CASE OF MITROVA AND SAVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants were born in DATE and DATE respectively and live in PERSON , in the former GPE .

On DATE the first applicant married Mr PERSON ( “ the father ” ) . On DATE she gave birth to their daughter , the second applicant .

On DATE ORG ( “ the first - instance court ” ) dissolved the marriage and gave the first applicant custody of the second applicant .

On DATE , on an application by the father , ORG ( “ FAC ) made an order specifying that he could see the second applicant at the first applicant ’s house DATE for TIME . The order was made after the ORG had examined the situation in both families and had discussed the matter with the parents . PERSON order was served on the first applicant on DATE .

The first applicant ’s refusal to allow the father to have contact with the second applicant at CARDINAL scheduled meetings DATE led to her being convicted pursuant to LAW ( judgment K.br.CARDINAL/CARDINAL of DATE ) . The court , noting the child ’s young age , dismissed the first applicant ’s defence ( that she had not been consulted and notified about the ORG ’s order of CARDINAL DATE ; that the child had not been developing properly at the time ; and that the father had not shown any interest for the child ) and sentenced her to CARDINAL months’ imprisonment , suspended for DATE . In determining the penalty , the court referred to gravity of the crime and the manner in which it had been committed , as aggravating circumstances , as well as to the first applicant ’s age , her admitting to the crime , the fact that she had no previous criminal record , her good behaviour and her family situation , as mitigating factors . According to the court , the suspended prison term would deter her from reoffending and help crime prevention as a whole . The judgment was upheld on appeal on DATE .

A further refusal by the first applicant to comply with the ORG ’s order of CARDINAL DATE by not allowing the father to have contact with the second applicant DATE resulted in her being convicted a second time and being given a further suspended prison sentence ( DATE , suspended for DATE , judgment K.br.CARDINAL/CARDINAL of CARDINAL DATE , upheld on appeal on DATE ) . The first applicant was also ordered to allow the father to see the child within DATE after the judgment would become final . In case of non - compliance , the court specified that the suspension would be revoked and the sentence would be enforced . The court dismissed the first applicant ’s defence that the father had failed to observe the scheduled meeting times , that he had turned up instead under the influence of alcohol and drugs and that he had harassed her , her parents and the child . In determining the penalty , the court referred , inter alia , to the first applicant ’s age and her standard of living , as mitigating factors . Both judgments ( K.br.CARDINAL/CARDINAL and K.br.CARDINAL/CARDINAL ) were delivered after the court had heard oral evidence from the first applicant , the father and a representative of FAC . They were given by Judge PERSON of ORG .

NORP In the meantime , on DATE , the ORG set a new venue and time for the meetings between the father and the second applicant . It was decided to increase the time to TIME every Friday and for the meetings to take place at FAC rather than in the first applicant ’s house . According to the order , the father ’s right to have contact with the second applicant , as specified in the order of CARDINAL DATE , had been considerably affected by the strained relationship between him and the first applicant . The new arrangement required the first applicant to take the second applicant to FAC at a specified time DATE . The ORG stated , inter alia , that :

“ ... According to the established methodology of work , all efforts have been made for communication to be established between both parents , between the competent body and [ the first applicant ] and the parents have been alerted to all legal consequences should they fail to enforce their statutory duties as parents that can violate the rights of the minor child .

After actions have been taken and facts have been established ... on a meeting held on DATE the expert team found that no communication could yet be established with [ the first applicant ] and the parents could not agree on [ the second applicant ’s ] right to have regular contacts and meetings with the non - cohabitant parent . Such an attitude infringes the right of the minor S. Therefore , given [ the second applicant ’s ] age , the need for an emotional bond to be created between the minor child and the non - cohabitant parent , the need to protect her rights , as well ( the need ) to eliminate any possibility for manipulation that would prevent the expert team to supervise the enforcement of the contact arrangements between the minor child and the father , ( FAC ) decided the father ’s visiting rights in respect of the minor S.S ... ” .

The first applicant failed to appear at CARDINAL scheduled meetings in DATE . On CARDINAL occasions in DATE , the father did not see his daughter because she was ill .

On DATE , after the ORG had obtained the views of the first applicant and the father and had examined the file , it partially accepted the father ’s request for longer and more frequent meetings and issued an order ( no . DATE ) , specifying that his meetings with the second applicant were to take place in FAC DATE from TIME to CARDINAL p.m. The order further stated that :

“ ... The expert team ( notes that ) the minor PERSON is still breast - fed , but ( since ) it is necessary to further strengthen the [ child ’s ] emotional bond with the non - cohabitant parent and to protect the right of [ the second applicant ] to have contact with the father , it considers that the visiting rights should remain once DATE , but longer , which would enable that ( the child ) stays TIME after she would no longer be breast - fed . ”

The ORG further set CARDINAL dates on which the father could meet the second applicant , to replace the meetings missed in DATE ( see paragraph CARDINAL above ) . The first applicant was ordered to comply with the new contact arrangements or risk criminal proceedings being instituted against her and the father being given temporary custody of the second applicant .

As the first applicant failed to comply in full with the order of CARDINAL DATE , on DATE the Centre allowed the order of DATE to be enforced by means of a separate order issued under LAW ( see paragraph CARDINAL below ) . It established that the first applicant had failed to take the child to CARDINAL of the scheduled meetings , despite being warned of the possible consequences should she fail to comply . The order further stated that :

“ ... Such a warning did not , for unknown reasons , enable the minor S.S. to enjoy the statutory right to contact her father and the mother not only ignores the order , but also engages in unreasonable and constant correspondence to describe incomprehensible situations , and makes accusations in a confused manner about matters which are the subject of other proceedings .

In view of the above and by virtue of law , the expert team ... decided unanimously that there are statutory grounds for forceful enforcement of the executive order of CARDINAL DATE ... and for proceedings to be instituted regarding custody of the child and criminal liability of [ the first applicant ] .

In view of the above and the fact that ( the case concerns ) the forceful prevention by [ the first applicant ] of contacts between minor FAC and her father PERSON ... the expert team considers that the forceful enforcement ( of the order of DATE ) as specified in ( this decision ) is in the absolute interest of the minor [ second applicant ] ... ”

The first applicant was ordered to take the second applicant to FAC DATE or risk being prosecuted for child abduction under LAW . The order stated that an appeal would not suspend enforcement of the order ( правото на жалба не го одлага извршувањето ) . The first applicant confirmed that she had received the enforcement order of CARDINAL DATE . She appealed against that order , arguing that she had never been served with the ORG ’s order of CARDINAL DATE . Furthermore , she argued that the delivery that she had received by post on DATE had not contained the order of DATE . No decision on the appeal was made .

On DATE the first applicant asked the FAC to review the level of contact the father should have with the child . On DATE , the ORG made an order setting out the level of contact the father should have with the child . It appears that the first applicant complied with this order .

On an unspecified date , the father requested that the Centre review the level of contact with the second applicant . The first applicant failed to appear at FAC to discuss the father ’s request , notwithstanding that the ORG invited her to do so at CARDINAL occasions . On DATE the ORG made an order specifying that the father should meet his daughter DATE ( from TIME ) . The increased amount of contact was justified by the child ’s “ specific age and stage of development ... when a stable relationship ( with the father ) , as well as an emotional bond between them , were necessary for [ the child ’s ] proper mental and physical development ” .

Subsequent to the CARDINAL judgments against her of DATE and CARDINAL DATE ( see paragraphs DATE and CARDINAL above ) , on DATE , the public prosecutor brought criminal charges against the first applicant . She was accused of failing to allow the meeting scheduled for DATE to take place , as required by the ORG ’s orders of DATE and CARDINAL DATE . In submissions of DATE , the first applicant denied the charge , arguing that she had never been served with the ORG ’s order of CARDINAL DATE . In this connection , she maintained that she had received another order from the ORG dated DATE . She also expressed concerns about the fairness of the upcoming trial , given her NORP nationality . She further applied for the removal of Judge PERSON , should he be assigned to decide the case . On DATE her application was dismissed by “ a judge replacing the president ” of the first - instance court . In submissions of DATE to the first - instance court , the first applicant repeated her arguments and explained that she had sought Judge PERSON ’s removal because he had convicted her in the previous criminal cases brought against her . She also maintained that he had allegedly solicited sexual favours from her . Her criminal complaint on the latter subject had allegedly been rejected by the same public prosecutor who had indicted her in the impugned proceedings . She also alleged that the judge who had replaced the president of the first - instance court , and who had dismissed her application for the removal of Judge PERSON , was a relative of hers who , in discussions with her , had expressed disagreement with a decision she had made to study in GPE .

The first applicant decided not to testify at the hearing held on DATE . The first - instance court heard the father , who stated that for reasons unknown to him he had not seen his daughter at any of the scheduled meetings since DATE . A representative of the ORG stated that the first applicant had not complied with its orders of CARDINAL DATE and CARDINAL DATE , notwithstanding the fact that she had been informed of the consequences of non - compliance . She confirmed that the first applicant had been served with all the relevant orders the ORG had made . In a judgment of DATE first - instance court , presided over by Judge PERSON , found the first applicant guilty and sentenced DATE in prison . In doing so , it relied on the oral and documentary evidence admitted at the trial , including the ORG ’s orders of DATE and CARDINAL DATE , which had provided explicitly for the need of the child to “ strengthen the emotional bond with the [ father ] and to protect [ her ] right to have contact with [ him ] ” as being “ in [ the child ’s ] absolute interest ” . The court established that the first applicant had not complied with these orders notwithstanding that she had been alerted about the consequences for non - compliance . She had not allowed the father to see his daughter on several occasions before and after DATE , the date specified in the enforcement order of CARDINAL DATE . The court further stated that it could not assess the first applicant ’s defence due to the fact that she had remained silent at the trial and provided no arguments regarding the incident . Lastly , it stated that :

“ In assessing the severity of the sentence , the court took into consideration all relevant circumstances ( aggravating and mitigating factors ) ... in particular , the gravity of the charges and concrete consequences , the manner in which the crime had been committed , the fact that [ the first applicant ] had already been convicted of the same offence on DATE [ judgment K.br.CARDINAL/CARDINAL ] and CARDINAL DATE [ judgment K.br.CARDINAL/CARDINAL ] and [ sentenced to an alternative penalty - suspended prison term ] . The court found no alleviating circumstances related to the [ first applicant ] .

The above stated leads to a conclusion that the suspended prison sentences issued against the [ first applicant ] had no impact on her , [ given that the first applicant ] continues committing the same offence . Accordingly , it decided to sentence her to a prison term finding that it would ... deter her from reoffending in the future and would [ help crime prevention as a whole ] .

The first applicant appealed . On DATE ORG dismissed the appeal and upheld the lower court ’s judgment . It held that the first - instance court had correctly established that she had not complied with the ORG ’s orders of DATE and CARDINAL DATE . Lastly , it endorsed the reasons of the first - instance court regarding her custodial sentence .

On DATE the first applicant applied to ORG for an extraordinary review of the final judgment , reiterating the arguments she had raised in her appeal . On DATE ORG dismissed her application , finding that the facts , as based on the evidence admitted at the trial , had been correctly established by the lower courts . In this connection , the lower courts had correctly applied the procedural rules and based their judgments on evidence admitted at the trial . Lastly , the court endorsed the reasons given by the lower courts .

The first applicant was ordered to present herself at prison on DATE . On DATE the first - instance court postponed the execution of the sentence because the second applicant was ill and a new date was set for DATE . The first applicant started serving her sentence on DATE , and was released on DATE .

On DATE the ORG gave the father custody of the second applicant for DATE .

On DATE , the date when the first applicant started serving the sentence , the ORG gave the father , of its own motion and on the basis of LAW ) of LAW ( see paragraph DATE below ) , temporary custody of the second applicant pending the conclusion of custody proceedings which he had initiated in DATE ( see paragraph CARDINAL below ) . According to the order , the first applicant had not allowed the second applicant to have any contact with the father at any of the scheduled meetings since DATE . After that date , the applicants had gone into hiding , despite the second applicant ’s poor health , which required continuous medical supervision . The order further referred to the first applicant ’s incarceration . The order did not provide for any contact rights for the first applicant in respect of the second applicant .

On DATE the first applicant sought permission from the FAC to see the second applicant . According to the Government , the ORG invited her to an interview upon her release from prison . However , it appears that she did not receive the invitation and , accordingly , failed to appear .

According to the first applicant , on DATE a lawyer acting on her behalf contacted the ORG to find out the whereabouts of her daughter and it was allegedly on that occasion that she was given the ORG ’s order of CARDINAL DATE ( see paragraph CARDINAL above ) . The lawyer allegedly requested the Centre to decide the contact arrangements between the first and second applicants , which the ORG refused to do , as under the law such orders were only made after both parents had been interviewed by the ORG ’s welfare officers .

On DATE the first applicant again requested that the ORG specify her contact rights . In reply , the ORG twice asked the first applicant to specify a time and place for meeting her daughter . The first applicant refused to be served with these notifications .

According to the Government , on DATE the first applicant applied to the first - instance court for a decision on the amount of contact she could have with her daughter . Since she had specified a time and place for her contact with the daughter , the ORG , in an order dated DATE , specified her contact rights , which were to be every DATE from TIME

On DATE the first applicant met her daughter .

On an application lodged by the first applicant , on DATE , the order of CARDINAL DATE was replaced by a new order by ORG , dated DATE , according to which the first applicant was allowed to stay with the second applicant DATE in DATE , from DATE ( TIME ) to DATE ( TIME ) .

On DATE the father initiated custody proceedings , seeking to have the first - instance court amend its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) and give him custody of the second applicant . In a judgment of DATE , the court granted his application and ordered the first applicant to hand the child over to the father . The first applicant would be allowed to maintain personal and direct contact with her . On DATE , however , the judgment was set aside by ORG , which remitted the case for a fresh examination . ORG ordered the first - instance court to reassess the available evidence and provide convincing reasons why the first applicant was unfit to enjoy custody of the child .

On DATE the first - instance court dismissed the father ’s application after hearing evidence from him and the first applicant and admitting expert opinions , of CARDINAL DATE and DATE , which confirmed that both parents were mentally fit and had the required capacity to care for the child . It also admitted a report by the ORG , dated DATE , in which welfare officers confirmed that the first applicant had the necessary capacity to provide basic care for the child , but that she had continuously prevented her from seeing the father . They had not applied to a court to have her parental rights restricted since there were other ways to protect the interests and rights of the child . They further argued that the first applicant ’s behaviour had been inappropriate : she had used insulting language towards everyone involved in the case , and had portrayed herself , without any justification , as a victim of the system . According to the experts , this was not a suitable environment for the second applicant . On the basis of all the available information , the ORG ’s welfare officers suggested that it would be in the child ’s best interests for the father to be given custody . In that way the child could maintain a relationship with both parents , which she had been unable to do when the first applicant had had custody .

Referring to the aforementioned facts , ( see paragraphs CARDINAL - CARDINAL above ) , the court found that the first applicant had , for a protracted period of time , prevented the father from having contact with his daughter at the scheduled meetings . She had not been cooperative or shown any insight in her dealings with the ORG authorities , unlike the father , whose behaviour had been of no concern . Her past behaviour had been the result of her lack of trust in the authorities and her strained relationship with the father , but this had not affected her ability to care for the child . In this connection , the court stated :

“ The court took into consideration the [ ORG ’s welfare ORG ] opinion , but it has found that it would be in the best interests of the child , given the child ’s ( young ) age and current stage of her development , for her to remain in the custody of the mother . The father may maintain a personal relationship and direct contact with the child . The court also took into consideration the fact that , as a consequence of these proceedings , the parties have understood the need for mutual communication in order to ensure the rights of the child . They ... have reached an agreement regarding their right to have contact with the child , which reduces the need for the competent body to determine those relationships ... In this connection , there is always the possibility that the parents reach their own agreement , at any given time , regarding custody of the child , as befits her interests . ”

Lastly , the court concluded that the first applicant ’s nationality was of no relevance to the case . On DATE ORG upheld the judgment .

After the judgment became final , on DATE the ORG specified the contact rights of the father and allowed him to meet his daughter on DATE , DATE ( TIME ) and DATE ( TIME ) .

On DATE ORG upheld an appeal on points of law ( ревизија ) by the father , finding that there had been a “ wrongful application of the substantive law given the established facts ” ( погрешна примена на материјалното право , ако се има предвид утврдената фактичка состојба ) . The court overturned the lower courts’ judgments and gave custody of the second applicant to the father . The first applicant was further ordered to pay maintenance of MONEY ( MONEY ) per month . Referring to the first applicant ’s non - compliance with the ORG ’s orders of CARDINAL May and CARDINAL DATE , the fact that she had been convicted on CARDINAL occasions , as well as to the ORG ’s expert opinion , as “ the competent and responsible body ” ( надлежен и меродавен орган ) , the court held that there were grounds to amend the first - instance court ’s order of CARDINAL DATE regarding custody of the child . Relying on sections CARDINAL , DATE , DATE , DATE and DATE of LAW ( see paragraphs CARDINAL - CARDINAL below ) ORG stated , inter alia :

“ This court considers that after [ the first - instance court ’s ] judgment of CARDINAL DATE , which granted [ the first applicant ] custody of [ the second applicant ] , the child was deprived of the fundamental right to receive parental care from both parents because of the first applicant alone . That is the fundamental , most important and decisive reason for amending the judgment [ of CARDINAL DATE ] ( and ) granting the [ father ] custody of the minor [ the second applicant ] . The court notes that the lower courts disregarded the change in circumstances and the ORG ’s expert opinion , without any legally justified and reasonable grounds . This court considers , contrary to the findings of the lower courts , that ... it is in the best interests of the minor , PERSON , with a view to her enjoying the company of both parents , and ensuring her development , that [ the father ] should be given custody . His past behaviour has shown that he is a constructive and cooperative parent whose main concern is the interests of the minor , S.

This court further considers that the reason why the lower courts dismissed the appellant ’s claim to have custody of [ the second applicant ] , namely that she was DATE and DATE and that at that age she needed to stay with the mother , with whom she was biologically connected , can not be regarded as the only relevant legal ground ( единствено правно решавачка причина ) . The child ’s age is an important ground , but it is not the only [ element ] which is decisive for the court . A court order determining which of the parents of a minor child should be given custody is dependent on other factors , such as the GPE personalities ; their views regarding their rights and duties in respect of their child ; the rights and interests of the child , including , certainly , [ the child ’s ] right to both parents ; and the need for the child to have the best environment for [ his or her ] healthy mental and physical development . In the present case , and having regard to all the circumstances , not only the [ second applicant ’s ] age , a final conclusion can be drawn that it is in the [ child ’s ] interests , and best for her mental and physical development , that [ the father ] should have custody rights . ”

The applicant was served with the judgment on DATE .

On an application by the first applicant , on DATE the ORG specified how much contact she could have with her daughter . According to the order , which was based on the explicit consent of both parents , the first applicant was to live with the second applicant DATE . Both parents were allowed a DATE summer holiday and a DATE winter holiday with her . The order further specified who would stay with the child on religious and family holidays .

On an unspecified date , the first applicant applied to the first - instance court for custody of the second applicant . The first - instance court accepted the application and granted custody to the first applicant . On DATE that judgment was set aside . The custody proceedings are allegedly still pending before the first - instance court .

While the custody proceedings were pending , on DATE the father applied to the ORG to change the living arrangements to allow him to live permanently with the second applicant . The mother would have the child CARDINAL weekends a month . By a decision of DATE , the ORG suspended the proceedings relating to that application until the custody proceedings launched by the first applicant had been completed .

The parties confirmed that the ORG ’s order of CARDINAL DATE was being complied with by all involved .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in the town of ORG ) .

According to the ORG , in the morning of DATE the applicant , who was armed with a handgun , along with CARDINAL other persons robbed a shop in GPE . After the robbery the applicant left the shop with bags containing the stolen items – mobile phones . The CARDINAL victims of the robbery ( Mr PERSON , the owner of the shop , and PERSON , a shop assistant ) ran after the applicant . They managed to catch up with him and knocked him to the ground . PERSON and PERSON then disarmed the applicant and tied his hands with a belt . The applicant offered resistance . With the help of passers - by , PERSON P. and PERSON held the applicant down for TIME until the arrival of the police at TIME The police arrested the applicant , seized his handgun and the bags containing mobile phones , and took him to the FAC police station in GPE . In the police station the applicant wrote a “ voluntary confession ” acknowledging his participation in the robbery .

According to the applicant , he had nothing to do with the robbery . He was walking down the street when PERSON and PERSON P. suddenly pushed him in the back , knocked him to the ground and apprehended him . He offered no resistance . The bags and the handgun did not belong to him . Then he was arrested by the police and escorted to the FAC police station , where they arrived at TIME . After admission formalities had been completed , including a personal search in the presence of attesting witnesses , he was taken to an office , seated on a chair and handcuffed to it . Then CARDINAL or QUANTITY police officers entered , including Mr PERSON and PERSON , who started to question him about the circumstances of the robbery . He denied his involvement in the robbery . PERSON PERSON took out a baseball bat and threatened to use it unless he confessed to the robbery . He refused and PERSON PERSON started to beat him on the head with the bat wrapped in a terry towel . The applicant then fell to the floor . Other police officers started to kick him and beat him with the bat and with rubber truncheons . He alleged that the questioning and beatings continued for TIME . The police officers also threatened to suffocate him with a gas mask , and to use other torture instruments , such as needles and pincers . To avoid further suffering , the applicant wrote the “ voluntary confession ” .

The handwritten confession of DATE contains the following statement , followed by the applicant ’s signature :

“ This confession statement has been written by me voluntarily , without any mental or physical pressure from police officers .

[ I ] have read LAW , which states that I have the right not to give explanations concerning my conduct . ”

Subsequently , the applicant was placed in a temporary isolation ward ( “ ORG ” ) at the FAC police station .

The following day , on DATE , the applicant and his counsel lodged complaints with the investigator , PERSON , alleging that he had been ill - treated by the police officers . The applicant ’s counsel also asked the investigator to arrange a medical expert examination of the applicant in order to establish when the injuries had occurred and how they had been inflicted . The request contained a description and diagram of the applicant ’s injuries .

Still on DATE , a face - to - face confrontation between the applicant and Mr PERSON and PERSON took place . They testified that on DATE they had apprehended the applicant , who had offered resistance and had tried to escape . Although they acknowledged having knocked the applicant to the ground , they denied having beaten him . They also testified that they had not seen anybody beating him during his apprehension and subsequent arrest . They stated that the applicant had not resisted his arrest by the police .

Following the above , the investigator refused the request of the applicant ’s counsel for a medical expert examination , pointing out that the injuries could have been caused by PERSON and PERSON when they apprehended the applicant . However , the applicant was taken to a hospital for a superficial medical examination .

According to a medical certificate of DATE , the applicant received medical aid at TIME at GPE hospital no . CARDINAL in connection with “ multiple traumatic lesions on the head , chest and the left side of the lower back ” . It was also noted in the certificate that the applicant ’s medical condition was compatible with detention in the ORG .

According to the applicant , after the medical examination he was taken to another office in the LOC police station . For TIME several police officers beat him up again in an attempt to extract unspecified information of which he was not in possession .

On DATE the applicant was placed in remand prison IZCARDINAL/CARDINAL , where he was examined by a doctor . The doctor recorded the same injures as those mentioned above . He made the following entry in the applicant ’s prison medical file :

“ On DATE the first medical examination was carried out . Diagnosis : multiple traumatic lesions on the head , chest and the left side of the lower back . ”

On DATE the applicant lodged a complaint with the prosecutor , alleging that he had been subjected to ill - treatment by the police during his detention on DATE . The investigator , PERSON , also sent the complaints which the applicant and his counsel had lodged with her on DATE to the prosecutor ’s office for further processing .

Still on DATE the applicant ’s counsel lodged with the investigator , PERSON , a written request for a visual examination of the applicant to be carried out . According to the applicant , the request was made in order to confirm the bodily injuries inflicted on him by the police on DATE . However , the text of the request contained no reference to that . The investigator refused the request , noting that a medical examination of the applicant had already been conducted on DATE .

On DATE the investigator , PERSON , questioned QUANTITY police officers ( PERSON . , PERSON . and PERSON . ) as witnesses in the applicant ’s criminal case . They stated that on DATE they had been on duty at the FAC police station . At TIME , following the instructions of a superior officer , they picked up a suspect from a police unit in the ORG metro station and escorted him to the FAC police station . The suspect was handcuffed . He was wearing a shoulder holster with a gun . In the station , the suspect was searched in the presence of CARDINAL attesting witnesses and identified as the applicant . His gun was seized . The police officers added that a shop assistant carrying CARDINAL big handbags had accompanied them to the police station . They were not asked whether the applicant had had visible injuries on his body at that time and gave no information in that respect .

On DATE the assistant prosecutor at the FAC inter - district prosecutor ’s office refused to institute criminal proceedings on the grounds that the applicant ’s allegations of ill - treatment were unsubstantiated . The decision read as follows :

“ ... On DATE [ sic ] the FAC inter - district prosecutor ’s office of GPE received [ the applicant ’s ] confession to robbery ...

Later , in the course of questioning , [ the applicant ] complained that police officers had used physical force in order to make him confess . He could not give any information as to the names of the police officers who had arrested him , their distinguishing features , location of the office [ where the alleged ill - treatment took place ] or other facts .

During the inquiry it was also established that the applicant is registered with a neuropsychology clinic ... and had not been drafted into the army owing to a neurological disease . Thus , [ his ] allegations [ of ill - treatment ] have not been confirmed . ”

The prosecutor ’s decision contained no information concerning any actions taken to verify the applicant ’s version of events . The medical documents attesting to his injuries were not mentioned either .

On an unspecified date the applicant appealed against this decision to the prosecutor ’s office , complaining of the perfunctory nature of the inquiry into his allegations of ill - treatment at the police station .

Approximately DATE , on DATE , the supervising prosecutor set aside the decision of DATE refusing to institute criminal proceedings and sent the case back to the prosecutor ’s office for further inquiry into the applicant ’s allegations of ill - treatment .

On DATE the FAC deputy prosecutor again refused to open a criminal case . The decision read as follows :

“ It follows from the applicant ’s complaint that on DATE he had been brought to the LOC police station of GPE by CARDINAL police officers , [ Mr ] PERSON and [ Mr ] R. [ sic ] , where he was handcuffed to a chair and beaten with a baseball bat wrapped in a terry towel in order to make him confess to a robbery ...

In the course of the additional inquiry the police officer at the LOC police station , [ Mr ] PERSON , was questioned . He explained that on DATE [ the applicant ] had been arrested and questioned in connection with a robbery . The applicant was informed of his rights provided for by LAW CARDINAL of the LAW against his signature . He gave his testimony voluntarily and without any physical or psychological pressure . None of the police officers used any violence [ against the applicant ] during his arrest , while escorting him to the police station , or in the station .

It was impossible to question the [ former ] police officer at the LOC police station , [ Mr ] NORP , as he had been discharged from the police . Several attempts were made to summon him to the prosecutor ’s office . So , on CARDINAL and DATE the head of the FAC police station was ordered to send a police officer to do that . According to the information submitted by the head ... , on CARDINAL and DATE a police officer went to [ Mr ] R. ’s address , but no one answered the door . According to the neighbours , he had not lived in the flat for a long time .

Mr PERSON . , Mr PERSON . and Mr Paut . [ police officers at the FAC police station ] , questioned in the course of the inquiry , stated that they had not met [ the applicant ] while on duty [ on the relevant day ] . They did not exercise physical or psychological pressure on him .

The investigator of the investigative division at the LOC police station , [ Ms ] PERSON , stated that she had been in charge of a criminal investigation into robbery ... The applicant was arrested on suspicion of his involvement in the crime and taken to the police station . During the initial investigative actions he made no complaints of any ill - treatment by police officers . Neither she nor any other officer used physical or psychological force against [ the applicant ] .

In the course of the present inquiry it has been impossible to establish the involvement in the events under investigation of any other police officers who were on duty at the police station and in charge of arrestees at the relevant time . ”

The medical documents confirming the applicant ’s injuries were not mentioned .

On DATE the supervising prosecutor set aside the decision of DATE and instructed the prosecutor to question PERSON and to arrange a medical expert examination of the injuries sustained by the applicant in DATE .

Pursuant to a decision by the prosecutor of DATE , a medical expert examined the applicant ’s medical file . In his report of CARDINAL DATE , he stated as follows :

“ According to medical file no . DATE , at TIME on DATE [ the applicant ] went to the outpatient trauma unit of GPE hospital no . CARDINAL ... In [ his ? ] words , he was beaten up by unknown persons at TIME on DATE . [ Results of the examination ] : grazes around the hairline ( forehead ) . PERSON and yellow bruising around the left shoulder blade and a strip of bruising measuring CARDINAL x CARDINAL [ cm ] in the lumbar area . Palpation [ is ] painful . Diagnosis : traumatic lesions ( ушибы ) in the soft tissue of the forehead , left shoulder blade and the left side of the lower back .

There are no other entries in the medical file .

Conclusions

The following injuries on [ the applicant ] were recorded at the trauma unit :

- grazes ( ссадины ) on the forehead ,

- bruises ( кровоподтёки ) on the left shoulder blade ,

- a strip of bruising on the left side of the lower back .

The above - mentioned injuries could have been caused by blunt solid objects and did not cause damage to [ the applicant ’s ] health . The bruises resulted from contact with blunt object(s ) and could have been caused by blows with the object(s ) as well as by [ the applicant ] hitting the objects . The grazes were caused by the sliding of an object against the surface of the skin .

As the medical file did not contain a more detailed description of the bruises ... it is impossible to determine the exact time when they were sustained . ”

On DATE the FAC deputy prosecutor again refused to institute criminal proceedings . His decision read as follows :

“ ... As it follows from the police report submitted ... the former police officer [ Mr ] NORP has not been found despite several visits to his address in DATE and DATE . According to his neighbors , [ Mr ] R. no longer lives there and comes seldom to his flat ; they do not know his place of residence .

According to the expert report of DATE ... [ the applicant ] sustained bodily injuries in the form of bruises on his face and body ... As the medical documents contain insufficient information , it was impossible to establish when and how they were inflicted .

Thus , despite the measures taken , it was impossible to verify the [ applicant ’s ] allegations . ”

On an unspecified date the applicant complained to a court about the refusal to institute criminal proceedings .

On DATE the ORG of GPE found that the applicant ’s allegations had been duly examined by the prosecution and had been found unsubstantiated . ORG rejected the complaint on those grounds , stating :

“ It follows from the material submitted that the [ applicant ’s ] allegations [ of ill - treatment ] ... have been examined in the course of the preliminary investigation . Following each inquiry a decision refusing to open a criminal case was issued .

The [ applicant ’s ] allegations were also the subject of an internal inquiry carried out by ORG of ORG ...

According to the results of the above inquiries , no convincing , objective and sufficient proof of unlawful conduct by the police officers has been established .

According to the conviction judgment by ORG of GPE [ of DATE , see below ] , the [ applicant ’s ] allegations were subject to judicial review in the course of the examination of [ his ] criminal case on the merits . In its judgment the court assessed them and found them ill - founded .

The judgment convicting [ the applicant ] has entered into legal force .

Under such circumstances , there are no grounds for granting the [ applicant ’s ] complaint . ”

On DATE ORG upheld the decision of DATE on appeal , reiterating the reasoning of ORG .

Neither the applicant nor his representative were present at the court hearings , whereas the prosecutor was present and addressed the courts .

On an unspecified date the applicant was committed for trial before ORG of GPE . The charges against him were brought by the FAC inter - district prosecutor ’s office .

During the trial the applicant repeatedly raised the issue of his alleged ill - treatment at the police station and argued that his “ voluntary confession ” had been obtained under duress .

The applicant ’s wife testified before the trial court that when the applicant had left their home on TIME , he had been in good health .

PERSON and PERSON confirmed their previous testimonies : they had not beaten the applicant while apprehending him , nor had they seen anyone else beating him . They did not remember whether the applicant had had any visible injuries by the time the police arrived . However , PERSON did not rule out the possibility that he may have caused some injuries to the applicant while apprehending him .

The police officers who had arrested the applicant and taken him to the police station also denied any ill - treatment of the applicant on their part . They stated that they did not remember whether he had had any visible injuries at the time of his arrest .

On DATE the applicant was convicted of illegal possession of a firearm and CARDINAL counts of robbery with violence , committed by an organised group . The conviction was based , inter alia , on the applicant ’s confession statement of DATE . He was sentenced to CARDINAL years’ imprisonment in a colony with a “ strict regime ” . The court noted in its judgment that on DATE the victims of the robbery ( PERSON and PERSON P. ) had received medical aid in a hospital – Mr PERSON for a bite on his right hand and PERSON for an abrasion on his right forearm .

On DATE ORG amended the judgment on appeal , but upheld the sentence .

Both courts rejected the applicant ’s allegation of ill - treatment , referring to the results of the inquiry carried out by the prosecution authorities so far .

Neither the application lodged by the applicant for a supervisory review of his conviction nor his numerous complaints to various authorities about procedural irregularities in his criminal case were to any avail .

After the applicant ’s conviction had become final , he was transferred to a “ strict - regime ” colony in GPE to serve his sentence . The colony is situated QUANTITY from his home in LOC .

On an unspecified date in DATE the applicant asked ORG ( “ the ORG ” ) to transfer him to a colony closer to his home . In its reply of DATE the ORG refused his request on the grounds that there were no “ strict regime ” colonies in LOC . The applicant complained about the refusal to ORG , which redirected his complaint to ORG . The latter forwarded the complaint to the ORG . On DATE the ORG wrote to the applicant informing him that his request had been refused on the same grounds . Following a further complaint submitted by the applicant , the prosecutor ’s office issued a formal warning ( представление ) to the ORG and asked it to remedy the breach of the applicant ’s right to serve the sentence close to his home . In DATE the ORG offered the applicant a transfer to a colony in LOC , which directly borders LOC . On DATE the applicant declined the offer for unspecified reasons .

In DATE the applicant applied to the GPE Vymskiy ORG of GPE for a transfer from the strict - regime colony to a “ colony settlement ” ( another type of colony with less stringent conditions ) . On DATE the court rejected the application without consideration and discontinued the proceedings , since the applicant had not yet acquired the right to ask for a transfer . On DATE ORG upheld the decision on appeal . On DATE the prosecutor ’s office lodged an application for supervisory review ( надзорное представление ) with ORG and asked for a fresh examination of the applicant ’s case because his transfer request had not been examined on the merits . The outcome of the proceedings is unknown .

On an unspecified date in DATE the applicant was released on probation , having served part of his sentence .


Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

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

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

On DATE the applicant married a certain PERSON

On CARDINAL DATE PERSON gave birth to their daughter PERSON

On DATE PERSON , accusing the applicant of domestic violence , left the matrimonial home and moved to a safe house . In so doing she took their daughter with her .

On DATE PERSON brought a civil action against the applicant in ORG ( PERSON ) seeking a divorce and custody of their daughter .

After a hearing held in the presence of the parties and the representative of ORG ( NORP za socijalnu skrb ORG ) , on DATE ORG issued a decision whereby it regulated interim custody and access rights until the adoption of the final judgment on ORG ’s action . In particular , the court temporarily awarded custody to PERSON and granted the applicant access rights , allowing him to have contact with his daughter twice a month for TIME on the premises of the association Children First . The applicant appealed .

On DATE ORG held a hearing at which the applicant did not oppose the divorce but asked the court to award him custody of his daughter . At the same hearing the court decided to refer the parties to mandatory mediation procedure , in accordance with the law . Specifically , the parties were referred to ORG . for the institution of this procedure .

After completing the mediation procedure , on DATE the ORG submitted its report to the court suggesting that reconciliation of the parties was not possible and stating that they could not agree over custody of and contact with their daughter .

At the hearing held on DATE the court heard the parties and invited ORG to submit its recommendation as regards custody of the applicant ’s daughter and the ( extent of ) access rights of the non - custodial parent .

NORP On DATE ORG ( Županijski sud u GPE ) quashed the first - instance decision of DATE ( see paragraph CARDINAL above ) and remitted the case to the first - instance court , holding that the latter had not provided sufficient reasons for its decision . In particular , ORG found that no reasons had been given for the interim award of custody to PERSON and saw no reason why the applicant ’s contact with his daughter had to be supervised .

In the resumed proceedings , on DATE ORG informed the court that it could not make the requested recommendation ( see paragraph CARDINAL above ) and that , in any event , because PERSON had changed the address , the matter was no longer in their competence but fell within the competence of ORG . It nevertheless recommended that both parties undergo psychiatric assessment .

On DATE ORG invited ORG ( hereinafter : “ the local social welfare centre ” or “ the Centre ” ) to submit its recommendation as regards ( the extent of ) the applicant ’s access rights and the manner in which they should be exercised .

On DATE the ORG recommended that the applicant exercise his access rights under supervision every DATE from TIME on the premises of another association . The ORG explained that supervision was necessary because criminal proceedings for domestic violence were pending against the applicant ( see paragraphs CARDINAL - CARDINAL below ) and because psychiatric assessment of both parents was necessary .

At the hearing held on CARDINAL DATE the applicant proposed that he be awarded custody or , in the alternative , that he be granted access rights to be exercised without supervision in his home for TIME twice per week , DATE , and CARDINAL of all holidays .

At the hearing held on DATE the parties agreed that the applicant would have contact with his daughter twice a week for TIME under supervision .

On DATE the court decided to obtain a joint expert opinion from experts in psychology and psychiatry .

At the hearing held on DATE the applicant proposed that his access rights be extended from TIME per week and also that he should have contact with his daughter every other DATE .

On DATE the experts in psychology and psychiatry submitted their joint opinion . They recommended that custody be awarded to ORG and that the applicant have contact with his daughter CARDINAL times a week for DATE and for TIME on official holidays and other important days ( birthdays , etc . ) , all under supervision .

On DATE the local social welfare centre submitted its observations on the expert opinion , criticising the contact schedule proposed by the experts as unworkable . It also added that the experts had failed to explain why the applicant should exercise his access rights under supervision .

At the hearing held on DATE the applicant objected to the expert opinion in so far as it recommended awarding custody to ORG and supervised contact with his daughter . He also submitted an opinion obtained from another expert in psychology .

On DATE ORG issued a fresh decision regulating interim custody and access rights . In particular , the court again temporarily awarded custody to ORG and granted the applicant access rights entitling him to have contact with his daughter twice a week ( on DATE from TIME ) under supervision . The applicant appealed .

At the hearing held on DATE the court heard the expert in psychiatry who had prepared the aforementioned joint expert opinion of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE the ORG quashed the first - instance decision of DATE ( see paragraph CARDINAL above ) and remitted the case .

In the resumed proceedings , on DATE ORG issued another decision regulating interim custody and access rights , the content of which was identical to its decision of DATE ( see paragraph CARDINAL above ) . The applicant appealed .

On DATE the applicant requested the withdrawal of the first - instance single judge sitting in the case . The hearing scheduled for DATE was therefore adjourned until ORG decided on the applicant ’s withdrawal request . On DATE that court dismissed the applicant ’s request .

On DATE a multidisciplinary team of experts composed of a psychologist , a psychiatrist , a paediatrician and a social worker submitted their report on the physical and mental health of the applicant ’s daughter , finding that she was healthy but that her mother ’s insistence on a vegan diet posed a risk as regards her normal psychophysical development . The report was obtained at the request of the local social welfare centre in response to the applicant ’s allegations that ORG had been emotionally abusing their daughter and endangering her health by subjecting her to a vegan diet .

On DATE the ORG quashed the first - instance decision of CARDINAL DATE ( see paragraph CARDINAL above ) and remitted the case . It again held that the first - instance decision had not been sufficiently reasoned .

In the resumed proceedings , the hearing scheduled for DATE was adjourned owing to the absence of the judge sitting in the case .

On DATE ORG issued a new decision regulating interim custody and access rights in a manner identical to its CARDINAL previous decisions ( see paragraphs CARDINAL and CARDINAL above ) .

At the hearing held on DATE the court , in accordance with the applicant ’s proposal ‒ with which the representative of the local social welfare centre agreed ‒ decided to obtain an expert opinion from another expert on the issue of the custody of the applicant ’s daughter and her contact with the non - custodial parent .

On DATE ORG , following an appeal by the applicant , again quashed the first - instance decision of CARDINAL DATE ( see paragraph CARDINAL above ) and remitted the case .

On DATE ORG held a hearing at which it heard the parties and a representative of the local social welfare centre .

At the same hearing ORG issued yet another decision regulating interim custody and access rights in respect of the applicant ’s daughter but in a manner different from its CARDINAL previous decisions ( see paragraphs CARDINAL , CARDINAL and DATE above ) . The court firstly , as it had done before , temporarily awarded custody of the applicant ’s daughter to her mother ORG Secondly , for the period DATE and CARDINAL DATE , the court granted the applicant access rights allowing him to have contact with his daughter twice DATE ( on DATE from CARDINAL to CARDINAL.CARDINAL p.m. ) under the supervision of an employee of the social welfare centre , and also without supervision every DATE from TIME and during the DATE of DATE , DATE May and DATE . Both parties appealed against that decision

At the next hearing held on CARDINAL DATE ORG issued a new decision regulating the applicant ’s access rights on an interim basis . The court granted the applicant access rights twice a week ( on DATE from TIME ) under the supervision of an employee of the social welfare centre , as well as without supervision every other DATE from TIME on DATE until TIME on DATE The applicant appealed .

On DATE ORG received the combined expert opinion of a psychiatrist , a psychologist and a defectologist . The experts recommended that the applicant be awarded custody of his daughter and that the mother be granted extensive access rights .

On DATE the ORG quashed the first - instance decisions of DATE and CARDINAL DATE ( see paragraphs CARDINAL above ) and remitted the case .

In the resumed proceedings , at a hearing held on DATE ORG heard the experts in psychiatry and psychology who had prepared the expert opinion of DATE ( see paragraph CARDINAL above ) . After hearing the experts , the representative of the local social welfare centre agreed with their recommendation and suggested that the court award custody to the applicant while granting the mother extensive access rights .

By a judgment of CARDINAL DATE ORG definitively awarded the applicant custody of his daughter and granted ORG access rights to be exercised DATE from TIME , every other weekend from DATE TIME , every other DATE from TIME and for CARDINAL of the DATE , DATE and DATE . At the same time the court issued a decision regulating interim custody and access rights in the same way as stipulated in its judgment until such time as that judgment became final .

On DATE PERSON appealed against that judgment .

By a judgment of CARDINAL DATE ORG dismissed the appeal and upheld the first - instance judgment , which thereby became final .

In DATE the ORG State Attorney ’s Office ( Općinsko državno odvjetništvo u ORG ) indicted the applicant before ORG for the criminal offence of domestic violence allegedly committed against ORG in the period DATE and DATE .

By a judgment of CARDINAL DATE ORG acquitted the applicant . It found that he had not committed the acts of violence with which he had been charged . In its judgment that court also stated that the criminal proceedings against the applicant had been instrumental in the dispute over custody of his daughter and that ORG had used those proceedings in order to portray the applicant as a violent person and inadequate father , unworthy of that role , and thus prevent him from maintaining contact with his daughter .

Following an appeal by the ORG Attorney , on DATE ORG ( PERSON u GPE ) , quashed the first - instance judgment and remitted the case .

It would appear that the proceedings are currently pending before ORG as the first - instance court .

In DATE PERSON brought a private bill of indictment ( privatna tužba ) against the applicant in ORG accusing him of defamation . In particular , ORG alleged that in his numerous statements to the media , the applicant had depicted her as mentally ill , a person with whom “ something was wrong ” , a fanatic and a proponent of eco - feminism .

ORG convicted the applicant , on DATE , but the judgment was subsequently quashed by the second - instance court following his appeal and the case was remitted .

In the resumed proceedings , on DATE ORG acquitted the applicant , that judgment being upheld by ORG on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having committed homicide together with other persons .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody . The court stressed the need to ensure the proper conduct of the proceedings , given that extensive evidence had still to be obtained in the case . It also referred to the fact that the proceedings in question concerned several alleged accomplices . The court further relied on the likelihood that a severe penalty would be imposed on the applicant .

On DATE the applicant applied for the preventive measure to be lifted or varied . On DATE ORG refused the request , finding that the grounds for the imposition of this measure remained valid .

The applicant ’s detention was further extended by decisions of ORG ( PERSON ) of DATE , DATE and CARDINAL DATE . The applicant appealed against all of those decisions . His appeals were dismissed by ORG ( Sąd Apelacyjny ) on DATE , DATE and DATE respectively . The courts repeatedly relied in their decisions on the strong suspicion that the applicant had committed the offence in question , the likelihood of a severe prison sentence being imposed on him and the need to secure the proper conduct of the investigation , especially the need to obtain further expert evidence .

On DATE the applicant again applied for release . His application was refused on DATE by ORG .

On DATE the ORG further extended the applicant ’s detention until DATE . The applicant appealed , unsuccessfully .

On an unspecified date in DATE a bill of indictment was lodged with ORG . The applicant was charged with homicide committed together with CARDINAL other co - accused .

NORP The applicant ’s detention was continually extended during the course of the trial .

On DATE the applicant requested the court to release him on health grounds . On DATE the trial court refused his request . It relied on the medical certificate issued by a prison doctor , stating that the applicant could be adequately treated in detention .

On DATE the ORG gave judgment ( case no . DATE ) . The applicant was convicted as charged and sentenced to DATE imprisonment . He lodged an appeal .

On CARDINAL DATE the ORG quashed the impugned judgment and remitted the case for retrial ( case no . II AKa CARDINAL ) .

The applicant ’s detention was continually extended by the domestic courts , pending his appeal and in the course of the retrial . In particular , on DATE the ORG extended his detention until DATE . The applicant appealed against this decision . On DATE the ORG upheld the impugned decision , finding that the reasonable suspicion that the applicant had committed the offence in question persisted , despite the fact that the judgment convicting the applicant had been quashed . ORG further considered that ORG had correctly relied on the severity of the anticipated penalty as the principal ground for the applicant ’s continuing detention and on the risk of the obstruction of the proceedings .

On DATE the ORG gave judgment ( case no . XIV K CARDINAL/CARDINAL ) . The applicant was again convicted as charged and sentenced to DATE imprisonment . The applicant lodged an appeal .

On DATE the ORG quashed the judgment and remitted the case for retrial ( case no . II AKa CARDINAL/CARDINAL ) .

On DATE the ORG further extended the applicant ’s detention , reiterating the grounds given in its initial decisions . The applicant appealed unsuccessfully .

During the retrial proceedings the ORG held DATE hearings in total .

On DATE the court gave judgment ( case no . XIV K CARDINAL/CARDINAL ) . The applicant was again convicted and sentenced to CARDINAL years’ imprisonment . He lodged an appeal against that judgment .

On DATE the ORG extended the applicant ’s detention until DATE . On CARDINAL DATE ORG upheld the impugned decision . It considered that the applicant ’s involvement in the offences with which he had been charged had been supported by the non - final judgment of DATE , in which he had been convicted and had received a severe sentence . The court also held that further detention on remand was the only preventive measure capable of securing the proper course of the proceedings until the delivery of a final judgment .

On DATE the ORG partly allowed the applicant ’s appeal ( case no . II AKa CARDINAL ) . The appellate court upheld the conviction but reclassified the offence as involuntary manslaughter ( nieumyślne spowodowanie śmierci ) . The applicant ’s sentence was reduced to CARDINAL years’ imprisonment . The applicant was released on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Baka;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE , after DATE of service ( DATE ) as a judge at ORG and , subsequently , DATE service as a member of ORG , the applicant was elected by ORG , by decision no . CARDINAL/CARDINAL ( VI.CARDINAL ) OGY , as President of ORG for a DATE term , until DATE .

In that capacity , the applicant carried out managerial tasks and also had a judicial role , presiding over deliberations which resulted in uniformity resolutions ( on case - law consistency ) and in guiding resolutions . He was also President of ORG . This second function had been added to the tasks of the President of ORG in DATE by ORG LXVI of DATE ) . As the head of ORG , the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary , after having gathered and summarised the opinions of different courts via ORG ( see paragraph CARDINAL below ) .

On DATE ORG of the Network of the Presidents of the Supreme Judicial Courts of ORG elected the applicant President of the Network for a DATE term ( DATE ) .

NORP In DATE the alliance of GPE – PERSON ( GPE – Hungarian Civic Union , hereinafter “ FAC ” ) and ORG ( “ the ORG ” ) obtained a CARDINAL parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms . In his professional capacity as President of ORG and ORG , the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary , notably LAW , the retirement age of judges , the amendments to LAW , and the new ORG Bill .

On DATE , in relation to LAW ( subsequently LAW of DATE , ordering the annulment of final convictions relating to the dispersal of crowds in DATE ) , the applicant ’s spokesman explained to the ORG newspaper that , in the applicant ’s view ,

“ the PERSON ordering the annulment of certain judicial decisions delivered in relation to the DATE riots gives cause for concern , because it violates the right of judges to assess evidence freely . This is a serious constitutional problem . ... the judiciary is examining the PERSON only from a professional point of view and distances itself from any kind of political debate . PERSON [ the applicant ] , President of ORG , hopes that ORG will choose a legal technique that eliminates the problem of unconstitutionality ” .

On DATE , DATE after the PERSON ’s enactment , PERSON ( PERSON MP , Chairman of the LAW , ORG and ORG at the relevant time ) , responded at a press conference to the criticisms made by the judiciary , and declared : “ The adopted legal solution was said to be unfortunate . Now , I myself find it unfortunate if a member of the judiciary , in any position whatsoever , tries to exert influence over the legislative process in such a way ” .

On DATE , in a speech delivered to ORG in the course of the debate on the PERSON on LAW ( LAW ) , the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary , notably the new name given to ORG – Kúria – , the new powers attributed to the GPE in the field of ensuring consistency in the case - law , the management of the judiciary and the functioning of ORG , as well as the introduction of a constitutional appeal against judicial decisions .

On DATE , in relation to the proposal to reduce the mandatory retirement age of judges ( from DATE to the general retirement age of QUANTITY ) in LAW , the applicant , together with other court presidents , addressed a letter to various actors in the constitutional process ( the President of the Republic , the Prime Minister , the Speaker of ORG ) in which they pointed out the possible risks to the judiciary posed by the given proposal . Their concern was that , by abolishing the possibility for judges to remain in office until DATE , the proposed rule would force CARDINAL of NORP judges ( CARDINAL persons ) to end their careers in DATE , earlier than planned , with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings .

On TIME of the vote on the proposals to amend the retirement age of judges ) , the applicant addressed a letter to the Prime Minister , in which he stressed that the proposal was humiliating and professionally unjustifiable ; it infringed the fundamental principles of the independence , status and irremovability of judges ; and it was also discriminatory , since only the judiciary was concerned . He refuted accusations of bias in favour of any political ideology within the judiciary , and continued :

“ It is , however , unacceptable if a political party or the majority of ORG makes political demands on the judiciary and evaluates judges by political standards . ”

In his letter the applicant asked the Prime Minister to use his influence to prevent ORG from adopting the proposal . On DATE , however , ORG adopted the proposal ( see Relevant Domestic Law below ) .

On DATE , a joint communiqué was addressed to the NORP and ORG public by the plenary session of ORG , by the applicant in his capacity as President of ORG , and by the presidents of regional and county courts . It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self - governance embodied in ORG . The relevant extracts from the communiqué read as follows :

“ According to the proposal , the mandatory retirement age of judges will be reduced by DATE as of DATE . As a result , the tenure of CARDINAL judges ( among them CARDINAL judges responsible for court administration and professional supervision ) will be terminated on that same date , without any transition period , since they will have turned DATE . By DATE a further CARDINAL judges will have to terminate their careers . As a consequence of this decision , the rapidity of judicial proceedings will significantly deteriorate ( CARDINAL cases will have to be reassigned , which may even result in several years’ delay in judicial proceedings , concerning CARDINAL of persons ) . The administration of the courts will be seriously hindered , since it is extremely difficult to replace CARDINAL of retiring judges .

The multiple effect of the forced pensioning - off , with no real justification , of highly qualified judges who have DATE of experience and practice , most of whom are at the apex of the hierarchy , will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences . Moreover , the proposal is unfair and humiliating with respect to the persons concerned , who took an oath to serve GPE and to administer justice , and who have devoted their lives to the judicial vocation .

It is incomprehensible why the issue of the retirement age of judges is worth regulation in LAW . There is CARDINAL answer : by including it in LAW , there will be no possibility of contesting this legal rule , which violates the fundamental principles of a democratic state governed by the rule of law , before ORG .

Such an unjustified step implies political motivation . ”

On DATE Bill no . T/CARDINAL on the amendment of certain legislative acts concerning judicial procedure and the judicial system ( including LAW ) was submitted to ORG . At the applicant ’s request , ORG of ORG prepared an analysis of the PERSON , which was communicated to Members of ORG . On DATE , as no substantive changes had been made to the PERSON prior to its enactment on DATE as Act LXXXIX of DATE , the applicant challenged the LAW before ORG , on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties , making use of that power for the first time in NORP history . ORG , in its judgment no . CARDINAL . ( ORG . CARDINAL . ) ORG of DATE , established the unconstitutionality of the impugned provisions and quashed them ( notably , the provision concerning the Attorney General ’s right to establish court competence by derogation from the default statutory rules ) .

Lastly , on CARDINAL DATE the applicant addressed to ORG a detailed analysis of CARDINAL new Cardinal Bills : ORG PERSON ( no . T/CARDINAL ) and ORG PERSON ( no . PERSON ) . According to the explanatory memorandum to the Bills , it was proposed that ORG be abolished and replaced by ORG and ORG . The purpose of those proposals was to separate judicial and managerial functions , which had been “ unified ” in the person of the President of ORG , who was at the same time president of ORG . The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new ORG , while leaving the responsibility for overseeing the uniform administration of justice with the president of ORG ( renamed with the historical appellation “ GPE ” ) .

The applicant also decided to express his opinion directly before ORG , as permitted by LAW CARDINAL/CARDINAL ( IX.CARDINAL ) OGY on the Rules of ORG . In his speech , delivered on DATE , the applicant raised his concerns about the draft legislation . He said that it did not address the structural problems of the judiciary , but left them to “ the discretion of the executive of an external administration ( the President of the proposed ORG , which would replace ORG in managing the courts ) , who [ would be ] assigned excessive and , in LOC , unprecedented powers , with no adequate accountability ” . The applicant referred to those new powers ( to appoint judges and court executives , to issue normative orders and to designate the court in a given case ) as “ unconstitutional ” . In this regard , he stated :

“ This unrestricted , non - transparent and uncontrollable power is unparalleled in contemporary LOC ... The extent and uncontrollability of such centralised authority is without precedent , even in countries where the administration of the judiciary lies with the ministry of justice and even if we think of the socialist dictatorship , in DATE of which PERSON , member of ORG and Minister of ORG responsible for the administration of the judiciary , declared that he would appoint only persons recommended by the professional organs of the judiciary . ”

Finally , the applicant again raised in his speech the issue of the new retirement age for judges , saying that it would have a severe effect on ORG and that the need to have enough judges at the PERSON had not yet been addressed . In this connection , he maintained that the GPE ’s main responsibility , that of ensuring consistency in the judicial application of laws , could be met only if that court were able to deliver judgments in an appropriate number and type of cases .

LAW DATE established that the highest judicial body would be the PERSON ( the historical NORP name for ORG ) . The date of entry into force of LAW was scheduled for DATE .

On DATE , during a debate on LAW , a PERSON politician , PERSON , MP , declared on the Inforádió radio station that the President of ORG would remain the same and that only the name of the institution would change . On DATE , in an interview on the ORG channel , the ORG Secretary of ORG , Róbert Répássy , MP , declared that under ORG Bill ( no . T/CARDINAL ) , the new GPE would have the same function as the current ORG and that only ORG name would change . He said that the legislation “ will certainly not provide any legal ground for a change in the person of the Chief Justice ” .

On DATE , in the “ Position of the Government of GPE on the ORG on LAW adopted by ORG at its CARDINALth Plenary Session ( GPE , QUANTITY DATE , CDLAD(CARDINAL)CARDINAL ) ” , transmitted by the Minister for ORG of GPE , the ORG assured ORG that the drafting of the transitional provisions of LAW would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime .

In the period DATE , members of ORG submitted several amendments proposing that the applicant ’s mandate as President of ORG be terminated .

On DATE PERSON submitted a PERSON ( no . PERSON ) to ORG , proposing an amendment to LAW ( then in force ) . The amendment provided that ORG would elect the President of the GPE by DATE at the latest . The reasoning of the PERSON reads as follows :

“ In view of LAW GPE and of the modifications to the court system resulting from that PERSON , in compliance with the PERSON on LAW , and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the GPE as from DATE , this PERSON provides that ORG must elect , by DATE and according to the rules laid down in LAW , the President of the GPE who is to take office on DATE . ”

On DATE CARDINAL members of the parliamentary majority submitted a PERSON ( no . PERSON ) to ORG on LAW . Under LAW of LAW , the legal successors of ORG and ORG would be the GPE , for the administration of justice , and the President of ORG , for the administration of the courts . Pursuant to section CARDINAL(CARDINAL ) , the mandates of the President of ORG and of the President and members of ORG would be terminated upon the entry into force of LAW . The reasoning of the PERSON stated as follows :

“ The PERSON regulates in a comprehensive manner the succession of ORG and ORG and its president , in that the successor body or person shall be different for the respective duties . Having regard to the modifications to the court system , the PERSON provides that the term of office of the President of ORG currently in office , and that of the President and the members of ORG , shall be terminated upon the entry into force of LAW . ”

On DATE another Member of ORG submitted a proposal for an amendment to sections CARDINAL and CARDINAL of ORG Bill . While the previous versions of the PERSON submitted by the Government ( on DATE and CARDINAL DATE ) provided that the term of office of the court executives appointed before DATE would last until the date fixed at the time of their appointment , this last mentioned amendment provided for an exception . It sought to terminate ex lege the mandate of the President and Vice - President of ORG . The reasoning of the proposal read as follows :

“ The aim of this proposal for an amendment , submitted before the final vote , is to ensure the compliance of consolidated PERSON T/CARDINAL/CARDINAL , by amending its transitional provisions , with LAW , having regard to PERSON . PERSON on LAW XX of DATE on LAW and also to PERSON . PERSON on LAW , both submitted to ORG . ”

On DATE ORG adopted both ORG Bill ( as Act CLXI ) and LAW ) PERSON ( as LAW ) , with the content described above .

On DATE LAW Law Bill was adopted without amendment . LAW were published in ORG on DATE .

As a consequence of the entry into force of all these constitutional and legislative amendments , the applicant ’s mandate as President of ORG terminated on DATE , DATE before its expected date of expiry .

The applicant remained in office as president of a civil - law division of the GPE .

NORP In order for a new president to be elected to the GPE in due time , LAW of DATE , adopted on DATE , see paragraph CARDINAL above ) entered into force on DATE . On CARDINAL DATE ORG Bill was amended , and an additional criterion for the election of the new president of the PERSON was introduced . This provided that he or she would be elected by ORG from among the judges appointed for an indeterminate term and having served DATE as a judge ( section CARDINAL ) of Act CLXI of DATE see Relevant Domestic Law below ) . On DATE the President of the Republic proposed that ORG elect PERSON as President of the GPE and PERSON as President of ORG . On DATE ORG elected those candidates , in line with the proposal by the President of the Republic .

Firstly , the applicant lost the remuneration and other benefits ( social security , presidential residence , personal protection ) to which a president of ORG was entitled throughout the period of the fixed presidential term .

Secondly , the legislation dealing with certain post - term benefits for outgoing presidents of ORG ) was repealed as from DATE . Section CARDINAL ) of ORG ( as amended on DATE , in force from DATE ) supplemented this abrogation , and stipulated that the repealed legislation would be applied to any former president of ORG only to the extent that he or she was entitled to the allowance specified in sections CARDINAL ) and CARDINAL ) ( pension supplement for life ) , had reached retirement age at the time of the entry of force of the LAW and had requested the allowance . Since the applicant had not attained retirement age by DATE , he could not claim payment of that post - function benefit .


Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant was charged in absentia with accessory to murder and his name was put on the wanted list .

On DATE ORG of GPE issued a detention order against the applicant in absentia .

On DATE the applicant reported to the police station where he was arrested .

On DATE ORG remanded the applicant in custody . In particular the court held , as follows :

“ ... [ the applicant ] is suspected of having committed an extremely serious offence entailing PERCENT custodial sentence or life imprisonment . As it has been established that during investigation [ the applicant ] stated that he intended to leave GPE and talked on the phone with a person living in GPE ... , if released , [ the applicant ] might abscond , commit another offence , and threaten witnesses or other parties to criminal proceedings , destroy evidence or in any other way interfere with the investigation ... ” .

On DATE ORG extended the applicant ’s pre - trial detention on the following grounds :

“ [ The applicant ] is accused of an extremely serious offence entailing CARDINAL years’ imprisonment . The case materials contain evidence confirming his involvement in crimes . Moreover , ... he may abscond or , if released , commit other crimes . These circumstances existed as of the date of [ the applicant ’s ] placement into custody and have not changed at the present time . ... Taking into account that it is necessary to conduct numerous investigative activities , the court shall grant the investigator ’s request [ to extend the applicant ’s detention ] ” .

The applicant remained in detention pending investigation and trial . The courts extended his detention , using the above formula . The courts referred also to the applicant ’s family status , personality , state of health , possibility to put pressure on witnesses and interfere with the investigation , absence of job . In particular , on DATE the court held as follows :

“ ... taking into account the personality of the accused , his family status , state of health and other circumstances , the court shall grant the investigator ’s request and extend [ the applicant ’s ] detention ” .

The applicant lodged appeals against some detention orders but the courts rejected them .

On DATE the applicant was additionally charged with membership in a criminal gang , CARDINAL counts of unlawful transportation of fire arms and ammunition , attempted murder and murder .

NORP In DATE the applicant , along with CARDINAL co - defendants , was committed to stand trial before ORG .

On DATE the applicant was released .

On DATE ORG acquitted the applicant of all charges and held that the applicant be informed of the right to rehabilitation .

On DATE ORG of GPE upheld the judgment of DATE on appeal .

The applicant brought a claim against ORG seeking compensation for pecuniary damage ( legal expenses ) .

On DATE , ORG awarded the applicant MONEY as reimbursement of legal fees .


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

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law .


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Split . He was represented before the ORG by Mr J. Franceschi , a lawyer practising in Split .

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

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

The applicant was a senior military officer in ORG , holding the rank of brigadier .

On DATE an investigating judge of ORG ( PERSON ) opened a criminal investigation against the applicant and another individual on suspicion of abuse of power and authority related to the unlawful misappropriation of goods .

The applicant appealed against the investigating judge ’s decision before a CARDINAL - judge panel of ORG . On DATE the panel dismissed his appeal and upheld the investigating judge ’s decision on opening an investigation into his alleged abuse of power and authority .

On DATE the competent military prosecutor indicted the applicant in ORG ( PERSON ) on the grounds that the opening of a criminal investigation against him suggested that there was a reasonable suspicion that he had committed a criminal offence which could be prosecuted ex officio , which in itself amounted to a disciplinary offence under LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the ORG found the applicant guilty under section CARDINAL of LAW because there was a reasonable suspicion that he had committed an offence for which criminal proceedings had been instituted and sentenced him to a reduction in rank .

On DATE , on appeal by the military prosecutor , ORG ( PERSON vojnostegovni sud ) , as the appellate court , upheld the applicant ’s disciplinary conviction and dismissed him from military service .

After the completion of the criminal investigation by the investigating judge of ORG , on CARDINAL DATE the ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u ORG ) indicted the applicant and another individual in ORG ( PERSON ORG ) on charges of abuse of power and authority .

On DATE the Split Municipal State Attorney ’s ORG dropped all charges against the applicant owing to a lack of evidence and on DATE ORG dismissed the charges against him .

On DATE , following the dismissal of the charges against him in the criminal proceedings , the applicant sought to reopen the disciplinary proceedings before ORG . He argued that the criminal charges against him had been dismissed , which warranted a re - examination of his disciplinary conviction .

On DATE the Higher Military Disciplinary Court dismissed the applicant ’s application on the grounds that the dismissal of the charges against him in the criminal proceedings could not lead to a reopening of the disciplinary case .

The applicant challenged that decision before ORG ( Upravni sud PERSON ) . He submitted that the competent prosecutor in the criminal proceedings had dropped the charges against him , which suggested that the suspicion of him committing a criminal offence had been unjustified . In his view , the final judgment of the criminal court to dismiss the charges against him had amounted to a new fact which had shown that there had been no reasonable suspicion that he had committed an offence . Accordingly , ORG refusal to reopen the case had deprived him of an effective means to challenge his unjustified dismissal from military service .

On DATE ORG dismissed the applicant ’s complaints as ill - founded , upholding the decisions of the lower disciplinary bodies .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , relying on LAW ( right to appeal ) , LAW ( presumption of innocence ) , LAW ( right to a fair trial ) , and LAW ) . He submitted that his disciplinary conviction and dismissal from military service had been based solely on the fact that he had been under criminal investigation . In his view , that had been unreasonable , particularly because all the charges against him had been dismissed in the subsequent criminal proceedings . The applicant thus contended that the disciplinary case should have been reopened and re - examined in order to remove the effects of the disciplinary conviction , in accordance with the principle of the presumption of innocence . However , given that his request to reopen the disciplinary proceedings had been dismissed , the applicant considered that there had been a violation of his constitutional rights to an effective appeal , a fair trial , the presumption of innocence and not be prosecuted and punished twice for the same offence .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible on the grounds that a case on reopening proceedings did not involve a determination of the applicant ’s rights and obligations .

The relevant provision of LAW ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE and CARDINAL/CARDINAL ) , reads as follows :

“ Everyone has the right to respect for and the legal protection of his or her private and family life , dignity , reputation and honour . ”

The relevant provision of LAW ( Zakon o službi u oružanim snagama PERSON , ORG no . ORG , CARDINAL and CARDINAL ) which was applicable at the time , provided as follows :

“ Disciplinary offences are :

- the commission of a criminal offence which can be prosecuted ex officio , or the existence of a reasonable suspicion that such an offence has been committed , ... ”