Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in DATE and lives in GPE .

The applicant is an ethnic NORP . He lived in the town of NORP in GPE . After the mass disorders and inter - ethnic clashes in the region in DATE , he left GPE for GPE .

On DATE the applicant arrived in GPE .

On DATE the NORP authorities charged the applicant in absentia with violent crimes related to these clashes , including the kidnapping and murder of CARDINAL law - enforcement officers .

On DATE they ordered the applicant ’s arrest .

On DATE the applicant ’s name was put on a national wanted list , and on DATE on an international wanted list .

On DATE the applicant was apprehended in GPE , GPE , and placed in detention .

Shortly after his arrest , the applicant gave an explanation ( объяснение ) in which he admitted having participated in the beating of CARDINAL of the law - enforcement officers in DATE but denied his involvement in other crimes for which he was to be prosecuted in GPE . He also indicated that although he had not been directly informed about the charges being brought against him in GPE , he knew that his father had been sentenced to life imprisonment for the murder of the same law - enforcement officers and suspected that he was himself also wanted by the NORP authorities .

On DATE the Frunzenskiy District Court of GPE decided to remand the applicant in custody . His detention was subsequently extended several times .

On DATE ORG informed the NORP authorities about the applicant ’s arrest .

On DATE a judge of ORG extended the applicant ’s detention until DATE . The applicant ’s lawyer appealed , arguing that the applicant would be deprived of judicial review of his detention for a long period of time .

On DATE ORG upheld the extension order on appeal . It did not address the applicant ’s argument that he would be deprived of judicial review of his detention for a long period of time .

On DATE the applicant was released . It appears that the applicant is currently at large .

On DATE ORG requested the applicant ’s extradition . The request was accompanied by assurances that the applicant would not be subjected to torture or inhuman treatment and that NORP diplomats would be granted the opportunity to visit him .

On DATE the Deputy Prosecutor General granted the extradition request submitted by the NORP authorities .

On DATE the applicant appealed , arguing that as an ethnic NORP charged with serious crimes in relation to the mass disorders of DATE he would face a serious risk of torture and ill - treatment if extradited . He also referred to the principle of nonrefoulement of asylum seekers pending the examination of his application for refugee status .

On DATE ORG rejected his appeal in the light of the diplomatic assurances given by the NORP authorities and the improvement of the situation in GPE . As to the nonrefoulement principle , ORG noted that the applicant ’s application for refugee status had been refused by the migration authority .

On DATE ORG rejected the applicant ’s appeal and the extradition order became final . It noted in particular that in addition to the diplomatic assurances provided in writing by the NORP authorities , the representatives of ORG of GPE in this country were able to monitor the situation of persons already extradited to GPE , including those held in relation to the mass disorders . For instance , on CARDINAL and DATE NORP diplomats had visited some such detainees , who had made no complaints in relation to their transfer , detention , prosecution or treatment . In ORG view , such a monitoring mechanism was effective in observing compliance by the NORP authorities with their obligations to ensure the rights of the extradited persons , including the right not to be subjected to torture and inhuman treatment .

ORG noted that the applicant belonged to a vulnerable group whose members were at risk of being subjected to torture by the lawenforcement agencies , according to international reports . It considered , however , that in the absence of specific evidence submitted by the applicant that he would personally be subjected to torture or inhuman and degrading treatment , these circumstances were not in themselves enough to reject an extradition request , since he had been charged with ordinary criminal offences to some of which he had confessed on DATE .

On DATE the applicant applied to ORG of ORG ( ORG миграционной службы по NORP краю ) ( hereinafter the “ Primorsk Region FMS ” ) seeking refugee status .

On DATE the Primorsk Region FMS refused the applicant ’s application for refugee status . Although it referred in its decision to interethnic conflicts existing in GPE , it considered that the applicant ’s arrival in GPE had rather been motivated by the unemployment situation existing in his country of origin and his wish to escape from criminal prosecution .

The applicant appealed to ORG , ( ORG миграционная служба ( ФМС ) ) ( hereinafter the “ FMS ” ) . He claimed that he was being persecuted on the grounds of his ethnic origin and , if extradited , would be subjected to torture .

On DATE the ORG dismissed his appeal on account of his prolonged failure to apply for refugee status and in view of the opportunity offered to the NORP diplomats to monitor the compliance by the NORP authorities with international standards as regards persons extradited from GPE .

On DATE ORG of GPE upheld the refusal of the ORG to grant the applicant refugee status , referring in particular to his protracted failure to apply for refugee status . It also indicated that the applicant was not a member of any political , religious , military or public organisation , had neither served in the army nor taken part in any military activities , had never been prosecuted or threatened by the authorities , and had not been involved in any violent incidents .

On DATE ORG upheld this judgment on appeal . ORG endorsed the reasoning of ORG , referring in addition to several international sources demonstrating positive developments in the human rights situation in GPE during the period DATE .


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

The applicants are Mr PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) .

The first applicant is a NORP national who was born in DATE and lives in GPE . He is also the second applicant ’s authorised representative . The second applicant is a limited liability company based in GPE . Both applicants were represented before the ORG by Mr M. ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

In DATE the second applicant bought a cargo ship ( teretni brod ) outside of GPE . This ship ’s estimated worth was MONEY ( “ EUR ” ) .

In DATE the first applicant , acting on behalf of the second applicant , retained the services of a forwarding company ( špediter ) , which company specialised in customs - related matters .

On DATE the forwarding company filed a declaration with the customs authorities , supplementing it with the relevant documentation provided by the applicants .

On DATE ORG ( carinarnica ) , having , inter alia , heard a number of witnesses , established that the ship had been improperly classified ( svrstan pod pogrešni tarifni stav ) , as a sea - going vessel , which classification , in turn , implied that no customs duty would be payable . The forwarding company and its authorised representative , as well as the applicants in the present case , were thus found guilty of a customs offence ( cariski prekršaj ) and fined in accordance with the relevant legislation ( see paragraph CARDINAL below ) . In particular , the first and the second applicants were ordered to pay MONEY ( “ ORG ” ) respectively , whilst the forwarding company and its authorised representative were fined in the amount of ORG CARDINAL in that order . ORG noted that its own classification of the ship , as primarily a river - going vessel , was based on the assessment of CARDINAL of the CARDINAL expert organisations which had submitted opposing opinions during the proceedings . ORG also referred to an attesting declaration , issued by the NORP authorities and provided by the applicants themselves , to the effect that the ship was “ suitable for sailing on the LOC , between GPE and the open sea ” . In any event , the head of ORG , at CARDINAL point , recommended that the ship be classified as a river - going one , but the applicants refused to do so .

On DATE ORG ( ORG finansija ) partly accepted the appeals filed by the CARDINAL defendants , and in so doing amended the fines imposed at first instance . In particular , the first and second applicants were ordered to pay ORG CARDINAL,CARDINAL and ORG CARDINAL , ( approximately EUR CARDINAL and EUR CARDINAL,CARDINAL at that time ) , respectively , whilst the forwarding company and its authorised representative were fined less , i.e. RSD CARDINAL,CARDINAL and ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL and EUR CARDINAL at that time ) respectively . ORG stated that the reason for this distinction was that the forwarding company had merely complied with the applicants’ request for the improper classification of the ship in question , as established on the basis of a witness statement given in the course of the proceedings . Also , ORG accepted that there was no intent on the part of the applicants to deceive the authorities , which was why they were found guilty under LAW , an offence not requiring the existence of such intent but rather the mere failure to provide accurate information upon submission of a customs declaration .

On DATE the applicants lodged an appeal on points of law ( zahtev za vanredno preispitivanje pravosnažnog rešenja ) , which appeal was supplemented on DATE , DATE and DATE . Therein , the applicants maintained , inter alia , that : ( a ) although ORG had taken into account CARDINAL expert opinions regarding the classification of the ship , it had accepted , without proper explanation , CARDINAL opinion and effectively given no credence to the other ; ( b ) they had had no expertise to navigate their way through the complex customs proceedings , which was why they had hired the forwarding company to deal with this issue ; and ( c ) the impugned decisions of the customs authorities had been inconsistent with their decisions in other similar cases .

On DATE ORG ( PERSON ) ruled on the ORG appeal on points of law . The first applicant ’s claims were rejected as inadmissible ( odbačeni ) , since the amount of the fine imposed in his case was below the statutory threshold of FAC ( see paragraph CARDINAL below ) , whilst the second applicant ’s claims were considered on their merits and rejected ( odbijeni ) . ORG endorsed the reasoning contained in the impugned decisions issued by the administrative authorities . The applicants received ORG judgment on DATE .

The second applicant was granted the possibility to pay the fine in DATE instalments , and by DATE the fine was paid in full .

The above - described proceedings were conducted on the basis of LAW DATE , as amended in DATE , as well as LAW ( see paragraphs CARDINAL below ) .

DATE and DATE ORG and ORG ( PERSON kasacioni sud ) , applying LAW , issued CARDINAL decisions in respect of situations broadly similar to that of the applicants . Specifically , they noted that it was the responsibility of the importer to provide accurate documentation to the forwarding company and the forwarding company ’s duty to properly classify the goods in the customs declaration . No intent to deceive the authorities was deemed necessary for the existence of the said offence . In CARDINAL of these cases the importers were , ultimately , acquitted or formally cautioned ( opomenuti ) , without being fined , whilst in the remaining CARDINAL cases they were fined in accordance with the applicable legislation ( see , for example , rešenja PERSON finansija od CARDINAL . septembra DATE . i CARDINAL . januara DATE , Pžc nos . CARDINAL i CARDINAL ; as well as presude ORG kasacionog suda od CARDINAL . februara DATE , CARDINAL . marta DATE , CARDINAL . juna DATE . i CARDINAL . decembra DATE , Upr nos . CARDINAL , CARDINAL , CARDINAL ) .

Article CARDINAL provides , inter alia , that a company , as well as its authorised representative employed therewith ( odgovorno lice ) , shall be liable for failing to provide accurate information upon submission of a customs declaration . They shall further be fined therefor in the amount of up to ORG CARDINAL,CARDINAL or the threefold value of the imported goods , as regards a natural person and a corporate entity respectively .

Article CARDINAL § CARDINAL provides that should a natural person ( fizičko lice ) , fail to pay the fine imposed , it shall be converted into a prison term on the basis that DATE in prison shall be worth RSD CARDINAL , but that the imprisonment may not exceed a period of DATE in all .

Article CARDINAL § CARDINAL provides that should a corporate entity fail to pay the fine imposed , it shall be collected “ forcibly ” ( naplatiće se prinudnim putem ) .

Article CARDINAL § CARDINAL provides , inter alia , that a defendant may be formally cautioned , rather than fined , where there are serious extenuating circumstances .

Article CARDINAL identifies , inter alia , the courts entrusted with conducting customs - related proceedings .

Article CARDINAL § CARDINAL ( CARDINAL ) provides that proceedings shall be terminated if there is no proof that the defendant had committed the offence with which he has been charged .

Article CARDINAL provides , inter alia , that a natural person , as well as an authorised representative of a corporate entity employed therewith ( odgovorno lice u pravnom licu ) , shall be entitled to lodge an appeal on points of law if they have been fined in the amount of ORG CARDINAL or more .

In accordance with LAW , the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn and/or amend the impugned decision or quash it and order the re - examination of the issue before the competent administrative authorities .

DATE LAW adopted in DATE amended LAW DATE , whereby administrative authorities were given the competence to conduct customs - related proceedings at first and second instance .

On DATE this Act repealed LAW DATE , as amended in DATE .

Article CARDINAL of LAW DATE provides that it shall be applicable to all pending cases where no second instance decision has been rendered on the merits by DATE . By implication , as regards all other pending cases , including the present case , LAW DATE , as amended in DATE , remained applicable until their very conclusion .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in GPE .

On DATE ORG separated materials of the criminal case no . DATE and initiated new criminal proceedings in respect of the applicant ’s activities during the period from DATE , when he was an investigator at ORG of the NORP GPE . According to ORG , the applicant had participated in political repressions of the NORP regime .

On DATE the prosecutor informed the applicant that he was suspected of having committed genocide . More specifically , ORG alleged that the applicant had participated in military operations against members of the NORP armed resistance , collected evidence in criminal proceedings against them , arrested them and their supporters and collected evidence and arrested people who had possessed anti - NORP manuscripts . On DATE the prosecutor for the first time questioned the applicant as a suspect .

From DATE to CARDINAL DATE the applicant was detained on remand .

On DATE the applicant was charged with crimes against humanity and genocide .

On DATE the prosecutor drafted the bill of indictment and sent the case to ORG for adjudication . The indictment concerned CARDINAL different episodes involving CARDINAL alleged victims .

On DATE the applicant ’s new defence counsel requested ORG to postpone at least for DATE the hearing , which was scheduled for DATE , so that he would have enough time to acquaint himself with the applicant ’s criminal case file .

On DATE the hearing was postponed indefinitely due to the responsible judge ’s illness .

On an unknown date the applicant ’s criminal case was taken over by another judge of ORG . On DATE the judge informed the applicant ’s defence counsel that the hearing was scheduled for DATE .

ORG held hearings on CARDINAL , DATE and DATE . The next hearing was scheduled for DATE . However , on DATE the judge informed the applicant that the hearing was postponed to CARDINAL DATE due to a protracted examination of another criminal case .

On DATE ORG continued examination of the applicant ’s criminal case and on DATE the court delivered its judgment , acquitting the applicant .

The prosecutor appealed against the judgement . On DATE ORG of ORG quashed the first - instance court ’s judgment and remitted the case to the first - instance court . This decision was finalised on DATE .

On DATE the applicant ’s defence counsel appealed against the appellate court ’s decision of DATE . With a decision of CARDINAL DATE the ORG of ORG quashed this decision and remitted the case to the appellate court .

On CARDINAL DATE the judge of ORG of ORG scheduled the appeal hearing for CARDINAL , DATE and CARDINAL DATE .

Upon the prosecutor ’s request , on DATE the appellate court suspended the case pending an expert medical report on the applicant ’s capacity to participate in the hearing and to serve a prison sentence .

On DATE the court ’s decision ordering the forensic examination was forwarded to ORG . On DATE also the applicant ’s criminal case file was sent to this institution . On CARDINAL DATE ORG delivered the results of the forensic examination .

Following the applicant ’s forensic expertise , the examination of the applicant ’s criminal case before the appellate court was continued on DATE and DATE . On DATE the appellate court upheld the judgment of ORG of DATE acquitting the applicant . The decision was finalised on DATE .

On DATE the prosecutor appealed against this decision .

With a final decision of CARDINAL DATE the ORG of ORG upheld the decision of the appellate court .


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE - Virumaa . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

NORP The applicant , who had been the mayor of GPE since DATE , was re - elected to the GPE city council on DATE and on DATE the city council re - elected him as mayor . On the same date the city council confirmed the appointment to office of the members of the municipal government , thereby giving the applicant the authority to exercise his mayoral powers .

On DATE the applicant was arrested on suspicion of accepting substantial bribes . On DATE the applicant was prohibited from leaving his place of residence as a preventive measure . It does not appear from the materials before the ORG how long those measures were in force .

On DATE ORG petitioned ORG to suspend him from office as a precautionary measure . The petition detailed numerous acts which had been investigated and which were deemed to constitute a criminal offence . It was noted in the petition that all the acts in question related to the applicant ’s service as mayor of GPE and the issuing of instructions to persons employed by the GPE city government in abuse of his office . ORG found that there was reasonable suspicion that he had committed a criminal offence and that if he continued to serve as mayor he might i ) destroy or conceal documentary evidence , or ii ) create new evidence seeking to justify the said acts , or iii ) influence officials of the GPE municipal government to give witness testimony that would be favourable to him .

On DATE a hearing was held in ORG to ensure the applicant ’s rights of defence . This hearing was postponed to DATE in order to allow ORG to provide the applicant with a copy of its petition .

On DATE ORG adopted a decision suspending the applicant from the office of mayor of GPE for the duration of the criminal proceedings . The first - instance court determined that there was sufficient evidence to warrant reasonable suspicion that the applicant had committed the crime of repeatedly accepting bribes for his own benefit and also for the benefit of his political party . In arriving at this conclusion , the court examined all the evidence in the case as provided by ORG . This body of evidence consisted of surveillance reports and extracts from bank statements . The first - instance court did not agree that there was a risk that the applicant might destroy or conceal documentary evidence , as all such evidence had been seized by the authorities during the search of his home and his cars . Nor did it agree that the applicant might create new evidence to justify the said acts . The court did agree , however , that there was a risk that the applicant might influence municipal officials to give favourable witness testimony if he were to continue to serve as mayor . The court found this suspicion substantiated by surveillance reports providing evidence of the applicant issuing instructions to municipal officials to engineer favourable resolutions to the problems of people who had promised him certain benefits . In the light of the specific nature of the alleged crimes and the manner in which the crimes were committed , the court held that there was reason to believe that the applicant might commit offences impeding the administration of justice and thus hamper the effective conduct of proceedings . Given the importance of preventing any such obstruction of justice , the court deemed this risk sufficient to justify the applicant ’s suspension from office .

The applicant ’s suspension from office entailed the temporary loss of his remuneration as mayor .

On DATE the applicant filed an appeal against the decision of ORG , requesting that the decision of the firstinstance court be quashed . The applicant argued that the decision did not contain sufficient reasons explaining how he could influence witnesses if he were to continue to serve as mayor . He further argued that the suspension from office was a disproportionate measure for the purposes of achieving ORG Office ’s objective .

On DATE an oral hearing was held in ORG . ORG submitted to the appellate court all gathered evidence forming the basis for a reasonable suspicion of a criminal offence . At the hearing the applicant ’s defence counsel submitted a request for permission to examine this evidence , since in his opinion the ORG guaranteed defence counsel the right to examine such material . ORG noted that in his appeal the applicant had not challenged the existence of reasonable suspicion and held that this request was therefore beyond the scope of the appeal . The defence counsel further stated that he wanted to examine the evidence forming the basis for the prosecutor ’s belief that the applicant would influence witnesses . The prosecutor argued that the defence counsel had not made any such request in the firstinstance court , even though the latter was aware that the firstinstance court had also examined all the evidence gathered in the case . The request was therefore not admissible in the appeal proceedings . The prosecutor also argued that the defence counsel ’s right to examine evidence could be restricted in these proceedings , which concerned only the applicant ’s suspension from the office of mayor . He further submitted that the court ’s task was to determine whether sufficient evidence had been gathered in support of his suspension from office .

The court of appeal dismissed as premature the request for access to all the evidence on the grounds that it was not until the end of the investigation in the criminal case that the applicant was legally entitled to be acquainted with all the evidence gathered in the case . It also held that the applicant ’s counsel was in a position to defend him in the proceedings concerning his suspension from office .

On DATE ORG upheld the firstinstance court ’s decision to suspend the applicant from office . The appeal court noted that the first - instance court had based its assessment of the risk that the applicant might influence witnesses on the evidence presented in the surveillance reports . It had also considered the substantial power and influence that the office of mayor gave him over his subordinates , the specific nature of the offences , and the manner in which they had allegedly been committed . This included evidence of the applicant issuing instructions to certain witnesses to secure the benefits promised to various individuals in return for bribes . The appellate court noted that it was not possible to give a detailed account of the circumstances described in the surveillance reports as this might prejudice the criminal proceedings . The appellate court found that , based on the information in those reports , the suspect might have influenced witnesses and the testimony they were going to give in court . ORG also stated that it had examined the evidence contained in the surveillance reports and agreed with the firstinstance court ’s assessment that the evidence was indicative of the applicant ’s behaviour in the past and thus allowed the applicant ’s future behaviour to be predicted . It concluded that the risk that the applicant would prejudice the proceedings and continue to commit offences against the administration of justice had been sufficiently demonstrated and that suspension from office was a proportionate measure .

On DATE the applicant filed an appeal with ORG against the decision of ORG . In addition to the arguments in the first appeal , the applicant argued that the proceedings to suspend him from office had not been adversarial and fair , thereby breaching the civil limb of LAW . The applicant had asked ORG to allow him to examine the evidence forming the basis for the belief that the applicant might influence witnesses , but that request had been rejected .

On DATE ORG declined to examine the appeal .

At the time of submission of the present application the pre - trial proceedings were still ongoing .

NORP Under LAW ( CARDINAL ) of ORG a city or rural municipality mayor acquires the authority prescribed by law and in the by - laws of the respective rural municipality or city with effect from the date on which the appointment of the government to office is confirmed .

Article CARDINAL ( CARDINAL ) of LAW ( ORG seadustik ) provides :

“ ( CARDINAL ) A suspect or accused shall be suspended from office at the request of a prosecutor ’s office and on the basis of an order of a preliminary investigation judge or on the basis of a court order if :

CARDINAL ) he or she may continue to commit criminal offences if he or she remains in office ;

CARDINAL ) his or her remaining in office may prejudice the criminal proceedings . ”

DATE of the Code of Criminal Procedure provides in its relevant parts :

“ ( CARDINAL ) A suspect or accused or his or her counsel may , upon the expiry of DATE from the suspension from office or application of a temporary restraining order , submit a request to a preliminary investigation judge or court to review the reasons for the suspension from office or application of a temporary restraining order or to amend the conditions of application of such a temporary restraining order . A new request may be submitted DATE after the review of a previous request .

( CARDINAL ) ORG preliminary investigation judge or court shall review such a request within DATE of the receipt thereof . The prosecutor , suspect or accused and , at the request of the suspect or accused , his or her counsel shall be summoned before the preliminary investigation judge or court . ...

( CARDINAL ) Such a request shall be adjudicated by a court ruling . A ruling made in the context of reviewing such a request is not amenable to appeal ... ”

In its judgment of CARDINAL DATE in constitutional review case no . CARDINAL ORG ruled that a city or rural municipality mayor who has been suspended from office continues to be the holder of the office of mayor during the period of suspension but is not authorised to exercise any mayoral powers .


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He had been granted legal aid and is represented by PERSON PERSON , a lawyer practising in GPE , GPE .

ORG ( “ the Government ” ) were represented by their Agent , most recently , PERSON , of ORG of GPE .

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

The applicant is entitled to a lump sum payment in accordance with section CARDINAL of the War Veterans Status and Social Protection Guarantees Act ( ORG статус ветеранів війни , гарантії їх соціального захисту ORG ) , payable to him DATE by DATE ( the “ Victory Day payment ” ) . In DATE the applicant received CARDINAL NORP hryvnias ( ORG ) , UAH CARDINAL in DATE , UAH CARDINAL in DATE , ORG CARDINAL in DATE and UAH CARDINAL in DATE .

In DATE the applicant instituted proceedings in court , stating that the above - mentioned lump sums should have been equal to CARDINAL times the minimum pension and claiming the unpaid difference for DATE .

On DATE the ORG awarded the applicant ORG CARDINAL,CARDINAL in unpaid lump sums for DATE in the light of the ORG decision of CARDINAL DATE ( see the “ Domestic law ” part below ) . The court held that the applicant was entitled to these payments , and the dispute was limited only to their amounts . From DATE the applicant was entitled to a payment in the amount of CARDINAL times the minimum pension . The court noted that the decision of ORG had been adopted after the payments were due to be made , but that ORG could not adopt a decision which would not be enforced .

On DATE ORG upheld that decision .

On DATE ORG of GPE quashed those decisions and rejected the applicant ’s claims . It held that the Constitutional Court decisions did not have retrospective effect . It further rejected the applicant ’s claims related to DATE , because the applicant had missed the DATE time - limit for lodging his claim .

Section CARDINAL of ORG provides that legal acts which reduce the rights and privileges of war veterans laid down by the LAW are null and void .

In accordance with section CARDINAL of the War Veterans Status and Social Protection Guarantees Act war veterans shall receive DATE by CARDINAL May a lump sum in the amount of CARDINAL times the minimum pension . In accordance with section CARDINAL(CARDINAL ) of this Act those who did not receive the payment before CARDINAL May can still request payment by DATE of DATE .

The State Budget Acts of DATE and DATE suspended the above - mentioned provision for DATE and DATE respectively . They also set a different level of payment . On DATE the Constitutional Court of GPE found the amendments in respect of DATE to be unconstitutional ( see PERSON and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL , § DATE , DATE ) . It appears that no similar complaint was lodged in DATE .

LAW DATE amended section CARDINAL of the War Veterans Status and Social Protection Guarantees Act to provide that the amount of the lump sum should be determined by ORG Decision no . CARDINAL of ORG set the amount of this payment at ORG CARDINAL . On DATE the changes introduced by LAW DATE were found to be unconstitutional by ORG .

The minimum pension for DATE was set at ORG CARDINAL.CARDINAL and ORG ORG respectively .

Lastly , LAW in force as of DATE set a DATE time - limit for lodging claims under the administrative justice procedure .

On DATE ORG of GPE issued a general analysis of the administrative courts’ practice in cases related to the social protection of children of war , war veterans and victims of the NORP persecutions . ORG of GPE noted that :

“ An analysis of the ORG practice shows that disputes are mainly caused by shortcomings in the legislative regulation of social protection ; in particular , since legal acts of equal force exist on the matter , it is difficult to establish which provision has higher legal force and should thus be applied in the dispute in question .

The main legal acts in question include LAW , FAC , the War Veterans Status and Social Protection Guarantees Act [ ... ] .

ORG DATE introduced changes to those legal acts , suspending some provisions and reducing some payments .

On DATE and CARDINAL DATE some changes introduced by ORG were found to be unconstitutional by LAW . ”

ORG of GPE further noted that the national courts had not always correctly decided which legal act should be applied . In respect of the lump sum payment under LAW of the War Veterans Status and Social Protection Guarantees Act it noted that in DATE the provisions of LAW DATE were to be applied , since this LAW was adopted later than ORG .

As for the DATE payments , ORG of GPE noted that the relevant provisions of LAW of DATE had been found to be unconstitutional . However , since the ORG decisions could not be applied retrospectively , the relevant persons had “ the right to receive the CARDINAL May lump sum payment in the amount set by ORG only after the dates of adoption of the relevant decisions of the LAW ” . In particular , only those who did not receive the relevant payment before DATE could receive it before DATE under section CARDINAL(CARDINAL ) of the War Veterans Status and Social Protection Guarantees Act .

In a letter of CARDINAL DATE sent to the heads of the administrative courts of appeal ORG of GPE reiterated its position .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

The applicants , PERSON and her CARDINAL minor children , are NORP nationals who were born in DATE , DATE and DATE respectively . They were represented before ORG by PERSON , a lawyer practising in GPE .

ORG were represented by their Agent , Mr Arto Kosonen of ORG .

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

The applicant mother is a NORP from GPE , GPE , who escaped from GPE with her husband and CARDINAL children due to persecution . The applicants claimed that the husband had been threatened by the “ NORP ORG ” for having denounced to the authorities persons who were in possession of firearms . He had subsequently received many death threats , for which reason the family was relocated elsewhere in LOC . Despite the internal flight , the persecution continued . The family fled first to GPE , where their persecutors tried to kidnap the children . They then fled to GPE .

The applicant mother fell gravely ill after her second pregnancy in DATE . Both of her kidneys were removed and she received a kidney transplant . Due to a lack of proper medication , she was in very poor condition during their escape from GPE and does not even remember being in GPE .

The applicants apparently arrived in GPE in DATE and sought asylum on DATE . The applicant mother was immediately admitted to hospital and was thereafter admitted to hospital on a DATE basis for periods of varying length . It appears that her husband has in the meantime been convicted of rape and that she has decided to divorce him . Upon their application for asylum in GPE on DATE , it was discovered that the applicants had previously been registered in GPE on DATE .

On DATE ORG ( GPE , PERSON ) rejected the applicants’ application and decided to order their return to GPE . The ORG found that , on DATE , the NORP authorities had informed ORG about the applicants’ family situation and the scheduled arrival of the applicant mother and her children , and that the NORP authorities had not opposed to receive them . The parents were capable of taking care of their children and removal to GPE was not against the best interest of the children , in whose interest it was to live with their parents . GPE had agreed to comply with the fundamental rights guaranteed by LAW and was to examine the applicants’ asylum application . The applicants had a right to services provided by NORP authorities . In a GPE transfer decision the substance of the asylum claim is not examined , so the decision regarding the applicants did not deal with the applicant mother ’s illness or her factual position as a single mother due to the pre - trial detention of the children ’s father .

NORP By letter dated DATE the applicants appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , requesting also a stay on removal .

On DATE ORG decided not to grant a stay on removal .

By letters dated DATE and CARDINAL DATE the applicants made their second and third requests for a stay on removal . On unspecified dates ORG refused these requests .

The proceedings before ORG are still pending . However , a GPE transfer decision is enforceable , notwithstanding that the case has not been finally determined .

The application was lodged with ORG . On DATE the duty judge of the ORG decided to suspend the examination of Rule CARDINAL of ORG until receipt of information from the respondent Government and to put factual questions to ORG under LAW ( a ) , which concerned , inter alia , the guarantees obtained from the NORP authorities in relation to the applicants’ scheduled transfer to GPE .

ORG submitted their reply on DATE . In their letter , the respondent Government noted that the NORP authorities had informed the NORP authorities of the guarantees for vulnerable cases , including families with children , by their letters of DATE and CARDINAL DATE . A copy of these circular letters sent by ORG of the NORP ORG ( GPE dell’Interno ) was attached to the ORG ’s letter . In these circular letters ORG set out the new policy of the NORP authorities on transfers to GPE of families with small children and provided an updated list of accommodation available to such families .

ORG noted that ORG would transfer the medical information detailing the special needs of the applicants to the competent authorities in GPE and , accordingly , those needs would be taken care of in such a manner that the applicants would receive any necessary medical care in GPE without interruption . They noted that the NORP authorities had made sufficient efforts to obtain individual and specific guarantees from the NORP authorities , and that there was no reason to suspect that the applicants would be separated from each other or subjected to any treatment contrary to LAW upon arrival in GPE . The examination of the applicants’ application by the ORG was premature , as no final decision by the relevant domestic courts had yet been made . Accordingly , the ORG considered that the applicants’ application should be declared inadmissible by virtue of LAW and CARDINAL of the LAW for non - exhaustion of domestic remedies .

On DATE the applicants were sent a copy of the ORG ’s letter for information .

On DATE the duty judge of the ORG decided , under Rule DATE , to indicate to ORG that the applicants should not be transferred to GPE for the duration of the proceedings before the ORG .

On DATE the applicants commented on the information submitted by the Government , maintaining that they had not been informed to date of any individual or specific guarantees concerning their possible removal to GPE . A mere agreement between GPE and GPE to keep families with children together and to arrange accommodation for them could not be regarded as sufficient . The applicants’ situation would be unclear if GPE could give no individual guarantees by the time of the possible removal . According to the applicants , the children ’s father had been convicted of rape and sentenced to CARDINAL years’ imprisonment . The applicant mother was certain that her marriage was over , but acknowledged that the children ’s well - being was fully dependent on their father ’s presence . Regular family visits to prison had already been arranged for the children . The applicants wished the ORG to continue the examination of their case .


CASE OF EAST WEST ALLIANCE LIMITED v. UKRAINE

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

At the time of the events the applicant company , along with ORG ( an air cargo traffic company ) , ORG ( an aircraft repairs and maintenance company ) , and some other companies involved in the aviation business , belonged to ORG .

At various times DATE , when he was elected to the national parliament , the president of the NORP office of the applicant company , ORG and ORG was a certain Mr L.

Pursuant to a sale contract of DATE , as modified on DATE , the applicant company purchased CARDINAL Antonov-CARDINAL ( “ An-CARDINAL ” ) aircraft from the NORP airline company ORG aircraft had been manufactured in DATE , and their flying records ranged from TIME .

On DATE and DATE the applicant company leased those aircraft to ORG for DATE . It was stipulated in the contract that the aircraft would remain the property of the applicant company during that entire period . The ownership could then be transferred to ORG , on condition that it had settled all the leasing payments .

On DATE and DATE ORG of GPE registered the aircraft . The applicant company was indicated as the owner in the registration certificates .

NORP In DATE one of the aircraft was relocated to GPE for commercial purposes .

On DATE another aircraft was sold to company C.

The CARDINAL remaining aircraft were parked at the LOC airbase in the GPE region ( PERSON ) .

On DATE the applicant company and ORG terminated the lease agreement because the lessee was unable to comply with its terms .

On DATE the applicant company concluded an agreement on a DATE lease of the CARDINAL aircraft to another company , ORG , which was to take effect on DATE . That agreement , however , never entered into force .

DATE the tax police conducted a search on the premises of ORG in GPE , including the applicant company ’s office , apparently in the context of criminal investigations against ORG on account of suspected tax evasion . As a result , it seized “ a considerable number of documents ” ( quoted from a ruling of ORG of DATE – see paragraph CARDINAL below ) . The seized documentation included the original contract of sale for the CARDINAL An-CARDINALs parked at the LOC airbase . The case file does not contain the search - and - seizure report .

On DATE the tax police launched criminal proceedings against ORG officials on suspicion of tax evasion .

On DATE the proceedings were discontinued as they had been instituted prematurely . However , by the same ruling the tax police instituted criminal proceedings against ORG officials on suspicion of document forgery .

On DATE the tax police held an “ inspection of the scene ” at the ORG airbase , as a result of which they discovered and seized the CARDINAL An-CARDINAL aircraft . The seizure was documented by a “ report of the inspection of the scene ” ( the same procedure took place at Cherkasy airport in respect of CARDINAL L-CARDINAL planes also belonging to the applicant company – see paragraph ORG below ) . As the security guard was unable to produce the documentation for those aircraft , submitting that it was in the applicant company ’s office in GPE , the police concluded that “ their owner could not be established ” .

NORP The applicant company challenged the aforementioned seizure ( as well as the seizure of the LOC aircraft – see paragraph CARDINAL below ) before the prosecution authorities .

On DATE the tax police opened again a criminal case against the ORG officials on suspicion of tax evasion .

On DATE ORG wrote to the applicant company , in reply to its complaint about the alleged unlawfulness of the seizure of the aircraft of DATE , that it could not decide on the seizure of the An-CARDINAL aircraft , as in the meantime , on DATE , ORG had also impounded them in the context of the commercial proceedings brought by the tax authorities ( see paragraph CARDINAL below ) . As regards the ORG , their seizure was found to be unlawful as it had not been based on an adequate procedural document ( see paragraph CARDINAL below ) .

On an unspecified date a criminal case was opened against the vice - president of ORG , who was charged with abuse of office , forgery , tax evasion and money laundering . Apparently , this criminal case replaced those previously opened against the ORG officials ( see paragraphs CARDINAL above ) . The ORG vice - president was suspected , in particular , of having forged the contracts of CARDINAL and DATE ( see paragraph CARDINAL above ) for the allegedly non - existent lease of the aircraft , with a view to tax evasion .

On DATE the tax police investigator conducted another inspection of the planes at the Uzyn airbase .

On DATE the investigator classified the planes as material evidence in the criminal case against the ORG vice - president , with reference to ORG CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) .

On DATE ORG refused to institute criminal proceedings against the tax police in respect of , inter alia , the search of the applicant company ’s office CARDINAL and the seizure of documentation relating to the aircraft . It was the fourth decision of the prosecution authorities refusing to open a criminal case in that regard . The previous CARDINAL had been quashed on grounds of insufficient evidence . The applicant company also unsuccessfully tried to bring a civil claim in that regard .

On DATE ORG of Kyiv ( “ the ORG ” ) found the vice - president of ORG guilty of professional negligence and acquitted him of the other charges ( including the forgery of the lease contracts of CARDINAL and DATE ) . By the same judgment the court ordered that the CARDINAL AN-CARDINALs used as material evidence in the case be returned to “ their owner ” . On CARDINAL DATE ORG upheld that judgment .

On DATE ORG wrote to ORG in charge of the management of the PERSON airbase stating that , pursuant to the judgment of DATE , the planes in question were to be returned to their owner .

On CARDINAL DATE the airbase manager forwarded that instruction to ORG in PERSON ( further referred to as “ the ORG ” or “ the tax inspectorate ” ) , which had entrusted it with their storage . The airbase manager also indicated that the tax inspectorate owed the ORG company CARDINAL NORP hryvnias ( ORG ) for the storage .

On DATE the tax inspectorate replied that meanwhile , on DATE , the aircraft had been declared ownerless ( see paragraph CARDINAL below ) and that there were no lawful grounds for discontinuing their sale for ORG revenue ( see also paragraphs CARDINAL below ) . As to the supposed indebtedness , the tax inspectorate submitted that the planes , which were now State property , had been stored in a ORG - owned airbase and guarded by the tax police ( see paragraphs CARDINAL below ) . Accordingly , it considered the claim for storage costs to be without basis .

On DATE ORG specified that , in accordance with the judgment of DATE , the CARDINAL An-CARDINALs were to be returned to the applicant company , which was their owner .

On DATE the court issued a writ of execution on the basis of its ruling of DATE .

On DATE the ORG in GPE lodged a claim with ORG against the applicant company and ORG , seeking to invalidate the lease contracts of CARDINAL and DATE ( see paragraph CARDINAL above ) . The claimant submitted that the applicant company had in fact supplied the planes to ORG free of charge , while the impugned lease contracts had subsequently been forged to conceal that fact , with a view to absolving ORG from any income tax payable . In addition to invalidation of the lease contracts , the tax administration sought confiscation of the CARDINAL aircraft , with the proceeds of their sale going to the ORG budget . It also requested that the planes be impounded as an interim measure to secure the claim .

On DATE the court started the proceedings . It secured the claim by impounding the CARDINAL aircraft ( including that sold to company ORG and the one relocated to GPE ) .

On DATE company C. asked the court to lift the impoundment of the plane it had purchased . That request was apparently granted .

On DATE ORG rejected the claim of the tax administration as unsubstantiated . It noted that it had been common ground that ORG had not complied with the lease contracts and therefore the applicant company remained the owner of the aircraft . The court also quashed the impoundment order of DATE ( see paragraph CARDINAL above ) .

On DATE ORG upheld that judgment . It stated that the applicant company ’s ownership of the aircraft had been confirmed by documents , while the allegation that some of the documents had been forged had been found to be unsubstantiated in the judgment of DATE ( see paragraph CARDINAL above ) .

On DATE an investigator of ORG issued a report about “ the temporary seizure of the taxpayer ’s assets ” in respect of the CARDINAL An-CARDINAL planes parked at the ORG airbase , with a view to “ settlement of the taxpayer ’s obligations vis - à - vis ORG budgets and target funds ” . The report listed the ORG registration numbers and referred to subsection CARDINAL of section CARDINAL of the Law of GPE “ On the procedure for the settlement of LOC obligations to ORG budgets and special - purpose funds ” ( see paragraph CARDINAL below ) . It was signed by a tax police official , the GPE airbase manager and CARDINAL attesting witnesses .

On DATE the deputy head of ORG issued a decision about “ the administrative seizure of the taxpayer ’s assets ” in respect of the aircraft in question . The decision reiterated that the measure had been undertaken with a view to “ settlement of the taxpayer ’s obligations vis - à - vis budgets and ORG target funds ” . It was noted in the line “ the taxpayer whose assets have been seized ” that the owner of the aircraft had not been established .

On DATE the Bila Tserkva City State Administration ( “ the ORG ” ) issued an order by which it declared the CARDINAL aircraft ownerless and empowered the tax police to sell them . As a result , DATE the planes were sold to third parties ( see paragraphs CARDINAL below ) .

On CARDINAL DATE the applicant company lodged a claim with ORG against ORG , challenging the order of DATE . It submitted that it was the legitimate owner of the aircraft , that the defendant had duly been informed of that fact , and that the impugned order had amounted to unlawful expropriation of the applicant company ’s property .

On DATE , in order to secure the claim of the applicant company , the court banned any transactions involving the aircraft .

Consequently , on DATE a bailiff sealed the CARDINAL aircraft . ORG for ORG ( “ ORG ” ) , which in the meantime had been set up under the chairmanship of PERSON , MP ( see paragraph CARDINAL above ) , and to which the applicant company had complained , also sealed the aircraft .

The Bila Tserkva Administration appealed against the impoundment of the aircraft ordered on DATE submitting , in particular , that the applicant company ’s claim was of a non - pecuniary nature , being limited to the invalidation of a document .

On DATE ORG rejected that appeal . It found the appellant ’s arguments groundless because the subject matter of the dispute was twofold : firstly , the impugned decision had declared the planes ownerless , and , secondly , it had authorised the tax authorities to sell the planes . Accordingly , a failure to secure the claim could jeopardise enforcement of any future judgment on the dispute .

On DATE the Higher Commercial Court quashed the rulings of DATE and DATE on a cassation appeal lodged by ORG . It noted that as of DATE the planes had remained impounded in order to secure a claim in another set of proceedings under a ruling of DATE , which had not been quashed until DATE ( see paragraphs DATE and DATE above ) . As the legal procedure did not provide for “ double ” measures for securing claims , the ruling of ORG of DATE had no legal basis .

On DATE ORG found in favour of the applicant company and quashed the order of ORG of DATE ( see paragraph CARDINAL above ) . It stated that the property rights of the applicant company were confirmed by the aircraft registration certificates dated DATE ( see paragraph CARDINAL above ) .

DATE . On DATE ORG upheld that judgment . It also issued a separate ruling in which it referred , inter alia , to the documentary evidence in the case file proving that ORG had proceeded with the sale of the planes on the grounds that they were ownerless ( see CARDINAL and CARDINAL below ) after having received documents from the applicant company confirming the latter ’s ownership of those planes . The court thus concluded that , by declaring the planes ownerless , the defendant had infringed the applicant company ’s property rights . It further instructed ORG , ORG , and ORG “ to take appropriate measures in respect of the officials guilty of the violations of the procedure for identifying and declaring ownerless the property belonging to the [ applicant company ] . ”

On DATE ORG upheld the lower courts’ decisions of DATE and DATE .

On DATE ORG ( “ the ORG ” ) instituted criminal proceedings on the suspected abuse of power by officials of the tax and other state authorities , which had “ had grave consequences ” . The prosecutor noted that , by declaring the applicant company ’s aircraft ownerless and selling them , as well as by unlawfully seizing its ORG ( see also paragraphs ORG and CARDINAL below ) , the authorities had caused the applicant company “ direct pecuniary damage of CARDINAL GPE hryvnias ” . On DATE the supervision department of the ORG quashed the ruling of DATE as premature . However , this later decision was subsequently also set aside ( by the Deputy ORG decision of DATE ) . There is no information on any further developments in the investigation .

On DATE ORG quashed the judgment of ORG of DATE and the related rulings of the higher - level courts ( see paragraphs CARDINAL and CARDINAL above ) and remitted the case for fresh examination to the first - instance court . It considered that the courts had made a premature finding that the applicant company was the owner of the aircraft . The fresh examination of the case was supposed to clarify , including with the help of a forensic graphological examination , whether the contracts of sale of DATE and CARDINAL DATE ( see paragraph CARDINAL above ) were authentic and in compliance with the NORP legislation as indicated therein .

On DATE the Kyiv Regional Commercial Court , having examined the case afresh , allowed the applicant company ’s claim once again and quashed as unlawful the order of ORG of DATE ( see paragraph CARDINAL above ) . Pursuant to the instructions of ORG , it had undertaken a forensic graphological examination of the contract of sale of DATE and the additional agreement of CARDINAL DATE , and had found the signatures on them to be authentic . The court further established that the transaction had taken place in compliance with NORP legislation as indicated in the contracts . It underlined that the aircraft had been declared ownerless despite the fact that the case file had contained copies of the certificates of their registration with ORG of GPE of DATE ( see paragraph CARDINAL above ) . Furthermore , the NORP company S. had confirmed to the court in writing that it had sold the planes at issue to the applicant company . Accordingly , the court concluded that there were no reasons not to consider the contract of sale of DATE as appropriate proof of the applicant company ’s title to the planes . The court also found that ORG had breached the procedure for identifying and declaring the property ownerless .

ORG , ORG and ORG appealed .

ORG also enquired with ORG whether the applicant company was registered and pursued its activities lawfully .

On DATE ORG stayed the examination of the case pending receipt of information from ORG concerning that enquiry .

On DATE ORG informed the applicant company of the reply of their NORP counterparts confirming that it ( the applicant company ) had no criminal record , nor any problems with the police in GPE .

On DATE and DATE ORG and ORG , respectively , upheld the judgment of ORG of DATE ( see paragraph CARDINAL above ; apparently at some point the jurisdiction over the case had been changed from commercial to administrative ) .

On DATE the applicant company asked ORG to return the CARDINAL aircraft to it , with reference to those judicial decisions .

On DATE the tax inspectorate replied that it was impossible to return the planes to the applicant company , because they had been sold off at a public auction in the meantime ( see paragraphs CARDINAL below ) .

In DATE , following the seizure of the aircraft ( see paragraphs CARDINAL above ) , ORG commissioned the Ukrimpeks-CARDINAL company to store and sell them .

The applicant company unsuccessfully sought to prevent the sale before ORG .

On DATE Ukrimpeks-CARDINAL sold CARDINAL plane to a private company .

On DATE CARDINAL other planes were sold to another private company .

On DATE the sixth plane was sold to ORG .

On DATE the Kyiv ORG started proceedings following a claim by the applicant company challenging all those sale contracts , and impounded the aircraft in order to secure the claim .

Meanwhile , ORG , from its side , also challenged the contract of DATE before ORG ( “ PERSON арбітраж ( на правах третейського суду ) ” ) . The buyer could not get possession of the aircraft in question and found out that the sale had been carried out despite the judicial orders to impound the aircraft of DATE and DATE .

DATE . On DATE ORG , in allowing the buyer ’s claim , declared the sale of DATE ( carried out in the form of a commodity market transaction ) null and void .

On DATE the NORP ORG discontinued the proceedings in which the applicant company was seeking annulment of the sale contract of DATE , with reference to that decision .

On DATE the court also quashed the impoundment order of CARDINAL DATE on the ground that it was impeding technical maintenance of the aircraft ( the ruling did not refer to any requests to have the order quashed ) .

On DATE the ORG , in allowing the applicant company ’s claim , declared the sale contracts of CARDINAL March and CARDINAL DATE null and void .

On DATE and CARDINAL DATE ORG and ORG , respectively , upheld that judgment .

On DATE ORG instructed its ORG to ensure security guard of the CARDINAL An-CARDINAL aircraft .

The planes were apparently still parked at the PERSON airbase after their sale to third parties ( see paragraphs CARDINAL , DATE and CARDINAL above ) .

According to the applicant company , on DATE it concluded a contract with a ORG security agency on the guarding of the planes . That contract remained in force until DATE and the applicant company paid a total of ORG CARDINAL ( which , according to its calculations , was equivalent at the time to USD CARDINAL,CARDINAL ) for the services provided . According to the Government , that contract was of no effect in practice , given that the planes remained in the authorities’ custody ( see also paragraph CARDINAL below ) .

DATE . In DATE the applicant company found out that some of the planes had been damaged or had had some equipment removed , so it complained to the police .

As a result , on DATE the PERSON police investigator , in the presence of a representative of the applicant company , inspected the CARDINAL planes . The inspection revealed that some of them had been damaged and/or had had certain equipment removed . A door handle had been broken and the door damaged on CARDINAL plane , and the wheel housing , navigation equipment , engines , emergency radio installations , ORG seats and flashlight were missing on some of the planes . At the same time , some of the bailiffs’ seals and those of ORG ( see paragraph CARDINAL above ) were broken or missing , whereas there were fresh and intact ORG seals on the planes .

On DATE the applicant company complained to the ORG about the theft and damage of the aircraft , emphasising that it had happened while they were being guarded by ORG . The applicant company sought to institute criminal proceedings against the latter . It further argued that the planes had arrived at the airbase in good condition , referring to the fact that they had all been independently flown there , rather than taken inside the hold of another aircraft .

On DATE the prosecutor ’s office refused to institute criminal proceedings against the officials of ORG on account of the theft , having found no corpus delicti in their actions .

On DATE the prosecutor ’s office initiated criminal investigations into the theft without targeting them against any specific persons .

On DATE the investigator terminated the investigations , having found it impossible to identify the perpetrator(s ) .

On DATE the applicant company brought an administrative claim against the tax authorities on account of the allegedly unlawful armed guard of the aircraft , and sought its lifting .

On DATE ORG refused to open the proceedings . It noted that the dispute in question had already been resolved by the judgment of ORG of DATE , upheld by ORG on DATE ( see paragraphs CARDINAL and DATE above ) .

On DATE the applicant company brought another administrative claim against ORG seeking the return of its CARDINAL AN-CARDINALs . It submitted that those authorities had committed an unlawful omission by their failure to return the planes to the applicant company as their legitimate owner . It further noted that the decision of DATE had been quashed by ORG on DATE , whose decision had been upheld by the higher - level courts . Nonetheless , the property had never been returned to the applicant company .

On DATE ORG terminated the proceedings on the grounds that they fell under criminal rather than administrative jurisdiction . The court noted that it had been discovered that the applicant company ’s claim concerned the alleged non - enforcement of a final criminal verdict ( apparently meaning the verdict of ORG DATE , further clarified on DATE see CARDINAL and DATE above ) .

On DATE the applicant company wrote to the tax authorities that it was the only legitimate owner of the CARDINAL aircraft , as the decision to declare them ownerless had been quashed by the courts . It therefore insisted that the guard of the planes be lifted and that they be returned to it .

On DATE the ORG replied that no decision had been taken about the lifting of the guard .

On DATE ORG also replied to the applicant company that there was no reason to stop guarding the planes given that the court proceedings on the matter were ongoing ( without specifying which proceedings it was referring to ) .

On DATE the applicant company requested , once again , that ORG set aside its instruction of DATE regarding the guarding of the aircraft .

On DATE the Deputy Head of ORG forwarded that request to ORG .

On DATE the latter dismissed the applicant company ’s request . It noted that , indeed , the courts had invalidated both the decision to declare the planes ownerless and the contracts for their subsequent sale . Nonetheless , no decision had been delivered on the lifting of the security guard .

On DATE an investigator of the PERSON police department declared the CARDINAL AN-CARDINAL planes as material evidence in the criminal investigation into suspected embezzlement by Ukrimpeks-CARDINAL , which had been initiated in DATE ( the company officials were suspected of having failed to transfer all the proceeds of the aircraft sales to the ORG budget – see paragraphs CARDINAL and DATE above ) . The investigator noted that the planes were under constant security guard by ORG ( see paragraphs CARDINAL and CARDINAL - CARDINAL above ) .

On DATE the applicant company complained about that decision to ORG of ORG . It stated that there were no grounds for attaching the aircraft as material evidence in the criminal case in question , which had been opened DATE . The applicant company pointed out that , while the planes had been guarded by the tax authorities , their technical condition had considerably deteriorated and they had become unusable . Therefore , the applicant company suggested that the tax authorities might have been seeking ways to shift the responsibility for that deterioration onto the law - enforcement authorities .

On DATE ORG , to which the applicant company ’s complaint had apparently been referred , replied that there were no reasons for it to intervene .

On DATE the investigator of the PERSON police department ( apparently , the one in charge of the criminal investigation into suspected embezzlement by Ukrimpeks-CARDINAL in which the planes had been declared as material evidence – see paragraph CARDINAL above ) decided that the planes should be returned to the applicant company .

On DATE the applicant company contracted PERSON , the exclusive designer and manufacturer of An-CARDINAL aircraft , to carry out an expert evaluation of the planes .

From CARDINAL to CARDINAL DATE an expert commission of NORP inspected the planes in the presence of the applicant company ’s representative . It concluded that what had been presented to it for inspection had consisted of separate items and components , which could not be classified as aircraft . Nor could they be identified as constituent parts of exactly the planes belonging to the applicant company . Furthermore , no documentation for the planes was available .

On DATE the applicant company purchased CARDINAL L-CARDINAL aircraft at a public auction .

On DATE it received notarised certificates that those planes were its property .

On DATE it purchased CARDINAL more planes of the same type at a commodity market .

Pursuant to lease contracts between the applicant company and ORG of CARDINAL DATE and DATE , the CARDINAL GPE were to be leased to the latter after repairs and technical upgrading had been carried out by the applicant company . This was envisaged to be completed by CARDINAL DATE .

The planes were parked at Cherkasy airport .

During the search conducted at the applicant company ’s office in GPE DATE ( see paragraph CARDINAL above ) , the tax police seized original documentation for the L-CARDINAL planes . The case file does not contain the search - and - seizure report .

On DATE the tax police seized the aircraft “ for the purpose of using them as material evidence in the criminal case [ against the ORG officials ] and for redemption of tax arrears ” . The seizure was documented by a “ report of the inspection of the scene ” ( similar to the inspection conducted on DATE at the GPE DATE see paragraph CARDINAL above ) .

On DATE the applicant company challenged the seizure of the planes before ORG .

On DATE the prosecutor replied that , indeed , the seizure of the L-CARDINAL planes had not been based on any procedural document and that he had therefore instructed the tax police to “ take an appropriate decision concerning those aircraft ” .

On DATE ORG instructed the applicant company to submit financial documentation in respect of the planes in order for a decision to be taken .

On DATE the investigator of the police department of ORG declared the CARDINAL L-CARDINAL planes as material evidence in the criminal investigations against the ORG officials ( see also paragraph CARDINAL above ) .

In DATE the criminal case was transferred to the ORG .

On DATE a criminal case was opened in respect of PERSON as the former president of ORG ( see paragraph CARDINAL above ) . Apparently , the planes were then classified as material evidence in those criminal proceedings . On CARDINAL DATE the ORG discontinued the criminal investigations against Mr L. as there was insufficient evidence of any guilt . It was noted in the resolution that the CARDINAL L-CARDINAL planes , which had been classified as material evidence in the case , were to be returned to ORG . On DATE the prosecutor amended his resolution to read that the planes had to be returned to the applicant company .

The applicant company unsuccessfully tried to bring proceedings before the commercial and civil courts on account of the seizure of the planes and their classification as evidence in the criminal case . On DATE and DATE ORG and the ORG respectively refused to accept its claims for examination as being beyond their competence .

On DATE the ORG ’s supervisory department quashed the decision of DATE ( see paragraph CARDINAL above ) .

On DATE it informed ORG of that decision and instructed it to return the aircraft to the applicant company as their rightful owner . A similar letter was sent to the management of FAC .

On DATE the director of FAC informed the applicant company that the aircraft could be transferred to it only in the presence of ORG which had seized them .

On DATE the applicant company lodged a claim with ORG against ORG seeking the return of the CARDINAL LOC aircraft .

On DATE the court allowed the claim and obliged the defendant to return the planes to the applicant company . It noted that the tax police had ignored the prosecutor ’s unambiguous instructions to return the planes to the applicant company . The judgment stated as follows :

“ As confirmed by the case materials and not refuted by the defendant , the [ applicant company ] is the owner of the CARDINAL LOC aircraft .... The failure of ORG to comply with the instructions of ORG as regards the return of the planes to the claimant [ unlawfully ] deprives the latter of its right to possess and use its property ” .

On DATE ORG of Appeal quashed that judgment on an appeal by ORG and terminated the proceedings . It found that the defendant had no longer been in charge of the planes after the criminal case in which they had been declared as material evidence had been transferred to the ORG in DATE ( see paragraph CARDINAL above ) . Moreover , the court considered that the destiny of the planes had already been resolved in the context of the criminal proceedings by the ORG resolutions of CARDINAL DATE , CARDINAL DATE and DATE , pursuant to which the planes had to be returned to the applicant company ( see paragraphs CARDINAL and CARDINAL above ) . The court therefore concluded that , as from DATE , there had been no impediments , including from the defendant ’s side , to the applicant company ’s accessing the L-CARDINAL planes .

On DATE ORG issued a final decision quashing the ruling of ORG of DATE and upholding the judgment of ORG of DATE on the applicant company ’s cassation appeal .

On DATE ORG issued a writ of execution , according to which the CARDINAL LOC aircraft were to be returned to the applicant company .

On DATE the bailiff opened enforcement proceedings and instructed ORG to send its representative to LOC airport to inspect the planes , verify their completeness and implement the transfer .

DATE the bailiff reported several times his failure to enforce the judgment because the tax authorities’ representative had been absent or because the airport administration had refused to allow the bailiff to enter the airport .

From DATE to CARDINAL DATE the enforcement proceedings were stayed pending the outcome of applications lodged by both the bailiff ’s service and the tax authorities with ORG for clarification of its judgment of CARDINAL DATE ( those applications were eventually rejected ) .

From DATE the bailiff issued CARDINAL more reports about his inability , for the same reasons as before ( see paragraph CARDINAL above ) , to enforce the judgment in question .

Meanwhile , in DATE , the applicant company incidentally found out about a decision of ORG of DATE authorising the municipal enterprise “ FAC ” to sell the CARDINAL LCARDINAL planes ( with the same serial numbers as those of the planes belonging to the applicant company ) at a public auction . The proceeds of the auction were to be used for the needs of FAC . CARDINAL of the planes had been sold to third parties .

On DATE the administration of Cherkasy airport finally allowed the bailiff to enter the airport . Instead of the CARDINAL L-CARDINAL planes to be returned to the applicant company , the bailiff discovered there CARDINAL ( or , more precisely , their components ) .

On DATE the bailiff reported that he could not transfer the planes to the applicant company because : firstly , CARDINAL of them were left ; secondly , the planes were locked and there were no keys to open them , which made it difficult to evaluate their technical condition ; and , thirdly , the documentation for the planes was missing .

On DATE an expert commission of ORG , an aircraft maintenance company , which had been contracted by the applicant company , examined the planes discovered at Cherkasy airport and reported the following : instead of the CARDINAL complete NORP planes as indicated in the writ of enforcement , there were separate components and items of CARDINAL planes ; no documentation for those items was available ; the planes had corrosion on their metal surfaces and cracks in their windows ; and their engines and propellers were missing . The conclusion was reached that the planes had not been stored in compliance with storage rules and that , in fact , the items discovered could no longer be considered as aircraft . Lastly , the absence of any documentation made it impossible to identify the discovered items as those belonging , and supposed to be returned , to the applicant company .

On DATE the bailiff enquired with ORG , with reference to the expert commission ’s report , as to how to proceed with the enforcement .

On DATE T. informed the applicant company that in DATE and DATE it had performed major repairs to CARDINAL aircraft propellers , the serial numbers of which were the same as those of the ORG belonging to the applicant company . The customer company had presented itself as the owner of the planes in question .

On DATE the bailiff declared a “ search for the debtor ’s property ” in respect of the CARDINAL GPE to be returned to the applicant company .

On DATE the above decision was sent to ORG .

On DATE and CARDINAL DATE the bailiff repeated his request to the tax authorities to appear at Cherkasy airport at a specific time .

On DATE ORG replied to the bailiff that after an audit in DATE the CARDINAL GPE had been declared as assets of the FAC municipal company and their ownership had been transferred to the city . It was a known fact that the bailiff had discovered CARDINAL planes at the airport and had therefore declared a search for CARDINAL planes . Accordingly , the bailiff was aware that the debtor did not have the property defined in the writ of enforcement .

NORP On DATE the bailiff asked the applicant company to make it clear whether it was ready to accept the CARDINAL aircraft in the condition in which they had been discovered at Cherkasy airport ( which had not improved since DATE see paragraphs CARDINAL - CARDINAL above ) . As to the remaining CARDINAL planes , it turned out that they had been sold to third parties in DATE pursuant to a decision of ORG . Furthermore , ORG informed the bailiff that on CARDINAL DATE the CARDINAL GPE had been excluded from the state register of civilian aircraft and that their location was unknown .

On DATE the group of technical experts again examined the components of the CARDINAL planes at Cherkasy airport and confirmed its conclusion of DATE that those items could not be regarded as aircraft .

On DATE the bailiff issued a report about the impossibility of returning to the applicant company even the CARDINAL planes .

On DATE the bailiff terminated the enforcement proceedings with the conclusion that it was impossible to enforce the judgment because the debtor did not have the property in question and the search for that property had been unsuccessful .

The relevant provisions of LAW ( DATE ) read as follows :

Material evidence consists of items that are instruments or objects related to a criminal offence or bearing its traces , money , valuables and other proceeds of crime , as well as any items which could serve to uncover a criminal offence , to identify a perpetrator or to refute the accusation or mitigate a penalty .

Material evidence shall be carefully examined , if possible photographed , described in detail in the examination report and attached to the case file by the inquiry officer , investigator or prosecutor in charge or by a judicial ruling . The material evidence shall be kept in the case file , except for cumbersome items which shall be stored by the enquiry or investigation authority or in the court or shall be transferred for storage to a respective enterprise , institution or organisation . ...

In some cases the material evidence may be returned to its owner if this is not detrimental to the proceedings . ...

A seizure shall be carried out in cases where the investigator has accurate information that the items or documents of relevance are with a certain person or at a certain place .

A seizure shall be based on the investigator ’s ruling . ...

A search and seizure shall be conducted in the presence of CARDINAL attesting witnesses and the person occupying the LOC in question ....

A search and seizure in premises occupied by an enterprise , company or organisation shall be conducted in the presence of their representatives . ...

The persons searched , the attesting witnesses and the respective representatives shall have explained to them their right to be present during all the actions of the investigator and to make statements on those actions ; their statements shall be reflected in the report . ...

During a search and seizure only items and documents relevant to the case may be seized , as well as the valuables and property of the accused or the suspect with a view to securing a civil claim or possible confiscation of property . ...

The investigator shall present to the attesting witnesses and the other persons present all the documents and items subject to seizure . They shall be listed in the seizure report with an indication of their name , number , measurements , weight , material and individual features . Where necessary , the seized items and documents shall be packed and sealed on the spot . ...

The investigator shall produce a report on a search and seizure in CARDINAL copies .... The report shall indicate the grounds for the search and seizure , the premises on which it was conducted ... the investigator ’s actions and the search and seizure results .

The report of the search or seizure shall reflect all the statements and remarks of those present concerning the investigator ’s actions . All those present shall sign both copies of the report . ...

In order to uncover traces of a crime and other material evidence , to clarify the circumstances of the crime , as well as other circumstances of relevance to the investigation , the investigator shall conduct an inspection of the scene , LOC , items or documents .

In urgent cases , an inspection of the scene may be carried out before the institution of criminal proceedings . In this case , and where there are grounds for it , criminal proceedings shall be instituted immediately after the inspection of the scene . ”

The Code of Commercial Procedure DATE provided as follows :

The commercial court shall be entitled to take measures for securing a claim , upon the request of the claimant ... or of its own motion . Securing a claim is allowed at any stage of the proceedings where a failure to take measures might complicate or render impossible the enforcement of the commercial court ’s judgment .

A claim may be secured by the following measures :

impoundment of the property or money belonging to the defendant ;

prohibition on the defendant taking certain actions ;

prohibition on other persons taking certain actions related to the subject matter of the dispute ; ....

... A ruling on securing a claim may be appealed against . ”

The relevant provisions of the Law of GPE “ On the procedure for the settlement of LOC obligations to the ORG budgets and special - purpose funds ” ( “ PERSON порядок погашення PERSON платників податків перед бюджетами та державними цільовими фондами ” ) ( enacted in DATE and repealed following the entry into force of LAW on DATE ) , read as follows :

CARDINAL.CARDINAL.CARDINAL . Following an application by a tax police unit , the head of the tax authority ( or his deputy ) may decide to seize a taxpayer ’s assets . This decision shall be sent :

... ( b ) to the taxpayer , with the assets’ alienation ban ;

( c ) to other persons in possession of or using the taxpayer ’s assets , with the ban on their alienation . ”

CARDINAL.CARDINAL.CARDINAL . An assets seizure may be ... applied to goods which are produced , stored , transported or sold in breach of customs legislation or legislation on excise tax , as well as goods ... sold in breach of legal procedures , without prior determination of their owner . In this case , officials of the tax or other law - enforcement authorities , acting within their competence , shall have the right to undertake a temporary seizure of such assets . This should be reflected in a report giving the reasons for the seizure , with references to breaches of concrete legal provisions , the description of the assets , their specific features and quantity , information about the person or persons from whom the goods have been seized ( if applicable ) , and a list of the rights and duties of those persons in respect of the seizure . ... ”