CASE OF IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicant was born on DATE and lives in GPE .

On DATE the ORG of the respondent ORG passed ORG за определување дополнителен услов за вршење на јавна функција DATE hereafter “ the LAW ” ) , which entered into force DATE .

The Lustration Act introduced non - collaboration with the ORG security services in the period DATE and DATE , the date of the Act ’s coming into force ( hereafter “ the screening period ” ) , as an additional requirement for the holding of public office . In other words , collaboration with the ORG security services in that period became an impediment to holding public office .

All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the ORG security services in the above screening period ( hereafter “ the declaration ” ) . LAW was to apply for DATE from its entry into force ( hereafter “ the temporal scope ” ) .

The Lustration Act also provided for the establishment of a Facts Verification Commission ( Комисија за верификација на факти – hereafter “ the ORG ” or “ the Commission ” ) , which had to be set up within DATE of the LAW ’s entry into force . Its task was to examine the veracity of the public officials’ declarations . The members of the Commission were elected by ORG on DATE . ORG became operational in DATE .

On CARDINAL DATE amendments to LAW entered into force , adding several provisions primarily in respect of the functioning of ORG and the status of its members . Also , the temporal scope of LAW was extended , from DATE initially envisaged following the Act ’s entry into force , to DATE following the election of the Commission .

On DATE , following petitions for abstract constitutional review , ORG accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of LAW , including the CARDINAL extending the screening period ( see paragraph CARDINAL above ) beyond the date of adoption of the current LAW of the respondent ORG ( CARDINAL DATE ) . It also suspended application of those provisions until it had decided on their compatibility with the LAW .

Fierce debate ensued , in which a number of politicians severely criticised ORG decision in the media ( see ORG of DATE in paragraph CARDINAL below ) . For example , on DATE the coordinator of the ruling party ’s ORG group made the following statement :

“ Having in mind that ORG current composition was appointed during the political zenith [ of the former President of the Republic ] , [ the ruling party ] believes that cancelling lustration ’s scope of application after DATE has CARDINAL goal only : to prevent ORG and the citizens of GPE from learning whether [ the former President of the Republic and his party ] officials , who controlled the secret services , actually used those structures against their political opponents . ”

On DATE the same MP stated :

“ We are convinced that ORG wants to harness NORP democracy and keep it hostage [ bound up ] in the web woven by secret service collaborators . People from the secret services are striking back , together with their collaborators who continued to ‘ snitch’ , violate human rights , destroy people ’s lives and wage war against political opponents , even after DATE . ”

By a decision of CARDINAL DATE ORG invalidated certain provisions of LAW as unconstitutional . In particular , that court held that to extend the screening period beyond CARDINAL DATE , the date of adoption of the present LAW , was unconstitutional . In other words , it was incompatible with the LAW to provide collaboration with the ORG security services after DATE as an impediment to the holding of public office .

NORP Some other provisions were also held contrary to the LAW , namely those providing for the publication of NORP names in ORG , automatic lustration in cases where no declaration had been submitted , and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties , civic organisations and religious communities by internal regulations of such non - State entities ( see paragraphs CARDINAL - CARDINAL , CARDINAL and CARDINAL below ) .

On DATE , DATE , the applicant , as the President of ORG at the time , made the following statement to the media , in which he , inter alia , commented on the ORG ’s written response to the petitions for constitutional review in the proceedings before the court :

“ The response is CARDINAL pages long and provides arguments on the necessity to pursue lustration , motives behind the [ LAW adoption , implementation procedure and the like , but my impression is that no legal arguments were presented ... I believe that the response should be made public . For example , ORG , in its response , states ‘ in constitutional and legal terms , one can not contest the Act ’s temporal scope’ .... That can not be considered a legal argument . ”

By a decision of CARDINAL DATE ORG established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office ( the course of the proceedings in the applicant ’s case and the surrounding circumstances are described in detail in paragraphs CARDINAL below ) .

On DATE LAW was amended for the second time , and certain provisions that were similar to the invalidated ones were reintroduced . The provision delimiting the screening period in which the collaboration with the ORG security services was an impediment to the holding of public office was re - worded in such a way that the end - date remained open . The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non - collaboration .

On DATE ORG again invalidated several provisions of LAW , as amended by LAW ( see the preceding paragraph CARDINAL above ) . In so doing , ORG held that its earlier decision ( see paragraph CARDINAL above ) had been circumvented in view of the content of those amendments .

On DATE LAW was repealed by the entry into force of the new LAW ( ORG за определување на услов за ограничување за вршење на јавна функција , пристап на документи и објавување на соработката со органите на државната безбедност ) . In DATE ORG refused to institute proceedings for abstract constitutional review of the new legislation .

While the DATE LAW was in force ORG established in a total of CARDINAL cases that the declarations on non - collaboration were false , and that therefore the person who had submitted them did not meet the additional requirement for public office . Apart from the applicant , who was the only incumbent official whose declaration was found to be false , those cases concerned CARDINAL former officials and CARDINAL journalists .

On DATE the Act Repealing the DATE LAW ( ORG за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција ) entered into force . According to ORG is allowed to complete , within DATE , any ongoing proceedings in which a decision has already been issued , but may no longer institute new ones . Pending lustration proceedings in which the ORG has not issued a decision must be discontinued . LAW provides that a person in respect of whom the ORG has established that he or she has collaborated with the ORG security services is banned from holding public office for DATE from the time the ORG ’s decision to that effect becomes final .

NORP The applicant was a judge of ORG DATE , when he was dismissed as a result of the lustration proceedings described below ( see paragraphs CARDINAL ) . The applicant ’s case was the first lustration case in the respondent ORG . During the lustration proceedings and at the time of his removal from office ( see paragraph CARDINAL below ) the applicant was also the President of ORG .

On DATE , the applicant , as a public official , submitted to ORG a declaration of non - collaboration with the security services , as prescribed by LAW ( see paragraph CARDINAL below ) .

On DATE the Commission , by a letter classified as confidential , requested ORG to provide it with direct access to all the data , files and documents available in respect of the applicant .

On DATE and DATE ORG informed the ORG that a personal record of the local branch of the secret police of the former GPE ( hereafter “ SFRY ” ) existed in respect of the applicant , and invited the Commission to consult the documentation .

On and around DATE , various media , despite the confidential nature of the proceedings before ORG , reported that the ORG had allegedly identified a judge of ORG as a collaborator with the ORG security services . In DATE the media continued to speculate that the identified collaborator was actually the President of ORG .

During its deliberations held in private on DATE , ORG found that the applicant ’s declaration had not been in conformity with the evidence at its disposal . The applicant was notified of the Commission ’s findings on DATE with a note classified as “ strictly confidential ” ( строго доверливо ) . He was also instructed that , under LAW , he could , within DATE , submit oral or written observations to the ORG ’s findings . The applicant replied and requested a public session on DATE .

On DATE the daily PERSON vesnik published an article entitled ‘ Judge asks to speak publicly about being a ‘ snitch ’’ . The relevant part of the article reads as follows :

“ PERSON ‘ unofficially’ learns that a ORG judge allegedly sinned during DATE , in the capacity of a member of a branch of an organisation called ‘ ORG that was advocating unification of ethnic NORP territories . Once discovered , under pressure from the police , he was forced to disclose the names of the organisers . ”

On DATE the Commission notified the applicant that the session would be held on DATE , that it would be public “ when classified information was not being used ” and that he could access the entirety of the classified documentation at the ORG ’s disposal for TIME before the session .

On DATE , in an open letter broadcast in the media and addressed to “ opponents of the lustration ” , the Prime Minister of the respondent ORG ( signed in his capacity as president of the governing party ) stated , inter alia , that the ORG had publicly revealed that a member of ORG had been a collaborator with the ORG security services and that it was now crystal clear that the collaborator sitting in ORG , nominated by the former president of the Republic , and controlled by other centres of power , had invalidated a number of the legislative reforms of his Government . The letter was a response to his political opponents , who claimed that he was hindering the lustration process . The Prime Minister described their strategy in the following terms :

“ Attack the [ ruling party ] to [ protect ] ORG , whose member the [ ORG had publicly declared a collaborator with the secret services . Accuse [ the Prime Minister ] of hindering the lustration [ process ] so that [ he ] would not accuse you of it becoming crystal clear that the secret services’ collaborator in ORG scrapped a whole range of [ the Prime Minister ’s ] reforms , and that [ the Prime Minister ] would not pose a question why [ the former President of the Republic ] nominated as judge of ORG that person who was a collaborator with the [ secret ] services , and what is that centre of power which still controls the ‘ collaborator’ . ”

“ PERSON го ВМРО-ДПМНЕ , за да го затскриеш PERSON суд за чиј член LOC јавно се изјасни дека бил соработник на тајните служби. PERSON го Груевски дека ја кочи лустрацијата , за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од PERSON суд му сруши цела палета на реформи и за да не постави прашање зошто PERSON го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘ соработникот’ . ”

On DATE the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission ( see paragraph CARDINAL above ) . The Commission , in its turn , immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at ORG as well as the documents at the disposal of the Commission , in DATE until the session . The applicant consulted the documents at the Commission on DATE .

Those were the documents forming the applicant ’s personal record compiled by the local branch of the SFRY secret police . The record contains around CARDINAL pages of typed reports and forms . It appears from the record that the applicant was on CARDINAL and CARDINAL DATE interrogated by the secret police in connection with his involvement in a high - school nationalist group , and was registered as a collaborator under the pseudonym “ PERSON . The “ proposal for registration ” of CARDINAL DATE , signed by an inspector , PERSON , states that the applicant was approached about collaboration with the secret police and that “ he gladly agreed to it , [ saying ] that he would do anything for the [ security ] service , as long as his father and the school do not find out ” . A “ questionnaire ” with a handwritten date of CARDINAL DATE , states , inter alia , that the applicant was recruited on the ground of “ compromising material ” and that he had not received any material benefit in exchange for his collaboration . That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of DATE where , next to the pseudonym “ PERSON , there is a handwritten note “ and NORP ” . The record contains a number of reports of various dates DATE , composed mostly by the inspector who relied on “ PERSON as a source of information , about conversations and statements of some high - school and university students on certain political and social issues at the time . “ PERSON ” provided the information mostly verbally ; only a few reports in the file are based on his letters ( which were not in the file ) . There are also copies of CARDINAL payment receipts dated DATE and DATE and a proposal of DATE for deregistration of the collaborator “ NORP ” . The deregistration referred to a person with the applicant ’s name but who in DATE was a student at ORG , and who in DATE was working in the municipal branch of ORG .

On DATE the Commission held a public session on its premises , in a meeting room of QUANTITY . A large number of media representatives were present .

During the session , the applicant denied the ORG ’s initial findings , calling into question the veracity of his declaration . He disputed the authenticity of the documents the ORG relied on , as he had neither composed nor signed them , and claimed that the reports contained therein had been forged , or taken from ORG and added to his personal record . He further denied the authenticity of the signatures on the CARDINAL payment receipts , which indicated that he had received money for his collaboration . He alleged a confusion regarding the CARDINAL different collaboration pseudonyms ( “ PERSON and “ NORP ” ) appearing in the file , and the identity behind them . He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police , due to his involvement with a high - school nationalist group , had been misused .

On DATE ORG responded to the Prime Minister ’s statement of DATE ( see paragraph CARDINAL above ) by means of an open letter . The relevant part of that letter reads as follows :

“ ORG finds that this attack is the culmination of the continual attacks on ORG . The court therefore points out that the Prime Minister went beyond powers conferred on him by LAW , because he has no right to assess the legitimacy of decisions taken by ORG , but rather [ was obliged ] to ensure their unhindered implementation . The court considers that his actions indicate [ either ] profound ignorance , or total disrespect for the constitutional order , to the point of undermining it .

Using a single [ pending ] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a NORP society . ”

By a decision of CARDINAL DATE the Commission held that the applicant ’s objection to its initial findings of DATE ( see paragraph CARDINAL above ) was not in accordance with the information available , and that consequently he did not fulfil the additional requirement for holding public office . The decision was based on the applicant ’s personal record , and contains a list of CARDINAL documents . It summarised the contents of the documents and stated that the applicant had begun collaborating in DATE and had been deregistered in DATE , that he had provided information on students whose activities were monitored by the security service for political reasons and that , as evident from the CARDINAL payment receipts , he had in DATE been paid for the collaboration . The relevant part of the ORG ’s decision reads as follows :

“ ... From the data available in the personal record compiled by the [ secret police of the SFRY ] it was established that in the rubric ‘ collaboration relationship’ it is stated that [ the applicant ] is a collaborator of the [ secret police ] recruited on the ground of compromising material . It was further established that [ the applicant ] started his collaboration with the [ secret police ] DATE as a high - school student who , when it was proposed to him that he be registered in the NORP network , stated that ‘ he gladly accepted the collaboration and would do anything for the service’ , and that he was allocated a pseudonym under which he later delivered all the information to the [ secret police ] . In DATE he officially became a collaborator of the [ secret police ] . In the documentation , in CARDINAL reports drafted by ORG in GPE , on a number of pages , [ the applicant ] under his pseudonym appears as a source giving information about his schoolmates , which [ information ] was used by the [ secret police ] as operational material on the activities of high - school youth in GPE . From CARDINAL reports , it is apparent that also later on , as a student in GPE , he gave information about students of various faculties , of which in the personal record there are CARDINAL reports concerning a number of individuals whom the [ secret police ] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the NORP in the LOC [ in GPE ] and GPE [ in GPE ] GPE , as well as for various wrongs committed against NORP in the western part of GPE . From the personal record it was also established that in DATE the sums of CARDINAL and CARDINAL [ Yugoslav ] dinars had been paid to him . His collaboration officially ended in DATE when he was employed in GPE and was deregistered from the active collaboration network .

The ORG took into account the oral observations provided by [ the applicant ] , in which he expressed his disagreement with the ORG ’s findings .

The Commission considers all this information and the files and documents contained in the [ applicant ’s ] record relevant . [ It further ] considers that that the [ applicant ’s ] declaration [ of non - collaboration ] submitted to the ORG is not in line therewith [ the information , files and documents ] and that therefore [ the applicant ] does not meet the additional requirement for public office in accordance with section CARDINAL(CARDINAL ) [ and ] section CARDINAL ) of the [ LAW . ”

The DATE ’s decision was served on the applicant on DATE and classified as “ strictly confidential ” .

NORP In an exchange of correspondence on DATE the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision . The Commission informed him that they only had copies ( препис ) , but that the originals were available in ORG ; they advised him to look for them there . Upon the applicant ’s request of DATE , ORG , either on DATE or on DATE , provided him with a copy of his personal record .

On DATE the applicant pointed out inconsistencies between the files provided to him by ORG , the inventory of the documents contained in his record , and the documentation the ORG relied on in its decision . ORG responded that they had simply received the personal record as it was , and had listed the documents therein by title without inspecting their contents , as they had not been authorised to do so . Finally , they invited the applicant to consult the contents of his personal record under their supervision .

On DATE the applicant brought an action for judicial review in ORG against the ORG ’s decision . He complained that the proceedings before the ORG had been unfair and of errors of fact and law . In particular , he complained that the session before the ORG had been held without Rules of Procedure having been adopted , which the ORG should have done ex lege before commencing the proceedings . The public session had not been , as initially planned , followed by proceedings in camera ( see paragraphs CARDINAL and CARDINAL above ) , and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file .

The applicant further objected that the time - limit for the preparation of his appeal had been effectively reduced , since he had received the copies of the documents from ORG only on DATE ( see paragraphs CARDINAL above ) , and that there had been obvious discrepancies between the files of ORG and the ones of the Commission that he had earlier had access to . The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology ( графолошко вештачење ) as regards the signatures on the CARDINAL payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police , to which letters reference was made in the record but which were not available in the file . He also submitted that his identity had been confused with that of the person behind the pseudonym “ NORP ” , given that in DATE he was already a law graduate and was working for the GPE administration and thus was not working at the municipal branch of ORG , nor had he ever studied at ORG as the record indicated ( see paragraph CARDINAL above ) . He proposed additional evidence , asked that a public hearing be held , and requested leave to invite an expert assistant ( стручен помагач ) , in particular , a certain Mr GPE , a university professor of State security and intelligence and retired staff member of the SFRY secret police , with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records .

In its reply , the ORG firstly listed and made reference to CARDINAL documents , and then also mentioned “ DATE written documents ” , on which it based its decision . The Commission ’s reply was classified as “ strictly confidential ” .

On DATE ORG held a public hearing in the presence of the applicant and the President of the Commission . The Commission lodged an objection about ORG competence ratione materiae to examine the case .

On DATE the court held another hearing , at which the ORG withdrew its objection regarding the court ’s jurisdiction ( see the preceding paragraph CARDINAL above ) , the expert assistant GPE ( see paragraph CARDINAL above ) gave his testimony and the evidence was examined . The public was excluded from the part of the hearing in which confidential material ( the applicant ’s personal record ) was under consideration .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s action . In its judgment , this court listed CARDINAL documents , and found the ORG ’s files identical to the originals received from ORG . ORG held that the ORG had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion ( вештачења ) in criminal proceedings . It also held that the ORG did not conduct any adversarial proceedings and could admit as fact only the records compiled by the ORG security services . The applicant ’s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected . ORG concluded that it had been immaterial ( беспредметно ) to determine whether the payments had been received by the applicant , as other ( non - pecuniary ) benefits could suffice for someone to be deemed a collaborator in terms of LAW . The judgment also took into account the testimony of the expert assistant ORG of the judgment were classified as “ strictly confidential ” .

The presiding judge was a certain PERSON , who was shortly afterwards , in DATE , promoted to the newly established ORG .

The relevant part of ORG judgment reads as follows :

“ ... The plaintiff ’s [ the applicant ’s ] representative reiterated the arguments advanced in his action for judicial review , and expanded on them by stating that the ORG ’s decision was ill - founded ... [ He argued that ] the ORG had not assessed the written evidence , because there was none . [ In particular , ] there was no statement from the plaintiff that he had agreed to collaborate with the [ secret police ] , there was no written consent from him in this regard , and there was no written decision of the [ secret police ] in which the plaintiff ’s consent to collaboration was accepted . Moreover , the ORG had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no . DATE and on that basis had reached the wrong conclusion , failing to establish the facts ...

In view of the complexity of the case and for the purposes of clarification , the [ Administrative ] court , upon a proposal of the plaintiff , heard GPE from GPE in the capacity of an expert assistant ( стручен помагач ) . The court also consulted ( изврши увид ) and compared the plaintiff ’s personal record available in ORG with the copy of the same record delivered to the plaintiff .

The court , having assessed the [ plaintiff ’s ] arguments in the statement of claim , the [ Commission ’s ] reply [ thereto ] , and the submissions made by the expert assistant GPE , [ and ] having examined the impugned decision within the scope of the action and in terms of section CARDINAL of LAW , found :

The action is ill - founded ...

According to section CARDINAL of the [ Administrative Disputes ] Act , the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure , and in particular , if the facts were not established correctly , or if the facts were established correctly but assessed wrongly ...

According to section CARDINAL(CARDINAL ) of the [ LAW , collaboration , within the meaning of that LAW , is conscious , secret , organised and continuous cooperation and activity with the ORG security services , established by a written document , in the a capacity of a secret collaborator or secret informant ( hereafter ‘ secret ORG ) with a view to collecting information ... regarding certain persons , in violation of [ their ] basic rights and freedom on ideological - political grounds , as a result of which a material gain or other benefits in employment or career advancement had been obtained [ by the collaborator ] ...

Relying on the above , the court found that the Commission , acting within its competence ... and after having correctly conducted the fact - verification proceedings , made a lawful decision ...

It appears from the files that the plaintiff , on the basis of a written document , consciously , secretly , continuously and in organised way collaborated with the [ secret police ] , which collected information that were subject to processing , storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at ORG . Having in mind that the Commission only checks the facts concerning collaboration or non - collaboration with the ORG security services , and given that this [ fact - verification procedure ] is not an adversarial procedure , the records created by the services and their legal predecessors are to be accepted as facts [ thus as reliable evidence ] ...

In this court ’s assessment , the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill - founded , since the Commission provided him with access to all the evidence .

Regarding [ the plaintiff ’s ] argument that ... the Commission ’s session had been held without Rules of Procedure [ having been adopted beforehand ] ... this court finds it irrelevant ... The Rules are an internal regulation of the ORG and [ thus only ] regulate its internal functioning ... and not the fact - verification procedure [ which ] is prescribed by the [ LAW .

This court finds ill - founded [ the plaintiff ’s ] complaint that he had not been given an opportunity to contest the [ factual findings of the Commission ] . [ He argued in particular that ] ... the [ Commission ’s ] session had ended after its first part , at the moment when he had expressed his disagreement with the ‘ GPE [ underlying ] the [ Commission ’s ] findings ... in respect of which he had [ also ] made written submissions . [ In his view ] the ORG was obliged to hold a hearing , and not to treat the case as if no observations had been provided in accordance with section CARDINAL . [ Such complaints ] have no support in the evidence available in the file . As evident from the file , the Commission on DATE held a public session in the part in which no classified information was under consideration . Having in mind that earlier , on DATE , the plaintiff had consulted the files and familiarised himself with their content , he had had the opportunity to provide his own observations at the session .

The court also finds ill - founded the plaintiff ’s argument that the reports [ contained in his personal record ] , in legal terms , could not be relied on to establish the facts , since they had many shortcomings , both formal and substantive , in particular none of the CARDINAL reports had been signed by an authorised person of the [ secret police ] , no letter allegedly sent by the plaintiff had been appended to the reports , ... none of these reports had been entered in the official records of the [ secret police ] , and all reports quote ‘ Lambe’ as a source of information , while the Commission [ cites ] another pseudonym , ‘ Lamda’ . [ The court finds that argument by the plaintiff ill - founded because ] the operation of the [ secret police ] was clarified by the expert assistant at the public hearing , who explained that it had had its own operational methodology for the purpose of gathering information , that was then subject to further processing , collection and use ... The court finds that assessment of the methodology of the [ former secret police ] is not in the competence of the Commission .

The court did not accept the plaintiff ’s complaints that he was recruited as a collaborator while still a minor , because it is apparent from the evidence that he entered into collaboration and gave reports as an adult .

The court finds ill - founded the [ plaintiff ’s ] arguments about errors of fact , [ in particular those where he complains ] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff ’s signature , which could have been easily established by obtaining an opinion from an expert in graphology , those whereby he calls into question the authenticity of the reports he received from ORG and [ the veracity of ] of their content , those [ where he argues ] that ... the [ secret police ] registered him as a collaborator on the basis of bogus ( спакувани ) reports which were planted ( подметнати ) in his file and that he was not aware of nor had he consented to that [ registration ] , as well as that there were obvious misinterpretation of the facts , since the file on a minor oppressed for his NORP nationalism had been transformed into the personal record of a secret collaborator . This [ the court ’s dismissal of these complaints ] comes as a result of the fact that the Commission , after checking and verifying the data that was made available to it , correctly established that the plaintiff ... had been registered as a secret collaborator ... ORG was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings . ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [ , meaning as reliable ] evidence . The plaintiff in his submissions pointed to possible criminal offences which , in addition to LAW , are also sanctioned by sections CARDINAL and CARDINAL of the [ LAW . The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations .

On the other hand , after checking the plaintiff ’s personal record , the court established that only a few reports were delivered in writing , and that most of the reports were provided through direct contacts .

In view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [ some ] reports drafted by the inspector of the ORG security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts .

It is also immaterial whether payments were made or not , since this is CARDINAL of the conditions for establishing that collaboration took place , bearing in mind that section CARDINAL(CARDINAL ) of the [ LAW , when stipulating what is considered collaboration , states that [ not only ] material gain [ but also ] other benefits or career advancement [ may suffice ] . ”

In his appeal of CARDINAL DATE to ORG , the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law . He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the ORG authorities had differed . He further complained that ORG had completely misinterpreted the submissions made by the expert assistant , and annexed an additional written statement by GPE He also objected to ORG finding on the ORG ’s powers , and complained that ORG had therefore failed to fully establish the facts , and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts . ORG submitted a reply to the applicant ’s appeal , whereupon the applicant provided a response to the ORG ’s reply .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal and upheld the judgment of ORG . ORG stated , inter alia , that it had checked the “ original documentation ” and concluded that the facts had been correctly established . It further addressed and analysed the applicant ’s remaining complaints , and concluded that they were of no relevance and could not produce a different outcome . As for the authenticity of the documents , including the signatures on the receipts , ORG dismissed the applicant ’s arguments , finding that no formal procedures existed at the time when these documents were produced .

Judge PERSON who would later be appointed a judge of ORG to fill the vacancy caused by the applicant ’s dismissal ( see paragraph CARDINAL below ) – sat in the panel and , according to the applicant , also acted as a rapporteur ( известител ) in the case .

The relevant part of ORG judgment reads as follows :

... From the evidence taken during the proceedings , primarily the reports in the personal record established in respect of the appellant , it can be indisputably concluded that he , on the basis of a written document , consciously , secretly , continuously and in an organised manner collaborated with the [ former secret police ] . Relying on the statements of the secret collaborator – the appellant – the [ secret police ] gathered information that was processed , stored and used by the [ secret police ] ... In such a way , the human rights of those people [ who were then followed by the ORG security service ] were violated on political or ideological grounds .

Bearing in mind the definition of collaboration contained in the [ LAW , ORG correctly concluded that the appellant had at the material time the status of a secret collaborator or informant .

The arguments adduced in the appeal regarding discrepancies between the data obtained from ORG and those relied on by the Commission , whereby the appellant disputes the authenticity of the evidence , are ill - founded .

In ORG opinion , the facts established by the first - instance court are correct and complete , as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts , ORG also checked the original documentation and finds these complaints ill - founded , since the appellant did not submit any evidence that could call into question the facts as established by the first - instance court .

ORG finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had , as a minor during high - school days , on the independence of the NORP people .

Specifically , the appellant was as a high - school student initially registered by the [ secret police ] for hostile activities and NORP nationalism . However , he continued to collaborate with the service and was approached about being registered in the network of collaborators . In DATE the appellant was officially registered as a collaborator , when he had already reached DATE . From the documents available it is apparent that the applicant collaborated with the ORG security services as an adult .

The appellant ’s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration , could not lead to factual findings different from those already established by the first - instance court .

According to the expert assistant ’s statement at the public hearing before ORG , the consent of the collaborator was in no way needed , given the secrecy of the procedure . The proposal for deregistration is in the name of PERSON , with an identical file number to that under which he had been registered as collaborator . These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant . According to ORG , these data could not be disregarded just because the pseudonyms do not match .

The complaints that the reports composed by the [ secret police ] , based on the information provided by the appellant , could not be regarded as [ reliable evidence ] , are ill - founded . ORG finds that the procedure for receiving information was not strictly formalised . The reports were , as clarified by the expert assistant , usually given verbally . From the above , it is apparent that to be considered as genuine , it was not necessary that the content of the record , or of the report composed by an authorised person of the [ secret police ] , be supported by a written statement by the collaborator .

The appellant denies the authenticity of his signature on the payment receipts .

ORG finds that , in a situation in which no rules ( правилник ) for payment existed , given that , as stated by the expert assistant , the payments were usually made in cash , it would suffice to have the name of the collaborator mentioned as a recipient [ of the money ] , to conclude that material gain was obtained .

As the first - instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant ’s action . ”

The applicant was served with ORG judgment on DATE .

On DATE , the Commission concluded that its decision of CARDINAL DATE had become final .

On DATE , relying on LAW and the Commission ’s conclusion of DATE , the ORG acknowledged that the applicant had not fulfilled the additional requirement , and accordingly dismissed him from the office of judge of ORG , despite the experts’ debates about the constitutionality of such an action . On DATE , the ORG ’s decision was published in ORG .

On DATE , during its last session before early elections , the ORG appointed Judge PERSON ( see paragraph CARDINAL above ) as a judge of ORG to the position vacated by the applicant ’s dismissal .

The proceedings were closely followed by the international community present in the respondent ORG , and were referred to in various reports , most notably ORG of CARDINAL DATE , which states that the ongoing lustration proceedings against the applicant “ have raised concerns about pressure on the independence of the judiciary ” ( see paragraph CARDINAL below ) . ORG State Human Rights reports of DATE and DATE also made references to the applicant ’s case and the tensions between the ORG and ORG .

Meanwhile , on DATE the ORG filed a criminal complaint with ORG against the applicant alleging that by submitting a false declaration of non - collaboration with the ORG security services he had committed the criminal offence of submitting false evidence defined in Article PERSON of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the public prosecutor dismissed the criminal complaint , finding no elements of the offence in question . In her reasoning , the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy , as only the official records of the ORG security services were used as relevant for the outcome of the proceedings . The applicant ’s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings .


CASE OF GRAMMOSENIS AND OTHERS v. GREECE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Kristina Pardalos;Pauliine Koskelo;Robert Spano

The applicants were placed in pre - trial detention at ORG on GPE in GPE . They were detained for periods ranging from DATE .

The applicants mentioned below left the General Police Headquarters on the following dates : the first applicant on DATE , the sixth applicant on DATE , the thirteenth applicant on DATE and the nineteenth applicant on DATE . It is not clear from the material in the ORG ’s possession whether they were released or transferred to prisons .

The eleventh applicant was detained at ORG from DATE to DATE , except for the period between CARDINAL DATE and DATE , when he was detained at ORG . The fourteenth applicant was detained at ORG from DATE to DATE , apart from CARDINAL DATE to CARDINAL DATE , when he was held at NORP police station . DATE applicant was detained at ORG from DATE to CARDINAL DATE , except for the period DATE and DATE , when he was detained at ORG . The seventeenth applicant was detained at ORG from DATE to CARDINAL DATE , except for DATE to CARDINAL DATE , when he was detained at ORG . The eighteenth applicant was detained at ORG from DATE to DATE , except for DATE to DATE , when he was held at NORP police station .

The applicants alleged that ORG had been entirely inappropriate for long periods of detention , as in their case . The cells had been insufficiently lit and ventilated , which , in addition to overcrowding , had led to their cells smelling badly .

Detainees had been confined to their cells owing to the lack of an exercise yard . Recreational activities had not been offered and cells had not been equipped with televisions . Detainees had had to ask permission from the guards to use the restroom , which had been situated outside the cells and had been shared by CARDINAL people .

There had not been sufficient separation between detainees who were drug users or smokers and other detainees . Additionally , the cells had never been disinfected nor the mattresses cleaned . Detainees had not been allowed to bring their own sheets and towels , but had been obliged to use dirty ones provided by the prison authorities .

As regards nutrition , meals had been of an insufficient quality and quantity and had never included meat . Detainees had not been provided with water but had had to buy it themselves .

On DATE the applicants and other detainees had lodged a complaint with the public prosecutor about the conditions of their detention at ORG but had not received a reply .

The eleventh , fourteenth , sixteenth , seventeenth and eighteenth applicants submitted in their written observations of CARDINAL DATE that the conditions of their detention at ORG and NORP police station had essentially been the same as those at the police headquarters , in particular as regards the lack of outdoor activities , the quality of the food and the filthiness of the LOC .

The Government submitted that ORG had had CARDINAL cells with a total capacity of CARDINAL people . CARDINAL cells with capacity for CARDINAL inmates had accommodated male detainees , one cell for QUANTITY people had accommodated females while CARDINAL cells with capacity for CARDINAL people had been set aside for minors .

Most of the cells had windows , which had been partially covered by walls and rails but which had still admitted natural light and fresh air . The sanitary facilities had been no different from the ones used by the Police Headquarters staff and had been cleaned by a cleaning company DATE , along with the rest of the premises . Sheets and blankets had been regularly sent to ORG ( FAC ) for cleaning . If detainees had suffered from a contagious disease , their sheets and blankets had been destroyed following their departure .

Detainees were allowed access to newspapers , magazines and CARDINAL payphones . Additionally , they were allowed visits from their lawyers at any time and from friends and family CARDINAL times per week .

Detainees were served food from the restaurant situated in the building , which was the same as that used by police officers .

ORG , where the eleventh , sixteenth and seventeenth applicants had been detained for DATE , had CARDINAL cells measuring QUANTITY each , which included CARDINAL toilets and showers . The eleventh , sixteenth and seventeenth applicants had been detained in cell no . CARDINAL along with a number of other detainees whose number had varied from DATE . The cells had been sufficiently well - lit and ventilated and had been regularly cleaned . Meals had been provided by a catering company . Detainees had access to newspapers and televisions and were allowed visits from their family and friends CARDINAL times per week .

As regards NORP police station , where DATE applicants had been detained for a certain period of time , the Government submitted that it was housed in a building constructed in DATE . DATE applicants had been detained in a cell of QUANTITY accommodating CARDINAL detainees . The cells had been sufficiently well - lit and ventilated and a cleaning company had maintained the cleanliness of the LOC . Detainees had received MONEY per day to order food from restaurants .

The Government further contended that the applicants’ allegations of a lack of separation between drug users and other detainees should be rejected as the applicants had not alleged that they themselves had been detained in the same cells as drug users .


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

NORP The applicant , Mr DATE , is a NORP national who was born in DATE and lives in GPE . On DATE the ORG decided of its own motion to grant the applicant anonymity ( Rule CARDINAL § CARDINAL of ORG ) . The applicant was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

NORP The applicant ’s daughter , GPE , was born on DATE . ORG ’s mother , GPE , was not living with the applicant .

On an unknown date in DATE the applicant took GPE and GPE to a temporary accommodation centre ( FAC temporário – CAT ) in GPE because he could not afford to house them .

On an unspecified date GPE left the centre .

On DATE an oral hearing took place before ORG ( domestic proceedings no . CARDINAL/CARDINAL.CARDINALTBCDV - A ) . During the hearing , the applicant declared that he would agree to having GPE placed in the care of an institution , since he was unable to provide the necessary conditions in which to raise her . GPE also agreed with the measure of institutional care and expressed her consent to GPE staying in the care of the applicant at a later stage because she did not have the means to take care of her . Following those statements , the judge of ORG decided to apply a provisional measure , consisting of placing ORG in institutional care .

At the conclusion of the hearing , the applicant , GPE and CARDINAL representatives of the ORG signed an agreement on the raising and protection ( acordo de promoção e proteção ) of GPE Under the agreement , GPE was to be placed in the temporary care of the CAT of ORG for DATE and her parents could visit her in accordance with the rules set by the centre . The agreement was signed by the judge .

On DATE the applicant was sent for psychiatric and psychological assessments . The relevant expert reports , dated DATE and DATE , were received by ORG on DATE and DATE . The report of CARDINAL DATE of the psychiatric expert concluded that the applicant had the capacity to exercise a parental role . The report of DATE of the psychological expert reached the opposite conclusion on the ground that by concentring excessively in his own needs , the applicant lacked the capacity to understand the needs of his daughter .

On DATE the psychiatric expert sent to the court a clarification note . Referring to a warrant issued by the NORP authorities which indicated , inter alia , that the applicant had been convicted to a term of DATE and CARDINAL months’ imprisonment for sexual assault and bodily harm , the expert assumed that the applicant had a personality “ with psychopathic features ” , which undermined his capacity to exercise a parental role .

On DATE , the CAT sent the court a social report concerning the situation of GPE in the centre . The report ’s conclusion was that GPE should be referred for adoption , given that her mother had stopped visiting DATE previously and the applicant had not taken any concrete action aimed at assuming his responsibilities towards her .

On DATE , ORG ( ORG ) of PERSON sent the court a report about an interview that had taken place with a brother of the applicant . According to this report , the brother of the applicant had stated that he did not know about the birth of GPE and that he did not have the means to take her into his care . He had also mentioned that he had had no news of another brother for DATE and that he did not recommend that GPE be placed in the care of her father , without specifying the reason .

NORP In DATE the CAT decided to reduce the applicant ’s authorised visits from DATE , owing to his lack of initiative in determining how he could play a role ( encontrar um projeto de vida ) in his daughter ’s future .

On DATE a lawyer appointed to represent the applicant applied to ORG , stating that he had not been contacted by the applicant . He explained that on CARDINAL DATE he had sent the applicant a registered letter which had been returned . On DATE he had sent CARDINAL more letters , CARDINAL registered and the other one not registered , to which he was still waiting for an answer .

On DATE ORG held an adversarial hearing ( debate judicial ) . The applicant as well as CARDINAL witnesses , namely an officer of the ORG , a social worker from the Campo Lindo CAT and the director of the Campo Lindo CAT were heard by the court .

By a judgment of DATE , ORG ordered that GPE be taken into care with a view to adoption , revoked the applicant ’s parental responsibility and forbade all contacts between him and GPE , pursuant to ORG DATE and CARDINAL-A of the Civil Code . Relying on the ORG statements and on the conclusion of a psychiatric report dated CARDINAL DATE , the court considered the following as relevant established facts :

GPE stopped visiting GPE in DATE ...

GPE has not tried to receive , in any way , news concerning GPE ...

No other family member has ever tried to visit GPE

The father [ applicant ] was always present for the visits , twice per week , except for DATE in DATE in which he did not visit GPE

[ The father ] lives away from his family ( vive afastado da família ) .

Except during the hearing , the father has never expressed the will to care for GPE

Although he has mentioned some family members and friends that could care for GPE , [ the father ] has never introduced any of them .

He has only indicated his willingness to find someone to take care of his child when confronted by [ staff of the centre ] .

Since DATE [ DATE ] the father ’s visits occur once per week , by a decision of the accommodation centre based on the fact that he has not defined his role in his daughter ’s upbringing ( não se assumir como projecto de vida para a filha ) .

The child does not ask about her father when she is not with him .

She calls him “ father ” and the visits are not problematic .

The visits are playful and GPE identifies her father as someone to play with .

C.H. does not show any signs of sadness when her father does not visit or when he leaves .

At the present date , the father intends to define his role in his daughter ’s upbringing , requesting DATE to organise it , namely in economic terms , in order to execute that project .

The father has ‘ a personality with psychopathic features characterised by instability and impulsivity , which undermines the exercise of a parental role’ .

The court further considered that , in accordance with DATE CARDINAL of LAW , the best interests of the child should prevail over the GPE interests as well as her integration in her biological family . However , as far as the mother , GPE , was concerned , it found that the conditions of paragraph CARDINAL ( e ) of DATE of LAW had been fulfilled , since she had not contacted GPE , nor tried to do so , for a period of over DATE .

Concerning the applicant , the court , relying on the established facts , considered that :

- he had not undertaken any concrete measures to find an alternative to the institutional care ;

- he had never taken the initiative of defining his role ( encontrar um projeto de vida ) in GPE ’s upbringing ;

- C.H. did not have an emotional bond with her father , considering him as someone with whom to play , and never asked about him ; and

- the father ’s attitude during the proceedings had consisted of repeatedly requesting time to find a solution for his daughter ’s upbringing but he never came out with one .

ORG also emphasised that there was no option for a member of the extended family to take GPE into their care . It considered that there were no perspectives of any change in GPE ’s situation within a short period of time and DATE in the life of a DATE child was a long time .

Lastly , ORG relied on the conclusion of the psychiatric expert report of CARDINAL DATE , in which it had been stated that the father ’s personality was characterised by features that undermined the exercise of a parental role .

The domestic court thus concluded that the conditions of paragraph CARDINAL ( d ) of DATE of LAW had been fulfilled with regard to the applicant .

On DATE the applicant appealed against the first - instance decision to ORG . He argued that ORG should not have concluded that there was no emotional tie between himself and GPE , because it was in contradiction with other established facts and with the ORG statements . The applicant further argued that the court should not have found it established that he had made no efforts to create the necessary conditions in which to raise GPE because the ORG statements had indicated the opposite ; the applicant claimed that he had made numerous efforts to change his living conditions . In addition , the applicant contested established fact no . CARDINAL , that he had “ a personality with psychopathic features characterised by instability and impulsivity , which undermines the exercise of a parental role ” . He claimed that the court ’s reasoning was not clear with regard to the reasons supporting that established fact . According to the applicant ’s allegations , a first report dated DATE had considered that “ the applicant did not have any psychiatric illness ” and that he “ was aware of the specific needs of children in different development stages and that he had the mental and emotional abilities to undertake the role of a father figure ” . In the applicant ’s view , ORG had not provided reasons for its decision to give more weight to the report of CARDINAL DATE than to the CARDINAL of DATE .

Lastly , the applicant argued that the requirements to make a decision on placing his child for adoption , in particular those of LAW d ) , were not applicable to him . In his view , the only element he lacked in order to raise ORG was a better financial situation .

On DATE ORG found the appeal admissible and ordered that the case file be sent to ORG . In its decision , it maintained the suspension of contacts between the applicant and GPE

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment . After examining the evidence produced at first instance , it confirmed the facts that had been considered established .

ORG found that it resulted from the ORG statements that ORG did not regard the applicant as her father , but as someone with whom to play . Regarding the applicant ’s efforts to improve his financial situation and to define his role in his daughter ’s upbringing , ORG laid emphasis on the fact that he had not found any solution , regardless of the effort he had dedicated to doing so .

Concerning the psychiatric expert reports , ORG referred to the fact that the report of CARDINAL DATE had been requested with the intention of receiving clarifications , in the light of a warrant issued by the NORP authorities which had been submitted to the proceedings on DATE . The warrant indicated that the applicant had been convicted for sexual assault and bodily harm ( agressão sexual em concurso com lesão corporal dolosa ) and sentenced to DATE and CARDINAL months’ imprisonment . He had also lost the possibility of holding public office in GPE or being elected until DATE and had been banned from employing , supervising , instructing and training young persons .

NORP The court concluded that the CARDINAL psychiatric reports were not contradictory , as both mentioned that the applicant did not have a psychiatric illness ; the report of CARDINAL DATE only added to that of DATE that the applicant had a “ personality with psychopathic features ” .

ORG considered that measures capable of integrating a child in his or her biological family should prevail . If the biological family could not fulfil its duties to take care of the child , then adoption should be considered . In this connection , ORG focused its reasoning on the family situation .

Regarding GPE , ORG noted that she had been a victim of sexual abuse and physical violence during her life and that she had attempted suicide several times . It also noted that she was in a fragile financial situation .

Looking at the applicant ’s past , the court noted that his life had been characterised by instability , without any known emotional ties . It also noted that he was unemployed , was a beneficiary of the minimum income allowance ( ORG ) and was living in a rented room .

Furthermore , the court found that the applicant did not have the competence , maturity or lifestyle necessary to create a favourable environment in which to raise a child . The court expressed understanding of the applicant ’s affection for GPE and his disappointment with the current situation , but emphasised that the child ’s developmental needs should prevail .

On an unknown date the applicant sought leave to appeal to ORG . He submitted a request to lodge an ordinary appeal under LAW or , alternatively , an exceptional appeal ( recurso de revista excecional ) under LAW .

On DATE ORG declared the appeal inadmissible on the grounds that decisions adopted on grounds of “ suitability or appropriateness ” ( conveniência ou oportunidade ) were not amenable to appeal before ORG .

On an unknown date the applicant challenged that decision before ORG .

On DATE ORG declared the appeal inadmissible on the grounds that ORG had fully upheld the first - instance decision ( dupla conforme ) . It further considered that the applicant had not submitted clear arguments that would justify an exceptional appeal .

Following a request from the applicant made in a letter of CARDINAL DATE , on CARDINAL DATE the ORG granted an interim measure pursuant to Rule CARDINAL of ORG , indicating to the Government that the adoption of the applicant ’s child should be stayed and his contacts with his child reinstated until the end of the proceedings before the ORG .

On DATE the Government contested the ORG ’s decision concerning the applicant’

Following a request for information , on CARDINAL DATE the Government submitted relevant case - file documents in order to contest the interim measure that had been applied .

The relevant provisions of LAW , as in force at the relevant time , read as follows :

Placement with a view to adoption

“ CARDINAL . In the context of promotion and protection proceedings , the court may place a child into care with a view to future adoption if the emotional ties characteristic of a parent - child relationship do not exist or have been seriously undermined , subject to any of the following circumstances :

d ) if the parents , by a wilful act or omission , even if for a manifest inability due to reasons of mental illness , seriously endanger the safety , health , upbringing , education or development of the child ;

e ) if the parents of a child taken into care by a person , an institution or a family have revealed a manifest lack of interest for their child in such a way that the quality and continuity of those ties are compromised for a period of DATE preceding the request for placement in care .

NORP The court shall take into consideration primarily the rights and interests of the child when assessing the above - mentioned circumstances .

A child is considered to be in danger if any of the circumstances indicated in the legislation on the protection and promotion of the rights of children prevail . ”

Effects of judicial placement ... in an institution with a view to adoption

“ Once placement ... in an institution has been ordered with a view to adoption , parental responsibility is withdrawn from the parents . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in DATE and lives in GPE .

On DATE the applicant was assaulted . According to the subsequent findings of medical experts , she sustained haematomas on her jaw , shoulder and hip , a bruise under her right eye , concussion , and a displaced rib fracture . The applicant alleges that her assailants were Mr and PERSON , her daughter ’s former parents - in - law , whereas the domestic authorities found that it was only PERSON who had assaulted the applicant . The incident occurred in front of the applicant ’s DATE granddaughter .

On DATE the applicant lodged a complaint with the police .

On DATE a forensic medical expert examined the applicant . He found that she had haematomas which he classified as “ minor bodily injuries ” .

On DATE ORG ( “ the NORP police ” ) refused to institute criminal proceedings in connection with the incident .

On DATE a forensic medical examination of the applicant was carried out . The expert found that in addition to the previously noted haematomas , the applicant had also suffered concussion and a displaced rib fracture . The expert classified the injuries as “ bodily harm of medium severity ” .

On DATE the ORG prosecutor overruled the decision of CARDINAL DATE as premature and on DATE instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant .

On DATE the investigator suspended the investigation for failure to identify the perpetrator .

NORP On DATE and DATE the ORG prosecutor ’s office issued CARDINAL decisions in which it overruled the investigator ’s decision of CARDINAL DATE as premature .

On DATE the investigator questioned PERSON and PERSON

On DATE the investigator again suspended the investigation for failure to identify the perpetrator .

On DATE the ORG prosecutor ’s office , in response to the applicant ’s complaint about the progress of the investigation , asked ORG to have the police officers in charge of the investigation disciplined .

On DATE ORG instructed the NORP police to immediately resume the investigation .

On DATE the investigator decided to ask a forensic medical expert to determine the degree of gravity of the applicant ’s injuries . On DATE the expert drew up a report generally confirming the findings of CARDINAL DATE .

On CARDINAL DATE ORG informed the applicant that the police officers in charge of the case had been disciplined for omissions in the investigation .

On DATE the ORG absolved PERSON from criminal liability under an amnesty law , on the grounds that she had an elderly mother who was dependent on her . On DATE ORG ( “ the Court of Appeal ” ) quashed that judgment , finding no evidence that PERSON mother was dependent on her .

On DATE the investigator refused to institute criminal proceedings against Mr K.

On DATE the ORG prosecutor issued a bill of indictment against PERSON

On DATE the ORG remitted the case against PERSON for further investigation , holding that the applicant had not been informed about the completion of the investigation until DATE and had therefore not been given enough time to study the case file . It also held that the refusal to institute criminal proceedings against PERSON had contravened the law .

On DATE the ORG prosecutor quashed the decision of DATE not to institute criminal proceedings against Mr K. Subsequently the investigator again refused to institute criminal proceedings against PERSON

On DATE the new round of pre - trial investigation in the case against PERSON was completed and another bill of indictment was issued by the PERSON prosecutor .

On DATE ORG remitted the case against PERSON for further investigation , holding in particular that the decision not to institute criminal proceedings against PERSON had been premature , since his role in the incident had not been sufficiently clarified .

On DATE the ORG prosecutor quashed the decision not to institute criminal proceedings against PERSON On CARDINAL DATE the investigator again refused to institute criminal proceedings against Mr K.

On DATE ORG convicted PERSON of inflicting bodily harm of medium severity on the applicant , sentencing her to restriction of liberty for DATE , suspended for a DATE probationary period . The court found that the decision not to institute criminal proceedings against PERSON in connection with the same incident had been correct . PERSON , the prosecutor and the applicant appealed .

On DATE ORG quashed the judgment and discontinued the criminal proceedings against PERSON as time - barred .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s employment as an unqualified worker was terminated as a result of her employer becoming insolvent . At that time she had DATE and DATE of service ( radni staž ) recorded in her “ employment book ” ( radna knjižica ) .

NORP The medical documentation submitted by the applicant shows that since DATE she has been suffering from a psychiatric condition – depression and neurosis . The medical documents from various dates show her continuous incapacity of working .

On DATE ORG of ORG in PERSON ( PERSON , PERSON ORG , hereinafter “ ORG ” ) granted the applicant unemployment benefits in the amount of CARDINAL NORP kunas ( HRK – MONEY ( ORG ) ) for DATE , starting from DATE . There was no appeal , so that decision became final .

On DATE the applicant lodged an application with ORG for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work . She submitted a medical certificate that she had been ill and thus temporarily incapable of working .

On DATE ORG , relying on section CARDINAL(CARDINAL)(CARDINAL ) of LAW , renewed her entitlement to unemployment benefits until further notice . She was to receive HRK CARDINAL ( about EUR DATE . This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired , or until her right to compensation ceased to exist .

NORP In DATE of service ( staž osiguranja ) were entered into the applicant ’s employment book . However , that did not mean that the applicant was actually employed , but only that contributions for her pension and invalidity insurance had been paid . Such contributions are regularly paid by employers . However , since the applicant was not employed , these contributions were paid by ORG .

On DATE ORG provided the applicant with an “ employment benefit card ” ( kartica korisnika novčane naknade ) .

On DATE ORG terminated the applicant ’s entitlement to unemployment benefits with effect from DATE . It held that the deadline prescribed in section CARDINAL(CARDINAL)(CARDINAL ) of LAW had expired on DATE .

On DATE ORG established that the applicant was to repay it the amount of HRK CARDINAL,CARDINAL.CARDINAL ( about LAW ) .

The applicant lodged appeals against both decisions with ORG of ORG ( PERSON , ORG , hereinafter “ ORG ” ) . She argued that she had the right to unemployment benefits until she retired . She also relied on her family circumstances and submitted that she was married and that her husband ’s pension was HRK CARDINAL ( about ORG CARDINAL ) , and that they had a child of school age and an older son who was employed . However , that body dismissed both her appeals as unfounded on CARDINAL DATE and DATE . It held that she had been entitled to unemployment benefits for as long as she had been unable to work , but subject to a limit of DATE .

On DATE the applicant then lodged CARDINAL administrative actions with ORG , seeking the annulment of ORG decisions of CARDINAL and DATE . She claimed that she had DATE of service , and as such was entitled to unemployment benefits until she was next employed or until she retired .

On DATE ORG dismissed the claim concerning the decision of CARDINAL DATE upholding the decision of DATE ( see paragraph CARDINAL above ) as ill - founded , endorsing the arguments and conclusions of the lower bodies .

In a separate judgment of DATE ORG quashed the decision of CARDINAL DATE which upheld the decision of DATE by which the applicant had been ordered to repay the sum of HRK ORG ( see paragraph CARDINAL above ) . It instructed the parties to seek relief in civil proceedings before a competent municipal court .

On DATE ORG contacted the applicant by letter , proposing to reach an out - of - court settlement within DATE regarding the repayment of the unemployment benefits which she had received between PERSON and DATE , in total HRK ORG . She was cautioned that ORG would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed .

The applicant replied that she was in poor health , unemployed and without any income , and that in these circumstances she could not accept the obligation to repay the money sought .

On DATE the applicant lodged an application with ORG , seeking to overturn its DATE decision to terminate her entitlement to unemployment benefits . It was dismissed on CARDINAL DATE and this decision was upheld on appeal on DATE as well as by ORG on DATE .

A subsequent constitutional complaint by the applicant was declared inadmissible on DATE .

On DATE ORG brought a civil action against the applicant for unjust enrichment , seeking repayment of HRK CARDINAL,CARDINAL.CARDINAL , together with statutory interest , on the basis of the unemployment benefits she had received between DATE and DATE .

On DATE the applicant responded to the civil action , alleging , inter alia , that ORG actions violated her human rights . She also submitted medical documentation demonstrating her fragile state of health , numerous health problems caused by her difficult personal situation due to long - term unemployment , the poverty in which she and her family lived , and her inability to work . She also brought a counterclaim against ORG , seeking payment of unemployment benefits from DATE to the date of her future retirement , in the amount of HRK CARDINAL,CARDINAL.CARDINAL .

On DATE ORG ( PERSON ORG ) dismissed ORG claim as unfounded , relying on LAW ( see paragraph CARDINAL below ) . It held that the applicant could not be held responsible for the bureau ’s errors and negligence , particularly bearing in mind that she had not concealed any fact or misled it . The same court also rejected the applicant ’s counterclaim , given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings , and that such a decision could not be contested in the context of civil proceedings .

Both the applicant and ORG lodged appeals against the firstinstance judgment .

On DATE ORG ( Županijski sud u ORG ) dismissed the applicant ’s appeal and upheld the first - instance judgment with regard to her counterclaim . It also allowed ORG appeal and , relying on section CARDINAL of LAW , reversed the first - instance judgment in respect of the unjust enrichment claim , and ordered the applicant to pay HRK CARDINAL,CARDINAL.CARDINAL plus statutory interest running form CARDINAL DATE ( the date of lodging the claim against the applicant ) to ORG . It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on DATE .

The applicant then lodged both an appeal on points of law and a constitutional complaint .

On DATE ORG declared her appeal on points of law inadmissible . The applicant then lodged a constitutional complaint against that decision .

On DATE ORG dismissed both of her constitutional complaints as unfounded . It served its decision on the applicant ’s representative on DATE .

Meanwhile , on DATE the applicant had replied to ORG letter offering her an out - of - court settlement for the amount owed to be reimbursed in DATE . She had stated that she was not able to repay the amount due because she was unemployed , in ill health and had no income . She asked ORG for debt relief .

On DATE , before ORG , ORG lodged an application to enforce ORG judgment of CARDINAL DATE against the applicant .

On DATE ORG issued a writ of execution in respect of the applicant ’s bank account(s ) .

On DATE the first - instance court ordered the applicant to pay court fees in the amount of LAW ( about EUR DATE ) , on account of the enforcement application and the writ of execution .

By a letter of CARDINAL DATE ORG ( ORG ) informed the first - instance court that there were no records of the applicant ’s active bank accounts .

By a conclusion ( zaključak ) of CARDINAL DATE ORG informed ORG about ORG letter and ordered it to give the court information about the applicant ’s bank account or make a further proposal .

On DATE ORG lodged an application to change the object of the enforcement ( prijedlog za promjenu predmeta i sredstva ovrhe ) , and requested enforcement in relation to the applicant ’s movable property , given that she was unemployed and had no income , real property or motor vehicle .

By a decision taken on DATE ORG declared the application of DATE inadmissible on the basis that it was premature , since changing the object of enforcement is not possible before a writ of execution becomes final .

The enforcement proceedings are still ongoing .


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

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The events at issue took place in ORG , a NORP town near the NORP border which was heavily attacked by ORG and paramilitary NORP armed forces during the armed conflict in GPE from DATE and was finally occupied at DATE . DATE ORG was a part of ORG ( the “ ORG ” ) .

In DATE ORG established ORG in LOC , PERSON and ORG ( the “ ORG ” ) , which included ORG . On DATE the ORG mandate ceased and the transfer of power to the NORP authorities began .

TIME on DATE , during a general alert , CARDINAL unknown uniformed men , armed with firearms , apprehended the applicant ’s husband , Lj . N. , in the basement or the courtyard of a building in GPE street in GPE , and drove him away .

On DATE , the body of Lj . ORG was found in FAC at ORG , GPE .

On DATE ORG of the Medical Faculty in Novi Sad carried out an autopsy on the body of Lj . ORG which established that the cause of death was a gunshot wound caused by a bullet fired from a hand gun .

In DATE the applicant brought a civil action before ORG against the ORG , represented by the ORG Attorney ’s Office , seeking damages in connection with the death of her husband .

NORP In connection with the above civil proceedings , the GPE State Attorney ’s ORG asked the ORG police to submit all information concerning the death of the applicant ’s husband . The police thereby learned about the death of the applicant ’s husband for the first time and opened an enquiry into it .

On DATE the police interviewed the applicant , who stated that on DATE her husband had been abducted from the basement of a building in GPE by CARDINAL NORP soldiers and driven away . She named CARDINAL other persons who had been present in the basement on that occasion , GPE , ORG , PERSON , GPE , GPE and GPE However , ORG , GPE and GPE had died in the meantime .

On DATE the police interviewed PERSON , who stated that the applicant ’s husband had been taken from the basement of a building in GPE in DATE by CARDINAL uniformed and armed men wearing masks .

On DATE the police interviewed PERSON , who stated that he had joined ORG in DATE and had only been visiting his wife ORG and their children , who had sought shelter from the shelling of ORG in the same basement as the applicant and her husband . He said he had not been present when the applicant ’s husband had been taken .

On DATE the ORG police lodged a criminal complaint with the GPE State Attorney ’s ORG against an unknown perpetrator in connection with the killing of the applicant ’s husband , classifying the offence as a war crime against the civilian population .

On CARDINAL DATE the applicant approached the ORG Attorney ’s ORG and told them that ORG had been present when her husband was taken . She also stated that after ORG had died around DATE , CARDINAL of the men who had taken her husband had come to the basement to take DATE On that occasion B.Š. ‒ who had also been present ‒ whispered to the applicant : ‘ This is the man who took Lj.[N.]’ . The applicant also stated that PERSON lived in GPE .

On DATE the GPE police interviewed PERSON He said that he had not been present when the applicant ’s husband had been taken and did not know the identity of those who had taken him .

On DATE the ORG police interviewed PERSON , who said that she had been present in the basement on DATE Lj . ORG had been taken but had not seen the men who had taken him .

On DATE an investigating judge of the ORG heard evidence from ORG , who repeated his prior statement .

On DATE an investigating judge of ORG interviewed the applicant , who repeated her statement .

On DATE the NORP police informed the GPE State Attorney ’s Office that they had not learned any new information .

As indicated above ( see paragraph CARDINAL ) in DATE the applicant brought a civil action against the ORG in ORG , seeking compensation in connection with the death of her husband . The claim was dismissed on DATE and was upheld on appeal by ORG and ORG on DATE and DATE respectively . The national courts found that the claim had been submitted after the statutory limitation period had expired .

A subsequent constitutional complaint lodged by the applicant was dismissed on DATE .


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

The applicant was born in DATE and lives in GPE . At the time of the events he was the director of a private joint stock company .

NORP In DATE the local court delivered a judgment ordering a debt recovery by a certain Mr Ts . to the applicant . On DATE Mr Ts . ’s wife , acting under a power of attorney , authorised the applicant to use their car . On DATE she revoked her power of attorney . The car , however , remained with the applicant .

On DATE criminal proceedings were instituted against the applicant on suspicion of forcible assertion of private rights and extortion , following a complaint by Mr Ts . The latter claimed that the applicant was arbitrarily retaining his car and was extorting money for it .

On DATE the applicant was arrested in his office as a criminal suspect . He was placed in ORG ( “ the FAC ” ) . Following a search of the company ’s LOC , the police seized the car in question .

DATE , on DATE , Mr Ts . wrote a receipt confirming that the applicant had paid him MONEY ( ORG ) in respect of pecuniary and non - pecuniary damage and that he had no claims against the applicant . He addressed the receipt in question to the investigator dealing with the applicant ’s criminal case .

On DATE the applicant was released subject to a commitment not to leave the town .

On DATE ORG ( “ the GPE ” ) quashed the decisions of CARDINAL and DATE . On DATE and DATE ORG ( “ the Court of Appeal ” ) and ORG , respectively , upheld that ruling . The courts held that there had been no grounds for instituting criminal proceedings against the applicant as there was no indication of a criminal offence .

On DATE the applicant lodged a claim for damages against the local prosecutor ’s office and police . He claimed compensation for pecuniary and non - pecuniary damage in respect of the following CARDINAL issues : his arbitrary criminal prosecution , his unlawful arrest , the allegedly unlawful search of the company ’s LOC , and the seizure of the car as having amounted to his deprivation of property . More specifically , the applicant complained that there had been no reasons to arrest him and that he had never been summoned to the police . He further noted that his arrest had taken place in his office , in front of his colleagues , and that he had suffered stress and humiliation . He also observed , in the context of the complaint about his unlawful detention , that the conditions of his detention in ORG had been very poor ( poor food and dirty linen , and impossibility to receive any parcels from the outside ) .

NORP The applicant ’s claim in respect of pecuniary damage included the amount of the debt owed by PERSON . to him , which the applicant estimated as being equivalent to the value of the impounded car . The applicant therefore claimed that that car should be returned to him . Furthermore , he claimed an equivalent to ORG CARDINAL,CARDINAL , which he had allegedly been forced to pay to Mr Ts . as a result of the unlawfully instituted criminal proceedings ( whereas Mr Ts . had indicated a lower amount , CARDINAL , in his receipt – see paragraph CARDINAL above ) . The applicant also claimed UAH CARDINAL ( at the time equivalent to ORG CARDINAL ) in respect of non - pecuniary damage .

On DATE ORG allowed the applicant ’s claim in part . It awarded him UAH CARDINAL,CARDINAL in compensation for pecuniary damage , as that was the amount ( equivalent to ORG ) paid by the applicant to PERSON . and confirmed by the latter ’s receipt . The court also awarded the applicant LAW ( at the time equal to QUANTITY ) in respect of non - pecuniary damage . It relied , in particular , on LAW and LAW . The aforementioned amounts were to be paid to the applicant from the ORG budget .

The applicant , ORG of GPE and ORG appealed .

By a letter of DATE ORG sent the applicant copies of the GPE appeals and informed him that he could comment on them by DATE . The letter also contained a court summons for DATE . As indicated on the post stamp , it was dispatched on DATE . The applicant received that letter on DATE .

On DATE ORG , following a hearing with the participation of the defendants , but in the applicant ’s absence , quashed the judgment of CARDINAL DATE and issued a new one . It agreed with the first - instance court ’s conclusion that the applicant “ had suffered distress as a result of the illegal actions of law - enforcement officials ” , but considered the compensation award to be unreasonably high . The appellate court awarded the applicant LAW ( QUANTITY at the time ) in compensation for non - pecuniary damage and ORG CARDINAL,CARDINAL in costs and expenses . In rejecting his claim for compensation in respect of pecuniary damage , the court noted that the car did not belong to the applicant and the ORG was not required to reimburse him money paid to a private individual .

Neither the decision of the appellate court nor the verbatim records of its hearing contain any information regarding the notification of the applicant of that hearing .

The applicant appealed on points of law . He complained , in particular , that he had received the summons on DATE of the hearing before the appellate court , which prevented him from participating in it .

On DATE ORG , acting as a court of cassation , rejected the applicant ’s appeal on points of law with broadly couched reasoning that it was unsubstantiated .


CASE OF ALEKSANDROV AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention . The applicants also raised other complaints under the provisions of the Convention .


Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

André Potocki;Angelika Nußberger;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

Gahramanli and Others v. PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

The applicant was nominated by the FAC wing of ORG party to stand as a candidate in the parliamentary elections of CARDINAL DATE in the single - mandate ORG No . CARDINAL . The applicant lost the election in his constituency .

After DATE , the applicant lodged a complaint with ORG ( the “ ORG ” ) concerning a number of irregularities in his constituency that had allegedly taken place during DATE . He complained of various types of irregularity , including interference by public officials , illegal campaigning , obstruction and intimidation of election observers , ballot - box stuffing , repeated voting by the same individuals , incorrect vote - counting procedures , and a falsely inflated voter turnout . In support of his allegations , the applicant submitted various types of evidence documenting specific instances of the irregularities complained of , including statements made by election observers , and video and audio recordings .

On DATE the ORG issued a decision rejecting the applicant ’s claims . Its reasoning was similar to that in the ORG decision in PERSON and Others ( cited above , § § DATE ) .

The applicant lodged further complaints with ORG and ORG which , on DATE and DATE respectively , dismissed the applicant ’s appeals . Their reasoning was similar to that in their respective decisions in the PERSON and Others case ( cited above , § § DATE ) .

In the meantime , before ORG delivered its final decision in the applicant ’s case , on DATE ORG had confirmed the country - wide election results , including the election results in the applicant ’s constituency , as final ( ibid . , § CARDINAL ) .

At the material time Mr PERSON was representing not only the applicant in the present case , but also a total of twentyseven other applicants in cases concerning the DATE parliamentary elections and a number of applicants in other cases before the ORG .

On DATE criminal proceedings were instituted against Mr I. GPE , which are the subject of a separate application brought by him before the ORG ( application no . CARDINAL ) . On CARDINAL and CARDINAL DATE the investigation authorities seized a large number of documents from Mr I. GPE ’s office , including all the case files relating to the proceedings pending before ORG , which were in Mr PERSON ’s possession and which concerned over CARDINAL applications in total . The file relating to the present application was also seized in its entirety . The facts relating to the seizure and the relevant proceedings are described in more detail in GPE GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

On DATE the investigation authorities returned a number of the case files concerning the applications lodged before the ORG , including the file relating to the present application , to Mr PERSON ’s lawyer .