case_id,case_text,rational
001-140004,"5. On 28 June 2005 the applicant association lodged an application with the Bucharest District Court, seeking to be granted legal personality and to be registered as an association in the Register of Associations and Foundations kept by that court.
According to its Articles, the founders of the applicant association were the other nine applicants. The Board of the association had five members, while Ms Neagu was designated as the President of the Association.
In support of its application, the applicant association appended a document issued by the Ministry of Justice confirming that the name chosen for the association was available, as well as a copy of its Memorandum (act constitutiv) and Articles (statut), which, in their relevant parts, read:
“The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer, supervise and/or enact justice.
The objectives of the association are:
- to support and promote the relationship between its members and those authorised by law to protect their rights and interests;
- to monitor the activity of the Romanian justice system with the aim of reporting to the relevant authorities any injustice, irregularities or illegalities committed by Romanian judges;
- to present in the media any cases of manifest unfairness or bias in the application of the law, in so far as the public has the right to be aware of any negative aspects of the activities of the Romanian justice system;
- to support its members in their undertakings before any international court;
- to organise any form of protest (marches, public gatherings, picketing), with prior authorisation from the authorities and in accordance with the law;
- to signal the gravity and the public danger represented by an non-impartial or an incompetent judicial system;
- to create a database of all cases involving its members that are pending before the authorities;
- to cooperate with the legislative bodies by providing them with ideas, projects, proposals, etc. with the aim of improving the functioning of the Romanian judicial system.”
6. On 30 November 2005 the court rejected the application, holding that the goal of the applicant association was in breach of Article 40 § 2 of the Romanian Constitution, which states that “an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional”. The court noted as follows:
“In its Articles, the applicant [association] starts from the premise that a group of individuals who consider themselves victims of judges – as a result of having had their own cases brought before the judicial authorities – want to form an association which would promote their interests, notably by using any legal means for publicising any alleged injustice, irregularity or illegality, and also by lawfully protesting against all of these aspects.
Such a premise, also implicit in the name of the association, is profoundly unconstitutional in that a group of individuals is stating proprio motu that a judgment can be unfair or irregular or an expression of illegality. All these aspects encourage non-compliance with courts’ judgments and represent a form of attack on one of the State’s powers, namely the judiciary.(...)
The infringement is prescribed by law ... in so far as the association is not constitutional because of its aims.
The measure aims to protect public order and the rights of others. (...)
The measure is necessary in so far as the image of the justice system is currently a matter of national interest, and any attack on the courts is therefore an issue of particular gravity which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice, in the light of the fact that none of its members has the authority to note (calitatea sǎ constate) any “injustice, irregularity or illegality committed by the judges” because it is only the State authorities appointed to make inquiries in that regard which have jurisdiction to pronounce a conclusion on such matters.”
The court did not consider it necessary to give the applicant association the opportunity to remedy the impugned irregularity by modifying its Articles, as prescribed by Article 9 of Government Ordinance no. 26/2000, in so far as it considered that any modification of the aims of the applicant association rendering it constitutional would alter the very essence of the association.
7. The applicant association appealed against the judgment before the Bucharest County Court. It stressed that, according to its Articles, all the association’s activities had to be conducted in compliance with the law and its aim could therefore not be regarded as unconstitutional.
8. On 16 February 2006 the Bucharest County Court dismissed the appeal, upholding the reasoning given by the first-instance court. The court referred also to the provisions in the applicant association’s Articles, according to which the Board of the association was competent to accept or reject a membership request on the basis of its own assessment of whether or not the aspiring member was a victim of a breach of his or her rights in a trial before a judge. Such competence was unlawful in so far as the Board thus exercised a form of discretion in assessing whether there were breaches of rights, legitimate interests and/or law by the judges. In claiming to have such competence, the Board was attempting to usurp the domestic and international institutions empowered to make such assessments, which was unconstitutional, illegitimate and unlawful.
Furthermore, the court held that the Articles did not comply with legal requirements concerning the disposal of the association’s assets in the event of its dissolution. The Articles prescribed that “in event of dissolution, the disposal of the assets would be decided by the General Meeting, in compliance with the provisions of Article 60”, while the law, namely article 6 § 3 g) of the Ordinance “required that the procedure should be set down in the Articles itself”.
","[13, 15, 16, 17, 18, 19, 21, 22]"
001-140021,"3. The first applicant was born in 1966 and lives in Istanbul. The second applicant is a joint-stock company incorporated in Turkey in 1991 and dissolved in 2001 (see below). The first applicant was appointed as Director General of Mesopotamia Publishing on 24 December 2001.
4. On 26 October 1997 Mesopotamia Publishing inaugurated a branch office in Şanlıurfa. On the same day, police officers from the Şanlıurfa Security Directorate conducted a search of that office, confiscating certain newspapers, magazines, books, cassettes and documents, which were allegedly illegal.
5. On 27 October 1997 the Deputy Governor of Şanlıurfa requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution.
6. On 30 October 1997 the public prosecutor instituted proceedings against Mr Murat Gökdağ, the manager of the Şanlıurfa branch office, and Ms Nuray Şen, the then Director General of Mesopotamia Publishing. They were accused of storing banned books at the branch office.
7. On 6 June 2000 the Şanlıurfa Magistrate’s Court held that the criminal proceedings should be discontinued since the prosecution was time-barred under Article 102 of the Criminal Code.
8. On 13, 14, 20, 25, 27 and 28 December 1997, the Diyarbakır office of Mesopotamia Publishing was searched by police officers. Various books and publications, including a calendar published by Mesopotamia Publishing, were confiscated.
9. On 14 January 1997 the Diyarbakır office was closed on the order of the Diyarbakır Governor.
10. On 10 February 1998 the Diyarbakır Governor requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution under the relevant provisions of the Commercial Code.
11. On an unspecified date criminal proceedings were instituted in the Istanbul State Security Court against members of Mesopotamia Publishing’s board of directors for publishing a calendar which was allegedly used to disseminate propaganda in favour of the illegal Kurdistan Workers’ Party (“the PKK”).
12. On 17 September 1999 the Istanbul State Security Court suspended the proceedings, pursuant to Law No. 4454 on the suspension of pending cases and penalties in media-related offences.
13. On 26 December 1997 the Izmir office of Mesopotamia Publishing was searched by police officers. Certain publications, which were allegedly illegal, and a satellite decoder were seized.
14. On 30 December 1997 the Izmir Governor asked the Ministry of Industry and Trade to institute dissolution proceedings against Mesopotamia Publishing, alleging that the company had been disseminating propaganda in favour of the PKK.
15. On an unspecified date, criminal proceedings were instituted in the Izmir Magistrate’s Court against Ms Hatice Çoban, the manager of the Izmir branch.
16. On 14 May 1998 the court acquitted Ms Çoban of the charges against her.
17. Following complaints lodged by the Şanlıurfa Governor and the Diyarbakır Governor respectively, on 24 February 1998 the Ministry of Industry and Trade (“the plaintiff”) instituted proceedings against Mesopotamia Publishing in the Istanbul Beyoğlu Commercial Court, with a view to its dissolution on account of its activities against public order. On 27 February 1998 the Istanbul Beyoğlu Commercial Court registered the case against Mesopotamia Publishing. It decided, inter alia, to notify the parties of the date of the hearing fixed for 3 April 1998, in accordance with Articles 509 and 510 of the Code of Civil Procedure, which provided a warning that if one of the parties failed to appear before it or to submit observations, the court would not be precluded from determining the merits of the case. It further decided to notify Mesopotamia Publishing of the plaintiff’s written submissions and evidence.
18. On 12 March 1998 the above documents were served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry. They were picked up by a certain Mr M.B., who signed the notification record as an authorised representative (şirket yetkilisi).
19. In the meantime, the plaintiff submitted a number of pieces of evidence to the case file in support of its claim, including official documents, such as incident and seizure reports relating to the abovementioned searches. They were admitted to the case file on 17 March 1998.
20. At a hearing on 3 April 1998 the court noted the absence of Mesopotamia Publishing, but observed that the notification had been duly served. The evidence provided by the plaintiff was read out. The court decided to compile further information and documents regarding the accusations against Mesopotamia Publishing from the Şanlıurfa, Izmir and Diyarbakır public prosecutors’ offices.
21. The court held regular hearings. At the hearing held on 28 July 1999 the court decided to stay the proceedings pending the outcome of the cases before the criminal courts.
22. On 19 October 2001 the court decided to dissolve Mesopotamia Publishing, pursuant to Article 274 § 2 of the Commercial Code. In its decision, it noted that, despite due notification, the company had failed to attend the hearings and had not submitted any observations. It took into account the incidents which had taken place at the Şanlıurfa and Diyarbakır branch offices, and held that the company was responsible for them. It considered that the activities of those branches had breached public order and that therefore the company had to be dissolved. A liquidator was assigned. The decision of the court was served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry.
23. On 28 March 2002 Mesopotamia Publishing appealed against the decision of the first-instance court. In its procedural grounds of appeal, it contended, inter alia, that the court had failed to duly notify it of the case because the notification had been served on a certain Mr M.B., who was not a member of the board of directors at that time. In addition, Mesopotamia Publishing argued that it had not been notified of the evidence admitted in the course of the proceedings. In its substantive grounds of appeal, it claimed that the court had decided on the basis of two incidents in connection with which the company had not been convicted.
24. At a hearing on 15 October 2002 the Court of Cassation, having heard the parties, decided to adjourn the deliberations.
25. On 17 October 2002 the Court of Cassation, having examined the case file, the parties’ submissions to it and the documents contained therein, dismissed Mesopotamia Publishing’s objections.
26. On 10 December 2002 Mesopotamia Publishing requested the Court of Cassation to rectify its judgment. It repeated its earlier submissions regarding what it described as “substantial grounds for appeal”.
27. On 24 January 2003 the Court of Cassation dismissed the abovementioned rectification request.
","[1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 19, 20, 21, 22]"
001-140754,"5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant was born in 1955 and lives in Mielec.
7. The applicant is married and has four children born in 1982, 1984, 1986 and 1994. Prior to his application for an early-retirement pension he had been unemployed with no right to unemployment benefit.
8. On 31 May 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension.
9. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1994) suffered from chronic asthma and that she was in need of her parent’s constant care.
10. On 31 July 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 870.83 Polish zlotys (PLN). The pension was granted with retroactive effect of 1 May 2001.
11. On an unknown date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
12. On 18 July 2002 the Rzeszów Social Security Board reopened the pension proceedings and, on 8 August 2002, the Board refused the applicant the right to early retirement and discontinued the payment of the pension with effect of 1 August 2002.
13. The applicant appealed against the decision divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.
14. On 24 October 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to early retirement pension with effect of 1 August 2002. The Regional Court found that the applicant could not bear the responsibility for the mistake made by the administrative authorities. It further held that the pension proceedings could not be reopened in this case because no new circumstances had arisen; the reopening decision was based on the same circumstances freshly assessed.
15. The Rzeszów Social Security Board appealed against the firstinstance judgment.
16. On 17 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the first-instance judgment and dismissed the applicant’s appeal against the Social Security Board’s decisions. It held, among other things, that the Social Security Board based its decisions on evidence which did not constitute basis for the original decision granting the applicant the early retirement pension, namely medical documentation concerning the applicant’s daughter.
17. On 22 June 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant’s lawyer.
18. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension.
19. The Government submitted that after the revocation of the applicant’s pension, he was employed between 6 and 8 August 2002, between 2 October and 31 December 2002, 19 January and 31 May 2003, 10 August and 10 October 2003, 3 November and 31 December 2003, 13 January and 6 November 2004, 30 July and 4 August 2005, 19 and 23 June 2006, 30 July and 8 December 2008. According to the Government’s submissions the applicant was receiving an unemployment benefit for one year between January 2005 and January 2006 and, subsequently for 3 months in 2009.
20. The Government further submitted that the applicant’s income represented some 12.11% of the average remuneration in Poland in 2002 27.99% in 2003, 29.09% in 2004, 21.91% in 2005, 18.88% in 2006, 30.25% in 2007, 33.02% in 2008, 15.09% in 2009 and 52.54% in 2010.
21. The applicant submitted a document issued by the Social Security Board on 17 August 2009 confirming that his early-retirement pension had been revoked with effect of 2 August 2002 and that after that date he had not received any payments from his retirement or disability insurance.
22. The applicant further submitted copies of the Social Security Board’s decisions according to which he was receiving monthly family benefit for his four children. The benefit amounted to PLN 135.96 in August 2001, PLN 469.02 in October 2001, PLN 409 in June 2002 and PLN 333.06 in October 2002. The applicant further produced a certificate issued by the Social Care Centre on 18 August 2008, according to which the applicant’s family was receiving a social care benefit between 1 May 2004 and 31 August 2007. After the latter date the social care centre did not pay the applicant any further benefits. The certificate did not specify the amount of benefit granted.
","[3, 5, 6, 9, 11]"
001-142196,"6. The applicants are religious communities and individuals. The applicant communities originally existed and operated lawfully in Hungary as Churches registered by the competent court in conformity with Act no. IV of 1990 (“the 1990 Church Act”).
7. In application no. 70945/11, Magyar Keresztény Mennonita Egyház (Hungarian Christian Mennonite Church) is a religious community active in Hungary since 1998. Mr J. Izsák-Bács is a Hungarian national who was born in 1959 and lives in Budapest. He is a minister of Magyar Keresztény Mennonita Egyház.
8. In application no. 23611/12, Evangéliumi Szolnoki Gyülekezet Egyház (Evangelical Szolnok Congregation Church) is a religious community active in Hungary since 1998. Mr P.J. Soós is a Hungarian national who was born in 1954 and lives in Budapest. He is a minister of Evangéliumi Szolnoki Gyülekezet Egyház.
This applicant community was involved in social activities outsourced by the municipality of Szolnok and had concluded an agreement with the State Treasury on the provision of services for homeless people. In 2011 the Treasury cancelled this agreement and granted the relevant subsidy only until 30 June 2011. As a consequence the applicant had to terminate the corresponding contract with the municipality, but was obliged to continue to perform its social services up to and including July 2011, thereby allegedly sustaining damage in the amount of 691,407 Hungarian forints.
9. In application no. 26998/12, Budapesti Autonóm Gyülekezet (Budapest Autonomous Congregation) is a religious community active in Hungary since 1998. Mr T. Görbicz is a Hungarian national who was born in 1963 and lives in Budapest. He is a minister of Budapesti Autonóm Gyülekezet.
10. In application no. 41150/12, Szim Salom Egyház (Sim Shalom Church) is a religious community active in Hungary since 2004. Mr G.G. Guba is a Hungarian national who was born in 1975 and lives in Budapest. He is a member of Szim Salom Egyház.
11. In application no. 41155/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház (Alliance of Hungarian Reformed Jewish Communities Church) is a religious community active in Hungary since 2007. Ms L.M. Bruck is a Hungarian national who was born in 1931 and lives in Budapest. She is a member of Magyar Reform Zsidó Hitközségek Szövetsége Egyház.
12. In application no. 41463/12, the European Union for Progressive Judaism is a religious association with its registered office in London. It acts as an umbrella organisation for progressive Jewish congregations in Europe. Szim Salom Egyház (see application no. 41150/12) and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (see application no. 41155/12) are among its members.
13. In application no. 54977/12, Magyarországi Evangéliumi Testvérközösség (Hungarian Evangelical Fellowship) is a religious community active in Hungary since 1981.
14. In application no. 56581/12, Magyarországi Biblia Szól Egyház (“The Bible Talks” Church of Hungary) is a religious community active in Hungary for over twenty years.
15. In application no. 41553/12, the applicants (ANKH Az Örök Élet Egyháza (ANKH Church of Eternal Life), Árpád Rendjének Jogalapja Tradícionális Egyház (Traditional Church of the Legal Basis of Árpád’s Order), Dharmaling Magyarország Buddhista Egyház (Dharmaling Hungary Buddhist Church), Fény Gyermekei Magyar Esszénus Egyház (“Children of Light” Hungarian Essene Church), Mantra Magyarországi Buddhista Egyháza (Mantra Buddhist Church of Hungary), Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház (Szangye Menlai Gedun, Community of Healing Buddha Church), Univerzum Egyháza (Church of the Universe), Usui Szellemi Iskola Közösség Egyház (Usui Spiritual School Community Church), Út és Erény Közössége Egyház (Community of Way and Virtue Church)) are religious communities active in Hungary since 1999, 2008, 2005, 2001, 2007, 1992, 1998, 2008 and 2007 respectively.
16. On 30 December 2011 Parliament enacted Act no. CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities (“the 2011 Church Act”). It entered into force on 1 January 2012 and was subsequently amended on several occasions, most recently on 1 August and 1 September 2013.
17. Apart from the recognised Churches listed in the Appendix to the 2011 Church Act (see paragraph 22 below), all other religious communities previously registered as Churches lost their status as Churches but could continue their activities as associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such.
18. In decision no. 6/2013 (III. 1.), the Constitutional Court found certain provisions of the 2011 Church Act to be unconstitutional and annulled them with retrospective effect.
Meanwhile, several applicants filed requests to have the minister responsible register them as Churches, but these applications were refused on the ground that – despite the decision of the Constitutional Court – the 2011 Church Act precluded the registrations requested.
19. After the Constitutional Court’s decision, several applicants applied to the National Taxation and Customs Agency seeking to be reissued with the number which is necessary in order to remain entitled to the 1% of income tax which taxpayers may donate to Churches. The National Taxation and Customs Agency suspended the procedure and invited the applicants to initiate a recognition procedure before Parliament. In the applicants’ submission, this demonstrated further disregard for the Constitutional Court’s decision.
20. Several applicants regained their status as Churches pursuant to the Constitutional Court’s decision.
","[0, 3, 4, 12, 13, 14, 15, 16]"
001-144107,"5. The applicant was born in 1974 and lives in Lugoj.
6. A private exporting company (“company E”) had concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company (Stația CFR Marfă Lugoj) and another private company (company M). The contract provided that company E could use an industrial railway track for the five wagons put at its disposal by the National Railway Company in order to perform all the necessary operations, including customs inspections, for exporting its merchandise abroad.
7. On 20 September 2002, at about 9.30 a.m., S.V. went to Lugoj Railway Station with all the documents relating to the transportation of company E’s merchandise, in order to have the station’s stamp applied to them. When all the documents had been stamped, the manager of company E, together with S.V., went to the Lugoj Customs Office to ask for a customs inspector to carry out an inspection of the wagons and apply the required seals. The applicant was designated to carry out the customs inspection.
8. At about 1 p.m. the applicant went with the manager of company E and S.V. to Lugoj Railway Station. They firstly went to the station’s cash desk, where the manager of company E paid the taxes relating to the transportation of the merchandise and asked to have the consignment note (CIM) stamped. According to the statements of the manager of company E, S.V., and the applicant, an employee of the National Railway Company, M.M., went with them in order to show them where the wagons were.
9. At 1.19 p.m., while he was on top of a wagon trying to apply the customs seals, the applicant was electrocuted. As a result of the accident, the applicant needed 138 days of medical care. He suffered burns to 70% of his body.
10. In most of the official documents regarding the accident, such as the report of the investigation commission of 16 October 2002, the decisions of the courts and the prosecutors, and a medical report drafted on 16 February 2004, it was stated that the applicant’s life was at risk. For almost two months he was in a deep coma in a hospital in Hungary. Because of the severe burns he had serious breathing difficulties and had to undergo multiple skin grafts.
11. Following a decision by the National Pension Authority on 28 May 2004, the applicant was classed as permanently disabled.
12. Two police officers attended at the scene of the accident and drafted a preliminary on-the spot report on the same day.
13. A special commission composed of experts from the Timișoara Labour Inspectorate, the Timișoara Regional Customs Department (Direcția Regională Interjudețeană Timișoara) and the Timișoara Subsidiary of the National Railway Company was set up to investigate the accident. The commission started its investigation on 24 September 2002, four days after the accident.
14. According to the report drafted by the commission, which was completed on 16 October 2002, the accident had occurred because of the improper organisation of the procedure for inspecting the merchandise. It stated that there were several concurrent causes which had led to the applicant’s accident.
15. The report stated that the receipt of the wagons by company E from the National Railway Company had not been effected in accordance with the framework agreement signed on 24 June 2002 by the Lugoj Railway Station and company M, or with the document entitled “Declarație” signed by company M, company E and the National Railway Company. According to a final decision of 25 January 2006, delivered in criminal proceedings, this last document was signed after the accident occurred, but the manager of the National Railway Company back-dated it (see paragraph 36 below).
16. The report also stated that health and safety regulations had not been observed and the applicant’s employer had not ensured that he was properly trained for performing his duties on the railway tracks.
17. The report concluded that the following were responsible for the accident: (i) the manager of company E because he had not organised the customs inspection and had not complied with the above-mentioned agreement; (ii) the applicant because he had not complied with the rules for carrying out the inspection; (iii) the applicant’s superior for not training him on the applicable safety regulations, and (iv) company E, also for not training its employees properly.
18. The Timișoara Regional Customs Department raised certain objections in respect of the report. It insisted that the report mention that the applicant had gone up onto the wagon only after M.M., an employee of the National Railway Company, had assured him that there was no danger of an accident (a reference to the statements of S.V. and the manager of company E, who had been present when the accident occurred).
19. It also pointed out that the applicant had undergone training on 3 June 2002.
20. Finally, it contended that an analysis of the documents and the statements of the witnesses present at the incident showed that the accident had occurred because the National Railway Company had not observed Order no. 26 of 11 January 2000, which set out the health and safety regulations for the rail transport industry.
21. At the end of the investigation the special commission imposed administrative fines on company E and its manager for nonobservance of the applicable health and safety regulations.
22. Company E lodged a complaint seeking to have the fine cancelled, arguing that it had been under no legal obligation to train the applicant because he was not employed by them.
23. By a judgment of 16 September 2003 the Lugoj District Court allowed the complaint and held that the National Railway Company should be held liable for the accident. Its reasoning was as follows: “Demonstrating gross negligence, the representatives of the National Railway Company did not order the removal of the five freight wagons to the industrial track”. The industrial track was not electrified. The court continued its reasoning by stating that since the National Railway Company had agreed to transport the merchandise by presenting the necessary documents to the customs authority, it had become responsible for the operation. In accordance with decision T1 concerning the application to Romanian territory of the common transit system for rail freight transport, the National Railway Company was required, among other obligations, to ensure appropriate conditions for a safe customs inspection. The court concluded that by leaving the five freight wagons on high voltage railway tracks without informing all the persons involved in the customs inspection, the National Railway Company had failed to fulfil that obligation.
24. The special commission also imposed a fine on the manager of company E on the ground that he had not taken the necessary steps to ensure the safety of the customs inspection, and that although he had accompanied the applicant to the railway station he had not made a written request for the removal of the freight wagons from the electrified railway track.
25. The manager lodged a complaint against the fine and, by a final judgment rendered on 29 September 2003, the Lugoj District Court allowed the complaint, holding that the manager had not been obliged to request the removal of the wagons from the electrified railway tracks. It also held that he could not have known that the tracks were electrified. Further, it stated that according to the framework agreement signed on 24 June 2002, the wagons should have been at track no. 20, which was located outside the railway station, and that employees of the National Railway Company should have moved the wagons from the railway station to track no. 20. It concluded that the employee of the National Railway Company who had also been present at the customs inspection, M.M., had assured the applicant that he could perform his inspection even though the wagons were on an electrified track.
26. On 8 January 2003 the Timiș Labour Inspectorate asked the prosecutor’s office to start a criminal investigation into whether the manager of company E could be held responsible for the accident. Accordingly, the prosecutor’s office attached to the Lugoj District Court opened a preliminary investigation.
27. The applicant gave a statement before the prosecutor on 26 February 2003. He informed that he intended to claim compensation from the persons found responsible for the accident.
28. By a decision of 24 April 2003, the prosecutor decided not to initiate a criminal investigation on the ground that the accident had been caused through the applicant’s own fault. That decision was upheld by the chief prosecutor on 31 July 2003.
29. The applicant lodged a complaint against that decision with the prosecutor’s office attached to the Timiș County Court. He contended that the investigation body had not managed to clarify the circumstances under which the accident had occurred and therefore it was necessary to hold a confrontation between all the witnesses who had given contradictory statements, and that a reconstruction of the accident scene would be useful. As to the presence of M.M., the employee of the National Railway Company, at the scene of the accident, even the statements of her own colleagues were contradictory. The applicant further maintained that without M.M., who had accompanied them to track no. 7, he and the manager of company E would not have been able to find the wagons to be inspected. The applicant also claimed that the warning sign on the wagons to be inspected had not been there at the time of the accident but had been placed there after the accident. In this connection, he pointed out that such a sign could not be seen in the photographs taken by the police officers who had examined the scene immediately after the accident. The sign appeared only in the photographs taken by the Timiș Labour Inspectorate four days after the accident.
30. On 30 October 2003 the chief prosecutor dismissed the applicant’s complaint as unfounded. He held that the applicant alone was responsible for the accident because he had mounted the wagon while it was connected to live electricity without paying heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and the beneficiary (company E). He dismissed the applicant’s allegation that the warning sign had not been attached to the wagon on the day of the accident, stating that the sign could not be seen from the angle at which the photographs had been taken on that day. He also dismissed the applicant’s request to have the witnesses reheard on the ground that their statements were not relevant in so far as they could not make any difference to the final conclusion.
31. On 14 April 2004 the applicant lodged a complaint against that decision with the Lugoj District Court, alleging that the staff of the National Railway Company were responsible for the accident. By a judgment of 18 June 2004 the court allowed the complaint and sent the file back to the prosecutor’s office for an expert report to be drafted and for it to be determined whether M.M., the employee of the National Railway Company who the applicant claimed had accompanied him to the freight train, bore any responsibility. The experts were to establish whether the railway tracks had been electrified when the applicant climbed onto the freight train on the day of accident.
32. On 27 September 2004 the Timiș County Court allowed an appeal on points of law lodged by the prosecutor’s office and quashed the judgment of 18 June 2004 on the ground that on the basis of Article 278 (1) of the Code of Criminal Procedure, the first-instance court could not remit the case to the prosecutor’s office for further investigation. Consequently, the file was sent back to the District Court for fresh examination.
33. On 21 January 2005 the Lugoj District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision not to initiate a criminal investigation. It held that none of the National Railway Company’s employees had been responsible for the applicant’s accident. In this connection, it found that according to the statements given by M.M.’s colleagues, she had not accompanied the applicant, S.V. and the manager of company E to the freight train. It also stated, however, that the customs inspection should have been carried out at track no. 20 and not at track no. 7. It concluded that the applicant alone was responsible for the accident because he had not paid heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and company E.
34. The applicant lodged a criminal complaint against the manager of the National Railway Company for forgery of a document called “Declarație”, submitted to the special commission while it was carrying out its investigation into the accident. The document was in fact an agreement signed by the National Railway Company, company E and company M stipulating that customs inspections of merchandise should be carried out only at track no. 20 (which was not electrified). The applicant stated that the manager had drafted it and asked the managers of the two other companies to sign it immediately after the applicant’s accident (on 21 September 2002), but had given 16 September 2002 as the date of signing.
35. After repeated decisions not to initiate criminal proceedings delivered on 28 September, 27 October and 17 December 2004, on 7 June 2005 the prosecutor’s office attached to the Lugoj District Court indicted the manager of the National Railway Company for abuse of office, forgery and the use of forged documents, and sent his file to the Lugoj District Court.
36. By a judgment of 25 January 2006, the Lugoj District Court found the manager guilty as charged. It held that he had drafted the agreement in order to protect his company from liability for the applicant’s accident. The subsequent appeal and appeal on points of law were dismissed as unfounded by the Timiș County Court and the Timișoara Court of Appeal on 17 April and 6 September 2006 respectively.
37. On 8 May 2006 the applicant lodged an application for judicial review of the criminal judgment rendered on 21 January 2005 by the Lugoj District Court. He claimed that there were new elements which could prove the guilt of the National Railway Company in respect of the events which had led to his accident. In this connection he relied on the final decision of the Lugoj District Court of 25 January 2006, by which the manager of the National Railway Company had been found guilty of the forgery of the document entitled “Declarație” which had been used as evidence in the criminal proceedings relating to the applicant’s accident. He also applied for three new witnesses to be heard on the question of whether M.M. had been present when the accident occurred.
38. The applicant argued that that document had played a decisive role in the conclusions of the investigation commission, as well as in the decisions of the prosecutors and judges, as to liability for the accident.
39. The Lugoj District Court dismissed the application as inadmissible as it concerned a decision in which the court had not examined the merits of the case, and as unfounded because the new evidence referred to by the applicant did not de facto affect the facts established in the decision.
40. On 18 October 2005 the applicant brought a civil action before the Lugoj District Court seeking compensation in respect of pecuniary and non-pecuniary damage. He claimed damages from the National Railway Company and M.M on account of their negligence in the organisation of the customs inspection. He stressed that because of the accident he had had to undergo expensive surgical interventions and had been classed as permanently disabled.
41. On 20 June 2006 the Lugoj District Court dismissed an objection of res judicata raised by the defendants. It held that the criminal decision of 21 January 2005 had not examined the civil liability of the defendants but only their criminal liability. The court noted that although the evidence concerning M.M.’s presence at the scene of the accident was not conclusive, the National Railway Company’s employee should nevertheless be held liable because she had not fulfilled her professional duties. The court further noted that, according to one of M.M.’s colleagues who had occupied the same position as M.M., and to her job description (“Fișa Postului”), it had been M.M.’s duty to handle the customs documentation for the customs agent and also to supervise the shunting of the relevant wagons in the railway station. The court also found that under the applicable law on the application of the common transit system in Romania, the National Railway Company had been obliged to be actively involved in the customs inspection of the wagons. However, the company had observed its obligations superficially through its employees. Thus, by applying the stamp to the CIM, the company employee had convinced the applicant and the manager of company E that everything was ready for inspection.
The court partly allowed the applicant’s action, held that both the applicant, the National Railway Company and M.M. were equally responsible for the accident, and ordered the defendant company and M.M. to pay half the damages claimed.
42. The defendant company appealed and the appeal was allowed by the Timiș County Court on 19 February 2008. It quashed the judgment of the first-instance court, holding that the de facto situation had already been established by a final decision of a criminal court, and had thus acquired the authority of res judicata before the civil courts.
43. On 26 January 2009 the Timișoara Court of Appeal dismissed an appeal on points of law lodged by the applicant.
44. Order no. 26 of 11 January 2000 sets out the health and safety regulations for the rail transport industry. Article 3 provides that the regulations are compulsory and that they must be communicated to the interested persons by local labour inspectorates. They are not published in the Official Gazette.
45. Article 66 of the Order prohibits the inspection, application of seals or carrying out of any work on the upper parts of a wagon while the train is on electrified tracks.
46. Article 79 of the Order provides that all specified preventive steps must be taken when operations presenting a danger of electrocution are performed.
47. The CIM is a standardised document for the cross-border transport of cargo by rail, based on UN recommendations for uniform international rules and in use in the European Union (EU). CIM stands for Convention Internationale concernant le transport des Marchandises par chemin de fer, the French name for the Convention that governs its definitions and application.
48. The T1 procedure concerns the movement of non-EU goods when customs duties or other import taxes are involved.
49. According to Article 70 of the above-mentioned Convention, which sets out a common transit procedure, a railway company which accepts goods for carriage under cover of a CIM consignment note serving as a common transit declaration shall be the principal for that operation.
50. Criminal proceedings in Romania are regulated by the Code of Criminal Procedure and based on the principles of legality and officialness. Prosecution is mandatory when reasonable suspicion exists that a criminal offence subject to mandatory prosecution has been committed.
","[4, 5, 6, 8, 9, 10, 11, 16, 18, 19, 21, 23, 25, 26, 27, 28, 29, 30, 31, 32, 35, 37]"
001-145014,"5. Both applicants were born in 1938 and live in the city of Lugansk and in the town of Zhovti Vody, Ukraine, respectively.
6. Both applicants have the special status of “a child of war” (see paragraph 17 below). From 1 January 2006 they were entitled to a special supplement to their pensions in the amount of 30% of the minimum pension in accordance with section 6 of the Children of War Social Protection Act (Закон України “Про соціальний захист дітей війни”).
7. In May 2008 the first applicant instituted court proceedings against the Artemovskyy District Department of the Pension Fund of Ukraine and the Lugansk Regional Main Department of the State Treasury of Ukraine, asking them to recalculate his pension for 2006-08, to determine the amount of and to pay him the outstanding indexed debt, and to pay his pension in the recalculated amount in the future. The first applicant also claimed compensation for pecuniary and non-pecuniary damage, and legal expenses.
8. On 22 July 2008 the Lugansk Regional Administrative Court held that in 2006 section 6 of the Children of War Social Protection Act had been suspended by the State Budget Act 2006. In return the State Budget Act had empowered the Cabinet of Ministers to set up a mechanism for a pension increase. However, because in 2006 no such mechanism had been set up, the first applicant’s claims relating to 2006 had to be rejected.
9. The court further found that in 2007 section 6 had again been suspended, and in 2008 it had been modified by the State Budget Acts for the relevant years. However, this modification was found to be unconstitutional by the Constitutional Court on 9 July 2007 and 22 May 2008. The court consequently held that the State Pension Fund should recalculate the first applicant’s pension for the periods between 9 July and 31 December 2007 and as of 22 May 2008.
10. On 19 December 2008 the Donetsk Administrative Court of Appeal upheld that decision.
11. On 28 July 2010 the Higher Administrative Court dismissed the applicant’s appeal on points of law.
12. In December 2009 the second applicant instituted proceedings in the Zhovtovodsky Town Court against the Pension Fund, asking for recalculation of his pension from January 2006.
13. On 2 March 2010 the court found in part for the second applicant. It held that the second applicant was entitled to the supplement from the date of the decision of the Constitutional Court (9 July 2007) and not from 1 January 2006. The court further held that the Pension Fund should recalculate the second applicant’s pension for the periods between 9 July and 31 December 2007 and between 22 May 2008 and 2 March 2010.
14. On 10 August 2010 the Dnipropetrovsk Regional Court of Appeal upheld this decision. The decision of the Court of Appeal was final.
15. On 14 February 2011 the second applicant instituted a second set of proceedings in the Zhovtovodsky Town Court claiming payment of the above-mentioned supplement to his pension starting from 3 March 2010.
16. On 17 May 2011 the court found for the second applicant and held that the Pension Fund should recalculate the applicant’s pension from 3 March 2010. On 14 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld this decision.
","[1, 2, 3, 7, 8]"
001-154400,"5. With the exception of the first applicant, a legal entity registered under Georgian law on 8 November 2010, the remaining fourteen applicants live in Tbilisi. Their dates of birth are indicated in the attached annex.
6. The first applicant, a Georgian non-governmental organisation set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia, planned to organise a peaceful march on 17 May 2012 in the centre of the capital city to mark the International Day Against Homophobia.
7. In advance of the march, on 8 May 2012 the first applicant gave the Tbilisi City Hall and the Ministry of the Interior prior notice of its intention to hold a peaceful demonstration on the above-mentioned date. It informed the authorities of the planned route of the march, which would start from the grounds of the Tbilisi Concert Hall and proceed to Orbeliani Square, and the approximate number of participants. In addition, in the light of a foreseeable protest from those opposed to the LGBT community in Georgia, given the general background of hostility towards the sexual minorities, the applicant organisation specifically requested that the authorities provide sufficient protection from possible violence.
8. On 14 May 2012 the Tbilisi City Hall acknowledged receipt of the first applicant’s request and explained, in reply, the rights and responsibilities of demonstrators, as provided for by the relevant law.
9. On 15 May 2012 the applicant organisation was contacted by a senior officer of the Ministry of the Interior, who clarified the details of the planned march and confirmed to the organiser that police forces would be deployed to ensure that the procession took place peacefully.
10. The second to fourteenth applicants submitted written statements describing the exact circumstances surrounding the incident. At around 1 p.m. on 17 May 2012, members of the LGBT community, staff members of Identoba and other LGBT activists, including the thirteen abovementioned applicants – approximately thirty people in total (“the LGBT marchers”) – gathered in the grounds adjacent to the Tbilisi Concert Hall. They were holding banners with slogans such as “I am gay”, “I love my gay friend”, “Love is love” and “Get colourful”, as well as rainbow flags and umbrellas. A police patrol was present, as agreed, near the Tbilisi Concert Hall.
11. Shortly before the beginning of the demonstration, members of two religious groups, the Orthodox Parents’ Union and the Saint King Vakhtang Gorgasali’s Brotherhood, arrived in the Tbilisi Concert Hall area. Journalists were also present, recording interviews with the LGBT marchers.
12. Approximately 200 metres from the starting point of the march, members of the two above-mentioned religious groups (“the counterdemonstrators”) stopped some of the LGBT marchers and started arguing with them. The counter-demonstrators claimed that nobody was entitled to hold a Gay Pride Parade or to promote “perversion”, as it was against moral values and Georgian traditions. In reply, the marchers tried calmly to explain that it was not a Gay Pride Parade but a public event dedicated to supporting the fight against homophobia, and continued to walk.
13. When the LGBT marchers reached Rustaveli Avenue, they were met there by a hundred or more counter-demonstrators, who were particularly aggressive and verbally offensive. The counter-demonstrators blocked the marchers’ way, made a human chain and encircled the marchers in such a way as to make it impossible for them to pass. The marchers were subjected to threats of physical assault and to insults, accused of being “sick” and “immoral” people and “perverts”. Further pejorative name-calling such as “fagots” and “sinners” was also repeated. At that moment, the police patrol cars which had been escorting the marchers from the Tbilisi City Hall suddenly distanced themselves from the scene.
14. The LGBT marchers, feeling threatened, immediately telephoned the police, alerting them to the danger and requesting the immediate dispatch of additional forces. While waiting for the arrival of the requested police support, the marchers noticed a few police officers present at the scene. However, when they approached them and asked for help, the officers replied that they were not part of the police patrol and it was not their duty to intervene.
15. The aggression towards the LGBT marchers continued to escalate and after approximately twenty to thirty minutes, the counter-demonstrators grabbed the banners from the hands of several activists and tore them apart. The counter-demonstrators then resorted to physical attack by pushing and punching the marchers in the front row. As a result of that assault, the sixth applicant (Mr G. Demetrashvili), who was in the front line of the march, was knocked down, beaten and kicked. Shortly afterwards, several police patrol cars arrived at the scene. Some of the law-enforcement officers intervened by stopping the beating of the sixth applicant. The police officers then separated the opposing parties by standing between them. At that time, the aggressive and agitated counter-demonstrators were still making particularly vitriolic threats, including that the marchers “should be burnt to death” and “crushed”.
16. The third applicant (Mr L. Berianidze), who was standing on the pavement with other LGBT marchers, asked the police to take more active measures to protect the demonstration. The police responded by forcing him into a patrol car and driving him to the Old Tbilisi Police Department of the Ministry of the Interior, where he was detained for some twenty minutes. He was given no official explanation for his arrest at that time. However, as subsequently explained by the Government, the police had simply sought to distance him from the scene in order to protect him from the angry counter-demonstrators.
17. Three other employees of Identoba – the sixth, seventh and tenth applicants (Mr G. Demetrashvili, Ms G. Dzerkorashvili and Ms M Kalandadze) – were also arrested by the police when they moved from the pavement to the road. They were forced into police patrol cars and driven around the city for some twenty minutes before being returned to Rustaveli Avenue. As subsequently explained by the Government, the aim of the applicants’ short-term retention was twofold: to prevent them from committing an administrative offence – impeding road traffic – and to protect them from the counter-demonstrators’ assault.
18. Later on 17 May 2012, the third and sixth applicants (Mr L. Berianidze and Mr G. Demetrashvili) sought medical help for their injuries. The third applicant had a bruised left knee, grazes on his left palm and fingers, a haemorrhagic forearm and a haematoma on the right eyebrow. The sixth applicant had a closed head trauma, cerebral contusions, and bruises on the left side of his chest. Two days later, on 19 May 2012, the fourteenth applicant (Ms M. Tsutskiridze) also visited a doctor. She was diagnosed with a contusion of the left wrist.
19. The clashes between the marchers and counter-demonstrators were recorded by journalists present at the scene and broadcast in the evening of 17 May 2012 by a number of national television channels. The faces of the applicants who had been attacked and the assailing counter-demonstrators were clearly recognisable.
20. On 18 May 2012 members of the board of the applicant organisation filed several complaints with the Ministry of the Interior and the Chief Public Prosecutor’s Office concerning the violent acts committed during the march of 17 May 2012 by representatives of the two religious groups. The complaints were mostly based on the account of the circumstances as described in the thirteen individual applicants’ written statements (see paragraphs 10-19 above).
21. On 19 May 2012 a criminal investigation was launched into the infliction of light bodily harm on the fourteenth applicant (Ms M. Tsutskiridze) by unidentified persons. When questioned as a witness the same day, she stated that unidentified men had grabbed her poster and hit her with the handle of the poster. On 23 May 2012 the eighth applicant (Ms E. Glakhashvili) was also questioned about the fourteenth applicant’s injury to her hand. Subsequently, on 21 June 2012 a forensic medical examination was commissioned by the investigation, the results of which suggested that the bruising and excoriation the fourteenth applicant had sustained on her wrist represented light bodily injuries. The fourteenth applicant was not granted victim status within the framework of that criminal investigation at that time.
22. On 26 June 2012 the first applicant received a letter from the deputy director of the police patrol department of the Ministry of the Interior in response to the board members’ complaints of 18 May 2012. The response stated that, as there were no signs of illegality in the actions of the police during the demonstration, there was no need to launch an investigation against them for abuse of power. As to the counter-demonstrators’ actions, two of them had indeed been arrested for transgression under Article 166 of the Code of Administrative Offences – minor breach of public order – and fined 100 Georgian laris (some 45 euros (EUR)) each.
23. On 3 and 5 July 2012 the first applicant and thirteen individual applicants in the present case (from the second to the fourteenth) filed additional criminal complaints with the Chief Public Prosecutor and the Minister of the Interior. The applicants specifically requested that criminal investigations be launched on account of two factual situations: firstly, the verbal and physical attacks perpetrated against them by the counter-demonstrators with clear discriminatory intent; and, secondly, the acts and/or omissions of the police officers who had failed to protect them from the assaults. The applicants emphasised that criminal inquiries should be conducted with due regard to Article 53 of the Criminal Code, which provided that the existence of homophobic intent was an aggravating circumstance in the commission of a criminal offence.
24. The criminal complaints of the third, sixth, seventh and tenth applicants focussed on the attacks against them by the counterdemonstrators and the lack of police protection. Those applicants did not request an inquiry into the alleged restriction of their liberty by the police during the incident of 17 May 2012 (Article 147 of the Criminal Code, see paragraph 33 below).
25. By a letter of 17 July 2012, the Ministry of the Interior replied to the first applicant and the relevant thirteen individual applicants that during the incident of 17 May 2012 the police had called upon both the LGBT marchers and the counter-demonstrators to exercise their right to demonstrate in a peaceful manner. The Ministry’s letter then reiterated the information concerning the imposition of administrative sanctions on two of the counter-demonstrators (see paragraph 22 above).
26. On 24 October 2012 a criminal investigation was opened into the alleged beating of the sixth applicant (Mr G. Demetrashvili) by unidentified persons on 17 May 2012. On the same day that applicant was interviewed as a witness. He stated that he had been encircled and insulted by five or six counter-demonstrators. The attackers then started kicking and hitting him. The ill-treatment lasted for a few minutes, until a police officer finally intervened and removed him from the scene. On 6 November 2012 a forensic medical expert issued an opinion confirming that the sixth applicant had sustained a contusion and closed head trauma. He was not granted victim status at that time.
27. In September 2014 the two counter-demonstrators who had previously been fined for administrative misconduct were examined as witnesses in relation to the beating of the sixth applicant. The latter, questioned again in September 2014 about the incident of 17 May 2012, stated that he could no longer remember certain circumstances due to the significant lapse of time. Nevertheless, he confirmed that he would still be able to recognise the faces of those individuals who had assaulted him.
28. According to the latest information available in the case file, the two criminal investigations opened on 19 May and 24 October 2012 into the light bodily injuries sustained by the sixth and fourteenth applicants are still pending, and the two applicants have never been granted victim status.
","[2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]"
001-155374,"5. The applicant was born in 1947 and lives in Bratislava.
6. On 9 May 2007 the applicant lodged an action with the Bratislava V District Court (Okresný súd) seeking a ruling declaring that a meeting of flat owners in a block of flats held on 24 April 2007 was contrary to the law, and that the decisions adopted at that meeting were void.
The defendant of the action was an entity with legal personality referred to as a community of owners of residential and non-residential premises in the given building (“the defendant”). Such entities are officially registered with the local District Authority (obvodný úrad). The defendant was so registered with the District Authority in Bratislava.
7. On 2 January 2008 a submission was made to the District Court by a lawyer indicating that he was acting on behalf of the defendant and informing the court that on 14 December 2007 the defendant had ceased legally to exist. In that connection he submitted a letter from the District Authority which indicated that the defendant had been struck out of the relevant register on that date, the context being that the administration of the building was no longer the responsibility of the defendant and that that responsibility had been transferred to a specialised agency.
8. On 24 January 2008 the applicant requested that a hearing scheduled before the District Court for 28 January 2008 be postponed sine die. She submitted that she had just learned of the striking out of the defendant by consulting the relevant register, and that she would make a further submission once she had analysed the situation, for which she needed time. The hearing scheduled for 28 January 2008 was accordingly adjourned.
9. On 3 March 2008 the District Court discontinued the proceedings, on the grounds that the defendant had ceased to exist and had no legal successor. In particular, the District Court held that neither the individual owners of the flats in the building nor the newly contracted administration agency could be considered as having succeeded to the defendant’s position in the proceedings.
10. On 20 March 2008 the applicant appealed (odvolanie), raising two principal arguments.
First, she submitted that the administration agency was the successor to the original defendant, and that consequently the proceedings should have continued against it.
Second, even assuming that the first contention was not correct, the court should not have terminated the proceedings but should rather have stayed them pending the outcome of another set of proceedings before the same District Court, in which a decision was being contested which had been taken at another meeting of the flat owners on 11 September 2007, to the effect that the defendant should be wound up (zrušenie). If that other set of proceedings ended with a ruling declaring the winding up of the original defendant void, its striking out of the given register would lose basis and the proceedings could continue against that defendant. More details about those other proceedings are set out below (see paragraphs 18 et seq.).
11. On 30 May 2008 the Bratislava Regional Court (Krajský súd) upheld the first-instance decision, noting that the defendant had been struck out of the relevant register and had thereby lost capacity to be a party to the proceedings, in which situation there was no alternative to a discontinuance of the proceedings. The relevant legal provisions were referred to, but no reasons were offered for the latter conclusion.
12. On 7 July 2008 the applicant appealed on points of law (dovolanie), relying on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) (“the CCP”), under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them. In particular, she argued that the Regional Court had provided neither any factual nor legal grounds for its conclusion, as a result of which it was not amenable to review. In addition, she pursued and further developed the same line of argument as in her appeal.
13. On 7 May 2009 the Supreme Court (Najvyšší súd) declared the applicant’s appeal on points of law inadmissible, holding that the shortcomings alleged by the applicant did not fall within the purview of Article 237 (f) of the CCP. This applied specifically to the alleged deficiency in the Regional Court’s reasoning and the alleged errors of fact and law in the lower courts’ decisions.
In addition, in so far as the applicant had contested an error of procedure in that the courts had failed to stay the proceedings rather than to terminate them, the Supreme Court held that staying the proceedings was an option and not a duty of the court concerned, and that the fact that the present proceedings had not been stayed did not make out the admissibility ground cited by the applicant.
As the appeal was not admissible, the Supreme Court did not examine the merits of the case.
14. On 17 August 2009 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). She directed the complaint against all three levels of the ordinary courts and pursued and further developed in principle the arguments described above.
She considered that the discontinuance of the proceedings had been unlawful, submitted that it had been a mistake of the ordinary courts not to have examined the merits of her claim, and argued that this had amounted to a breach of her rights of access to court and to a fair hearing under Article 6 § 1 of the Convention.
15. On 16 December 2009 the Constitutional Court declared the complaint inadmissible. It considered it separately with reference to the individual levels of ordinary jurisdiction involved.
As regards the alleged shortcomings in the proceedings leading to the Regional Court’s decision of 30 May 2008, it held that the applicant had failed to submit her complaint within the statutory time-limit of two months.
As regards the Supreme Court, it observed that the central argument in the applicant’s appeal on points of law was the alleged error of law. In that regard, it went on to hold, inter alia, that:
“The Supreme Court ... rightfully emphasised ... that, as there were no grounds on which the applicant’s appeal on points of law would be admissible, it was not possible for it to review the merits of the Regional Court’s decision. The Supreme Court did not exclude in a binding manner that the decision of the Regional Court was the result of a wrongful legal assessment of the matter, nor did it exclude the possibility of there having been another error in the proceedings before it which had resulted in a wrongful decision on the merits.”
16. Nevertheless, the Constitutional Court found that, as regards the admissibility of the applicant’s appeal, the Supreme Court had given relevant reasons for its decision and that that decision was not arbitrary.
In particular, it also noted that, should the other set of proceedings end with a ruling declaring the winding up of the defendant void, this would create for the applicant the opportunity to seek reopening of the proceedings in her case. Future examination of that case on the merits thus could not be completely excluded. However, at the same time, the Constitutional Court noted that even if the winding up of the defendant were to be declared void, this would not automatically mean that the defendant would legally come into existence once more. The coming into being of a legal entity such as the defendant required incorporation, which in turn necessitated a decision of the District Authority, and could not result directly from a judicial decision.
17. The Constitutional Court’s decision was served on the applicant on 5 February 2010.
18. On 26 September 2007 an individual brought proceedings against the above-mentioned defendant as well as the above-mentioned newly appointed management agency, seeking a ruling declaring void a decision to wind up the defendant taken at a meeting of flat owners in the block held on 11 September 2007 (see paragraph 10 above).
19. After the first dismissal of the action was quashed following the claimant’s appeal, the action was again dismissed by the District Court on 4 April 2012 and, following the claimant’s appeal, by the Regional Court on 19 March 2014.
20. On 14 July 2014 the claimant challenged the judgments last mentioned by way of a complaint to the Constitutional Court.
The complaint appears to be still pending.
","[1, 3, 5, 6, 7, 9, 12, 13, 15, 21]"
001-158470,"6. The applicants were born in 1959, 1978 and 1958, respectively, and are currently in the Drin social care home (“Drin”).
7. On 23 November 2006, at the request of the Visoko Social Work Centre, the Visoko Municipal Court deprived the applicant of legal capacity. It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest.
8. On 26 December 2006 the Visoko Social Work Centre placed the applicant under the guardianship of her sister.
9. On 23 January 2007 the Visoko Social Work Centre placed the applicant in Drin in accordance with the social care legislation.
10. On 13 June 2011 the applicant lodged a constitutional appeal concerning the lawfulness of her detention.
11. On 25 April 2013 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as she had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Visoko Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. The relevant part of the decision reads:
“27. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11[...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...
28. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable of living on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus her initial deprivation of liberty was not in accordance with the Mental Health Act 2001... [T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention.
...
30. In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement...
...
32. There has been a violation of Article 5 § 1(e) of the Convention in the present case because the appellant was placed in the social care home under the Federal and Cantonal social care legislation, whereas the compulsory placement of mentally ill persons is regulated by the Mental Health Act 2001 which was not applied in this case. In view of that, her placement was not ‘lawful’. There has also been a violation of Article 5 § 4 of the Convention because the appellant’s placement and the prolongation of that placement was never examined by the competent court...”
12. On 3 June 2014 the Visoko Social Work Centre asked the Kiseljak Municipal Court to examine the necessity of the applicantʼs placement in Drin in accordance with the Mental Health Act 2001 and the Constitutional Courtʼs decision of 25 April 2013.
13. On 8 September 2014 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. That decision became final on 26 September 2014.
14. The applicant has not yet been released from Drin.
15. At the recommendation of the Psychiatric Clinic in Sarajevo where the applicant was treated for schizophrenia, on 15 September 2004 the Vareš Social Work Centre placed him in Drin in accordance with the social care legislation. It was established that his illness rendered him incapable of living on his own and that his family circumstances did not allow proper care at home.
16. On 25 March 2005 the Visoko Municipal Court deprived the applicant of his legal capacity.
17. On 21 April 2011 the applicant was placed under the guardianship of N.G., a director of the Vareš Social Work Centre.
18. On 2 September 2011 the applicant lodged a constitutional appeal concerning the lawfulness of his detention.
19. On 25 June 2013 the Constitutional Court held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Vareš Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention and awarded him 3,000 convertible marks (BAM). The relevant part of the decision reads:
“34. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11 [...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...
35. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately ... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus his initial deprivation of liberty had not been in accordance with the Mental Health Act 2001..[T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention.
36... In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement...
37. Turning to the present case, the Constitutional Court notes that the appellant was placed in the social care home at the recommendation of the Psychiatric Clinic in Sarajevo...It was established that he had been diagnosed with SCH, F23, a condition which requires constant supervision and regular therapy which he cannot have at home in view of his family’s circumstances (a mother was also deprived of her legal capacity due to mental illness, a father’s whereabouts are unknown, and his sister is placed under guardianship)...The court further notes that since 2004, when the appellant was placed in the social care home, the Social Work Centre revised his placement on three occasions, at the recommendation of the relevant Ministry and with the consent of his guardian Ms N.G. However, those revisions were focused on the financial aspect of the appellant’s placement without any consideration for his health condition and a potential release. The fact that the Social Work Centre was the only domestic body which ever examined the appellant’s placement...raises issues under Article 5 §§ 1(e) and 4 of the Convention.
38. Furthemore, although under the Mental Health Act 2001 a decision about compulsory admission of mentally ill persons must be made by a court, the appellant’s case has never been examined by the competent court...
39. Accordingly, as regards “deprivation of liberty”, the placement in the social care home and the review of the lawfulness of such placement, the court concludes, in view of the facts of the case and the reasons set out in the decision no. AP 2472/11 of 31 January 2013, that there had been a violation of Article 5 §§ 1(e) and 4 of the Convention in the present case.”
20. On 25 September 2013 the applicant received BAM 3,000 awarded to him by the Constitutional Court.
21. On 29 November 2013 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin.
22. On 18 March 2014 the Novi Travnik Cantonal Court upheld the decision of 29 November 2013 and it thus became final.
23. On 6 May 2014 the Vareš Social Work Centre informed the Visoko Municipal Court that it considered that the applicant’s continued placement in Drin was in his best interest for reasons of social protection.
24. The applicant had not yet been released from Drin.
25. In different intervals in 1997, 1998 and 1999 the applicant was treated for schizophrenia at the Psychiatric Clinic in Tuzla.
26. On 8 October 1999 the Tuzla Municipal Court deprived the applicant of his legal capacity.
27. On 8 December 1999 the Tuzla Social Work Centre placed him in Drin.
28. On 2 March 2000 the applicant was placed under the guardianship of A.B., his cousin. On 10 June 2010 he was placed under the guardianship of S.P., his sister.
","[1, 3, 5, 7, 9, 13, 14, 15, 16, 18, 23, 24, 25, 26, 27, 30]"
001-158484,"5. The applicant was born in 1969 and lives in Morozovsk in the Rostov Region.
6. On 7 July 2004 the applicant was arrested and placed in a temporary detention centre at the Morozovsk police station («Изолятор временного содержания», «ИВС», “IVS”) on suspicion of murder.
7. The applicant was detained in the IVS on four separate occasions: between 7 and 24 July 2004; 17 August and 8 October 2004; 24 October and 16 November 2004; and 4 and 16 December 2004.
8. In the applicant’s submission, the conditions of his detention in the IVS during those four periods were essentially identical and as described below.
9. The IVS was situated in the basement of the police station. The applicant was placed in a cell measuring approximately 12.5 square metres, which housed six to seven people. The walls, floor and ceiling were all covered with cement. There was no ventilation in the cell and consequently it was stuffy. The windows were covered with exterior and interior metal plates with minuscule openings, which gave practically no access to natural light. The cell was lit by a lamp set high up in an alcove in the wall, so there was insufficient light for reading or writing.
10. In summer, temperatures inside exceeded 40˚C and the cell had a high level of humidity. There was no glass in the windows and in winter it was cold.
11. No mattresses, bedding, cups, eating utensils or toiletries were distributed. There were no pest control measures in place to eliminate cockroaches and mice. The cell was not connected to a sewer and detainees had to relieve themselves in a bucket, which was removed from the cell once a day to be emptied. The water which was distributed once a day (ten litres per cell) was not drinkable. There was no provision for outside exercise or showers.
12. The applicant was fed once a day. The food was wholly inadequate, both in terms of quality and portion size.
13. The applicant sustained an injury to his head prior to his arrest. While in the IVS, he did not receive adequate medical treatment for the injury. The applicant – who had contracted tuberculosis in 2001 – shared a cell with a person who was actually suffering from the open form of the disease at the time of his detention, and this represented a potential risk to his health.
14. Each of the IVS cells in which the applicant was kept measured approximately 15 square metres and had six sleeping places. However, it was impossible to provide more detailed information, as the registration logs for the IVS had been destroyed.
15. According to the findings of the inquiry carried out by the Morozovskiy district prosecutor’s office on the basis of the applicant’s complaint, the applicant shared one of the cells in which he was kept – which was equipped with six sleeping places – with four inmates. At some point, he was transferred to a solitary confinement cell upon his request. The applicant received three meals a day. There were no mice or insects in the cells. The bucket that acted as a substitute for sanitary facilities was cleaned daily. The applicant had access to drinking water and toiletries. The applicant was provided with adequate medical assistance on request.
16. On 12 November 2004 the Morozovskiy District Court of the Rostov Region convicted the applicant of murder and sentenced him to eleven years’ imprisonment. On 15 March 2005 the Rostov Regional Court upheld the conviction on appeal.
17. The applicant was then sent to serve his sentence at a postconviction detention facility in the town of Pechora in the Komi Republic. The journey there included train travel and accommodation in SIZO-type detention facilities («следственный изолятор временного содержания», «СИЗО»). These facilities generally serve as remand prisons, yet can also be used for the temporary detention of people who have already been convicted.
18. At certain times between 24 July 2004 and 6 June 2005, the applicant was kept in Novocherkassk detention facility no. IZ-61/3.
19. The applicant was detained in a cell measuring 28 square metres, which was designed to hold ten people. However, he shared this cell with fifteen other detainees, so they had to sleep in shifts. The bedding supplied was dirty, worn out and covered in bloodstains. Mattresses were also worn out and infested with insects. There was no ventilation. Lights were on day and night. No toiletries were supplied.
20. In summer, the cell was extremely humid and stuffy. Owing to water shortages lasting up to two or three days, the applicant had difficulties in obtaining drinking water and flushing the lavatory. The cell was infested with insects such as cockroaches. Conditions were unsanitary and no showers were available.
21. While in detention facility no. IZ-61/3, the applicant was kept in the following cells:
- cell no. 247 measuring 25.7 square metres;
- cell no. 243 measuring 23 square metres;
- cell no. 244 measuring 25.7 square metres;
- cell no. 284 measuring 18.5 square metres;
- cell no. 162 measuring 33.8 square metres;
- cell no. 337 measuring 18.7 square metres;
- cell no. 372 measuring 18.7 square metres;
- cell no. 402 measuring 10.5 square metres;
- cell no. 393 measuring 10.5 square metres;
- cell no. 385 measuring 18.5 square metres;
- cell no. 316 measuring 18.7 square metres;
- cell no. 304 measuring 18.5 square metres;
- cell no. 326 measuring 10.5 square metres;
- cell no. 332 measuring 10.4 square metres;
- cell no. 330 measuring 10.4 square metres.
22. The Government did not specify the actual number of sleeping places in the cells in question and/or the number of inmates who had shared the cells with the applicant, referring to the fact that the detention facility’s logbooks had been destroyed.
23. The Government provided a number of documents dated 30 April 2009 and signed by the governor of detention facility no. IZ-61/3, which stated in particular that: (a) the number of inmates kept together with the applicant in the fifteen cells of Novocherkassk detention facility had not exceeded the number of sleeping places available; (b) on 1 December 2005 an additional new building to accommodate 500 inmates had been opened; (c) there had been no rodents or insects in the facility and the cells had been regularly cleaned and disinfested; (d) each of the fifteen cells had been equipped with lavatories which were separated from the living areas and sinks; and (e) detainees had been provided with good-quality food pursuant to internal regulations.
24. The Government provided three handwritten undated statements from IZ-61/3 officials who stated that they “certainly remembered” that the applicant had been kept in fifteen cells at the facility. In their statements, the officials listed the numbers of the cells and confirmed that he had been provided with an individual sleeping place in each of those cells.
25. Between 7 June and 9 July 2005 the applicant was kept in Ryazan detention facility no. IZ-62/1.
26. In the applicant’s submission, he was kept in a transit cell measuring 49 square metres, which was designed for twenty-two detainees. Instead, during the relevant period, the cell housed no fewer than forty-two people, who had to sleep in shifts. The applicant suffered from a lack of food and found the food which he was given to be of poor quality. He also sustained numerous painful insect bites which left marks on his body.
27. According to the Government, the applicant was kept in cell no. 32 (measuring 49 square metres), cell no. 46 (measuring 56 square metres) and cell no. 56 (measuring 32 square metres). The number of sleeping places and/or inmates who had been kept in the cells with the applicant was unknown, as the facility’s logbooks had been destroyed.
28. The Government provided documents dated 4 May 2009 which had been signed by the deputy governor of IZ-62/1 and which stated that: (a) cell no. 32 had been equipped with a sink; (b) during the applicant’s detention, a private contractor had regularly carried out disinfestation procedures at the detention facility pursuant to a contract which had been concluded on 9 January 2008; and (c) detainees had been provided with three meals a day, pursuant to the relevant regulations. The Government also enclosed a photo of a sink and invoices from the disinfestation contractor which were dated July 2008.
29. Between 20 and 27 July 2005 the applicant was kept in Yekaterinburg detention facility no. IZ-66/1.
30. According to the applicant, he was placed in a cell measuring 25 square metres, together with twenty-three other inmates. No bedding was supplied. The cell was infested with insects. After some days there, he was moved to another cell measuring 22.5 square metres, which housed thirtyfive people. The cell had a row of benches, which were no use for sitting on, let alone sleeping on. No food or drinking water was provided.
31. In the Government’s submission, the applicant was kept in cell no. 137 (measuring 12.5 square metres), cell no. 302 (measuring 31.4 square metres), cell no. 307 (measuring 29.2 square metres) and cell no. 404 (measuring 15.2 square metres). In each cell, he was provided with an individual sleeping place and bedding. The number of inmates who were kept in the cells with the applicant was unknown, as was the number of sleeping places which were available, as the logbooks had been destroyed.
32. The Government provided documents dated 5 May 2009 and signed by the governor of IZ-66/1 confirming that the applicant had been detained in the facility between 20 and 27 July 2005. There had been no rodents or insects in the cell during this period, and the cell had been equipped with sanitary facilities. The applicant had been provided with access to a shower upon his arrival at the facility and had been provided with food, pursuant to the relevant regulations. The cell had been equipped with sixteen sleeping spaces and had housed four to sixteen inmates. The Government also enclosed contracts for disinfestation services, as well as relevant invoices.
33. Another document dated 5 May 2009 and signed by the head of the Sverdlovsk regional department of the Federal Prison Service (“the Sverdlovsk FSIN”) stated that, between 20 and 27 July 2005, the applicant had been kept in cell no. 307 at IZ66/1. According to the document, this cell measured 29.2 square metres and was equipped with twenty sleeping places, and the applicant had shared it with four to sixteen other inmates.
34. The applicant made a complaint to various public authorities, including the prosecutor’s office and courts, in relation to the alleged lack of adequate medical assistance and the conditions of detention in the IVS (see paragraphs 6 to 15 above). In particular, he alleged that he had sustained a post-traumatic brain injury, contracted tuberculosis and become ill with gastritis, astigmatism, alimentary anaemia and muscular hypotrophy while in detention.
35. As regards his complaint to the prosecutor’s office it appears that on 5 November 2005 the Morozovskiy district prosecutor’s office refused to initiate criminal proceedings regarding the alleged poor conditions of the applicant’s detention in the IVS. The applicant was not provided with a copy of that decision. A further refusal was issued on 16 February 2006. However, the prosecutor found that the applicant’s allegations concerning the conditions of detention in the IVS “had been confirmed in part”, but that such conditions did not constitute a crime under the Criminal Code. He also indicated that the head of the police station had been instructed to remedy the irregularities which had been identified. The applicant was not given access to the prosecutor’s inquiry file.
36. On 20 March 2007 the Morozovskiy District Court of the Rostov Region upheld the prosecutor’s decision. On 28 August 2007 the Rostov Regional Court upheld the first-instance judgment.
37. As regards other court proceedings, in 2007 the applicant initiated civil proceedings, claiming compensation for the nonpecuniary damage caused by the conditions of detention in the IVS and the lack of adequate medical assistance rendered to him in that facility. On three occasions – on 26 November and 26 December 2007, and on 11 January 2008 – the Morozovskiy District Court invited the applicant to eliminate discrepancies in his statements of claim. The applicant did not comply with the court’s requests, neither did he appeal against the court’s rulings. The Morozovskiy District Court left the claims unexamined.
","[2, 3, 10, 16, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47]"
001-161061,"6. The applicant was born in 1973 and lives in Brčko, Bosnia and Herzegovina.
7. On 29 December 2011 the applicant lodged a request for a residence permit in Croatia on the grounds of family reunification with her partner, Ms D.B., who was living in Sisak. She submitted that she had been educated in Croatia and that she had lived in Zagreb for seventeen years. She also explained that she wanted to live with D.B., with whom she had been in a relationship for two years, and with whom she wanted to establish a household and start a business.
8. By a letter dated 28 December 2011 D.B. stated that she owned a house in Sisak where she wanted to live with the applicant. She explained that she had been in a relationship with the applicant for two years and that they wanted to live together so as to avoid constant travelling and the distance between them.
9. During the proceedings the Sisak Police Department (Policijska uprava Sisačko-moslovačka) found that the applicant and D.B. had been in a relationship since October 2009 and that in order to maintain their relationship they had been travelling to see each other. It was also established that the applicant had recently stayed with D.B. in the period between 16 September and 4 December 2011.
10. On 24 February 2012 the Sisak Police Department dismissed the applicant’s request with a summary reasoning indicating that all the relevant requirements under the Aliens Act had not been met.
11. The applicant appealed against that decision to the Ministry of the Interior (Ministarstvo unutarnjih poslova; hereinafter: the “Ministry”), arguing that it could be inferred from the decision of the Sisak Police Department that her request had been dismissed because the Aliens Act did not allow family reunification for same-sex couples. She considered that there had been no grounds for a difference in treatment based on sexual orientation and that the relevant law should not be construed in a manner that allowed for such a possibility. She relied, inter alia, on the Constitution and the Prohibition of Discrimination Act, arguing that even if she was not to be considered as D.B.’s “immediate family member”, within the meaning of the Aliens Act, she should in any case be considered as her “other relative” within the meaning of that Act.
12. On 8 June 2012 the Ministry dismissed the applicant’s appeal and upheld the decision of the Sisak Police Department. The relevant part of the Ministry’s decision reads:
“Concerning the family reunification, based on which the request for the regularisation of the status of an alien in Croatia has been submitted in the case at issue, [it is to be noted that] the case file shows that the appellant relies on the existence of a same-sex relationship with the Croatian national D.B., which has allegedly lasted for two years ...
The impugned decision shows that the [first-instance body], other than citing the [relevant] provisions of the Aliens Act, also cited section 3 of the Family Act, according to which the effects of an extramarital relationship, that is to say the rights and obligations following from its existence, relate to a union between an unmarried woman and man which has lasted for at least three years, or less if a child was born of [the union]; and section 2 of the Same-Sex Union Act ... which defines a same-sex union as a union between two persons of the same sex (partners) who are not married, or in an extramarital relationship or other same-sex union, which has lasted for at least three years and which is based on the principles of equality of partners, mutual respect and assistance as well as the emotional bonds of partners.
...
It follows that the [Same-Sex Union] Act does not define a same-sex union as a family and the Family Act does not cover same-sex unions. It should also be taken into account that the provisions of the Aliens Act concerning temporary residence for family reunification do not provide for a possibility of regularisation of the status of an alien on the grounds of [the existence of] a same-sex union, nor does such a union fall within the scope of [the term] ‘immediate family member’ incorporated in that Act, which makes it clear that there is no legal ground for granting the request of the appellant.
Therefore, the appellant wrongly considers that the first-instance body should have applied section 56 § 4 of the Aliens Act in her case ... because that provision clearly provides that exceptionally to the provision defining immediate family members, ‘other relative’ could be so considered if there are specific personal or serious humanitarian reasons for a family reunification in Croatia.”
13. On 24 July 2012 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu), arguing that she had been discriminated against in comparison to different-sex couples who had a possibility to seek family reunification under the Aliens Act. She relied on the domestic anti-discrimination legislation, including the Prohibition of Discrimination Act, as well as the Convention and the Court’s case-law.
14. The Zagreb Administrative Court dismissed the applicant’s action on 30 January 2013. The relevant part of the judgment provides:
“The cited section 56 § 3(1) and (2) of the Aliens Act provides that the immediate family members are spouses or persons who live in an extramarital relationship in accordance with Croatian legislation. The cited sections 3 and 5 of the Family Act show that marriage and extramarital relationship are unions between a man and a woman. Thus, union between two same-sex persons cannot be considered under the relevant legal provisions as marriage or an extramarital relationship.
Union between two same-sex persons can be considered under the legal term same-sex union under the conditions provided for in section 2 of the Same-Sex Union Act. However, given the limited legal effects of a same-sex union, the possible existence of such a union does not represent a basis for family reunification. It should be noted that section 56 of the [Aliens] Act explicitly enumerates persons who are to be considered immediate family members or who are to be exceptionally considered [so], which leads to a conclusion that it cannot be extended to cover persons living in a same-sex union.
Accordingly, the granting of a request for temporary residence of an alien on the grounds of family reunification depends on the satisfaction of the requirements under sections 52 and 56 of the Aliens Act. In the case at issue the plaintiff is neither married nor in an extramarital relationship with the Croatian national D.B., which is not in dispute between the parties. It therefore follows that the plaintiff cannot be considered an immediate family member within the meaning of section 56 § 1(1) and (2) of the [Aliens] Act and thus she did not justify the purpose (in the concrete case: family reunification) for which a temporary residence of an alien in Croatia can be granted ...
In view of the cited legal provisions, and the facts of the case, this court finds that in the concrete case it was not possible to grant the plaintiff’s request.”
15. On 8 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that she had been discriminated against on the basis of her sexual orientation. She relied on the Convention and the relevant domestic anti-discrimination legislation, and she cited the Court’s case-law on the question of discrimination related to sexual orientation.
16. On 29 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the lower bodies. The relevant part of the decision reads:
“8. The Constitutional Court reiterates that discrimination under Article 14 of the Constitution does not have an independent standing for a constitutional complaint but must be submitted in conjunction with another (substantive) constitutional right. Discrimination means difference in the treatment of persons in the same or relevantly similar situations without an objective and reasonable justification. Article 14 of the Constitution contains constitutional guarantee against discrimination on any ground in securing a concrete right.
Although the appellant relied in her constitutional complaint in Article 35 of the Constitution and the related Article 8 of the Convention, the Constitutional Court finds that these provisions are not applicable in the case at issue.
8.1. In the proceedings before it, the Constitutional Court did not find facts or circumstances which would suggest that in the proceedings before [the lower bodies] the appellant was discriminated against on any ground ... Thus her complaint of a violation of Article 14 § 1 of the Constitution, the Constitutional Court finds unfounded.
8.2. The Constitutional Court also notes that the appellant, in the concrete case, did not show that she has used the legal avenue under the Prohibition of Discrimination Act ...
There has therefore been no violation of her constitutional right under Article 14 §§ 1 and 2 of the Constitution.
9. The case-law of the European Court cited in the constitutional complaint is of no relevance for the case at issue since it relates to cases concerning health insurance and inheritance of tenancy rights by same-sex partners living in a stable (de facto) relationship.”
","[1, 4, 5, 6, 7, 8, 10, 12, 13, 15, 18, 19]"
001-162023,"5. The applicant was born in 1964. He is currently serving a prison sentence in the Pravieniškės Correctional Home (Pravieniškių pataisos namai – atviroji kolonija).
6. In March 2009 the applicant was arrested and placed in pre-trial detention on suspicion of several instances of trafficking drugs in very large amounts as part of an organised group.
7. Between 30 March 2009 and 14 June 2010 the applicant was held at Lukiškės Remand Prison (Lukiškių tardymo izoliatorius - kalėjimas) in cells which measured approximately eight square metres and which housed between two to four detainees.
8. On 14 June 2010 the applicant was transferred to Kaunas Remand Prison (Kauno tardymo izoliatorius). According to a document issued by that prison, the average space per prisoner in the cells where the applicant was held varied, but was sometimes less than three square metres per inmate.
9. On 2 September 2011 the applicant complained to the Prisons’ Department (Kalėjimų departamentas), a body that oversees Lithuanian prisons, about the conditions in which he had been held (dėl buvusių prastų kalinimo sąlygų) in Lukiškės Remand Prison. In its reply of 15 September 2011, the department admitted that the applicant’s allegations that he had been held in overcrowded cells in Lukiškės had been partly proved.
10. After visiting Kaunas Remand Prison on 28 November 2011, the Public Health Centre (Visuomenės sveikatos centras) found that the prison complied with general health and hygiene requirements.
11. On 5 August 2013 the applicant started court proceedings for damages, arguing that the conditions of his detention in Lukiškės Remand Prison had been abysmal.
12. By a decision of 19 November 2013, the Vilnius Regional Administrative Court held that the applicant had missed the three years’ statutory deadline to lodge a claim for damages, because he had been released from Lukiškės Remand Prison on 14 June 2010.
13. The applicant appealed, arguing that he had only learned in July 2012 that his rights had been breached, when he had started communicating with his current representative before the Court, Mr S. Tomas.
14. By a final decision of 30 October 2014, the Supreme Administrative Court dismissed the appeal, noting that the applicant could have asked for legal aid to start court proceedings for damages in a timely fashion if he had been without sufficient means to employ a lawyer.
15. On 22 September 2011, while he was being held at Kaunas Remand Prison, the applicant had his first myocardial infarction. He was taken that day to a public hospital – the cardiology unit of the Hospital of the Lithuanian University of Health Sciences’ Kaunas Clinics (Lietuvos sveikatos mokslų universiteto ligoninė – Kauno klinikos, hereinafter – “the Kaunas Clinics”), where he underwent a surgical intervention. The doctors noted in the applicant’s medical file that he was a heart attack risk because he had smoked 10-15 cigarettes a day for twenty-five years. Another risk factor was hereditary, because the applicant’s father had had myocardial infarction.
16. On 28 October 2011 the Kaunas Clinics’ doctors concluded that the applicant’s condition had stabilised (būklė stabilizavosi). The applicant was prescribed medications for his condition (medikamentinis gydymas), explained what kind of diet and health regime to follow and transferred to the Prison Department Hospital (Laisvės atėmimo vietų ligoninė).
17. As can be seen in the documents submitted by the parties, and as was later confirmed by the Ombudsperson (see paragraph 30 below), the doctors at the Prison Department Hospital, on the instructions of the doctors at the Kaunas Clinics, performed a number of tests on the applicant (including urine, blood, and an ECG). They also prescribed a diet that was low on salt and fat. Given that the applicant’s state of health was stable and improving, on 3 November 2011 the applicant was sent back to Kaunas Remand Prison. The doctors recommended that he continue to take the medications he had been prescribed.
18. On 6 December 2011 the applicant was again placed in the Prison Department Hospital for an earlier scheduled consultation. He had some diagnostic tests and was treated with medications.
19. On 14 December 2011, while at the Prison Department Hospital, the applicant had a second myocardial infarction and was immediately transferred to a public hospital – the Cardiology and Angiology Centre of Vilnius University Hospital’s Santariškės Clinics (Vilniaus Universiteto Ligoninės Santariškių klinikos, hereinafter – “the Santariškės Clinics”), where he was examined and tests were performed. Two days later, on 16 December 2011, the doctors in Santariškės held that the applicant’s state of health was stable, and on that day he was returned to the Prison Department Hospital.
20. While being held at the Prison Department Hospital, on 6 March 2012 the applicant was taken back to the Santariškės Clinics for a consultation. The doctors recommended the applicant be treated with medications and also prescribed a diet which was low on salt and fat. The doctors also recommended that the applicant engage in physical activity for 45 to 50 minutes a day. They also recommended that the applicant be “brought back to the Santariškės Clinics’ Cardiology and Angiology Centre after six months (po 6 mėnesių) for a consultation, having registered in advance”.
21. On 15 March 2012 the Prison Department Hospital released the applicant back to Kaunas Remand Prison. The applicant’s medical record indicates that he was released because his state of health “had improved (pagerėjo)”. It also states that the applicant “could walk (gali eiti)”. Among the risk factors, the doctors noted that the applicant smoked. It was recommended that the applicant have further outpatient treatment with medications (medikamentinis ambulatorinis gydymas), follow a diet that was low on fat and salt and be physically active by taking exercise (fizinis aktyvumas).
22. On 31 December 2011 the applicant was issued with a certificate that he had lost 60% of his capacity for work. The document stated that he could not perform any work where he needed to lift more than 15 kilograms. However, the applicant could do work that involved walking, sitting or bending.
23. In reply to a complaint by the applicant’s lawyer, on 14 May 2012 the Prison Department Hospital noted that it had rigorously adhered to the instructions from cardiologists of category III medical care institutions (see paragraph 65 below).
24. The applicant was again admitted to the Prison Department Hospital, staying there from 27 to 29 March 2012 with digestion-related issues (haemorrhoids). The doctors noted that the applicant had got haemorrhoids three years previously. After examining the applicant, they prescribed outpatient treatment with medications, and noted that he was fit enough to be taken to a court hearing.
25. In April 2012 the Kaunas Remand Prison’s administration told the applicant in reply to a request that as of that month he would be provided the same menu of food as women (Jums bus tiekiamas maitinimas pagal moterų valgiaraštį).
26. After visiting the Prison Department Hospital between 7-22 May 2012, the Public Health Centre concluded that the hospital complied with general health-care and hygiene requirements.
27. The applicant was admitted to the Prison Department Hospital from 21 to 28 June 2012 for a scheduled follow-up (planine tvarka) of his heart condition. The applicant’s medical record shows that a number of tests had been performed on him, the doctors concluded that his state of health was “unchanged (be pakitimų)” and “satisfactory (patenkinama)”. The medical certificate issued at the time of the applicant’s discharge from the hospital on 28 June 2012 also indicated that he smoked, which was a risk factor.
28. In March 2012 the applicant also wrote to the Ombudsperson, complaining that he had been held at Lukiškės Remand Prison, Kaunas Remand Prison and at the Prison Department Hospital, where he had suffered great psychological stress. He argued that in those facilities his health had worsened and as a consequence he had suffered two myocardial infarctions. He also claimed that in Kaunas Remand Prison he had not been provided with the right diet, going against the doctors’ recommendations. The applicant was also dissatisfied with the fact that he had not been provided rehabilitation therapy. In April 2012 the applicant withdrew, in writing, the part of his complaint concerning Kaunas Remand Prison, stating that he had no complaints about that facility.
29. On 6 June 2012 the Ombudsperson accepted the applicant’s withdrawal of his complaint as regards Kaunas Remand Prison. The Ombudsperson, however, established that the conditions of the applicant’s detention at Lukiškės Remand Prison, where he had been held between March 2009 and June 2010, as well as at the Prison Department Hospital, where he had been held between 16 December 2011 and 15 March 2012, had been in breach of domestic legislation on overcrowding. In particular, the applicant had been held in the Prison Department Hospital in a room where he had had 4.42 square metres of personal space.
30. The Ombudsperson nevertheless dismissed the complaint about a lack of proper medical care. After examining the documents related to the applicant’s treatment in hospitals, the Ombudsperson noted that, contrary to the applicant’s submissions, neither the Kaunas Clinics nor the Santariškės Clinics had prescribed him a course of rehabilitation therapy after the applicant’s first and second heart attacks respectively. On the contrary, both Clinics had made recommendations for further treatment, such as the medications, tests and dietary requirements which were required, and which the Prison Department Hospital had followed.
31. According to three documents provided by the applicant’s representative, Mr. S. Tomas, in September and December 2012 and in April 2013 the outpatient polyclinic in Upninkai (Upninkų ambulatorija, hereinafter – Upninkai Polyclinic), a village in Jonava district in Lithuania, gave “the applicant’s authorised person” three written statements by the polyclinic’s head doctor. They noted that the applicant had suffered from myocardial infarction and summarised his medical history. One of those documents also stated that because of his state of health, as seen in the light of certain legal acts issued by the Minister of Health, the applicant should be released from serving his sentence.
32. In November 2012 the applicant was taken to the Prison Department Hospital for a planned consultation with a cardiologist. The applicant spent about a month there. During that time, on 15 November 2012, he was also taken to the Santariškės Clinics, where the doctors performed a cardiopulmonary exercise test (veloergometrija) and an ultrasound examination of the heart (ultragarsinis širdies tyrimas). The applicant’s heart was rhythmical, with no decompensation. The cardiologists prescribed medications to treat the applicant, said he should limit his intake of fat and salt (as concerned his diet) and have 45-50 minutes of physical activity a day. He was to return for a further consultation, although the exact date was not indicated.
The doctors in the Prison Department Hospital also performed a number of tests. When they released the applicant back to Kaunas Remand Prison on 5 December 2012 they concluded that “his illness was without complications (ligos eiga: be komplikacijų)”. The applicant’s state of health was “satisfactory (patenkinama)”.
33. As can be seen from the applicant’s medical records, on 12 February 2013 Kaunas Remand Prison sent him to the Prison Department Hospital for “a full examination, follow-up and treatment” of his heart condition. The doctor’s examined the applicant, including an ECG and blood tests, and concluded that his state of health was “satisfactory”. It was noted that the applicant smoked.
34. After the applicant’s arrest on 25 March 2009, a court sanctioned his pre-trial detention for an initial duration of three months. The detention was then prolonged a number of times.
35. On 28 November 2011 the Kaunas Regional Court extended the applicant’s pre-trial detention for three months on the grounds that the applicant was suspected of being the organiser of a criminal group which committed drug-related crimes, that he had connections abroad, did not work and faced a heavy sentence. Moreover, there was evidence in the file that the applicant had attempted to influence other suspects, thus impeding the criminal investigation.
36. The applicant’s lawyer appealed, arguing that her client had suffered a double myocardial infarction, had been operated on and treated at the Prison Department Hospital. In addition, he had another illness, connected to the digestive system. The lawyer argued that her client would not receive proper medical assistance, as regarded his regime and diet, in the Prison Department Hospital. She asked that a milder remand measure than pre-trial detention be ordered.
37. On 29 December 2011 the Court of Appeal dismissed the appeal, finding that milder remand measures would hinder the course of justice. It held that there was no information in the file preventing the holding of the applicant in pre-trial detention because of his state of health. The court noted that the applicant was being held at the time at the Prison Department Hospital and was receiving 24-hour medical assistance.
38. In March 2012 the applicant’s lawyer submitted several new requests asking to replace detention with a less severe remand measure owing to the deterioration of the applicant’s health while in detention. She also relied on the Santariškės Clinics’ record of 6 March 2012, where it was stated that the applicant needed a low-salt diet, a special regime for his meals and physical activity. The lawyer maintained that such assistance could not be provided at Kaunas Remand Prison or at the Prison Department Hospital, thus preventing the applicant from having satisfactory medical care.
39. On the basis of the request by the applicant’s lawyer, on 23 March 2012 the Kaunas Regional Court ordered a comprehensive forensic examination to be performed by a doctors’ commission, comprising a cardiologist, to answer the question whether the applicant was ill with a serious, incurable illness (sunki nepagydoma liga), and, if so, whether for that reason he could be released from serving a sentence. In the meantime, the court extended the applicant’s pre-trial detention.
40. On 20 April 2012 the Court of Appeal upheld the decision to extend the applicant’s detention. The court observed that although the applicant had serious health problems, he had always been provided with adequate treatment at the Prison Department Hospital or, if necessary, in a public hospital.
41. After examining the applicant’s medical records from the Kaunas Clinics and the Santariškės Clinics, as well as from the Prison Department Hospital, on 11 June 2012 experts from the State Forensic Medicine Service (Valstybinė teismo medicinos tarnyba) produced report no. EKG 24/12 (02). It read that the applicant had an ischaemic heart illness, having suffered a myocardial infarction; he also had hypertension and ischaemic cardiomyopathy. Those ailments should be classified as serious and incurable illnesses. However, the experts concluded that the applicant’s state of health at the time did not meet the criteria which allowed a convicted person to be exempted from serving a sentence, according to the rules set by the Ministry of Health and the Ministry of the Interior (see paragraph 49 below). One of the doctors on the commission was a cardiologist, a professor and habilitated doctor of sciences at the Kaunas Clinics. Another doctor was a surgeon with 35 years of experience.
42. The applicant’s pre-trial detention was then prolonged by court rulings on 13 June, 24 July and 25 September 2012.
43. The last pre-trial detention order was upheld on 19 October 2012 by the Court of Appeal. The applicant’s lawyer referred to the reports from the Upninkai Polyclinic and claimed that neither Kaunas Remand Prison nor the Prison Department Hospital could guarantee the necessary medical care for the applicant. The Court of Appeal however noted absence of any new documents showing that the applicant’s state of health had worsened. The Court of Appeal also had regard to the practice of the Court to the effect that the State should protect inmates’ physical health (it relied on Kudła v. Poland [GC], no. 30210/96, ECHR 2000XI, and Peers v. Greece, no. 28524/95, ECHR 2001III). However, in the applicant’s case there was no evidence that there would be a lack of medical assistance. Furthermore, the comprehensive medical examination (see paragraph 41 above) had not ruled out keeping the applicant detained, and, in the court’s view, its conclusions prevailed over those of the Upninkai Polyclinic. There was no reason to hold that keeping the applicant detained, and, if necessary, treating him at the Prison Department Hospital or in another hospital, could be considered as inhuman or degrading.
44. By a judgment of 13 December 2012, the Kaunas Regional Court found the applicant guilty of a number of drug-related crimes and sentenced him to sixteen years and six months imprisonment in a correctional home. The applicant was to remain detained until the judgment became final.
45. The applicant’s conviction was upheld by the Court of Appeal on 31 March 2014, but the sentence was changed to fourteen years of deprivation of liberty in a correctional home.
46. By a final judgment of 16 December 2014, the Supreme Court upheld the appellate court’s verdict. The Supreme Court also relied on expert report no. EKG 24/12 (02) (see paragraph 41 above), and held that the lower courts had been correct in finding that the applicant’s state of health did not prevent him from serving a prison sentence.
","[6, 7, 9, 10, 11, 14, 15, 16, 22, 23, 24, 27, 28, 29, 32, 33, 34, 35, 36, 37, 42]"
001-164315,"5. The applicant was born in 1963 and lives in Zagreb.
6. He is an advocate. In that capacity, he represented the plaintiff in civil proceedings instituted on 5 February 2009 before the Vukovar Municipal Court (Općinski sud u Vukovaru), in which his client sought payment of a certain amount of money from the defendant.
7. On 16 November 2009 the Municipal Court held a hearing, which the applicant attended. At the end of the hearing, the court scheduled the next one for 17 December 2009.
8. The applicant did not attend the hearing of 17 December 2009, at which the court made a decision to suspend the proceedings (mirovanje postupka) in accordance with section 216(1) of the Civil Procedure Act (see paragraph 18 below).
9. On 31 December 2009 the applicant, on behalf of the plaintiff, lodged an appeal against that decision.
10. He explained that he had been unable to attend the hearing owing to a vehicle malfunction, and that he had tried to contact the court and the defendant’s representative, with a view to informing them of the reason for his absence. He further stated that, after the hearing, he had spoken by telephone with the defendant’s representative, who had told him that, despite his (the representative’s) suggestion to proceed and hear the defendant’s testimony, the court had decided to adjourn the hearing and suspend the proceedings. The applicant argued that, if that was true, the court’s decision to suspend the proceedings had had no legal basis. He explained that suspending proceedings was an instrument for maintaining procedural discipline, the effect of which was to delay proceedings and thereby penalise the parties for their inaction. Yet, in his case, he and his client had been penalised by a delay even though it was through no fault of his own that he had failed to attend the hearing. He then stated:
“With a view to highlighting the unacceptable conduct of the judge, the following circumstances have to be mentioned.
The parties’ representatives and the defendant attended the hearing held on 16 November 2009.
The plaintiff did not attend because no testimonies from the parties were scheduled, he is of low income, and he resides in Pula.
The hearing in question was characterised by the fact that the party present at court did not give evidence and the judge attempted to adjourn the hearing without scheduling another one.
The judge [eventually] adjourned the hearing, and only at the insistence of the plaintiff’s representative scheduled another one for 17 December 2009.
Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance.
Since the plaintiff’s representative has no reason to doubt the defendant’s representative’s statement that he had suggested hearing the defendant’s testimony at the hearing in question [the hearing of 17 December 2009], that statement indicates that the court could not have issued the contested decision.
...
The contested decision should therefore be quashed.”
11. By a decision of 13 January 2010, Judge M.R. – who was the first-instance single judge in the above case – fined the applicant 1,500 Croatian kunas (HRK) for contempt of court. The relevant part of that decision reads:
“... the advocate in the appeal ... first admitted not having attended the hearing scheduled for 17 December 2009 ... owing to a vehicle malfunction ...
Instead of asking for the proceedings to be restored to the status quo ante [restitutio in integrum ob terminem elapsum, povrat u prijašnje stanje] as a result of objective reasons and force majeure, the advocate in question, for no reason whatsoever, states on the second page of the appeal, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance.’ [T]hat statement is certainly offensive to the court and the judge [concerned], and as such constitutes unacceptable communication between the court and the advocate representing one of the parties.
By making that offensive statement, the advocate in question implies that the judge hearing the case proceeds pointlessly, and most likely proceeds pointlessly with all other cases, which represents a serious insult to both the court and the judge.
For that insult, the court fined the advocate HRK 1,500. Such a fine will most likely [discourage] the advocate from insulting the court and judge hearing the case in future, in his appeals and [other] submissions, and encourage him to pay them due respect in all circumstances.”
12. The applicant appealed against that decision, arguing that his statement had not been offensive or demeaning. Rather, by making that statement, he had criticised the first-instance court’s inefficiency in conducting the proceedings. In particular, in his appeal, the applicant wrote, inter alia, the following:
“The operative provisions [of the contested decision] indicate that the fine was imposed for offending the court in the appeal of 31 December 2009 by stating, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance’.
I consider the contested decision to be without basis.
The quoted statement does not represent an insult. [Rather,] it is an assessment of how usefully the proceedings in the present case were conducted.
The statements quoted in the contested decision ... cannot in themselves, and especially having regard to the behaviour of the judge hearing the case, [be regarded as] disrespectful, which would justify the need to issue a decision on the fine.
...
In addition to the plaintiff’s representative, the defendant and [her] representative attended the hearing scheduled for 16 November 2009. The record [of that hearing] states that [the plaintiff] reaffirmed his action and the submissions of 30 March 2009, and that the defendant maintained the arguments expressed in [her] response ... of 11 March 2009. Beside this, nothing else happened at that hearing.
...
Apart from acknowledging the facts as stated above, the judge hearing the case did not carry out any action intended to bring the proceedings to an end, except for scheduling the next hearing.
At that hearing, he did not even oblige the defendant to provide evidence for the claims expressed in [her] response.
At that hearing, not even a decision to hear testimonies from the parties was adopted. Only at the request of the plaintiff’s representative did the judge decide to schedule the next hearing.
...
In the circumstances, it is evident that the hearing scheduled for 17 December 2009 would have been identical ... to the previous hearing.
The plaintiff’s representative considers such conduct to be at odds with the purpose of law.
...
Given that the purpose of a hearing is concentrated deliberation, that purpose is frustrated when such concentrated deliberation is lacking. One should also bear in mind that such conduct increases the costs of proceedings ... [without] rational justification.
...
No intention to offend was expressed in the submissions in question [that is, the appeal of 31 December 2009]. The quoted statement represents a view assessing how usefully the proceedings were being conducted.
In the reasoning [of the contested decision], it is stated that the representative implies that the judge hearing the case ‘most likely proceeds pointlessly with all other cases’. That view is not supported by any argument and has no basis [in what was written in the appeal].”
13. By a decision of 7 July 2010 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision, which was served on the applicant on 16 July 2010, reads:
“When deciding to fine the representative for contempt of court ... the first-instance court correctly held – and gave valid reasons for its view – that such statements constituted unacceptable communication between the court and an advocate ..., the assessment of which is within the discretion of the court before which the proceedings are pending.
Those statements ... go beyond the limits of an advocate’s role in the proceedings ... and may be legally characterised as abuse of process on account of inappropriate communication.”
14. On 17 August 2010 the applicant lodged a constitutional complaint against the decisions of the ordinary courts. In so doing, he complained that those decisions were in breach of his freedom of expression. He explicitly relied on Article 38 of the Croatian Constitution (see paragraph 16 below) and Article 10 of the Convention.
15. By a decision of 27 January 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decision was not open to constitutional review. That decision was served on the applicant on 11 February 2011.
","[1, 2, 3, 4, 5, 11, 15, 17, 18, 20, 21, 23, 39, 41, 42, 43]"
001-166774,"5. The applicant was born in 1952 and lives in Bellevue, Washington, USA. He is a president of Global Fishing Inc., a corporation which was the largest importer of crab to the United States of America.
6. On 29 June 2007 the Investigating Committee of the Ministry of the Interior of the Russian Federation opened a criminal investigation into crab poaching in Russia’s exclusive economic zone in the Bering Sea and the Sea of Okhotsk. The investigation concerned the charges of engagement in organised criminal activities, unlicensed fishing activities in Russia’s exclusive economic zone and money laundering. The decision to open the investigation identified Global Fishing Inc. as a major purchaser of the crab illegally harvested in the said region.
7. On 20 September 2007 the applicant was arrested in a hotel in Moscow. His passport was confiscated.
8. On 21 September 2007 the Tverskoy District Court of Moscow authorised the applicant’s detention pending investigation. In particular, the court noted:
“When deciding that [the applicant] should be detained [pending investigation], the court notes that he is suspected of having committed a grave and serious offence, that he does not have a permanent residence in Russia, that there are reasons to believe that, if released, the applicant might abscond or continue his criminal activity, destroy the evidence or in any other way interfere with the criminal proceedings against him. Under such circumstances, application of any restrictive measure other than deprivation of liberty would not be feasible”.
9. On 27 September 2007 the Investigating Committee formally charged the applicant with engagement in organised criminal activities, money laundering and unlicensed fishing activities in Russia’s exclusive economic zone.
10. On 10 October 2007 the Moscow City Court upheld the decision of 21 September 2007 on appeal.
11. On 16 November 2007 the District Court extended the applicant’s detention until 29 February 2008. The applicant’s lawyers attended the hearing. The applicant was unable to attend for health reasons. He asked to be released on bail or alternatively on personal surety given by the chief rabbi of Russia. He presented to the court positive character references from two U.S. senators. He further argued that he was not fit for detention for illhealth. In this respect he relied on the opinion prepared by his family doctor, which indicated that the applicant suffered from arthritis, high cholesterol, kidney stones, chronic pyelonephritis, gastritis, loss of hearing in the right ear, nasal allergies, frequent headaches and dizziness. He also submitted a guarantee signed by Mr Sh. who undertook to accommodate the applicant at his place of residence in Moscow pending investigation. The court dismissed the applicant’s arguments noting as follows:
“The court takes into account the arguments presented by the defence, including the references concerning his character. It discerns no new material facts or circumstances justifying [the applicant’s] release or application of another restrictive measure.
It follows from the materials submitted that [the applicant] is charged with a very serious offence, he is a national of another state. The medical documents presented do not demonstrate that [the applicant] is unfit for detention.
The court concludes that the grounds for the [applicant’s] detention have not ceased to exist. Accordingly the restrictive measure applied cannot be lifted or replaced with a less strict one, including the bail.”
12. On 26 December 2007 the City Court upheld the decision of 16 November 2007 on appeal.
13. On 21 February 2008 the District Court extended the applicant’s detention pending investigation until 29 May 2008. The court reiterated that the applicant’s detention was justified due to the gravity of the charges and lack of a place of permanent residence in Russia. The application for release on bail or personal surety was dismissed. On 26 March 2008 the City Court upheld the decision of 21 February 2008 on appeal.
14. On 28 May 2008 the District Court extended the applicant’s detention until 29 August 2008. The court reiterated practically verbatim the reasoning used in the previous court order. On 23 June 2008 the Moscow City Court upheld the court order of 28 March 2008 on appeal.
15. On 19 August 2008 the City Court extended the applicant’s detention until 29 November 2008. According to the applicant, the court referred to the gravity of the charges and his “significant financial possibilities”. On 2 October 2008 the Supreme Court of the Russian Federation upheld the court order of 19 August 2008 on appeal. In particular, the Supreme Court noted:
“It follows from the materials in the case-file that [the court] took into account the gravity of the charges against [the applicant]..., and it is reasonable to assume that, if at large, he may abscond..., or continue his criminal activities, or threaten the witnesses, the victims and other parties to the proceedings, or destroy the evidence... that may be found in foreign companies or interfere with investigation in any other way. ... [I]n view of the extreme complexity and scope of the case, there are no grounds for [the applicant’s] release.
Furthermore, the grounds for the applicant’s detention have not ceased to exist and there are no exclusive circumstances rendering the lifting or replacement of the restrictive measure... possible.”
16. On 20 November 2008 the City Court extended the pre-trial detention in respect of the applicant, E. and S., his co-defendants, noting as follows:
“According to the materials submitted, E., S. and [the applicant] are charged with a number of offences, including especially serious ones for which a custodial sentence exceeding two years can be applied in the event of conviction.
It follows from the investigator’s motion, submitted materials and his explanation given in court, that the criminal case is very complex, fourteen people were indicted, a big volume of investigative activities have been carried out, including those under way in different regions in the Russian Federation; there are complex forensic expert examinations ongoing, the responses to the inquiries sent are still pending, including the ones concerning international criminal assistance, the investigators have planned numerous activities aimed at establishment of facts to be proved and completion of the investigation.
’s arguments that the defendants’ detention should be extended are convincing and justified and that the grounds for extension of their detention are exceptional regard being had to the nature of the charges and pending investigative activities aimed at the completion of the investigation.
In the course of investigation the information was obtained that, should they be released, the defendants might abscond or interfere with the proceedings.
’ character, the court concludes that there are sufficient grounds to believe that, should they be released, the defendants might abscond, put pressure on witnesses and other parties to the proceedings, try to conceal or destroy evidence in order to obstruct justice.
Under such circumstances... E., S., and [the applicant] should be detained pending investigation which means that the grounds and the circumstances ... taken into consideration by the court when deciding on their detention have not changed and it is still necessary to detain them.
In view of the above, it is not possible to use a less strict restrictive measure in respect of E., S., and [the applicant], including release on bail.
When deciding on the extension of the defendants’ detention, the court takes into account the circumstances as required by [law], notably their family status, age, health condition, and character information submitted by the defence.”
17. On 14 January 2009 the Supreme Court upheld the decision of 20 November 2008 on appeal. The court dismissed the applicant’s argument that the City Court’s findings that he might abscond, continue criminal activities, obstruct justice, destroy evidence had been erroneous and unsubstantiated.
18. On 17 February 2009 the applicant received an amended and finalised bill of indictment.
19. On 19 February 2009 the City Court extended the detention of the three defendants, including the applicant, until 20 March 2009 in view of pending investigation. It noted in respect of the applicant as follows:
“Even though... [the applicant] does not have a criminal record, is married and have a child, prior to his arrest was employed and had a permanent source of income, he is charged with a number of very serious offences which entail, in case of conviction, a custodial sentence exceeding two years and which, according to the investigators’ version, have been committed by an organised criminal group managed by E. and [the applicant]... The applicant is a national of another state, he does not have a permanent place of residence in the Russian Federation...
The above information about the applicant’s character and the gravity of the charges are, in the court’s opinion, sufficient to assume that he may abscond, despite his and his defence’s declarations and assurances. Furthermore, according to the report of policemen Z. and V., the applicant..., if released, is planning to flee abroad and continue criminal activities connected to illegal fishing in the exclusive economic zone of the Russian Federation, put pressure on witnesses, try to destroy physical evidence. In addition, [the applicant] repeatedly tried to bribe the officials in order to influence the investigation. Besides, E., S. and [the applicant] have been trying to get in touch with other members of the organised criminal group who are still at large. It follows from the testimony of witness P., that American companies are taking steps to secure [the applicant’s] release.”
20. On 23 March 2009 the Supreme Court upheld the decision of 19 February 2009 on appeal.
21. On 11 March 2009 the City Court extended the applicant’s detention pending the defendants’ study of the case file, which comprised 160 volumes, until 20 June 2009. The court referred to the gravity of the charges against the applicant and the lack of permanent residence in Russia. It further reiterated that the applicant might put pressure on witnesses, obstruct justice or abscond. On 21 April 2009 the Supreme Court upheld the decision of 11 March 2009 on appeal.
22. On 28 May 2009 the City Court extended the applicant’s detention until 20 September 2009. The court noted that the defendants, including the applicant, and eighteen lawyers that represented them had not completed the study of the case file. As to need for detention pending investigation, the court reiterated the formula which it used for prior extensions. On 16 July 2009 the Supreme Court upheld the decision of 28 May 2009 on appeal.
23. On 26 August 2009 the applicant completed the study of the case file.
24. On 15 September 2009 the City Court extended the applicant’s detention until 20 December 2009 noting that the applicant’s co-defendants and their lawyers needed further time to complete the study of the case-file. Referring to the gravity of the charges against the applicant and the lack of a permanent residence and of “established social links” in Russia, the court noted that the applicant might abscond, put pressure on witnesses and other parties to the proceedings in order to obstruct justice. On 29 October 2009 the Supreme Court upheld the decision of 15 September 2009 on appeal.
25. On 4 December 2009 the City Court received the applicant’s casefile and on 17 December 2009 it extended the defendants’ pre-trial detention until 4 June 2010 noting as follows:
“[The defendants] have been remanded in custody. This restrictive measure corresponds to the nature and seriousness of the charges against them. The circumstances underlying the [defendants’] remand in custody have not ceased to exist. Notwithstanding personal surety and a possibility of bail proposed by [the applicant], the fact that [the applicant] and S. have minor children, the length of their pre-trial detention, the measure of restraint earlier imposed on [the defendants] should remain unchanged.”
26. On 25 February 2010 the Supreme Court upheld the decision of 17 September 2009 on appeal.
27. It appears that on an unspecified date the applicant’s case was transferred for trial to the Kamchatka Regional Court.
28. On 27 May 2010 the Regional Court extended the defendants’ pretrial detention until 4 September 2010 noting that the circumstances underlying their remand in custody had not ceased to exist.
29. On 2 September 2010 the Regional Court extended the defendants’ detention until 4 December 2010 reiterating verbatim its reasoning of 27 May 2010.
30. On 29 November 2010 the Regional Court considered it possible to release the defendants on bail in the amount of 5,000,000,000 Russian roubles (RUB). The applicants submitted that they were unable to pay such bail. The court reasoned that the bail in a lesser amount would not ensure the defendants’ appearance before it and extended their detention until 4 March 2011 reiterating its earlier reasoning.
31. On 16 December 2010 the jury delivered a not-guilty verdict in the applicant’s case. The applicant was released on the same date. On 17 January 2011 the Regional Court issued the relevant judgment advising the applicant of his right to rehabilitation.
32. On 27 April 2011 the Supreme Court upheld the judgment of 17 January 2011 on appeal.
33. On 21 May 2008 in an article entitled Special Protection for the Mafia («Спецприкрытие для мафии») Rossiyskaya Gazeta, an official national newspaper, published an interview about the criminal investigation with General Ts., the head of the department of the Investigating Committee of the Ministry of the Interior of the Russian Federation. In the interview Ts. referred to the applicant as the head of an international criminal organisation which had been engaged in illegal fishing activities conducted in Russia’s territorial waters.
34. On 28 and 29 May 2008 General Ts. gave two interviews about the criminal investigation which were broadcast by Channel One, the national TV channel. Ts. reiterated his previous statements alleging that the applicant had been the head of the illegal fishing business and referred to him as “the don of the crab mafia”.
35. On 28 February 2013 the Regional Court granted the applicant’s claims for damages against the Ministry of Finance of the Russian Federation in part. The court awarded the applicant RUB 83,208,240 in respect of lost earnings and RUB 603,000 as reimbursement of legal costs and expenses.
36. On 21 May 2013 the Regional Court upheld the judgment of 28 February 2013 on appeal.
37. On 24 October 2014 the District Court dismissed the applicant’s claims for pecuniary damages resulting from criminal prosecution against the Ministry of Finance of the Russian Federation.
38. On 20 March 2015 the City Court upheld the judgment of 24 October 2014 on appeal.
","[2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 28, 29, 30, 31, 32, 33, 34, 35, 36, 41, 42, 43, 46, 49]"
001-167112,"4. The applicant was born in 1982 and is serving a prison sentence in Donskoy, Tula Region.
5. On 27 June 2005 the Zhukov District Court of the Kaluga Region found the applicant guilty of battery and manslaughter and sentenced him to eleven years and one month’s imprisonment. On 6 September 2005 the Kaluga Regional Court upheld the applicant’s conviction on appeal.
6. On 20 December 2005 the applicant started serving a prison sentence in correctional colony no. IK-1 in the Tula Region. Prior to the applicant’s arrest and conviction, he suffered from duodenal ulcer, chronic bronchitis and high blood pressure. In detention he developed chronic gastritis, hernia of a diaphragm, chronic cholecystitis, lipomas and pilonidal cysts.
7. On 23 January 2012 the applicant was placed in a disciplinary cell. During the day time, the pull-down beds were folded up during the day. The inmates were able either to stand or sit on a metal stool fastened to the floor. The cell was cold and damp. There was no ventilation system. Because of the cracks in the door and windows, there was constant draught. The toilet was separated with a 80-centimetre high partition from the living area of the cell. There was no hot water supply. The applicant was allowed 1.5 hours’ daily exercise and one 30 minutes’ shower per week.
8. On 21 March 2012 the applicant started having a fever resulting from an inflamed pilonidal cyst in the coccyx area.
9. On 22 March 2012 a prison doctor examined the applicant, prescribed him a treatment by antibiotics and pain killers. The doctor also recommended that the applicant consult a surgeon.
10. On 23 March 2012 the head of the correctional colony extended the applicant’s detention in a disciplinary cell for another fifteen days. The prison doctor examined the applicant and concluded that he was fit for detention in the disciplinary cell. He continued the prescribed treatment.
11. On 28 March 2012 the applicant was admitted to a prison hospital at correctional colony no. IK-5. According to the applicant, he was able to consult a surgeon only on 5 April 2012. The applicant’s surgery was scheduled on 10 April 2012.
12. On 8-9 April 2012 the applicant’s cyst opened up and the inflammation stopped.
13. On 18 April 2012 the applicant was released from hospital and transferred back to the correctional colony.
14. On 25 April 2012 the applicant consulted a surgeon and a neurologist at the hospital of correctional colony no. IK-2. He was prescribed medication for high blood pressure. The surgeon recommended that the applicant undergo a surgery in connection with the pilonidal cyst.
15. From 14 to 30 August 2012 the applicant underwent additional examination and treatment at the surgical division of the hospital at correctional colony no. IK-5. According to the doctors who treated the applicant, no surgery was required.
16. According to the applicant, on 5 June 2012 the applicant was summoned by the head of the operations division of the colony. There were several officers present in the office. They advised the applicant to withdraw his application before the Court. They threatened him that, should he choose to pursue his application, he would be serving the rest of his sentence in a disciplinary cell without family visits and he could be charged with another offence. The applicant complied. He signed a letter. It was stamped by the colony and dispatched to the Court on 6 June 2012.
17. On 14 June 2012 the applicant wrote another letter to the Court wherein he asked the Court to disregard his previous letter that he had had to write because of the pressure put on him by the administration of the colony.
18. On 25 June 2012 the Court received the applicant’s letter wherein he asked for withdrawal of his complaint. The letter bore a stamp of the correctional colony and a number attributed to by the administration.
","[2, 3, 5, 6, 7, 8, 11, 12, 13, 14]"
001-170052,"5. The applicants, Dorina and Viorel-Aurel Ioniță, were born in 1976 and 1972 respectively and live in Brăila.
6. On 7 November 2005 the applicants’ son, aged four years and nine months at that time, underwent surgery for the removal of polyps, which was performed by Dr C.B. in the State-run Brăila Emergency Hospital.
7. Dr C.B. decided to perform the operation under general anaesthetic with tracheal intubation. The general anaesthesia was performed by Dr P.A, assisted by P.V.I., a staff nurse.
8. After surgery the child was immediately transferred to the intensive care unit. Ten minutes after his transfer P.V.I. informed Dr P.A that the child was cyanotic and had no pulse.
9. The child suffered a haemorrhage, causing blood to flood his lungs. A team of doctors tried to resuscitate him and clear his respiratory channels, but without any success. The child was declared dead two hours after the operation.
10. A criminal investigation into the cause of death was opened by the Brăila police on the same day.
11. Dr C.B. and Dr P.A. were questioned and gave written statements.
12. An autopsy report issued by the Brăila Forensic Service (Serviciul de medicină legală Brăila) on 8 November 2005 said that the applicants’ son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs. It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the postoperative complications: myocardia and hepatic dystrophy, and interatrial septum aneurisms.
13. The report was sent for the approval of the commission for confirmation and supervision of the Iaşi Forensic Institute (Comisia de avizare și control din cadrul IMF Iaşi). On 5 May 2006 the commission confirmed that the child’s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs. It held that there had been a causal link between the post-operative treatment and the child’s death. It noted the deflation of the balloon of the catheter (balonaşul sondei de întubaţie), applied after post-operatively to prevent the ingress of blood into the lungs, as a possible cause of the presence of blood there and in his airways.
14. On 12 October 2006 the superior commission of the Mina Minovici Forensic Institute examined all the documents and approved the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.
15. On 8 November 2005 the child’s father lodged a disciplinary complaint against Dr C.B. and Dr P.A.
16. The disciplinary committee of the Brăila College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from Dr C.B. and Dr P.A., as well as from the doctors involved in the resuscitation procedure postoperation. It gave its decision on 9 July 2007 by which it concluded that the child’s death could be included among cases of sudden death (with a frequency of 2-4 % owing to the child’s pre-existing medical conditions: myocardia and hepatic dystrophy, and inter-atrial septum aneurisms). Although the committee concluded that there had been no direct link between the child’s death and the doctors’ medical conduct, it reprimanded both doctors for their failure to perform the necessary pre-surgical medical tests and to seek the applicants’ informed consent before surgery.
17. The applicants objected to the committee’s conclusions and their appeal was examined by the superior disciplinary committee of the National College of Doctors.
18. An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions. The expert noted, among other things, that the child’s preparation for surgery had not been appropriate as his examination before anaesthesia had been “very superficial”; in this respect the committee noted the lack of a radioscopy of the lungs, of an EKG and an exploration of the necessary time for blood coagulation. In the expert’s view, the doctors had ignored the child’s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “minor intervention” and therefore no special precautions had been necessary.
19. By a decision of 6 June 2008 the superior disciplinary committee of the National College of Doctors quashed the decision of 9 July 2007 and fined each doctor 1,000 Romanian lei (the equivalent of approximately 220 euros (EUR)). It found that the child’s pre-surgical tests had been insufficient for avoiding post-operative complications. Therefore, it held that Dr C.B. and Dr P.A. had infringed Article 53 of the Medical Deontological Code, pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care.
20. The committee further stated that the presence of blood in the child’s airways could not be explained on the basis of the documents and statements in the file. It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leakproof (etanche); however, the fact that the cause of death had been the presence of blood in the child’s lungs could only lead to the conclusion that such statements had been inaccurate.
21. Relying on Articles 58 and 60 of the Deontological Code and Article 6 of Law no. 46/2003, the committee also noted that the parents had not given their informed consent.
22. On 7 November 2005 the applicants lodged a criminal complaint alleging that the flawed surgical and post-surgical treatment received by their son had resulted in his death. They asked that those responsible be identified and held accountable for their son’s death. They joined the criminal proceedings as civil parties.
23. Following a request of the Brăila Police Inspectorate, on 19 July 2006 Brăila Emergency Hospital stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child’s transfer to the intensive care unit and P.V.I. while in the intensive care unit.
24. On 5 January 2007 the prosecutor’s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A.
25. P.V.I. was interviewed as a witness immediately after the child’s death, during the preliminary criminal investigation. During the criminal proceedings against Dr P.A., in spite of the fact that she had been repeatedly summoned, the investigating authorities were not able to question her as she had not been found. She had left her job at the Brăila Emergency Hospital in January 2006.
26. The prosecuting authorities interviewed several doctors and nurses from the hospital’s medical staff who had been involved in the applicants’ son’s post-operative care.
27. Dr P.A. lodged a request with the investigating body for a new forensic medical report. He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of the Iaşi Forensic Institute.
28. On 4 April 2007 the Brăila Police Inspectorate asked the Iaşi Forensic Institute to carry out a forensic expert report that would identify the cause and circumstances of the child’s death. The Iaşi Forensic Institute replied that a new forensic report could not be produced as the evidence examined had been sent by Brăila Forensic Service to the Mina Minovici National Forensic Institute.
29. On 20 February 2008 Dr P.A. submitted an extrajudicial expert report. It stated that the cause of death had not been the presence of blood in the child’s lungs owing to a lack of adequate post-operative monitoring, but the post-operative reaction of a child with pre-existing medical conditions (cardiac congenital malformation, hepatic dystrophy, renal stasis, mesenteric adenopathy and hemorrhagic enterocolitis) mentioned in the medical records kept by the child’s paediatrician. The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract, lungs, heart and spleen.
30. The applicants gave evidence to the investigating authorities on 23 January 2008. They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions.
31. On 30 June 2008 the Brăila Police Inspectorate ordered that a new forensic report be produced by the Mina Minovici National Forensic Institute. The applicants, Dr P.A. and the investigating authorities submitted several questions for the forensic experts. They asked, among other things, whether the pre-existent medical condition of the child had influenced his unfavourable post-surgical evolution and whether administration of a general anaesthetic had been the right option, given the age and the diagnosis of the child. The child’s father also asked the Forensic Institute whether the post-operative monitoring of the child had been adequate.
32. However, on 28 July 2008 the Forensic Institute replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements. Accordingly, the Forensic Institute stated that it maintained its previous opinion.
33. Copies of the documents from the disciplinary file were added to the criminal file.
34. On 30 September 2008 the prosecutor’s office of the Brăila County Court decided to discontinue the criminal proceedings against Dr P.A., finding, in the light of evidence gathered in the case, that there had been no element of criminal negligence in his conduct. That decision was upheld on 10 November 2008 by the chief prosecutor of the same prosecutor’s office.
35. A complaint by the applicants against the prosecutors’ decisions was allowed by the Brăila District Court on 25 February 2009. The prosecutors’ decisions were quashed and the District Court kept the file for fresh consideration. It considered that although a new forensic report had not been produced, the decision of the superior committee of the National College of Doctors provided enough information concerning the cause of death, which had been the presence of blood in the child’s airways owing to the balloon of the tracheal catheter not being tight enough. It considered that it should be established whether the post-operative monitoring of the child by Dr P.A. had been appropriate and more precisely whether Dr P.A. should have noticed the non-functioning catheter.
36. Dr C.B. and Dr P.A. gave statements before the District Court on 18 January 2010. Moreover, members of the medical staff that had attempted resuscitation gave evidence (on 1 March, 20 April and 8 June 2008). Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery.
37. P.V.I. did not give evidence before the court as, although summoned, she did not attend the hearings. According to several reports issued by bailiffs seeking to bring her before the court, she had left the country for Italy. Based on the material in the case file it does not appear that the court took special measures to identify her address there.
38. The child’s father gave evidence before the Brăila District Court on 18 January 2010. He reiterated his claims for pecuniary and nonpecuniary damages. He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent.
39. On 1 October 2010, after several hearings, the Brăila District Court acquitted Dr P.A. and dismissed the applicants’ civil claim as unfounded.
40. The District Court took into account the extrajudicial forensic report submitted by Dr P.A. It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of 8 November 2005 and the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.
41. This judgment was upheld by a decision of the Brăila County Court delivered on 21 December 2010.
42. The County Court did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes.
43. The County Court concluded that the death of the child had been caused by the presence of blood in his airways and lungs. However, based on the evidence in the file, it was not possible to explain when the blood had entered the child’s airways because of the deflation of the catheter’s balloon. Moreover, the post-operative complications occurred ten minutes after the child had been transferred to the intensive care unit, while under the supervision of P.V.I. The County Court held therefore that Dr P.A. could not be held responsible for the deflation of the catheter’s balloon after surgery.
44. The applicants lodged an appeal on points of law against that decision. They requested that the court extend the criminal investigation to P.V.I., who had had the child under her supervision in the intensive care unit.
45. By a decision of 15 April 2011 the Galaţi Court of Appeal allowed the applicant’s appeal and quashed the decisions of the lower courts. Noting that the lower courts had not examined the allegation made by the child’s parents that they had not given their consent for surgery and the general anaesthesia, the appeal court sent the file back to the Brăila District Court.
46. On 22 December 2011 the Brăila District Court acquitted Dr P.A. It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants’ informed consent for the administration of a general anaesthetic.
47. It further held that it could not establish beyond any reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter’s balloon after surgery. Consequently, the court dismissed the applicants’ civil claim as unfounded.
48. The court also dismissed the applicants’ request to extend the criminal investigation to P.V.I. on the grounds that, under Article 337 § 1 of the CCP, only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts.
49. This judgment was upheld by a final decision delivered by the Galaţi Court of Appeal on 22 May 2012.
50. On 28 October 2008 the applicants instituted separate civil proceedings against the Brăila Emergency Hospital and doctors C.B. and P.A. in the Brăila District Court for the pecuniary and nonpecuniary damages they had sustained as a result of their son’s death.
51. On 23 April 2009, referring to Article 19 of the CCP (see paragraph 57 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings.
52. On 29 January 2013 the Brăila District Court lifted the stay of the civil proceedings. However, the applicants gave up their separate civil claim on 6 March 2013.
","[1, 3, 4, 7, 8, 10, 11, 12, 14, 15, 17, 19, 20, 22, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44]"
001-170360,"5. The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991.
6. On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish.
7. Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs.
8. On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group.
9. On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present.
10. On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant.
11. On 16 September 2003 the applicant’s pre-trial detention was ordered by a court.
12. On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer.
13. On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime.
14. On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation.
15. On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence.
16. On 18 November 2003 the applicant was again questioned in the presence of his lawyer.
17. On 15 December 2003 all the criminal proceedings against the applicant were joined.
18. On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes.
19. On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present.
20. On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty.
21. On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative.
22. On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer.
23. On 9 March 2004 the criminal case against the applicant and his coaccused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants.
24. In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant.
25. On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drugrelated offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered.
26. The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present.
27. On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it.
28. On 22 June 2006 the Court of Appeal upheld the trial court’s judgment.
29. On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments.
30. On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case.
31. On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
32. The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts.
33. On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother.
34. On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003.
35. On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son.
36. On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General.
37. In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office.
38. On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment.
39. On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant.
40. On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained.
41. On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either.
42. On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken.
43. On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13 to 14 September 2003 at the applicant’s own request.
44. On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004.
45. On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations.
46. On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers.
47. On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings.
48. During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection.
49. On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009.
","[1, 4, 5, 8, 9, 10, 11, 13, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44]"
001-170858,"6. The applicant is a lawyer who also writes articles for various Russian law journals and online legal information databases and networks.
7. According to the applicant, his work usually requires extensive scientific research, including in the field of law enforcement in the Khabarovsk Region. He supported his assertion with copies of contracts with well-known Russian publishing houses and owners of a number of legal magazines, including one supervised by the Secretariat of the President of the Russian Federation. Under the contracts he undertook the task of writing articles on specific topics of legal and social interest.
8. Having received an assignment to write an article on prostitution and the fight against it in the Khabarovsk Region, on 12 May 2009 the applicant wrote to the head of the Khabarovsk Region police department by registered letter, asking for statistical data for his research. The relevant parts read:
“[I am] interested in [receiving] information for the period between 2000 and 2009, in particular:
[information on] the number of people found administratively liable under Article 6.11 of the ... Code of Administrative Offences (prostitution), with a breakdown by sex, residence (residents of the Khabarovsk Region or visitors), nationality (nationals of the Russian Federation, foreigners or stateless persons) and the year [of the offence];
[information on] the number of criminal cases instituted during the abovementioned period under Articles 241, 242, 242.1 [and] 127.1 (cases related to sexual exploitation) of the ... Criminal Code, with a breakdown of the specific Articles ... and the year [the case was opened];
[information on] the number of individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code, with a breakdown by sex, age, educational background, permanent residence (residents of the Khabarovsk Region or visitors), nationality and period [in which the crime was committed];
general information on sentences imposed on individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code the types of sentences and in how many cases they were imposed, and the years [they were imposed].
...
[I] stress that I do not need any specific personal information about individuals found administratively or criminally liable; [I only need] general statistical information for writing a scientific article.”
9. It appears from an acknowledgement of receipt that the letter reached the Khabarovsk Region police department on 25 May 2009.
10. Under Russian law, State officials must provide a reply to letters from individuals within thirty days. In the absence of any response, on 26 June 2009 the applicant lodged a claim with the Tsentralniy District Court of Khabarovsk (“the District Court”), complaining that the police authorities had failed to provide him with the information he had requested and requesting for access. Relying on the Information Act (see below) and Article 10 of the Convention, he argued that the officials’ implied refusal to provide him with the information had been unlawful as he had not asked for access to any confidential personal information, State secrets or information related to internal police working methods. He claimed that his request had related purely to statistical data of a general nature collected by the Information Centre of the Khabarovsk Region police department (hereinafter “the Information Centre”).
11. On 18 July 2009 the applicant received a letter from the head of the Information Centre, notifying him that information as specific as he had asked for could only be collected on production of a written order issued by a deputy Minister of Internal Affairs, a head of a regional or municipal police department or their divisions or a prosecutor or investigator from a prosecutor’s office. The Information Centre did not collect such information at the request of private individuals. General statistical data summarised by the Information Centre was provided to the Federal Service of State Statistics and in particular its regional office for the Khabarovsk Region, to whom the applicant could apply for the statistical data.
12. On 19 July 2009 the applicant wrote to the Khabarovsk Region Service of State Statistics (hereinafter “the Statistics Service”) by registered letter, asking for the statistical data for his research.
13. On 23 July 2009 the head of the Statistics Service replied, stating that specific statistical information on the fight against prostitution had never been provided by the Khabarovsk Regional police department.
14. The applicant filed copies of his letters from the Information Centre and Statistics Service with the District Court.
15. On 4 August 2009 it dismissed the applicant’s claim on the grounds that the Information Centre was not authorised to process data requests from private individuals. Under domestic law, the Statistics Service was tasked with dissemination of official statistical data on a broad variety of subjects, including those falling within the applicant’s field of interest. It also noted that the applicant had failed to obtain the information sought from open sources, such as libraries, archives and the Internet. The District Court also stressed that the information requested did not touch upon the applicant’s rights and legitimate interests, so the authorities’ refusal to grant him access to such information had been lawful and well-founded under section 8(2) of the Information Act.
16. The applicant appealed, arguing, among other things, that the police authorities had exclusive possession of the information sought by him and that he had no other means, including through assistance from the Statistics Service, of obtaining the necessary data. In addition, he submitted that the fact that his rights and legitimate interests were not affected by the requested information had no bearing on the case as under Russian law, it was not only those directly concerned who were granted access to public information.
17. On 16 September 2009 the Khabarovsk Regional Court upheld the judgment of 4 August 2009. Relying on section 8(2) of the Information Act, it concluded that the authorities were not obliged to provide the applicant with the information as it did not touch upon his rights and legitimate interests.
","[1, 2, 10, 11, 12, 13, 14, 15, 16, 17, 18]"
001-171971,"5. The applicant was born in 1934 and lives in Strausberg. Before the reunification of Germany he lived in the former GDR, serving in the police force from 1952 to 1954.
6. On 13 June 1958, the Frankfurt (Oder) District Court convicted the applicant of “criminal assault against the local bodies of the State” (“verbrecherischer Angriff gegen die örtlichen Organe der Staatsmacht”) after he had attacked a member of the GDR parliament of the ruling Socialist Unity Party. He was sentenced to one year and eight months’ imprisonment and served 14 months in prison.
7. On 8 February 1994 the Frankfurt (Oder) Regional Court annulled the 1958 judgment for its incompatibility with the principles of the rule of law and rehabilitated the applicant pursuant to Section 1 § 1 of the Criminal Rehabilitation Act (Gesetz über die Rehabilitierung und Entschädigung von Opfern rechtsstaatswidriger Strafverfolgungsmaßnahmen im Beitrittsgebiet Strafrechtliches Rehabilitierungsgesetz) designed to rehabilitate and compensate prisoners of the GDR regime for deprivation of their liberty incompatible with the principles of the rule of law.
8. On 25 April 1994 the applicant lodged an application for compensation under the Criminal Rehabilitation Act. The application form contained instructions that, according to Section 16 § 2 of the Act (see Relevant domestic law and practice, paragraphs 23 and 24 below), such compensation could not be granted to a person who had offended against the principles of humanity and the rule of law. The applicant declared on the questionnaire that he had never acted in disregard of these principles and never worked for the former GDR’s Ministry of State Security (Ministerium für Staatssicherheit). On 13 February 1995 the President of the Frankfurt (Oder) Regional Court, acting as the competent authority, awarded him compensation of 8,250 German marks, equivalent to about 4,218 euros (EUR), pursuant to Section 17 in conjunction with Section 16 §§ 1 and 3 of the Criminal Rehabilitation Act.
9. On 7 August 2007, after an amendment of the Act, the applicant also applied for a special, incomerelated pension which benefits former victims of imprisonment (monatliche besondere Zuwendung für Haftopfer). He again confirmed that he had never offended against the principles of humanity and the rule of law and never worked for the former GDR’s Ministry of State Security. On 14 November 2007 he was granted a special monthly pension of EUR 250 pursuant to Section 17a of the Criminal Rehabilitation Act, with the reservation that information held by the Federal Commissioner for the Records of the State Security Service of the former GDR (“the Federal Commissioner”) must not contradict the applicant’s statements. A respective request for information was submitted on 19 November 2007.
10. On 25 February 2008 the Federal Commissioner informed the President of the Regional Court that the applicant, between 22 September 1953 and 25 November 1954, had been a secret informant of the Ministry of State Security while he was a member of the police force. This information was based on a number of documents, including 32 handwritten reports allegedly drafted by the applicant and a declaration to commit to serve as a secret informant to the state security service.
11. On 18 February 2009 the President of the Regional Court, relying on Section 48 §§ 1 and 2, third sentence, no. 2 of the Brandenburg Administrative Procedure Act (Verwaltungsverfahrensgesetz für das Land Brandenburg), withdrew the decisions granting compensation and a special pension and at the same time ordered the applicant to reimburse the amounts already received pursuant to Section 49a of the same Act. The President considered that the decisions had been unlawful from the beginning as the prerequisites for either entitlement had never been met and that the applicant could not legitimately rely on these decisions being maintained, as he had obtained them by giving information that was substantially incorrect. Referring to Section 16 § 2 of the Criminal Rehabilitation Act, he observed that the applicant, contrary to the statements in his applications, had worked as a secret informant for the Ministry of State Security and had produced at least five reports for the Ministry in which he put at real risk the persons on whom he had informed.
12. On 9 March 2009 the applicant applied for judicial review of that decision and asked to be heard in person. He claimed that the information contained in the documents of the Federal Commissioner was incomplete and not accurate. The fact that at the time of recruitment he was only 19 years old and had been severely traumatised when fleeing his home town in Silesia in 1945 and experiencing the bombing of Dresden on 13 February 1945, followed by several months of homelessness after the war had ended, also had to be taken into account. His father had returned, incapacitated for work, from Soviet captivity only in 1947 or 1948. While serving in the police forces he had not been aware of working for other government agencies. The written commitment to the state security service might have been dictated to him when he was under the influence of alcohol but he had no memory of it whatsoever. In any case, he ruled out that the wording was his own and that he had known that the reports were to be used by the state security service.
13. On 16 February 2010 the Frankfurt (Oder) Regional Court, sitting as a chamber of three judges, dismissed the applicant’s request for judicial review, finding that his work as a secret informant for the Ministry of State Security was of such nature, scope and duration that it was reprehensible enough to justify ruling out the applicant’s eligibility for compensation payments pursuant to Section 16 § 2 of the Criminal Rehabilitation Act. Acknowledging that in a dictatorship which lasted for decades, minor involvement with the regime was frequent, it considered that the applicant’s position as a secret informant of the state security service did not itself suffice to trigger the application of that provision. However, compensation provided under the Act was intended to benefit innocent victims only, but not those who had also participated in offences contrary to the principles of humanity and which were harmful to others or at least put them at risk. This could be assumed when a secret informant voluntarily reported on others and the reports could potentially cause persecution by the state security service. In that case compensation payments were ruled out, no matter how great the offender’s own suffering had been. The courts were not to compare the extent of suffering involved.
14. The Regional Court observed that the applicant had penned a handwritten commitment to serve the state security service after he had already reported twice on others. Thus the applicant’s submission that he had believed that he was reporting to police officers and not to the state security service was, in the light of that declaration, not credible (“nicht glaubhaft”). Furthermore, the five reports mentioned in the decision of the President of the Regional Court, as well as two more reports were capable of putting in danger the persons informed on. The applicant mainly reported on their contacts with West Germany and West Berlin. An intention to leave the former GDR without permission, in particular, could have led to severe criminal persecution of the persons involved. The reports were not meaningless but contained valuable information for the state security service. The applicant’s claim that some reports were unknown to him and factually incorrect and that he did not recognise the names of the superior officers was irrelevant to the Regional Court’s decision.
15. The Regional Court also pointed out that it was unnecessary to hear the applicant in person. His personality at the time and the circumstances of his recruitment would have been relevant only if there were indications that the applicant acted under insupportable pressure. However, there were no such indications and the applicant had made no claims in this regard. He had reported twice on others, even before being recruited by the state security service. Further, the court could not see a connection between the applicant’s experiences relating to the impact of war and the post-war period on him and his psychological strain at the time of recruitment on the one hand and his willingness to cooperate with the state security service on the other hand.
16. On 24 August 2010 the Brandenburg Court of Appeal dismissed the applicant’s appeal, endorsing the Regional Court’s reasons.
17. On 28 October 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons (2 BvR 2329/10).
","[1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]"
001-178750,"6. The applicant was born in 1972 and lives in Dublin, Ireland.
7. In 2004 he married a Slovak national and the couple settled in Ireland. Their two children, born in 2006 and 2008, are both Irish nationals.
8. On 6 January 2011 the mother travelled to Slovakia with the two children and they have not returned to Ireland since.
9. On 31 January 2011 the applicant commenced proceedings in the Slovakian courts for the return of his children to Ireland under the Brussels II bis Regulation and the Hague Convention.
10. On 1 July and 26 October 2011 respectively, the Bratislava I District Court and, following an appeal by the mother, the Bratislava Regional Court, ordered the return of the children to Ireland as their country of habitual residence and issued several ancillary orders.
11. The return order became enforceable on 8 July 2011.
12. On 6 February 2012 the applicant applied for judicial enforcement of the return order since the mother had not complied with it.
13. On 9 February 2012 the Michalovce District Court attempted to have the mother comply voluntarily with the order. In response, she informed the District Court that she had lodged a request with the Prosecutor General for him to exercise his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie).
14. On 26 March 2012 the District Court stayed the enforcement proceedings on the return order pending the outcome of the mother’s request to the Prosecutor General.
15. On 14 August 2012 the District Court resumed the enforcement proceedings after the Prosecutor General had found that there were no reasons to lodge an extraordinary appeal on points of law.
16. On 18 October 2012 and 26 June 2013 respectively, the District Court and, following an appeal by the applicant, the Košice Regional Court, found that the return order was not enforceable. They based their conclusions on the following two grounds.
Firstly, they concluded that there already existed a previous decision on provisional measures, which had been delivered by the Michalovce District Court on 16 May 2011. That decision had temporarily entrusted the children to the care of the mother and required the applicant to pay child maintenance in the meantime. Those interim custody rights were to be determined later by the competent courts in Ireland.
Secondly, the return order had failed to specify that it was directed at the mother or to give a precise time frame for its implementation.
Given the fact that the mother had not been identified as the recipient and that the applicant had not been provisionally entrusted with the care of the children, the order could not be enforced.
17. Following the unsuccessful enforcement proceedings, the applicant applied to the same court which had delivered the return order, the Bratislava I District Court. He referred to the shortcomings in the order as identified by the enforcement courts and asked the court to specify to whom the order had been directed and to provide a time frame for the return of the children. The District Court concluded that the applicant’s action was res iudicata and dismissed it on 6 November 2014.
18. In the meantime, on 22 October 2013, the applicant challenged the enforcement courts’ decisions of 18 October 2012 and 26 June 2013 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).
19. On 9 July 2014 the Constitutional Court declared the complaint admissible and on 27 May 2015 it found on the merits that the Košice Regional Court had violated the applicant’s rights, as specified below (“the first constitutional judgment”).
20. In particular, it found a violation of the applicant’s rights under Articles 19 § 1 (family life), 41 §§ 1 and 4 (protection of parenthood and children, right to child care), and 46 § 1 (judicial protection) of the Constitution, and under Article 6 § 1 (fairness) and Article 8 (family life) of the Convention.
21. The Constitutional Court found that the Regional Court’s decision had been taken on purely formal grounds and had been arbitrary and in contravention of the Code of Civil Procedure, the Brussels II bis regulation, the Hague Convention and the Constitution. That arbitrary decision had meant that the positive obligations guaranteed by Article 8 of the Convention and the applicant’s parental rights had been breached as well.
22. Consequently, the Constitutional Court quashed the contested decision, remitted the applicant’s appeal against the District Court’s decision of 18 October 2012 to the Regional Court for reexamination and awarded him 3,000 euros (EUR) in compensation for nonpecuniary damage. In addition, the Constitutional Court awarded the applicant everything he had claimed in legal costs (EUR 276.94). It noted that he had made no claim for costs in respect of his observations in reply to those of the enforcement courts concerned by his complaint and concluded that no award was therefore possible in that regard.
23. The judgment was final and not amenable to appeal.
24. Following the first constitutional judgment, the enforcement proceedings resumed before the Regional Court, which heard the case on 3 August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, having regard to the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination.
25. On 15 April 2016 the District Court again declared enforcement of the order impermissible on the basis of newly obtained evidence. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from the court-appointed guardian (the Michalovce office of employment, social affairs and family) about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia, where they had been residing since January 2011, and the applicant’s lack of contact with them while in Slovakia. Relying on the Convention on the Rights of the Child and the Court’s Grand Chamber judgment in the case of Neulinger and Shuruk v. Switzerland (no. 41615/07, ECHR 2010), it concluded that their return to Ireland would go against their best interests.
26. Following an appeal by the applicant, the Regional Court upheld the lower court’s decision on 3 August 2016 and it became final and binding on 22 August 2016.
27. In the meantime, the applicant on 22 February 2016 lodged another constitutional complaint aimed at the enforcement proceedings held before the District Court (see paragraph 25 above). He alleged a violation of Articles 6 (length) and 8 (family life) of the Convention and their constitutional equivalents.
28. On 14 December 2016 the Constitutional Court found a violation of the applicant’s rights under both of those Convention provisions (“the second constitutional judgment”). When dealing with the applicant’s length of proceedings complaint, the Constitutional Court took into account that it was the first time the applicant had raised such a grievance. There had accordingly been no previous constitutional assessment of that matter to prevent it from assessing the impugned enforcement proceedings in their entirety, from when they had been initiated. Having regard to the sensitive nature of the matter and its importance for the applicant’s enjoyment of his parental rights, the Constitutional Court found that the District Court had proceeded with the matter over a long time (for more than four years) and inefficiently (it had stayed the proceedings, delivered an arbitrary enforcement decision on the first occasion, and had taken lengthy procedural steps). Notably, the Constitutional Court emphasised that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It also reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decisionmaking that was in accordance with international standards.
Moreover, the Constitutional Court found that there had been a violation of the applicant’s right to respect for his family life as a consequence of the fact that throughout the enforcement proceedings, whose length had been in breach of his right to a hearing within a reasonable time, he had been unable to assert his parental rights before the competent courts.
29. The Constitutional Court ordered the District Court to reimburse the applicant’s legal costs and to pay him EUR 4,000 in respect of nonpecuniary damage.
30. After the enforcement proceedings had been completed by a final and binding decision and before the second constitutional judgment had been issued, the applicant applied to the Constitutional Court a third time on 14 October 2016. He relied on that occasion on Article 6 (fairness and length) in conjunction with Articles 13 and 8 (family life) of the Convention and challenged the decisions of 15 April and 3 August 2016 (see paragraphs 26 and 27 above) on their merits. That complaint is still ongoing.
","[2, 3, 6, 10, 11, 14, 15, 16, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28]"
001-180548,"4. The applicant company, S.C. Textinc S.A., is a Romanian company whose registered office is in Timişoara.
5. On 12 December 2008 the Timişoara Finance Inspectorate (hereinafter, “the T.F.I.”) instituted enforcement proceedings against the applicant company on the grounds that it had an outstanding tax liability for the year 2008 amounting to 237,128 Romanian lei (RON).
6. The applicant company, represented by its appointed lawyer, Mr. P. Sălăjan, challenged before the Timişoara District Court the T.F.I.’s decision to open enforcement proceedings. It claimed that it had no outstanding fiscal debts and submitted documentary evidence in this respect.
7. At the first hearing in the proceedings the T.F.I. acknowledged that the applicant company had no outstanding tax liability and that the enforcement proceedings had been instituted in error. Invoking Article 275 of the Romanian Code of the Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), it also contended that as it had acknowledged its error at the first hearing in the proceedings it should not be ordered to pay the costs and expenses incurred by the applicant company.
8. By a judgment of 16 February 2009 the Timişoara District Court allowed the applicant company’s challenge concerning the T.F.I.’s decision to open enforcement proceedings and ordered the T.F.I. to pay the applicant RON 9,893; this sum represented respectively the fees of the applicant company’s lawyer (9,700 RON), stamp duty and trial tax (193 RON). The court held that although the T.F.I. had acknowledged its error at the first hearing it could not be exonerated from the payment of the costs and expenses incurred by the applicant company, as the challenge proceedings were the result of a mistake on its part. The court further noted that the T.F.I. had started enforcement proceedings against the applicant company for a non-existent debt and that the latter had accordingly had to hire a lawyer and pay the trial fees in order to defend itself. The court also noted that the applicant company had submitted evidence to support its request for the reimbursement of the expenses it had incurred.
9. The T.F.I. lodged an appeal on points of law against the judgment of 16 February 2009. It claimed that the first-instance court had not observed the principle of adversarial proceedings and of equality of arms, as it had not had the opportunity to challenge the amount paid by the applicant company in lawyer’s fees, which in its opinion were too high.
10. By a final judgment of 12 August 2009 the Timiş County Court dismissed the appeal as unfounded. While holding that the lawyer’s fees corresponded to his input in the case, the court reiterated that the judge was entitled to increase or to reduce a lawyer’s fees, according the specific criteria set out by Article 274 of the CCP (see paragraph 15 below). The court thus concluded that the judgment given by the Timişoara District Court was lawful and well-founded; it further awarded the applicant company the amount of 7,596 RON in legal costs in respect of the appeal proceedings.
11. The T.F.I. lodged with the Timiş County Court an application for the judgment of 12 August 2009 to be set aside (contestaţie în anulare – see paragraph 14 below) on the grounds that the County Court had not examined all the arguments that it had raised in its appeal on points of law; the T.F.I. referred in particular to the fact that before the Timişoara District Court they were not given the possibility to bring their arguments concerning the amount requested by the applicant company and then awarded in legal costs and expenses by the first-instance court.
12. In a final judgment of 19 February 2010 the Timiş County Court, sitting in a different formation from that of 12 August 2009, allowed the request: it set aside the judgment of 12 August 2009 (see paragraph 10 above) and allowed the appeal lodged by the T.F.I. against the judgment of 16 February 2009 (see paragraph 8 above), which it partly amended. The County Court held that the appellate court had not examined the arguments raised by the defendant in their appeal on points of law in relation to the manner in which the first instance court applied Article 274 § 3 of the CCP (see paragraph 15 below); in particular, the first instance court had not allowed the parties to bring their arguments concerning the amount of the legal costs requested by the applicant company. Such an omission was sufficient, in the County Court’s view, to justify the quashing of the previous judgments.
13. The County Court then re-examined the amount paid by the applicant company in lawyer’s fees and considered that in relation to the lawyer’s input in the case, it was justified to reduce that amount from RON 9700 to RON 700. It also considered that the stamp duty and trial tax in the amount of 193 RON were not to be granted to the applicant company, in so far as this amount could be requested separately from the fiscal authorities, based on the Law no. 146/1997 on stamp duty, as a consequence of the fact that the challenge to the enforcement had been allowed.
","[1, 2, 3, 4, 5, 6, 7, 8, 9]"
001-183127,"5. The applicant was born in 1959 and lives in Nova Gorica.
6. The applicant was working as a cleaning lady when she allegedly developed serious medical complications in her left wrist, which could only partly have been addressed by surgery. This resulted in her using predominantly her right arm, which in turn resulted in the overburdening of that arm, giving rise to a number of medical problems. Because of these medical issues she was found, in 2006, to be incapable of further work and officially recognised as having a partial disability.
7. On 30 December 2011 the applicant applied to the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) for a disability allowance in respect of a physical impairment (nadomestilo za invalidnost – hereinafter “disability allowance”).
8. On 12 March 2012 the first-instance disability commission of the Institute, located in Nova Gorica, issued a report to the effect that the applicant was not suffering from any physical impairment stipulated in the Self-Management Agreement on the List of Physical Impairments (Samoupravni sporazum o seznamu telesnih okvar – hereinafter “the List”; see paragraph 22 below). The commission – composed of an occupational medicine specialist, an orthopaedic specialist and a physical medicine and rehabilitation physician – based its opinion on an examination of the medical records submitted by the applicant and a clinical examination of the applicant.
9. On 15 March 2012 the Nova Gorica unit of the Institute, relying on the opinion of the first-instance disability commission, dismissed the applicant’s application for a disability allowance. A copy of the first-instance disability commission’s opinion was attached to the decision. The applicant appealed.
10. On 15 May 2012 the second-instance disability commission of the Institute, located in Ljubljana, composed of an occupational medicine specialist and an orthopaedic specialist, examined the applicant’s medical file and again issued a report to the effect that no physical impairment stipulated in the List could be found.
11. On 7 June 2012 the Central Office of the Institute, referring to the conclusions of the second-instance disability commission, dismissed the applicant’s appeal. A copy of the second-instance disability commission’s opinion was attached to the decision.
12. On 12 July 2012 the applicant initiated court proceedings against the Institute before the Ljubljana Labour and Social Court seeking the annulment of the above-mentioned decisions taken by the Institute, arguing that the facts had been wrongly established, and that the procedure had not been properly conducted. She argued that because of the incapacity of her arms the functioning of her body was inhibited and greater efforts were required to satisfy her daily needs. She also argued that the opposing party should have more seriously examined all her medical problems. In her view her physical impairment amounted to at least 50% incapacity; however, the exact degree could only be determined by a medical expert. She accordingly proposed that a medical expert be appointed.
13. On 6 September 2013 the Ljubljana Labour and Social Court, sitting in a single-judge formation, dismissed the applicant’s application for a disability allowance. It observed that its role was to check whether the impugned administrative decisions had been issued in a procedure that had complied with the procedural rules, and had been based on a proper establishment of fact and proper application of the law. It furthermore observed that the claimed physical impairment was a legally relevant fact, whose degree of severity under the relevant legal provisions (see paragraph 22 below) had to be proved in order for entitlement to a disability allowance to be established. After taking into account the documents in the file and the hearing of the applicant, the court found that the Institute had correctly established the facts. Referring to the findings of the disability commissions and its own direct observation of the applicant at the hearing, it concluded that the impairment to the applicant’s health did not amount to a physical impairment within the meaning of the law.
14. Considering the above-mentioned findings sufficient to reach its conclusion, the court refused the applicant’s request for the appointment of a medical expert as unnecessary.
15. On 17 October 2013 the applicant lodged an appeal against the first-instance court’s finding. She argued that the impairment to both of her arms, her psychological illness and her headaches meant that the normal functioning of her organism was inhibited and that she had to exert greater efforts in order to perform daily tasks; that the List, which was out of date, could not possibly contain a complete list of all illnesses and injuries; that the first-instance court should not have relied on the opinions of the disability commissions and a doctor (opinions which the applicant had disputed); that the first-instance court should have appointed a medical expert, as requested by the applicant; that the applicant could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms.
16. On 6 February 2014 the Higher Labour and Social Court dismissed the applicant’s appeal, finding that the facts had been sufficiently established and the substantive law applied correctly. It also found that the refusal of the applicant’s request for the appointment of an expert had not undermined the legality of the decision as that decision would not have been any different had an expert been appointed. The Higher Labour and Social Court further found the following:
“A court in a judicial social dispute ... assesses the correctness and lawfulness of the impugned administrative decisions [in question] and having regard to the dispute of the full jurisdiction [the court] when quashing [the administrative decisions] alone decides on the merits. Within the context of the judicial review of the administrative decisions [the court] is of course not obliged to accept evidence [submitted by] a forensic medical expert if the expert opinions of the disability commissions at first and second instance allow for the conclusion that the negative administrative decisions are correct and lawful because they are based on an assessment by both commissions which is convincing in view of the available medical documentation and the report of [the relevant] medical examination. Such a procedural situation is found in the present case, because in the opinion of the appeal court the expert bodies in the pre-judicial administrative proceedings correctly determined that the applicant had no physical impairment.”
17. The court furthermore found that physical impairments could not be determined contrary to what was provided in the List. Moreover, the question of whether a particular condition amounted to an impairment was different to the question of whether it amounted to a disability. In the applicant’s case, although she had a recognised disability, this fact alone – without any functional problems in respect of inflexibility of joints – could not suffice to categorise her condition as one of physical impairment. The Higher Labour and Social Court agreed with the court of first instance that the disability commissions in the pre-judicial administrative proceedings had made the right assessment when concluding that the applicant had not suffered from any physical impairment. It also pointed out that the court had not been obliged to appoint an independent expert if it had been possible to conclude from the disability commissions’ opinions that the Institute’s decisions had been well-founded, as had been so in the instant case.
18. The applicant lodged an application for leave to appeal on points of law. She argued that her right to a fair trial had not been respected because the court had refused to appoint a medical expert and had assessed the applicant’s condition itself, despite lacking the necessary medical knowledge. She had thereby been deprived of her only possibility to challenge the Institute’s decisions. The applicant also drew attention to the fact that in numerous cases court-appointed experts had found the disability commissions’ fact-finding to be erroneous. She moreover argued that the first-instance court should not have based its decision on the List.
19. On 10 June 2014 the Supreme Court dismissed the applicant’s application, holding that there were no grounds for allowing an appeal on points of law.
20. On 21 July 2014 the applicant lodged a constitutional complaint. She complained that the Supreme Court’s decision had not been reasoned. She further argued that she could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms. Her only way of effectively challenging the Institute’s decision would have been by way of appointing an independent medical expert; as had been proved in the past, independent medical experts had often reached findings contrary to those of disability commissions. She invoked Article 22 (equal protection of rights) and Article 23 (the right to judicial protection) of the Constitution. She also reiterated her complaint about the reliance on the List.
21. On 10 December 2014 the Constitutional Court decided to not accept the applicant’s constitutional complaint for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant.
","[1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17]"
001-184659,"5. The applicant was born in 1958 and lives in Yerevan.
6. She is a civil servant working for the Ministry of Environmental Protection (hereinafter “the Ministry”) as a State inspector. She suffers from cardiac problems, including a heart rhythm disorder.
7. According to the applicant, on 10 January 2012 H.A., her head of division, and A.K., his deputy, used violence against her in H.A.’s office. In particular, they assaulted her, grabbed her hands, insulted her and forcibly took a document concerning her which she had taken in to them in order to write down her objections. As a result of the violence she fainted, sustained bodily injuries, received numerous bruises on her hands and was seriously humiliated.
8. On 12 January 2012 the applicant filed a written report with the head of staff of the Ministry, giving a detailed account of what had happened. She stated, inter alia, that she had returned her appraisal report for the second half of 2011 to H.A. since she had disagreed with the assessment received. On 10 January 2012 she had been informed by one of her colleagues that H.A. wanted to see her in his office. During their meeting, H.A. had given her the appraisal report and asked her why she had not signed it. She had responded that she wanted to discuss it. H.A. had refused to provide any clarifications, stating that he was the one to make decisions and would submit the report to the relevant division without her signature. H.A. had then ordered her to return the appraisal report, which she had refused to do, stating that she would write down her objections, sign the document and then return it to him. When she had been about to leave, H.A. had immediately closed and locked the door to his office and had started to approach her, shouting that she was a thief and had stolen a document from his office. Using physical violence and personal insults, he had tried to take the papers from her. After she had called for help, A.K. had entered the office and instead of diffusing the situation had also insulted her and ordered her to hand him the documents. The two of them had grabbed her hands, causing her serious pain, and forcibly taken away the papers. As a result of the stress and pain she had fainted for a short period of time, after which she had been told that she could leave as there was nothing else to discuss. She concluded by stating that as a result of the violent behaviour of H.A. and A.K. she had suffered injuries, health problems and serious distress. She requested that the relevant measures be taken in accordance with the law.
9. After the incident, the applicant felt unwell and underwent a medical examination. She was diagnosed with acute bronchitis and WolffParkinson-White syndrome (a heart rhythm disorder) and was put on sick leave from 13 to 27 January 2012.
10. On 14 January 2012 the applicant reported the incident to the police, stating that on 10 January 2012 she and H.A., her head of division, had had an argument during which he had been violent and caused her bodily harm. She made a statement giving an account of events similar to that in her report to the head of staff of the Ministry.
11. The investigator ordered a forensic medical examination the same day to determine whether the applicant had any bodily injuries and, if so, their nature, origin, seriousness and the time and manner of their infliction.
12. On 15 January 2012 H.A. gave a statement to the police. In particular, he stated that the applicant had refused to return her appraisal report to him, after which he had left his office, closed the door and called A.K., asking him to come to see him with the other employees. During that time the applicant had kept shouting and swearing. She had called their superior to say that he had locked her in. He denied harassing the applicant either physically or verbally and said that she had used foul language.
13. On the same day A.K. made a statement and similarly denied using violence against the applicant. Between 16 and 25 January 2012 a number of the applicant’s colleagues who were at work on the day of the incident were questioned and denied that H.A. and A.K. had been violent towards the applicant.
14. On 18 January 2012 the forensic medical examination was completed. The relevant parts of the expert’s opinion read as follows:
“Complaints: At present [the applicant] complains of a nervous breakdown.
Results of personal examination: An irregularly shaped, non-homogenous, greenishyellow ecchymosis measuring 6 x 2 cm is present on the mid-third of the inner right upper arm. Two similar round-shaped ecchymoses are present on the inner surface of the same area measuring 1 cm in diameter: on the mid-third of the inner left upper arm measuring 1 cm in diameter; on the lower third of the inner left upper arm measuring 2 x 1 cm and 1.5 x 1.2 cm and on the mid-third of the outer left forearm measuring 2.5 x 1.5 cm.
Conclusion: [The applicant’s] bodily injuries in the form of ecchymoses [around] the right and left upper arms and the left forearm have been inflicted with blunt, hard objects possibly in the period mentioned; [the injuries] taken separately as well as all together do not contain elements of [short-term] damage to health.”
15. On 24 January 2012 the investigator took an additional statement from the applicant. She stated that she had no objections to the opinion of the forensic medical expert and intended to pursue her complaint.
16. On 25 January 2012 the investigator took another additional statement from the applicant. The relevant parts read as follows:
“Question: In the course of collecting evidence H.A. and A.K. said that they did not hit you and did absolutely not grab your hands. What can you say about this?
Answer: ... I do not know why H.A. and A.K. said that but it is logical that they would deny committing such acts. I will reiterate once again that H.A. and A.K. pulled and pushed me and grabbed my hands thus causing me injuries.”
17. On 27 January 2012 the investigator took a further additional statement from the applicant. She stated:
“I inform you that since the time I [went] to the police ... [H.A.] and [A.K.] have not even apologised; moreover, they have created such an atmosphere that it is impossible to work, since other employees ignore me and avoid contact with me for fear of losing their jobs. Since H.A. and A.K. are continuing this kind of behaviour, abusing their official capacity, in the circumstances I am unable to reconcile with them. I am complaining and requesting that H.A. and A.K. be prosecuted. I also wish to add that because of their actions I have had health problems and as a result have been on sick leave from 13 to 27 January ...”
18. On 28 January 2012 H.A. was questioned again and stated, inter alia, that the applicant had made a false statement. He had never harassed her or grabbed her hands and had remained seated in his chair until she had left. As for the injuries discovered on the applicant’s body, H.A. stated that he had never touched her and did not know how they had been inflicted.
19. It appears that no decision was taken by the investigator for about a month.
20. On 24 February 2012 the applicant sent a written request to the head of the Marash Division of the Central Police Department for criminal proceedings to be brought against H.A. and A.K. She stated in her request, inter alia, that she had been informed of the provisions of Article 183 of the Code of Criminal Procedure, under which criminal proceedings could only be instituted on the basis of a complaint by her. She further stated that she had not reconciled with H.A. and A.K. and was calling for them to be prosecuted. On the same date the investigator took an additional statement from the applicant. A further additional statement was taken from her on 27 February 2012.
21. On 1 March 2012 the prosecutor instructed the investigator to refuse to bring criminal proceedings against H.A. and A.K. on the grounds that no crime had been committed. It was suggested that the applicant had perceived the events subjectively and that her supervisors had never used violence against her.
22. On 5 March 2012 the investigator refused to bring criminal proceedings against H.A. and A.K. for lack of corpus delicti in their actions. The decision stated, in particular, that the applicant had made unclear and contradictory statements with regard to the incident. It further stated that the evidence collected had revealed that on 10 January 2012 first H.A. and then A.K., who had gone to the latter’s office, had tried to calm the applicant down, as she had been insulting H.A. During the incident A.K. had caught hold of her hand and taken the document that she had taken from H.A. Intentional infliction of bodily harm was punishable under Article 118 of the Criminal Code, but negligent infliction of bodily harm was not punishable. In the case at hand the applicant’s injuries had been caused by H.A. and A.K.’s negligence; it had not been established that they had intentionally caused her injuries.
23. On 13 March 2012 the applicant lodged a complaint with the prosecutor against the investigator’s decision. She argued, inter alia, that contrary to what was stated in the decision she had described in detail how she had been treated. In particular, she had submitted that first H.A. had grabbed her hands using force, harassed her and locked her in his office so that she could not leave. Thereafter A.K. had come in and also assaulted her. The applicant complained that the conclusion in the investigator’s decision, according to which H.A. and A.K. had caused her injuries by negligence, could not be substantiated and pursued the purpose of exonerating public officials from responsibility. She further complained that, as a result of deliberate violence on the part of H.A. and A.K., she had experienced severe emotional suffering as a woman since her superior had debased her and caused her serious bodily harm without good reason, right in the workplace. In addition, the applicant stated that the incident had taken place in the workplace and naturally all the witnesses questioned by the investigator were the subordinates of H.A. and A.K. If criminal proceedings were instituted, they would be questioned as witnesses and warned about criminal liability for making false statements.
24. H.A. also lodged a complaint against the investigator’s decision, claiming that it had not been established that he or A.K. had ever hit the applicant.
25. On 15 March 2012 the prosecutor dismissed the applicant’s complaint and allowed H.A.’s complaint. In particular, the prosecutor upheld the investigator’s refusal to institute criminal proceedings but changed the grounds for it, stating that no crime had been committed involving H.A. and A.K. The decision stated that no evidence had been obtained that would establish that H.A. and A.K. had inflicted injuries on the applicant, except her own unspecified and contradictory statements. As regards the applicant, the decision stated, inter alia, that because the stress she had suffered as a result of the incident in H.A.’s office she had perceived and described what had happened in a subjective manner. In these circumstances, her contradictory statements did not correspond to the evidence gathered but that did not create grounds for prosecuting her for false accusations.
26. On 4 April 2012 the applicant lodged a complaint with the Kentron and Nork-Marash District Court (hereinafter “the District Court”), requesting that criminal proceedings be instituted. She reiterated her previous arguments and complained, in particular, that the question of her injuries had not been addressed at all in the prosecutor’s decision, which had ignored the results of the forensic medical examination. In the end, it had never been established who had inflicted her injuries. The applicant further complained that the prosecution had relied on the statements of subordinates of those who had committed the offence in question. Their statements could not be considered objective and reliable in view of the serious fear of those concerned losing their jobs. If criminal proceedings were instituted, they would have the procedural status of witnesses and would be warned about criminal liability for making false statements.
27. On 18 May 2012 the District Court dismissed the applicant’s complaint. In doing so, it found that the disputed decision had been lawful, while the applicant’s arguments stemmed from an individual and subjective interpretation of the events in question and the procedural measures undertaken in relation to them.
28. The applicant lodged an appeal against the District Court’s decision. She argued, inter alia, that it had failed to examine her arguments. In particular, the issue of the existence of a number of injuries on her body as established by the forensic medical examination had not been addressed at all.
29. On 12 July 2012 the Criminal Court of Appeal dismissed the applicant’s appeal and fully upheld the District Court’s decision. In doing so, it stated that the applicant had made unclear and contradictory statements about the circumstances of the incident which had not been corroborated by other evidence, namely the statements of H.A., A.K. and others questioned in relation to the incident.
30. On 2 August 2012 the applicant lodged an appeal on points of law. She argued that the decisions of the District Court and the Criminal Court of Appeal had failed to explain the existence of injuries on her body or the fact that H.A. had locked her in his office. She also reiterated her arguments in relation to the refusal to institute criminal proceedings and the unreliability of the statements made by her colleagues.
31. On 6 September 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
","[1, 2, 3, 4, 5, 6, 9, 12, 13, 14, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32]"
001-184674,"6. The first applicant was born in 1976 and is serving a sentence of imprisonment in the Sverdlovsk region. The second applicant was born in 1950 and lives in Vladivostok.
7. In July 2012 the first applicant’s employer, the prosecutor’s office of the Primorskiy Region, provided him with a flat and concluded a tenancy agreement with him. The second applicant was included in the agreement as a member of the first applicant’s family.
8. In August 2012 the second applicant was classified as having a firstdegree disability.
9. On 7 October 2014 the first applicant retired from the prosecutor’s office. On the same date he applied to the General Prosecutor of the Russian Federation with a request for the transfer of the title to the flat in question to him.
10. On 8 October 2014 criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence. On the same date he was arrested and on 10 October 2014 he was detained pending investigation. On an unspecified date in 2016 the first applicant was released and placed under house arrest.
11. On 21 November 2014 the first applicant’s request for the transfer of the title to flat in question to him was refused.
12. On 25 November 2014 the first applicant received notice to vacate the flat by 5 December 2014.
13. On 26 November 2014 the first applicant’s brother received notice to vacate the flat (the notice was addressed by the prosecutor’s office to the second applicant).
14. In December 2014 the prosecutor’s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor’s office and that therefore, he and his family had to vacate the flat.
15. The first applicant contested those claims. He submitted that it would be unlawful to evict him and his mother because he, as a retired prosecutor, had a right to acquire ownership of the flat in question. He and his mother had no other housing. In addition, his mother was a retired person and had a first-degree disability.
16. On 27 February 2015 the Frunzenskiy District Court (“the District Court”) dismissed the eviction claims. The prosecutor’s office appealed against that judgment to the Primorskiy Regional Court (“the Regional Court”).
17. On 8 June 2015 the Regional Court quashed the judgment of 27 February 2015 and delivered a new decision ordering the applicants’ eviction, with no alternative accommodation being provided. The first applicant was represented by a lawyer, K. The second applicant was not present and was not represented in those proceedings. In particular, the Regional Court found that the first applicant and his mother had been provided with a flat for the period of the first applicant’s service in the prosecutor’s office. Under domestic law and the terms of the agreement, the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided. As at the date of the examination of the eviction claims the first applicant had not applied to the Prosecutor General of the Russian Federation for title to the flat in question to be transferred to him; therefore, the District’s Court conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case. As at the date of the examination of the prosecutor’s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided.
18. The first applicant lodged a cassation appeal against that decision with the presidium of the Regional Court. He complained that the hearing of 8 June 2015 had been held in his absence and that as a result he had been evicted from the only accommodation he had had.
19. On 22 July 2015 a judge of the Regional Court refused to refer the first applicant’s appeal to the Civil Chamber of the Regional Court for examination on the merits. The first applicant lodged a cassation appeal with the Supreme Court of the Russian Federation.
20. On 22 September 2015 the second applicant was evicted from the flat.
21. On 30 September 2015 a judge of the Supreme Court refused to refer the first applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination.
22. In June 2015 the first applicant’s brother (Mr D. Pylayev) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian.
23. On 11 May 2016 the District Court declared that the second applicant lacked legal capacity because she was suffering from illness. In particular, the District Court based its decision on an expert report dated 25 January 2016 which had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. That judgment entered into force on 14 June 2016.
24. On 29 June 2016 the local public health department appointed the first applicant’s brother as her guardian.
","[1, 8, 9, 10, 11, 12, 13, 15]"
001-185320,"5. The applicant was born in 1966 and lives in Köthel.
6. In 2004 the applicant began a relationship with X, a married woman who continued to live with her husband, with whom she had six children. In early 2006, X became pregnant and disclosed this to the applicant. In October 2006, she gave birth to a girl. Shortly after, the relationship with the applicant ended.
7. X and her husband, the girl’s legal father, refused the applicant’s subsequent initiatives to have contact with the child. They disputed that the applicant was the biological father but refused to consent to paternity testing.
8. The applicant initiated various proceedings to establish his legal paternity, to have biological paternity testing conducted and to obtain joint custody. His requests were to no avail.
9. On 21 December 2010 the applicant applied to Obernburg Family Court to obtain regular contact with the child, referring to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010) delivered on the same day. He claimed to be the child’s biological father and offered to prove this claim by means of an expert’s report. In addition, he made a sworn declaration that he had had sexual intercourse with X around the time of conception.
10. On 9 May 2011 the Family Court dismissed the applicant’s request. It held that the applicant’s paternity had not been established and that, consequently, he could not be granted contact.
11. On 14 June 2011 the applicant appealed. On 16 November 2011 he supplemented his appeal, mainly relying on the Court’s judgment in the case Schneider v. Germany (no. 17080/07, 15 September 2011) and requested contact with the child at least once a month, initially under supervision.
12. On 1 December 2011, the Court of Appeal orally heard the applicant and the child’s legal father. The latter declared that he knew about the relationship between his wife and the applicant and also assumed that there had been sexual contact. In October 2005 the mother had told him and the children that her relationship with the applicant was terminated although he could not rule out, and indeed considered it likely, that she had continued the relationship without his knowledge. He had learned of his wife’s pregnancy in February 2006 and concluded that he was the father. In December 2006 the applicant had told him on the telephone that he was the child’s father. At that moment, the mother had felt relieved that the time of secrets was over. This moment had been a breakthrough for them as a couple and their relationship had improved subsequently. The child had been desired by both. Even assuming that the applicant were the child’s father, he would not agree to any contact because the applicant had caused them much suffering and had to bear the consequences of his behaviour. The proceedings the applicant had instituted were a burden for the couple but did not have a negative impact on the relationship with his wife, but had rather consolidated it. Everyone in the family but the child knew that the applicant believed that he was the child’s father.
13. On 9 February 2012 the Court of Appeal orally heard the child’s mother. At the end of the hearing it informed the parties that it considered contact with the applicant not to be in the child’s best interest for the time being and suggested that the applicant withdraw his appeal.
14. On 21 June 2012 the child’s appointed guardian ad litem (Verfahrenspfleger), a psychologist, furnished a detailed written statement concluding that contact with the applicant would be detrimental to the child’s wellbeing at this age.
15. On 17 August 2012 the applicant requested the Court of Appeal to mandate an expert opinion on the question of whether contact would be detrimental to the child or would at least serve her best interest; to hold an oral hearing where the guardian ad litem should explain her written statement; to conduct a paternity test and to hear the child.
16. On 28 September 2012, the Court of Appeal informed the parties that it considered it necessary to hear the child. The child’s guardian ad litem opposed this. She submitted, inter alia, that the child had no knowledge of the applicant’s claims, that the latter could not prove his fatherhood in the absence of a legal basis and that the child’s legal parents had not submitted any proof of their allegations that the mother’s husband was also the child’s biological father.
17. On 29 October 2012 the Court of Appeal heard the sixyearold child in the presence of her guardian ad litem only. According to the minutes, the child was aware - without knowing the real reasons - that her parents were in dispute with the applicant, who wanted to visit her or wanted her to visit him, but that neither her parents nor herself agreed to this.
18. On 19 November 2012 the guardian ad litem submitted that the child’s hearing confirmed her written statement of June 2012.
19. On 21 November 2012 the applicant commented on the child’s hearing, submitted a private expert opinion and requested the Court of Appeal to mandate an expert opinion regarding contact rights and to appoint a new guardian ad litem. He further asked the Court of Appeal to inform the child about his application during a new hearing. He added that in the event that his appeal were to be denied, he should receive a written report on the child’s development and two recent photographs every six months.
20. On 13 December 2012 the Court of Appeal dismissed the applicant’s requests. It observed, at the outset, that the applicant could not rely on Article 1684 § 1 of the Civil Code as he was not the child’s legal father. He could not rely on Article 1685 § 2 of the Civil Code either, because he had never borne any actual responsibility for the child. The Court of Appeal then addressed the question of whether Article 1685 § 2 of the Civil Code could be interpreted, in the light of the Court’s judgments Anayo and Schneider (cited above), as assuming that a father who was able to prove that he had seriously tried to bear actual responsibility but failed to do so because of the mother’s or legal parent’s resistance, could be considered as having borne actual responsibility within the meaning of this Article.
21. This question could, however, be left open because contact had in any event to serve the child’s best interest. In this respect the Court of Appeal held that it was already contrary to the child’s best interest to address the preliminary question of whether the applicant was the child’s biological father. The child was living in a well-organised and emotionally stable family unit consisting of a father, a mother and other children. The Court of Appeal pointed out that it was convinced that this family union would be destroyed if the applicant’s paternity were established and contact rights ordered. The hearing of the child and the legal parents had shown that in the child’s perception of the world, there was only one father, the mother’s husband. There were no indications that the latter did not assume his role as a father towards the child or assumed it differently than towards his other children. The child was well-integrated in the family, where she felt protected and secure. This assessment was also consistent with the conclusions of the child’s curator ad litem.
22. The Court of Appeal feared that clarifying the question of paternity bore the risk that the family unit would break up, which would have considerable negative consequences on the child because she would lose her essential attachment figures. As it had indicated after the hearing, it held it to be more likely that the applicant was the child’s biological father. This question could, however, ultimately only be determined by a paternity test, to which the child’s legal parents were opposed. The mother affirmed that her husband was the biological father of her daughter and both stood firm against the applicant. According to the Court of Appeal it resulted from the hearing that the legal father trusted, in principle, his wife’s assertions but at the same time had doubts as to his paternity, although he had not explicitly expressed them. In spite of these doubts, and the long-lasting court proceedings, he did not put in question his wife’s statements. The Court of Appeal received the impression that the spouses had barricaded themselves against the applicant as if they were in a corral, as had shown the legal father’s declaration that the legal proceedings did not have a negative impact on the relationship with his wife but had rather consolidated it. The Court of Appeal concluded that the legal father could live with this uncertainty, and that his attitude had no consequences for the child. If, however, the applicant’s biological paternity were to be established, the legal father would realise that his long-standing trust in his wife was not justified. It was not possible to predict the legal father’s reaction, but the manifest risk that the spouses’ marriage would break up could not be dismissed in view of the couple’s past difficulties. The couple’s separation would amount to the breaking-up of the child’s family unit and the loss of her relationships, which would endanger her well-being.
23. The Court of Appeal pointed out that it was aware that, in view of the importance of the child’s well-being, it could be a long time before the preliminary question of paternity could be clarified and years before contact rights could be granted. This might evolve once the child started to ask questions, but for now it was not in her best interest to be confronted with the paternity issue. It was therefore not advisable to tell her about the applicant’s allegations or to substitute the child’s guardian ad litem.
24. The Court of Appeal went on to say that, even assuming that the applicant was the child’s biological father, contact with the applicant was not in the child’s best interest. Due to the highly emotional conflicts between the legal parents and the applicant, and the fact that the applicant had not ruled out that he might tell the child that he was her biological father if he saw her, contact would jeopardise the child’s well-being. Therefore it was not advisable to order an expert opinion regarding the question of whether and how the child would deal with two fathers or whether it was in general advisable to grant children contact with their biological fathers at an early stage. These issues had to be assessed in the light of the extremely tense relations between the applicant and the child’s legal parents, and in view of the predictable consequences for the child if contact were granted. The Court of Appeal added that it could decide on these questions on its own after having orally heard the persons involved, and based on the written statements of the guardian ad litem, an experienced psychologist well-known from other proceedings.
25. As regards the applicant’s request for information the Court of Appeal held as follows:
“The applicant’s request for information, claimed in the alternative in his lawyer’s submissions of 21 November 2012, does not exist. Such claim cannot be based on Article 1686, 1st sentence, of the Civil Code because the applicant is not, as required by this provision, the child’s legal father. Whether the provision can be interpreted in the light of the above mentioned decisions of the European Court of Human Rights, as assuming that a biological father can also claim a right for information, can be left open: that would require addressing the preliminary issue of whether the applicant was the child’s biological father. It has already been shown that clarifying this question by ordering a paternity test would be contrary to the child’s well-being.”
26. On 11 February 2013, the Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard.
27. Previously, on 28 January 2013, the applicant had lodged a constitutional complaint with the Federal Constitutional Court (no. 1 BvR 844/13).
28. On 18 July 2013 the Federal Constitutional Court informed the applicant that on 13 July 2013, the Law for the strengthening of the rights of biological but not legal fathers had entered into force which, pursuant to Article 1686a of the Civil Code, provided a new possibility for biological fathers to be granted contact and information rights even if they had no social and family relationship with the child (see paragraph 32 below). It added that in court proceedings concerning the enforcement of such rights, the determination of the preliminary question of paternity could be necessary, pursuant to Article 167a § 2 of the Family Matters Act (see paragraph 33 below). It enquired of the applicant whether, under these circumstances, he would withdraw his constitutional complaint.
29. On 13 August 2013 the applicant replied that he would maintain his complaint because, even under the new law, he would not have obtained a more favourable decision. He pointed out that the Court of Appeal had rejected his request for contact rights, even assuming that he was the child’s biological father, since contact did not serve the child’s well-being. The Court of Appeal had thus already decided in the light of the new Article 1686a of the Civil Code. The applicant added that the same reasoning applied to his request for information. Given that, in its view, the determination of paternity would endanger the family unit, the Court of Appeal would refrain from ordering a measure of examination because the legal parents could not reasonably be expected to undergo any examination, under Section 167a § 2 of the Family Matters Act.
30. On 21 September 2014 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons.
","[1, 3, 4, 5, 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26]"