citizenship, relied on by the first applicant, was no longer in force after 5 July 2006. The court further held that there was no evidence of criminally punishable acts in the actions of the Federal Migration Service.

The hearing of the case on 6 July 2009 took place in the absence of the first applicant. His request for adjournment of the hearing (due to his involvement in other court proceedings in St Petersburg) was dismissed. The first applicant was, however, represented by a lawyer.

On 9 October 2009 Vologda Regional Court upheld the judgment on appeal.

On 12 March 2009 the first applicant applied to St Petersburg City Court seeking formal recognition of the interim measure of the Prague Municipal Court of 21 July 2008 granting him temporary custody of the second applicant pending the divorce proceedings (see paragraph 15 above).

By a final decision of 15 December 2009, however, the Supreme Court of Russia rejected the request. It held that the Treaty of 12 August 1982 between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance did not apply to interim measures.

As he had been prevented by O.H. from seeing the second applicant, on 20 April 2009 the first applicant brought proceedings before the Russian court seeking to have the terms of his contact with the second applicant in Russia fixed.

By a final decision of 18 May 2010 St Petersburg City Court discontinued the above proceedings. It found that according to the Treaty of 12 August 1982 between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance, litigation in the domestic courts of one High Contracting Party to the agreement had to be discontinued if the same litigation between the same litigants was pending before the domestic courts of the other High Contracting Party.

On 23 September 2010 the first applicant brought proceedings against O.H. seeking to cancel the restriction on the second applicant’s travel outside Russia (see paragraph 13 above).

By a final decision of 18 April 2011 St Petersburg City Court dismissed his claim. The court held that the essence of the first applicant’s complaint had been the fixing of the terms of his contact with the second applicant, which had been for the Czech courts to determine. The court held, therefore, that until the final judgment of the Czech courts the first applicant and O.H. were to decide on the issues in question by mutual agreement. The court further pointed out that the first applicant had the right to communicate with the second applicant on the territory of the Russian Federation and that O.H. had no right to prevent that.

On 29 June 2012 the first applicant applied to St Petersburg City Court for recognition and enforcement of the judgment of Prague 4 District Court of 2 June 2011 (see paragraph 16 above).

On 9 October 2012 St Petersburg City Court, relying on Article 60 of the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance and Articles 409-12 of the Russian Code of Civil Procedure, refused the first applicant’s request, because O.H. had not been duly notified of the hearing of 2 June 2011 and had been deprived of the opportunity to take part in it. The relevant part of the decision reads as follows:

“As it follows from the material of the case file [O.H.] did not participate in the proceedings before Prague 4 District Court resulting in a judgment the compulsory enforcement of which is sought by [the first applicant].

This circumstance is supported by the text of the judgment itself. As it follows from this document [O.H.] failed to appear [in court] for the hearing of the case [on 2 June 2011], although she had been informed orally about [the time and the place] of the hearing. The [Prague 4 District Court] found it established that [O.H.] had been informed about the hearing orally by a consul.

At the same time it follows from [the applicant’s] application and the text of the above-mentioned judgment that in 2008 [O.H.] had left the territory of the Czech Republic with the child [and] resides on the territory of the Russian Federation.

Taking into consideration [the fact] that at the time of delivery of the judgment O.H. has been residing on the territory of the Russian Federation, her notification should have been carried out in accordance with Article 9 of the Treaty, which provides that service of documents [must be] certified by a confirmation signed by the person on whom the document is served and officially sealed and signed by the competent authority responsible for the service with indication of the date of service, or by a confirmation issued by that competent authority with indication of the means, the place and the time of service.

No such [confirmation] was provided by [the first applicant]. It follows from the contents of the above-mentioned judgment that a request for delivery of documents to [O.H.] was addressed to the Ministry of Justice of the Russian Federation and remained without reply.

At the same time, according to Article 411 of the Code of Civil Procedure of the Russian Federation a request for compulsory enforcement of a foreign court judgment must be accompanied by a document showing that the party against whom the judgment was taken, and who did not participate in the proceedings, had been duly notified of the time and the place of the hearing. The same rule is contained in Article 55 of the Treaty.

It follows from the contents of the above-mentioned legal provisions that notification of [O.H.] of the time and the place of the hearing should have been certified by [a] written confirmation, signed by [O.H.], [and] sealed by [the competent authority] which handed over the notification.

No such documents were, however, provided by the [first applicant].

As noted above, the judgment of Prague 4 District Court indicates that [O.H.] was notified orally by a consul.

The [first applicant’s] argument that [O.H.’s] notification by consul orally by telephone was in accordance with section 51 of the Civil Procedure Code of the Czech Republic does not amount to proof of [O.H.’s] proper notification ...

The above-mentioned Treaty does not provide for the possibility of notification by a consul. Under Article 10 of the Treaty Contracting Parties are entitled to serve the documents through consular establishments to their citizens only. However, [since O.H.] is not a citizen of the Czech Republic, but only had a permit for permanent residence on the territory of the Czech Republic, the [court summons] was not served on her ...

In view of the foregoing the court finds that [O.H.] was deprived of the possibility to take part in the proceedings as a result of a failure to duly notify her of the time and the place of the hearing ...”

The decision of 9 October 2012 was taken in the absence of O.H. Court summonses were repeatedly sent to O.H.’s place of residence in St Petersburg and to the address in Nyuksenitsa, Vologda Region, given to the court by the first applicant. However, the summonses returned unclaimed following the expiration of the storage time. Attempts were also made to notify O.H. through a local police inspector, without success. The court therefore considered that it had taken sufficient and exhaustive measures to notify O.H. and to ensure her presence at the hearing, that the latter had abused her right, and that it was possible to examine the first applicant’s request in her absence.

On 3 December 2012 St Petersburg City Court upheld the judgment of 9 October 2012 on appeal.

On 16 September 2013 the first applicant’s “cassation appeal” lodged against the judgment of 9 October 2012 and the decision on appeal of 3 December 2012 was dismissed.

In February 2009 the first applicant applied to the guardianship and trusteeship body for St Petersburg Porokhovye municipal circuit (орган опеки и попечительства местной администрации внутригородского муниципального образования г. Санкт-Петербурга муниципальный округ Пороховые) to facilitate visits between him and the second applicant.

In March 2009 the first applicant renewed his application.

On 12 March and 29 September 2009 representatives of the guardianship and trusteeship body accompanied the first applicant to visit the child.

In the meantime, on 8 July 2009 the guardianship and trusteeship body examined O.H.’s living conditions in St Petersburg. It was established that the flat was in a very good condition, that all the furniture and household appliances were new, and that the girl had a separate room, which was spacious, tidy and cosy.

Between 2010 and July 2011 the first applicant did not apply to the guardianship and trusteeship body to organise visits between him and the second applicant.

In February 2012 the first applicant again applied to the guardianship and trusteeship body to organise his upcoming visit in March 2012. He relied on the judgment of Prague 4 District Court of 2 June 2011. However, his request was refused in the absence of a judgment by the Russian court obliging the guardianship and trusteeship body to organise visits between the first applicant and the second applicant.

On over a dozen occasions the first applicant applied to the Ombudsman for Children in St Petersburg seeking for assistance in establishing contact with his daughter and visa support.

In response to the first applicant’s requests the Ombudsman tried to reconcile the first applicant and O.H. In particular, during his visit to Russia between 23 September and 4 October 2010 the first applicant stayed at O.H.’s apartment and was able to have contact with his daughter. However, the first applicant and O.H. later had a conflict. O.H. claimed that the first applicant had been cruel to the child and that she would interfere with contact between the first applicant and the child in the interests of the latter. The Ombudsman explained to O.H. the provisions of the Family Code concerning the right of the parent living apart from the child to have contact with the child. Nevertheless O.H. stated that she viewed the situation as a strictly private family matter. In her opinion the wide media coverage of the case initiated by the first applicant and the involvement of a number of official bodies went contrary to the principles of the inviolability of private and family life. She further submitted that the child did not want to communicate with the first applicant. Since May 2011 the Ombudsman for Children in St Petersburg has lost all contact with O.H. Information about the second applicant was put on the Ombudsman’s website (www.spbdeti.org) in the “missing child” section.

Concerning the issue of visa support to the first applicant, the Ombudsman applied to the representation of the Russian Ministry of Foreign Affairs in St Petersburg, which explained that the first applicant could apply to the health care and social welfare authorities for the invitation which was required in order to obtain a Russian visa.

In his letter of 23 August 2013 the first applicant expressed his gratitude to the Ombudsman for Children in St Petersburg for her active participation in protecting the second applicant’s rights.

On 24 October 2012 the first applicant lodged a request with the Ombudsman for Children in Vologda Region asking for assistance in establishing his communication with his daughter.

On 21 November 2012 the Ombudsman visited Nyuksenitsa, where O.H. was supposedly living. However, the information about O.H. and the second applicant’s whereabouts in Nyuksenitsa was not confirmed. The first applicant was informed accordingly.

On 7 December 2012 the first applicant applied to the Ombudsman for Children in Vologda Region asking for an inquiry into the activity of the commission for the affairs of minors in Nyuksenskiy municipal district to be carried out owing to what he saw as their negligent attitude in examining the issue of establishing his communication with his daughter.

On 29 December 2012 the first applicant was informed that his request was outside the Ombudsman’s competence and that he could apply to the prosecutor’s office or the court.

On 11 April 2013 the first applicant again applied to the Ombudsman for Children in Vologda Region asking for assistance in establishing his daughter’s whereabouts.

On 29 April 2013 the first applicant was informed that the child was not studying in any school in Nyuksenskiy municipal district and was not living there.

On 25 November 2009 and 29 July 2010 the Czech Ministry of Labour and Social Affairs applied to the Ombudsman for Children under the President of the Federation of Russia for assistance in the protection of the right of the second applicant to communicate with both parents. Since at the time O.H. lived in St Petersburg with the child, the applications were transmitted to the Ombudsman for Children in St Petersburg.

On 21 March 2011 and 28 November 2011 the Ombudsman for Children under the President had consultative meetings with the Ambassador Extraordinary and Plenipotentiary of the Czech Republic in the Russian Federation and actively corresponded with the Czech Embassy on the issue. Regular contact was maintained with the Russian Ministry of Foreign Affairs and the guardianship and trusteeship body for St Petersburg Porokhovye municipal circuit.

Meanwhile, on 25 July 2011 and 3 September 2012 the first applicant himself applied to the Ombudsman for Children under the President of the Federation of Russia. Regular contact was maintained with the first applicant by telephone and e-mail.

As a result of the work carried out by the Ombudsman for Children under the President and the ombudsmen for children in St Petersburg and Vologda Region, on 28 February 2013 a reply was given to the first applicant. He was informed about the legal means of protecting his right to communicate with his daughter which were applicable to his situation. In particular, he was told that he could bring a civil action before the Russian courts in order to determine his access rights (иск об определении порядка общения с дочерью). That recommendation was made with regard to the first applicant’s repeated assurances that he was not seeking compulsory enforcement of the judgment of Prague 4 District Court of 2 June 2011 as he understood that after such a long – in comparison to the child’s life – passage of time, the enforcement of that judgment could be harmful to his daughter and would not be in her best interests. At the same time the first applicant repeatedly stated his wish to establish and maintain regular contact with his daughter and to receive information about her life. However, the first applicant did not follow the above recommendation.

On 2 November 2011 the first applicant reported O.H.’s refusal to allow him to communicate with his daughter, the second applicant, to the Krasnogvardeyskiy District Prosecutor’s Office of St Petersburg.

The local police inspector went to O.H.’s registered place of residence in St Petersburg and found that she was not living there. The neighbours had no information about O.H.’s whereabouts. A summons requesting O.H. to present herself at the local police station was returned unclaimed after the expiration of its storage time.

On 22 December 2011 the first applicant asked the police to search for O.H. in the absence of any information about her and the second applicant since 30 May 2011. The file was transferred to Krasnogvardeyskiy District investigations department (следственный отдел по Красногвардейскому главному следственному управлению Следственного комитета Российской Федерации по Санкт-Петербургу).

The investigator of Krasnogvardeyskiy District investigations department succeeded in reaching O.H.’s mother, G.K., on her mobile telephone. The latter submitted that she was in regular contact with O.H., but refused to divulge O.H.’s whereabouts.

On 11 January 2012 the investigator received a fax message from O.H. in which the latter confirmed that she was living at her registered place of residence with the second applicant, and that she refused all contact with the first applicant.

On the same day the investigator refused to institute criminal proceedings into the disappearance of O.H. and the second applicant.

On 22 March 2012 the juvenile inspector of the local police went to the flat at O.H.’s registered address in St Petersburg, but nobody opened the door. O.H.’s neighbour, Mr Sh., said that O.H.’s flat had not been lived in since June 2011.

On 26 March 2012 the Krasnogvardeyskiy District Deputy Prosecutor set aside the decision of 11 January 2012 and returned the file to the investigator with instructions to carry out an additional check aimed at determining the whereabouts of O.H. and the second applicant.

On 3 April 2012 and 26 May 2013 the investigator again refused to institute criminal proceedings into O.H.’s and the second applicant’s disappearance. Those decisions were subsequently set aside by the Krasnogvardeyskiy District Deputy Prosecutor and additional checks were ordered.

The additional checks revealed that O.H. had not been receiving her correspondence. They also established that the second applicant had not been attending kindergarten since 6 June 2011, and that the last appointments she had attended at the health care facility had been on 22 June and 6 September 2011.

According to information provided by the Krasnogvardeyskiy District commission for the affairs of minors (комиссия по делам несовершеннолетних и защите их прав при администрации Красногвардейского района), since the end of May 2011 O.H. had been hiding the second applicant from her father, the first applicant; she had not been opening the door and had been ignoring summonses to appear in court.

The Krasnogvargeyskiy District Prosecutor’s Office examined the possibility of bringing administrative proceedings against O.H. under Article 5.35 § 2 of the Code of Administrative Offences. However, the failure to establish O.H.’s whereabouts made it impossible to serve summonses on her, to obtain her explanations and to serve her with the record of administrative offence.

The prosecution authorities also conducted a check at O.H.’s presumed place of residence in Nyuksenitsa, Vologda Region. It was established that O.H. and the second applicant did not live there.

On 21 December 2012 Nyuksenskiy District Prosecutor questioned O.H.’s mother, G.K. The latter submitted that O.H. had lived and worked in Nyuksenitsa between June and August 2012, but that O.H.’s subsequent whereabouts were unknown to her. G.K. further submitted that the first applicant was not supporting O.H. financially, that he had arrived in Nyuksenitsa in summer 2012 and sent 4,000 Russian roubles (RUB) to O.H.’s place of residence in St Petersburg, although he had known that O.H. had been living and working in Nyuksenitsa at that time.

It was established that in 2012 the second applicant had been enrolled for external studies in the first grade of Kirovskiy District school no. 277 in St Petersburg under a distance learning programme. When O.H. had signed a contract with the school she had given a St Petersburg address.

On 31 January and 13 May 2013 the local police inspector again went to the above-mentioned address in St Petersburg, in vain.

In August 2013 O.H. logged onto the school educational website, which suggested that the child started the second grade programme.

To the present day the whereabouts of O.H. and the second applicant remain unknown.

On 30 December 2008 the Russian Ministry of Justice received from the Ministry of Justice of the Czech Republic court orders issued by Prague 4 District Court for a check of O.H.’s living conditions and certain other procedural actions to be carried out.

On 26 January and 27 January 2009 respectively, in accordance with the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance, the court orders were submitted to the North-Western Federal Circuit Department of the Ministry of Justice (Управление Министерства юстиции Российской Федерации по Северо-Западному федеральному округу).

On 16 March and 30 April 2009 reminders were sent to the NorthWestern Federal Circuit Department of the Ministry of Justice.

According to that department, the execution of the orders had been complicated by the failure of the court to provide O.H.’s correct address.

On 31 July 2009 the Russian Ministry of Justice submitted to the Ministry of Justice of the Czech Republic the documents on execution of the orders of Prague 4 District Court.

On 29 October 2010 and 12 November 2010 the Russian Ministry of Justice received from the Ministry of Justice of the Czech Republic another order issued by Prague 4 District Court to take certain procedural steps in respect of O.H. and a request for service of court documents on O.H.

On 11 November and 23 November 2010 respectively the court order and request for service of documents were submitted to the NorthWestern Federal Circuit Department.

On 12 May 2011 the Russian Ministry of Justice informed the Ministry of Justice of the Czech Republic that it was impossible to execute the orders of Prague 4 District Court.

Following receipt of a note from the Embassy of the Czech Republic forwarded by the Ministry of Foreign Affairs of Russia, on 29 March 2012, the Russian Ministry of Justice submitted to the North-Western Federal Circuit Department a court order issued by Prague 4 District Court for service of court documents on O.H.

On 31 July 2012 the Russian Ministry of Justice submitted to the Russian Ministry of Foreign Affairs the documents attesting to the impossibility of executing that court order.

Following receipt of another note from the Embassy of the Czech Republic, on 22 November 2012 the Russian Ministry of Justice again submitted to the North-Western Federal Circuit Department a court order issued by Prague 4 District Court for service of court documents on O.H.

On 1 June 2012, the first day of acceptance by the Czech Republic of Russia’s accession to the 1980 Hague Convention on the Civil Aspects of Child Abduction, the first applicant filed a request under Article 21 of the Convention for securing the effective exercise of his “access rights” in respect of his daughter, the second applicant.

On 21 August 2012 the Office for the Legal Protection of Children (“the Czech Central Authority”) informed the Russian Ministry of Education and Science (“the Russian Central Authority”) that the first applicant had discovered the whereabouts of O.H. in Vologda Region. However, he had not seen his daughter.

As the Russian Central Authority had not replied to the abovementioned letters, on 1 October 2012 a reminder was sent to it.

On 1 November 2012, at the request of the Czech Central Authority, the Ambassador of the Czech Republic in Moscow sent a letter to the Russian Central Authority.

On 5 March 2013 the Russian Central Authority replied that it was not possible to establish O.H. and the second applicant’s place of residence.

In the meantime, on 12 December 2012 and 27 March 2013 the Czech Central Authority contacted the Russian Children’s Ombudsman about the same issue. The Czech Authority has not yet received a reply.

On 21 May and 6 September 2013 the Czech Central Authority sent further letters to the Russian Central Authority. No reply has been received. Another reminder was sent on 13 December 2013.

On 11 November 2013 the Czech Central Authority sent a letter to the Secretary General of the Hague Conference on Private Law asking for help in securing effective cooperation between the Czech and Russian Central Authorities.


CASE OF ARIF ISLAMZADE AND OTHERS v. AZERBAIJAN

Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants complained of the non-enforcement of domestic decisions.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Ganna Yudkivska;Vincent A. De Gaetano

On 17 December 1999 the applicant brought a criminal complaint to the Zhovtnevyy District Police Office of Dnipropetrovsk (“the District Police”) that on 16 December 1999 Z. had beaten her on the street near his office and inside his office.

The District Police, having questioned Z., who had denied that he had beaten the applicant, refused to institute criminal investigation into the applicant’s criminal complaint on 22 December 1999.

On 18 January and 1 February 2000 the applicant renewed her criminal complaint.

On 22 March 2000 the District Police ordered a forensic medical examination of the applicant. The examination revealed that she suffered from head injury, concussion, haemorrhage in the right temporal area, post-traumatic right-side cocleite, haemorrhage on the left and right thighs and the right leg’s shin. The medical experts concluded that these injuries could have been inflicted on her by Z. on 16 December 1999.

On 5 April 2000 an investigator of the District Police instituted criminal investigation into the infliction of the bodily injuries on the applicant.

On 20, 24 and 29 April, 5 and 10 May 2000 respectively, the investigator questioned: i) Zub., Kyb. and Nos. who had been in Z.’s office on 16 December 1999; ii) St. and Krav. who had been near the office on that date. St. stated that he had seen Z. having beaten the applicant while Krav. stated that she had seen the applicant having been punched by an unknown man on 16 December 1999.

On 9 August 2000 the second medical examination of the applicant confirmed findings of the previous examination.

On 14 February 2001 the Dnipropetrovsk Prosecutor’s Office informed the District Police that the investigation into the applicant’s beating was ineffective and urged the police to accelerate it.

In 2001-2003 the District Police repeatedly questioned the applicant and persons whom it had already questioned earlier. During the same period of time it issued several decisions to suspend the investigation which were all quashed as being unfounded by the higher police department, prosecutors or by a court.

On 24 June 2003 the medical examination of the applicant ordered by the District Police revealed that she suffered from closed head injury, concussion, post-traumatic encephalopathy, hearing deterioration and circle vestibular disorder. According to the medical report, these health problems could have been caused by the beating on 16 December 1999.

On 17 August 2003 the District Police completed the pre-trial investigation and sent the case to the Zhovtnevyy District Court of Dnipropetrovsk (“the District Court”) for trial. The pre-trial investigation included the examination of thirteen witnesses, four confrontations between the persons involved in the case, one examination of the crime scene and four reconstructions of events.

On 6 October 2003 the applicant lodged a civil claim in the criminal proceedings seeking Z. to pay her UAH 5,000 (EUR 787) in compensation for non-pecuniary damage and UAH 5,346.7 (EUR 842) to compensate her for pecuniary damage.

On 10 November 2003 the District Court found itself unable to rule on Z.’s guilt based on the material in the case-file and sent the case to the Prosecutor’s Office for additional investigation. The prosecutor referred the case to the District Police instructing it to carry out specified investigative measures.

On 11 December 2003 the applicant requested the District Police to order forensic medical examination of her health condition. On 16 December 2003 her request was granted.

On 26 December 2003 the Ministry of the Interior informed the applicant that police officer A. of the District Police had been disciplined for having committed a number of procedural violations while investigating her case.

On 10 January 2004 the medical examination of the applicant confirmed the conclusions of the previous examinations.

On 19 January 2004 the applicant requested another forensic medical examination but she was refused it.

On 10 March 2004 the State authorities issued Z. with a passport for travelling abroad.

On 9 April 2004 the District Police completed the pre-trial investigation and sent the case to the District Court for trial.

On 13 April 2004 the applicant requested the police to carry out additional investigative measures, but this request was refused on the ground that the measures in question had already been performed earlier.

On 11 May 2004 the District Court received the criminal case. On 17 May 2004 it decided that further investigation was needed and remitted the case to the District Police.

On 1 June 2004 Z. left the country to live on a permanent basis in Germany.

On 10 August 2004 investigator A. from the District Police established that Z. had absconded and placed him on a list of wanted persons. The proceedings were suspended until establishing Z.’s whereabouts.

On 29 December 2004 the Ministry of the Interior informed the applicant that Z. had been able to leave Ukraine because the District Police had failed to inform migration authorities that Z. was an accused in a criminal case. On 3 February 2005 the Prosecutor’s Office instituted criminal proceedings against State employees who had unlawfully issued Z. with the passport for travelling abroad.

In 2005 Ukrainian authorities informed German authorities that Z. had left the country to live in Germany and requested that his whereabouts be established.

On 15 May 2005 the Dnipropetrovsk Regional Police Department informed the District Police that the investigation into the applicant’s beating was ineffective. The District Police was ordered to carry out a number of additional investigative actions.

In 2005-2008 the District Police questioned the applicant, St., Zub., Kyb., Nos. and Krav. and ordered forensic medical examination of the applicant which established that the injuries inflicted on 16 December 1999 led to her deafness.

On 17 January 2008 the Ministry of the Interior informed the applicant that Z.’s whereabouts had been known to the police since 2006, but due to negligence of the District Police his extradition had not been sought.

On 26 May 2008 the District Police terminated the criminal proceedings against Z.

On 24 June 2008 a prosecutor quashed the above decision as unfounded and sent the case back to the police.

On 21 August 2008 the District Police suspended the proceedings against Z. until “establishment of his whereabouts”.

On 29 October 2008 the Dnipropetrovsk Regional Prosecutor’s Office quashed that decision noting that the District Police had been aware of Z.’s place of residence, but for unknown reasons had not sought his extradition.

On an unspecified date the same office informed the applicant that a district court had ordered Z.’s detention pending trial and that his extradition had not yet been sought because Sh. and V., officers of the District Police, had failed to prepare documents necessary for extradition.

On 27 October 2009 the General Prosecutor’s Office of Ukraine requested German authorities to extradite Z.

On 25 December 2009 forensic medical experts examined the applicant and established that due to the beating she lost 50 % of her working capacity. From December 1999 she had been periodically not fit for work and from 2004 onwards – permanently not fit for work.

On 22 June 2010 Z. was extradited to Ukraine. On 2 July 2010 he gave undertaking not to abscond.

On 21 January 2011 the pre-trial investigation into the applicant’s beating on 16 December 1999 was completed and the case was sent to the District Court for trial.

On 31 January 2011 the applicant modified her civil claim seeking to be paid UAH 400,000 (EUR 36,226) in compensation for non-pecuniary damage.

On 16 February 2011 the trial was postponed until 4 March 2011 because of the applicant’s request concerning recording of the hearings.

On 27 January, 6, 14, 23 February and 6 March 2012 the court adjourned the hearings due to the applicant’s absence.

On 4 April 2012 the applicant again modified her civil claim seeking to be paid UAH 550,000 (EUR 50,686) in compensation for non-pecuniary damage.

In a judgment of 14 May 2012 the District Court convicted Z. of having inflicted serious bodily injuries on the applicant and sentenced him to three years’ imprisonment. It also ordered Z. to pay the applicant UAH 50,000 (EUR 4,745) and UAH 5,346.7 (EUR 5,346) respectively, in compensation for non-pecuniary and pecuniary damage.

On 19 July 2012 the Dnipropetrovsk Regional Court of Appeal quashed the first instance judgment and remitted the criminal case for additional investigation to the Prosecutor’s Office. The court noted, in particular, that the District Police had failed to assess all the relevant facts of the case and that the length of the pre-trial investigation was excessive.

On 7 November 2012 the Prosecutor’s Office noted that the District Police had committed serious violations of procedural law while investigating the applicant’s beating. The prosecutor ordered the head of the District Police to conduct an internal investigation into this matter and punish those who were responsible.

On 8 November 2012 the head of the District Police disciplinarily punished investigators Sh. and T. for the excessive length of the investigation and numerous procedural violations.

On 14 November 2012 the pre-trial investigation was again completed.

On 19 November 2012 the District Court received the criminal case against Z. for consideration on the merits.

On 12 December 2012 it terminated the criminal proceedings against Z. as time-barred. On 31 January 2013 the Dnipropetrovsk Regional Court of Appeal upheld this judgment.

On 5 September 2013 the Higher Specialized Court quashed the lower court’s judgments and remitted the case to the District Court for a fresh consideration. It noted that the prosecution was not time-barred and the case had to be examined on its merits.

On 17 September 2013 the District Court received the criminal case.

On 17 October 2013 it discovered that Z. had absconded, placed him on the list of wanted persons and suspended the proceedings until establishing his whereabouts.

The proceedings have remained suspended.


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

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1951 and lives in Zagreb.

The applicant was a co-owner of a block of flats on the island of Vir.

On 2 and 23 March 2006 building inspectors of the Inspectorate of the Ministry of the Environment, Spatial Development and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, Uprava za inspekcijske poslove) carried out an on-site inspection of the block of flats in question.

On 31 March 2006 one of the building inspectors ordered that the block of flats be demolished within three days from the date of service of the decision.

The applicant lodged an appeal against the demolition order, submitting that the time-limit for compliance was too short and that the block of flats was not within the protected coastal area.

On 15 May 2006 the appeal section of the Legal Department at the Inspectorate (Odsjek za postupak u drugom stupnju – “the second-instance body”) dismissed the appeal, finding that the block of flats had been built without a building permit.

Meanwhile, on 4 May 2006 the building inspector issued an administrative enforcement order (zaključak o dozvoli izvršenja), stating that the demolition order of 31 March 2006 had become enforceable on 6 April 2006 and that the co-owners had not complied with it within the given time-limit. He therefore ordered that the demolition be carried out by a third party after 11 May 2006, at the expense of the co-owners.

The applicant lodged an appeal against the administrative enforcement order, submitting that it was not sufficiently reasoned and that the construction of the block of flats could be retrospectively approved.

On 23 May 2006 the second-instance body dismissed the appeal as ill-founded.

On 27 June 2006 the co-owners had the block of flats demolished.

Meanwhile, on 26 June 2006 the applicant lodged an administrative complaint with the Administrative Court, repeating the arguments made in her appeal and seeking damages for the demolition. Since it was not clear whether the applicant was complaining about the second-instance decision concerning the demolition order or the administrative enforcement, on 11 July 2006 the Administrative Court requested her to specify which she wished to contest.

On 30 August 2006 the applicant replied that she was seeking annulment of the second-instance decision of 15 May 2006 concerning the demolition order.

On 22 April 2010 the Administrative Court dismissed her complaint as ill-founded, but addressed it as if it had been about the second-instance decision of 23 May 2006 concerning the administrative enforcement.

On 13 July 2010 the applicant lodged a constitutional complaint, alleging, inter alia, a violation of her right of access to court, on the ground that the Administrative Court had erroneously decided a matter which had not been the subject of her administrative complaint.

On 13 December 2010 the Constitutional Court declared the constitutional complaint inadmissible, on the grounds that the contested decision had not concerned the merits of the case and as such was not amenable to constitutional review. This decision was served on the applicant’s representative on 7 January 2011.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

A. As regards the first applicant

On 29 June 2005 the Čačak Commercial Court ordered a socially-owned company Fabrika Reznog Alata Čačak AD (hereinafter “the debtor”) to pay the first applicant specified amounts on account of damages, plus the costs of the civil proceedings.

On 22 February 2006 the Belgrade High Commercial Court amended the first instance judgment by ordering the debtor to also pay the first applicant specified amounts on account of lost profits and increasing the awarded costs of proceedings. This judgment became final on an unspecified date.

On 26 June 2007, upon the first applicant’s request to that effect, the Čačak Commercial Court ordered the enforcement of the said judgments and further ordered the debtor to pay the first applicant the enforcement costs.

On 17 March 2009 the debtor paid the first applicant a part of the sums specified in the said judgments.

On 30 March 2010 the Privatisation Agency ordered the restructuring of the first applicant’s debtor. As a result, the ongoing enforcement proceedings against the debtor were stayed.

On 11 March 2011 the first applicant lodged a constitutional appeal.

On 21 May 2014 the Constitutional Court found a violation of the first applicant’s right to a hearing within a reasonable time and of its right to the peaceful enjoyment of its possessions. It further awarded the first applicant 1,000 euros (EUR) as just satisfaction for non-pecuniary damage and ordered the court in Čačak to expedite the proceedings. The Constitutional Court dismissed the first applicant’s request for pecuniary damages as premature, since the enforcement proceedings were still pending.

B. As regards the second applicant

On 11 July 2003 the Kraljevo Commercial Court established the secured property right of the applicant on certain commercial premises and ordered GP Jastrebac (hereinafter “the debtor”) , a socially-owned company undergoing insolvency proceedings, to finish the construction of that property. The Commercial Court further ordered the debtor to pay the second applicant a certain amount if it failed to do so. This decision became final on an unspecified date. The debtor never finished the construction of the property in question.

On 9 September 2009 the debtor paid the applicant a part of the amount established by the decision.

On 11 May 2011 the second applicant lodged a constitutional appeal.

On 26 March 2014 the Constitutional Court found a violation of the second applicant’s right to a hearing within a reasonable time. It further awarded him EUR 500 as just satisfaction for non-pecuniary damage and ordered the competent court to expedite the insolvency proceedings. The Constitutional Court dismissed the second applicant’s complaint concerning his right to the peaceful enjoyment of his possessions as well as his request for pecuniary damages, since the insolvency proceedings were still pending.

C. As regards the third applicant

On 22 September 2003 the Belgrade Commercial Court ordered a socially-owned company, DP Fabrika termotehničkih uređaja i montaže “CER” Čačak (hereinafter “the debtor”), to pay the third applicant specified amounts on account of damages, plus the costs of the civil proceedings. This judgment became final by 17 October 2003.

On 30 October 2006, upon the third applicant’s request to that effect, the Belgrade Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs.

On 12 October 2011 the third applicant lodged a constitutional appeal.

On 17 April 2014 the Constitutional Court found a violation of the third applicant’s right to a hearing within a reasonable time. It also awarded the third applicant EUR 800 as just satisfaction for non-pecuniary damage and ordered the competent court to expedite the proceedings. The Constitutional Court dismissed the third applicant’s complaint concerning its right to the peaceful enjoyment of possessions and its request for pecuniary damages as premature, since the enforcement proceedings were still pending.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Vote);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The 101 applicants, whose names are appended, are Bulgarian nationals of Turkish origin and/or of Muslim faith who live or have lived in Turkey. They all exercised their right to vote at the 2009 Bulgarian general elections in 17 of the polling stations set up in Turkish territory, the election results in which were subsequently contested by the RZS political party and nullified by the Bulgarian Constitutional Court.

According to the official statistics from the census carried out in Bulgaria in 2011, 588,318 persons stated that they were ethnic Turks, amounting to 8.8% of the persons who answered that question, and 577,139 persons stated that they were of Muslim religion. Since the late 1980s, the members of those communities have been involved in major migrations leading many of them to settle in Turkey. The Court has no official information on the exact number of Bulgarian citizens who are ethnic Turks or Muslims living temporarily or permanently in Turkey. Estimates of that number vary considerably, generally ranging from 300,000 to 500,000 individuals, in all the age brackets.

The DPS was founded in 1990. Its statutes define it as a liberal political party endeavouring to help unite all Bulgarian citizens and to protect the rights and freedoms of minorities in Bulgaria as guaranteed by the Constitution and national legislation, as well as by the international instruments ratified by the Republic of Bulgaria.

The DPS has put up candidates for all general and local elections in Bulgaria since its inception. It has won seats in the national Parliament in all the general elections held since 1990. Between 2001 and 2009 it took part in two successive coalition governments. Several of its leaders and members belong to the Bulgarian Turkish and Muslim minorities.

Mr Riza was born in 1968 and lives in Sofia. A DPS member, he is also one of its Vice-Presidents and a member of the party’s central executive bureau. He is currently a DPS deputy of the National Assembly.

These two applicants submit that most of the Bulgarian citizens currently living in Turkey have voted for the DPS at all the general elections held over the last twenty years.

By Decree of 28 April 2009 the Bulgarian President set 5 July 2009 as the date of the elections to the 41st National Assembly. The electoral law laid down a new hybrid electoral system: 31 deputies were to be elected on a first-past-the-post basis in single-member constituencies, and 209 deputies were to be elected on a proportional basis at national level in 31 multiple-member constituencies.

Bulgarian citizens living abroad were entitled to vote in the general elections, but only for parties and coalitions, and their votes were taken into account in the proportional distribution of sears among the different political formations at the national level ... Having obtained the consent of the competent authorities in the countries concerned, the Bulgarian diplomatic representations opened 274 polling stations in 59 countries, 123 of them in Turkey.

On 20 May 2009 the Central Electoral Commission registered the DPS as participating in the general elections. The DPS presented lists of candidates in several single- and multiple-member constituencies. It was also included on the ballot paper designed for voting by Bulgarian citizens living abroad. Mr Riza was included in second position on the list of his party’s candidates for the 8th multiple-member constituency (Dobrich).

Thirteen of the 101 applicants (see appended list) (nos., 13, 17, 21, 26, 30, 39, 51, 59, 74, 75, 89 and 94) submitted that they had all personally submitted prior declarations of intention to vote to the Bulgarian diplomatic representations in Turkey. The Bulgarian diplomates has asked them to take part in local electoral committees in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir as presidents, secretaries or ordinary members, which they had agreed to do. On 4 July 2009 they had been invited to the offices of the Bulgarian diplomatic and consular representations, where Bulgarian diplomats had informed them about the formalities to be complied with on election day, and in particular how to draw up the electoral rolls. Some of the applicants affirmed that they had only been given one instruction on that subject, to the effect that persons attending the polling station on election day without preregistration should be included on the additional pages of the electoral roll, and that the last name added on election day should be suffixed with a “Z”.

The 13 applicants submitted that their names had not been included on the list at the polling station where they were to function as members of the electoral committee. They had all voted in their respective polling stations by registering on election day and signing opposite their names and forenames. Furthermore, they submitted that they had carefully indicated their choices on their ballot papers, without any other type of indication, and slotted the papers into the ballot box.

The 13 applicants also pointed out that there had been no particular problems on election day. Their respective electoral committees had been made up of Bulgarian nationals living in their respective towns and representatives of the Bulgarian Ministry of Foreign Affairs. Some of the polling stations had been visited by the Bulgarian Ambassador and Consul General, and others had been reported on by Bulgarian public television and radio teams, and no irregularities had been noted. At the close of polling on election day the local committees had counted the votes, filled in the requisite report forms and submitted the electoral documents to the Bulgarian diplomatic representatives.

The other 88 applicants submitted that at the material time they had been living in Turkey. Some of them had sent prior statements of intention to vote to the Bulgarian diplomatic representations, but they had never been informed in return of which polling stations to vote in. On election day all the applicants in question had attended the nearest polling stations in their respective towns. Their names had been handwritten into the electoral rolls, and after voting they signed opposite their names.

According to information available on the Central Electoral Commission website (http://pi2009.cik.bg), following the 5 July 2009 elections, six political parties and coalitions garnered more than the minimum 4% of votes cast and were included in the process of proportional distribution of seats in the National Assembly: the GERB party, the Coalition for Bulgaria, the DPS, Ataka, the Blue Coalition and the RZS party.

The DPS obtained a total of 610,521 votes, or 14.45% of the valid votes, which made it the country’s third political party. It garnered 61.18% of the out-of-country voting, that is to say 93,926 votes, 88,238 of which were cast in polling stations in Turkish territory. It came out well ahead in the 17 polling stations – in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir – in which the 101 applicants had voted. By decision of 7 July 2009 the Central Electoral Commission assigned the DPS 33 parliamentary seats under the proportional representation system, together with a further five seats won in the first-past-the-post constituencies.

Following the apportionment of seats won by the DPS at the national level in the 31 multiple-member constituencies, the party won only one seat in the 8th constituency. However, another political formation, the Blue Coalition, having appealed to the Constitutional Court and the votes cast in a polling station in the 19th constituency having been recounted, the Central Electoral Commission conducted a reassignment of the seats won at the national level among the 31 multiple-member constituencies. This gave the DPS a second seat in the 8th constituency, where Mr Riza was in second place on his list of candidates, and removed one of the two seats initially won in the 19th multiple-member constituency. On 12 October 2009 Mr Riza was declared elected to the National Assembly. He was sworn in as a deputy and became a member of his party’s parliamentary group. On 20 January 2010 he was elected member of the Parliamentary Commission on Ethics and the Fight against Corruption and Conflicts of Interest.

On 21 July 2009 the President and three other members of the RZS (Red, Zakonnost, Spravedlivost – “Order, Law and Justice”), a right-wing conservative party, requested the Attorney General to lodge with the Constitutional Court the appeal provided for in section 112 of the Electoral Law in order to annul the election of seven DPS deputes on the grounds of several irregularities which had occurred in the 123 polling stations operating in Turkish territory. The four appellants complained of several breaches of electoral legislation in connection with the setting up of the said polling stations and their handling of the voting: they claimed that the rule requiring a polling station to be opened for every one hundred prior statements of intention to vote had been flouted in Turkish territory; some electors had exercised their voting rights once in Bulgarian national territory and again in a polling station in Turkish territory; incorrect information had been included in the reports drawn up by the electoral committees concerning the number of voters in the polling stations in question; 23 of them had allegedly dealt with over 1,000 voters, which would have been a practical impossibility in view of the opening hours of the polling station and the time required to complete the requisite formalities for each voter, and the electoral committees attached to those polling stations had, in certain cases, reportedly allowed persons into the voting booths without valid Bulgarian identity papers. The appellants invited the Constitutional Court to verify the authenticity of the prior voting requests issued in Turkish territory, to check the electoral rolls drawn up in the region of Bulgaria where the individuals wishing to vote in Turkey had their permanent addresses, and to declare null and void the records drawn up by the electoral committees responsible for the polling stations opened in Turkish territory. According to the appellants, the large number of irregularities committed in the voting procedure in the 123 polling stations in question necessitated the annulment of the votes cast in them, which annulment would have changed the election results and led to the ousting of seven DPS deputies from their seats.

On 22 July 2009 the Attorney General transmitted the request submitted by the President and three other members of the RZS party to the Constitutional Court.

On 11 August 2009 the Constitutional Court declared the appeal admissible and designated as parties to proceedings the National Assembly, the Council of Ministers, the Ministry of Foreign Affairs, the Central Electoral Commission, the National Department responsible for Citizens’ Civil Status Data and two non-governmental organisations. It sent copies of the request and the relevant documents to the parties to proceedings and gave them a deadline of twenty days to submit their observations on the merits of the case. That court asked the National Department responsible for Citizens’ Civil Status Data to ascertain how many voters had voted in the national territory and then again in Turkish territory, and invited it to submit certified copies of the lists of persons having voted and the reports on voting drawn up by the polling stations in Turkish territory. The President of the Constitutional Court, R.Y., and Judge B.P. signed the admissibility decision, while issuing a separate opinion. They argued that the Attorney General should have submitted a reasoned request to the Constitutional Court rather than merely transmitting the request for annulment lodged by the RZS political party.

On 18 September 2009 the DPS parliamentary group of the National Assembly presented its written observations on the case. It first of all disputed the admissibility of the appeal lodged by the four appellants, arguing that the Attorney General had failed to conduct a prior assessment of the merits of the said request, merely transmitting it to the Constitutional Court, that the appeal had been lodged belatedly, after the deputies in question had been sworn in, and that the seven DPS deputies mentioned in the request had been designated randomly since the out-of-country votes had been used solely to apportion the seats among the various parties at the national level and not for the benefit of any given list of candidates. Secondly, the DPS parliamentary group submitted that the request had been ill-founded for the following reasons: the legal conditions for setting up the 123 polling stations in question had been fulfilled; there had been very few cases of double voting, and voting secrecy precluded determining for which party exactly those persons had voted; the number of persons included on the additional electoral rolls on election day had been higher than that of preregistered voters because the number of persons wishing to exercise their voting rights had far exceeded the number of voters having previously declared their intention to vote outside the country; and in several of the out-of-country polling stations the number of persons voting had exceeded one thousand, and that had not been the case only in the polling stations in Turkey.

On 6 October 2009, at the request of the RZS party, the Constitutional Court ordered a threefold expert assessment to provide the answers to the following questions: (i) how many prior statements of intention to vote were submitted for the territory of Turkey, from which towns were they sent, and did their number correspond to the number of polling stations set up? (ii) were the identity papers of electors voting in the 123 polling stations valid? (iii) did the numbers of electors voting recorded in the minutes drawn up on election day correspond to the total number of preregistered electors and persons registered on the rolls on election day, and were there any polling stations in which none of the preregistered persons exercised their right to vote? (iv) what was the maximum number of persons who could vote in a polling station over election day? The three experts were given leave to consult all the documents on elections in Turkish territory which the diplomatic service of the Ministry of Foreign Affairs had submitted to the Central Electoral Commission.

The expert report was submitted to the Constitutional Court some time later. It indicated that there had been a total of 27,235 prior declarations of intention to vote in respect of the territory of Turkey: 5,127 of those declarations had been received at the Bulgarian Embassy in Ankara, 15,556 at the Consulate General in Istanbul and 6,552 at the Consulate General in Edirne. The Bulgarian diplomatic services had opened 28 polling stations in the Ankara region, 72 in the Istanbul region and 23 in the Edirne region. The experts had noted that some polling stations had been opened without the threshold of 100 declarations of intention to vote having been reached.

The experts were unable to answer the second question, on the validity of the Bulgarian identity papers of those voting in Turkey. They pointed out that it would have been very time-consuming to carry out the necessary verifications and would have required access to the population database administered by the Ministry of the Interior. Furthermore, in several cases the local electoral committees had merely mentioned the type of document presented, i.e. an identity card or passport, without recording the document number.

As regards the third question, the experts replied that there had been some very slight differences – between one and five persons – between the numbers of persons voting recorded in the polling station minutes and the numbers of voters included in the electoral rolls. According to the experts, that might have been due to inadvertent omissions. Moreover, they observed that the additional electoral lists in 116 polling stations, which had been drawn up on election day and contained data on the persons who had turned out without having been preregistered, had not been signed by the chair or secretary of the local electoral committee. The experts noted that the personal data on electors contained in those lists had been handwritten, apparently unhurriedly, and those entries would have taken a considerable length of time to write. Furthermore, in some of the polling stations none of the preregistered persons had turned out to vote. In some other polling stations there had been no minutes on file, or else the first page of the minutes had been missing.

As regards the fourth question put by the Constitutional Court, the experts concluded, from a reconstitution of the requisite formalities in dealing with voters and their ballot papers, that the minimum time required for voting would have been about fifty seconds. Having regard to the total duration of election day, that is to say thirteen hours, the experts estimated that a polling station could deal with a maximum of 936 voters. The maximum number of persons voting as thus calculated had been exceeded in 30 of the polling stations operating in Turkey.

The National Department responsible for Citizens’ Civil Status Data presented the Constitutional Court with the results of its inquiry into cases of double voting. The department pointed out that 174 persons had voted several times and that 79 cases of double voting had been noted in Turkey.

On 27 January 2010 the Constitutional Court decided to ask the three experts to examine an additional point: it asked them to recalculate the election results after deducting all the votes cast in 23 polling stations and some of those cast in another polling station, all located in Turkish territory. The court’s request covered: (i) all the votes cast in 18 polling stations where none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees and therefore lacked the probative value of official documents; (ii) all the votes cast in a polling station in which the minutes on voting were missing; (iii) all the votes cast in two other polling stations where the first page of the minutes was missing; (iv) all the votes cast in a polling station where the list of preregistered voters was missing; (v) 86 votes cast for the DPS by persons included in the unsigned additional list at another polling station where that party had garnered all the votes and where 124 preregistered persons had voted; (vi) all the votes cast in another polling station where the list of preregistered voters had not been put on file and where the additional electoral list had not been signed by the members of the local electoral committee.

On 2 February 2010 the experts submitted their supplementary conclusions to the Constitutional Court. In the introductory section of the report they pointed out that they had been mandated to deduct from the outcome of the election the votes cast in polling stations where: (i) none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees; (ii) the minutes were not put on file; (iii) the first page of the minutes was missing. The report presented estimates of the votes cast in 23 polling stations: (i) in 18 of those stations, none of the preregistered voters had voted and the additional list of voters had not been signed; (ii) in the case of another polling station, no minutes had been put on file and the additional list of voters had not been signed; (iii) for three other stations, the first page of the minutes was missing and the additional list of voters had not been signed; (iv) in another polling station, the first page of the minutes had not mentioned the number of persons having voted and none of the preregistered voters had voted. The experts considered that a total of 18,351 votes should be deducted from the election results, 18,140 of which had been case for the DPS. The Central Electoral Commission conducted the provisional reassignment of seats among the political parties on the basis of the expert report.

On 9 February 2010 the parliamentary group of the DPS submitted supplementary observations challenging the Constitutional Court’s choice of criteria for excluding the votes cast in the aforementioned polling stations from the vote count. The DPS deputies pointed out that the outcome of the voting had been based on the data set out in the polling station minutes, and not on the electoral rolls. They added that electoral legislation did not require the chairs and secretaries of out-of-country local electoral committees to sign below the additional lists of voters drawn up on election day. At all events, in the deputies’ opinion, the shortcomings of members of the electoral administration could not lead to the annulment of electors’ votes.

On 15 February 2010 the Central Electoral Commission presented its findings to the Constitutional Court. It pointed out that according to mathematical projections, the annulment of the votes cast in the 23 polling stations mentioned in the experts’ supplementary conclusions would deprive the DPS of one seat which would be assigned to the GERB political party and that in the 8th multiple-member constituency the DPS candidate concluded in second place on the party’s list, Mr Riza, would lose his parliamentary seat.

The Central Electoral Commission presented the Constitutional Court with observations made by five of its twenty-five members on the merits of the case. Those five members voiced the opinion that the arguments put forward by the appellants and the experts’ conclusions could not be used to justify annulling the votes cast in the polling stations in question. They explained in particular that the lists of persons voting in the out-of-country polling stations had been drawn up by the Bulgarian diplomatic representatives accredited on the basis of the prior declarations of intention to vote which they had received. They nevertheless stated that no prior information had been given on the distribution of the voters in question around the various polling stations, as they could attend any polling station or choose not to vote at all, which in their view explained why in some stations none of the voters on the main list had voted. The members of the Electoral Commission considered that that should not lead to the invalidation of the ballots of other electors who had voted in the same polling station. They pointed out that under domestic legislation the election documents had to be packaged and sealed by the local electoral committees and then sent to the Central Electoral Commission. However, when the election documents had arrived from Turkey, it had been noted that the packages containing the documents had already been opened and then re-sealed by the diplomatic services of the Ministry of Foreign Affairs. At all events, the absence, attributable to the Bulgarian diplomatic services or the local electoral committees, of election documents from out-of-county polling stations could not have justified annulling votes cast in those stations, given that the election results from outside the country had been based on data transmitted via diplomatic telegrams to the Central Electoral Commission. Finally, the members of the Electoral Commission, referring to domestic legislation, submitted that the fact that a member of the Electoral Commission had not signed minutes of voting or the accompanying documents did not invalidate them and did not constitute grounds for annulling the votes cast in the station in question. They considered that the recalculation of the election results was based on arguments which had not been mentioned in the request to the Constitutional Court.

On 15 February 2010 the DPS and six of its deputies applied to the Constitutional Court for leave to join the proceedings in question as a party. In that application the DPS stated that it fully endorsed the observations submitted by its parliamentary group on 18 September 2009 and 9 February 2010. On 16 February 2010 Mr Riza requested leave to join the proceedings as a party. In order to demonstrate his interest in taking part in the proceedings he referred explicitly to the additional expert report ordered by the Constitutional Court and the reapportionment of seats effected by the Central Electoral Commission on the basis of the experts’ findings. All those requests remained unanswered.

On 16 February 2010 the Constitutional Court, sitting in private session, adopted its decision in the case in question. It delivered its judgment on the same day.

The Constitutional Court dismissed the pleas of inadmissibility put forward by the DPS parliamentary group in its observations of 18 September 2009 (see paragraph 25 above). It considered, first of all, that the procedure for applying to the court had been respected. Secondly, it observed that the case concerned the contestation of election results rather than the eligibility of an individual candidate, which enabled it to assess the case even though the deputies in question had been sworn in and were already in office. It joined to the merits of the case the third plea of inadmissibility concerning the lack of a direct link between the out-of-country votes and the election of the seven DPS deputies named in the initial request. Judges R.N. and B.P. set out separate opinions on the admissibility of the request for annulment of the election results. They considered that the Attorney General had merely transmitted the request submitted by the RZS party instead of himself lodging a reasoned application for the annulment of the elections.

Considering that it should begin by clarifying the scope of the case, the Constitutional Court pointed out that it had been invited to find unlawful the election of a number of DPS deputies owing to several alleged irregularities in the polling stations operating in Turkish territory. Having regard to the specific mode of functioning of the Bulgarian electoral system, in which votes cast by Bulgarian citizens living abroad were taken into account solely for the proportional distribution of seats among political parties at the national level, it was impossible to determine in advance which deputies would be affected by the invalidation of some or all of the votes cast in Turkish territory. Thus, in the framework of that case, the Constitutional Court considered that it had been called upon to determine whether there had been any serious irregularities in the voting procedure in the 123 polling stations in Turkey. It held that a finding of such irregularities could lead to a change in the election results, a fresh apportionment of seats among the political parties and the annulment of the seats of deputies who had not been explicitly targeted by the initial application lodged by the leader and a number of candidates of the RZS party in the general elections.

The Constitutional Court rejected all the arguments put forward in the initial statement of claim. It first of all noted that section 41 (8) (3) of the Electoral Law gave Bulgarian diplomatic representatives outside the country carte blanche to open as many polling stations as they considered necessary for the proper conduct of the elections.

Secondly, it considered that the question whether a given voter had voted without a valid Bulgarian identity card was immaterial to the outcome of the proceedings, since voting secrecy ruled out ascertaining which party the person had voted for.

The Constitutional Court stated that the experts had noted that in some polling stations none of those on the main electoral roll had voted, while in other stations only a few of those on the roll had voted. It pointed out that according to the experts the names added on election day had been written clearly and apparently unhurriedly, which would seem rather unlikely given the large number of such additions and the pressure under which the members of the electoral committees would have been working on election day. However, the Constitutional Court considered that such considerations were mere suspicions which had not categorically demonstrated that the results of voting in those polling stations had been manipulated.

The Constitutional Court also noted that the experts had reached the conclusion that the maximum number of persons who could vote in one polling station was 936. However, it considered that in the absence of precise information on the alleged irregularities in the voting procedure in the polling stations with more than 1,000 persons voting, that finding did not provide grounds for invalidating the election results. At all event voting secrecy precluded determining for whom the persons registered after number 936 on the list of voters had cast their vote.

For those reasons the Constitutional Court dismissed the application for the annulment of the seats of the seven deputies explicitly covered by the initial request submitted by the leader and candidates of the RZS party.

However, it decided to deduct from the results obtained by each of the political parties respectively all the votes cast in 23 polling stations in Turkey, that is to say a total of 18,358 votes, 18,140 of which had been cast for the DPS. It pointed out that in those polling stations none of the voters preregistered on the main electoral rolls had voted, or else the first page of the minutes of the voting, certifying that the preregistered persons had voted, was missing. The court pointed out that in the 23 polling stations in question the additional lists of voters drawn up on election day did not bear the signatures of the chairs and secretaries of the local electoral committees, which deprived them of the probative value of official documents. The Constitutional Court accordingly considered that they could not be used in evidence to demonstrate that the registered persons had voted. That approach had allegedly also enabled it to determine how many votes had been deducted from the election results of each party or coalition and to reallocate the deputies’ seats in the National Assembly.

The Constitutional Court rejected the additional objections raised by the DPS parliamentary group on 9 February 2010 (see paragraph 34 above). It considered that the irregularities noted in the electoral rolls in the various polling stations had also affected the legitimacy of the minutes drawn up by the electoral committee on completion of the voting because they contained data on the exact number of persons having voted in the polling station in question and the election results had been determined on the basis of the minutes. Even though domestic legislation did not explicitly require the members of the out-of-country local electoral committees to sign additional electoral lists, the module additional electoral list approved by the President of the Republic pursuant to the Electoral Law provided for such signatures. The Constitutional Court therefore took the view that such signature was a legal condition for the validity of such official documents. At all events, the signature was one of the fundamental and obvious components of any official document. The lack of those signatures on the additional voter lists drawn up in the 23 polling stations thus deprived them of their official probative value in respect of the fact that the registered persons had actually cast their votes.

The Constitutional Court declared that the votes in question had been valid under domestic legislation but that they had been deducted from the election results owing to the irregularity of the voter lists and the voting minutes. It considered that the seats in the National Assembly had to be reallocated. For those reasons, and having taken into account the prior calculations submitted by the Central Electoral Commission, the Constitutional Court annulled the parliamentary seats of three deputies, including Mr Riza. It ordered the Central Electoral Commission to reapportion the seats in the National Assembly by deducting from the election results the 18,358 votes cast in the 23 polling stations in question.

By decision of 19 February 2010, pursuant to the judgment of the Constitutional Court, the Central Electoral Commission declared three other candidates elected. Consequently to that redistribution of seats, the DPS was the only party to have lost a parliamentary seat and the GERB party, which had won the general elections, obtained an additional seat.

On 4 March 2010 the DPS and three of its deputies in the National Assembly in turn lodged the appeal provided for in section 112 of the Electoral Law and contested the lawfulness of the election of the three deputies which the Central Electoral Commission had declared elected by decision of 19 February 2010. Mr Riza lodged the same appeal in his own name.

On 31 March and 27 April 2010 the Constitutional Court declared the two appeals inadmissible on the grounds that the dispute in issue had already been the subject of proceedings before it, leading to its judgment of 16 February 2010.

The 41st National Assembly constituted following the general elections of 5 July 2009 sat until 15 March 2013, when it was dissolved by Presidential Decree.

The elections to the 42nd National Assembly were held on 12 May 2013. At those elections the DPS obtained 400,460 votes, that is to say 11.31% of the validly cast votes. It obtained 51,784 votes in Turkish territory. It sent 36 deputies to the National Assembly, where it was the third biggest parliamentary group. Mr Riza was elected deputy of the 8th multiple-member constituency, where he headed his party’s list.

The lawfulness of those general elections, particularly as regards the polling stations opened in Turkish territory, was disputed before the Constitutional Court by a group of 48 deputies from the GERB party. The deputies requested the annulment of the elections in the 86 polling stations operating in Turkey owing to several alleged irregularities in the voting procedures: they submitted that the polling stations had been set up on the basis of forged prior declarations of intention to vote; they had opened despite their electoral committees lacking the minimum number of members; unidentified persons had canvassed the areas inhabited by Bulgarian citizens in Turkey, had obtained Bulgarian identity papers from various electors and had returned them to their owners the day before the elections telling them that they had voted; several voters had not shown any valid Bulgarian identity papers; the number of persons voting in some of the polling stations had exceeded, which was unrealistic in view of the time required to complete the formalities linked to the voting procedure; there had been several cases of double voting; the lists of electors registered on election day had not been properly drawn up and had not been signed by the chair and the other members of the electoral committee. The request referred explicitly to the reasoning of the judgment delivered by the Constitutional Court on 16 February 2010.

By judgment of 28 November 2013 the Constitutional Court dismissed the appeal lodged by the 48 GERB deputies. It considered and rejected, on the basis of the evidence gathered, all the allegations of breaches of electoral legislation advanced by the appellants. It noted, inter alia, that the relevant members of all the electoral committees set up in Turkish territory had signed at the bottom of the lists of voters added on election day, which gave those documents the probative value of official documents.

During the 42nd legislature the DPS took part in a coalition government which resigned in July 2014. Following those events the 42nd National Assembly was dissolved on 6 August 2014 by Presidential Decree.

The elections to the 43rd National Assembly were held on 5 October 2014. The DPS obtained 487,134 votes, that is to say 14.84% of all valid votes cast, and sent 38 deputies to Parliament. No admissible appeal was lodged before the Constitutional Court against those election results. The DPS is currently the third biggest political party in the country and the second biggest opposition party.

Mr Riza was elected as deputy in the 8th constituency, where he headed the DPS list.


Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr Ibrahim Jahjaga, is a Serbian national who was born in 1946. He is of Albanian ethnic origin and lives in Kosovo. The applicant is represented before the Court by Mr I. Olujić, a lawyer practising in Belgrade.

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

In 1990 A.A., formally registered as resident in Kosovo, had two foreign-currency accounts with the Kosovo branch of Jugobanka AD.

Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the Serbian Parliament enacted specific legislation providing that foreign-currency deposits held in those banks, including the bank at issue, would be added to the public debt. The legislature went on to set the time-frame (2016) and the amounts, including interest, to be paid back to the banks’ former clients. The legislation also explicitly provided that any foreign currency-related judicial proceedings were to be discontinued.

As of 2002, A.A. appears to have had 34,067.07 euros (EUR) in one account and EUR 40,857.37 in another.

On 2 April 2004 the Serbian Government adopted a decree stating that anyone with foreign-currency savings in the Kosovo branch of Jugobanka AD would have the same rights as other savers, provided that they could prove that they had been resident in Serbia on 4 July 2002 and were Serbian taxpayers.

On 26 August 2004, A.A. formally authorised the applicant, by way of a court-certified document, to “take over all the rights concerning the foreign currency savings (withdrawal of money, its transfer and all other rights concerning the savings)”.

As a resident of Kosovo, the applicant is currently not a Serbian taxpayer. As of 2004, however, both A.A. and the applicant had Serbian citizenship. They would appear not to have renounced it thereafter.