issued by the Registrar of the Court

ECHR 061 (2017)

14.02.2017

Judgments of 14 February 2017

The European Court of Human Rights has today notified in writing 19 judgments¹:

six Chamber judgments are summarised below; separate press releases have been issued for two

other Chamber judgment in the cases of Maslova v. Russia (application no. 15980/12) and S.K. v.

Russia (no. 52722/15);

11 Committee judgments, concerning issues which have already been submitted to the Court, can be

consulted on Hudoc and do not appear in this press release.

The judgments in French below are indicated with an asterisk (*).

Hokkeling v. the Netherlands (application no. 30749/12)

The applicant, Albert Johannes Hokkeling, is a Dutch national who was born in 1947. At the time

when his application was submitted, Mr Hokkeling was serving a prison sentence in Oslo, Norway,

for drugs offences. The case concerned his complaint about not being able to attend in person an

appeal hearing in a criminal case against him in the Netherlands.

Mr Hokkeling was convicted at first instance in May 2007 of involvement in kidnapping and torture

and of drugs trafficking. He was sentenced to four years and six months’ imprisonment. He was

released in March 2009 after having served two-thirds of his sentence.

Both Mr Hokkeling and the prosecution appealed against the first-instance judgment. The appeal

hearing on the case was adjourned on numerous occasions before being resumed on 18 May 2009.

A further adjournment was ordered, however, since more witnesses were to be heard at the request

of the defence. The hearing was resumed again on 27 October 2009. Mr Hokkeling, in the meantime

released, had been arrested three weeks earlier in Norway on suspicion of importing drugs and

could not attend. His counsel therefore asked that he be brought to the Netherlands. Neither

extradition nor temporary transfer under the European Convention on Mutual Assistance in Criminal

Matters proved possible and the next hearing in the case on 1 June 2010 went ahead without

Mr Hokkeling. The Court of Appeal declined to adjourn its hearing until he could be present, despite

counsel’s request. It notably found that: he had brought it on himself that he could not now attend

the appeal hearing; that he had had the opportunity to express his views at first instance, to attend

all the appeal hearings before his arrest in Norway and to discuss the case with his counsel who, in

any event, had been expressly authorised to defend him; and that, on balance, the interest of

bringing the case to a close within a reasonable time outweighed the suspect’s right to take part in

the hearing in person. The Court of Appeal thus gave judgment and convicted Mr Hokkeling of

complicity in causing grievous bodily harm resulting in death, abduction and transporting and

possessing hashish. It sentenced him to eight years’ imprisonment, which he served (less the time he

had already served following the first-instance conviction) following his return from Norway.

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber

judgment’s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a

panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and

deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the

Convention, judgments delivered by a Committee are final.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

In December 2011 the Supreme Court dismissed Mr Hokkeling’s appeal on points of law with

summary reasoning.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of

the European Convention on Human Rights, Mr Hokkeling complained that he had been prevented

from attending in person, alongside his counsel, the appeal hearing in his case.

Violation of Article 6 §§ 1 and 3 (c)

Just satisfaction: The Court held that the finding of a violation constituted sufficient just satisfaction

for any non-pecuniary damage suffered by Mr Hokkeling.

Martins O’Neill Pedrosa v. Portugal (no. 55214/15)

The applicant, Rafael Martins O’Neill Pedrosa, is a Portuguese national who was born in 1995 and is

currently detained in Lisbon. The case concerned his complaint about the time it had taken to

examine his appeal against a detention order.

In December 2013 criminal proceedings were initiated against Mr Martins O’Neill Pedrosa on

suspicion of, among other things, coercion and rape. He was subsequently arrested in the United

Kingdom and surrendered to the Portuguese authorities on 27 February 2015. The investigating

judge immediately remanded him in custody. Mr Pedrosa appealed that decision on 19 March 2015.

14 days later his appeal was ruled admissible by the investigating judge who also requested

observations from the public prosecutor. After receiving observations from the public prosecutor on

27 April 2015 and notifying Mr Pedrosa of them, the investigating judge ordered that the file be

submitted to the Lisbon Court of Appeal. 51 days later, on 2 July 2015, Mr Pedrosa’s appeal was

ultimately dismissed and the investigating judge’s decision to hold him in pre-trial detention was

upheld.

Relying on Article 5 § 4 (right to have lawfulness of detention decided speedily by a court), the

applicant complained that his request for a review of the lawfulness of his pre-trial detention had

not been examined within a reasonable time.

Violation of Article 5 § 4

Just satisfaction: 3,250 euros (EUR) (non-pecuniary damage)

Pătraşcu v. Romania (no. 7600/09)

The applicant, Alex Fabian Pătraşcu, is a Romanian national who was born in 1986 and lives in

Botârlău (Romania). The case concerned an allegation of police entrapment.

In February 2007 an undercover police officer approached Mr Pătraşcu in a nightclub in order to

verify information that he might have been dealing in drugs. The undercover officer reported that

Mr Pătraşcu had claimed during the encounter that he could obtain drugs and promised to call with

more details. A criminal investigation was thus opened against Mr Pătraşcu on suspicion of drug

trafficking and a covert operation was authorised. Mr Pătraşcu did subsequently call the undercover

officer to ask whether he was interested in buying ecstasy. The undercover officer also called

Mr Pătraşcu on several occasions in April and May 2007 to enquire when the transaction might take

place. Eventually, on 19 July 2007, Mr Pătraşcu called to set up a meeting for the same evening. As

the deal got underway the case prosecutor and ten police officers intervened and arrested

Mr Pătraşcu. He signed, without any objection, the offence report drafted on the spot by the police.

Mr Pătraşcu was convicted in February 2008 of drug trafficking and sentenced to six years’

imprisonment. His conviction was based entirely on the evidence gathered in the covert operation,

specifically the police reports, transcripts of the telephone conversations between the undercover

police officer and Mr Pătraşcu setting up the drug sale and recordings of conversations between the

officer and another man involved in the deal. His appeal before the Ploieşti Court of Appeal was

subsequently rejected, as was his appeal on points of law before the High Court of Cassation and

Justice.

Mr Pătraşcu’s pleas of incitement throughout those proceedings were all dismissed, because the

domestic courts considered that the evidence in the file clearly disproved any entrapment. In

particular, the courts found that there had been serious reason to suspect, on the basis of the police

reports, that Mr Pătraşcu would commit a criminal offence at the time of the authorisation of the

covert operation and that, on the basis of telephone transcripts, he had indeed initiated calls to the

undercover police officer on two occasions in order to act as intermediary in the drug deal.

Relying on Article 6 § 1 (right to a fair trial), Mr Pătraşcu alleged that the criminal proceedings

against him had been unfair, as he had been incited to commit the drugs offence by an undercover

police officer and as his ensuing conviction had been essentially based on evidence obtained by that

entrapment. He further submitted that he had never before been involved in drug transactions and

therefore the authorities had had no reasonable suspicion against him when the covert operation

had been authorised.

Violation of Article 6 § 1

Just satisfaction: EUR 2,400 (non-pecuniary damage)

Allanazarova v. Russia (no. 46721/15)*

The applicant, Nataliya Ivanovna Allanazarova, is a Turkmen national who was born in 1961 and lives

in Saratov (Russia). The case concerned a request for extradition addressed by the Turkmen

authorities to Russia in respect of Ms Allanazarova, who was wanted in Turkmenistan on fraud

charges.

On 18 July 2012 Ms Allanazarova was charged with fraud by the Turkmen authorities, who ordered

in her absence that she be held in custody and issued a warrant for her arrest. In the meantime she

had left Turkmenistan in 2012 to go to Russia, where she was arrested on 19 July 2014 and

remanded in custody there.

On 16 August 2014 the Prosecutor-General of Turkmenistan issued an extradition request to the

Russian authorities, stating among other assurances that Ms Allanazarova would not be subjected to

torture or to inhuman or degrading treatment and that she would not be discriminated against on

grounds of social situation, race, religion or origin. The request was granted by the Deputy

Prosecutor-General of Russia on 12 May 2015 and Ms Allanazarova’s appeals, arguing in particular

that her extradition would expose her to a risk of ill-treatment, were rejected.

In the meantime, on 14 August 2014, Ms Allanazarova had filed an application for refugee status,

which was rejected by the Russian Federal Migration Service, finding that there were no serious

reasons to believe that she risked persecution. On 16 October 2015 that authority nevertheless

granted her temporary refugee status for one year.

In addition, on 24 September 2015, the European Court of Human Rights granted her request for an

interim measure (Rule 39 of the Rules of Court), indicating to the Russian authorities that she must

not be extradited until the end of the proceedings before it.

Relying on Article 3 (prohibition of inhuman or degrading treatment) taken separately and together

with Article 13 (right to an effective remedy), Ms Allanazarova alleged that her extradition to her

country of origin (Turkmenistan) would expose her to ill-treatment and she complained that she did

not have an effective remedy for the purpose of making that claim to the Russian authorities.

Violation of Article 3 – in the event of Ms Allanazarova’s removal to Turkmenistan

Violation of Article 13 combined with Article 3

Interim measure (Rule 39 of the Rules of Court) – not to extradite or expel Ms Allanazarova – still in

force until judgment becomes final or until further order.

Just satisfaction: The Court held that the finding of a violation constituted sufficient just satisfaction

for the non-pecuniary damage suffered by Ms Allanazarova. It awarded EUR 2,000 for cost and

expenses.

Karakhanyan v. Russia (no. 24421/11)

The applicant, Olga Karakhanyan, is a Russian national who was born in 1973 and lives in Orenburg

(Russia). The case concerned her allegation that her husband had died in detention due to

inadequate medical care.

Ms Karakhanyan’s husband, Sergey Grabarchuk, died in May 2010 while serving an 11-year prison

sentence for robbery. The ensuing autopsy showed that he had died from HIV and tuberculosis.

Mr Grabarchuk had been diagnosed with HIV after his arrest and placement in a remand prison in

2003. He was subsequently also diagnosed with tuberculosis and transferred for seven months in

2009 to a prison hospital for treatment. According to records in his medical file (not apparently

signed by Mr Grabarchuk), treatment for his tuberculosis was stopped between 22 March and

13 April 2010 and antiretroviral therapy was not given for his HIV from 13 March 2010 until his

death. The authorities submit that treatment had been interrupted because Mr Grabarchuk had

refused it. His wife, on the other hand, claims that although her husband, who had been

misdiagnosed during his detention and lost faith in the doctors treating him, had refused to follow

certain recommendations, he had persistently requested to have the HIV treatment altered rather

than cancelled. His health drastically deteriorated in May 2010 and he died in the prison hospital,

despite his wife’s attempts to have him transferred to a civilian hospital.

A criminal inquiry was carried out into Mr Grabarchuk’s death. The investigating authorities obtained

the autopsy report and questioned two doctors who had treated Mr Grabarchuk, but in October

2011 they refused to open a criminal case. The domestic courts subsequently overruled that

decision, finding that the investigators had failed to address Mr Grabarchuk’s wife’s allegation of

deliberate indifference to her husband’s medical condition, and ordered a further investigation to

address that shortcoming. However, no investigation has apparently since followed.

Relying in particular on Article 2 (right to life), Ms Karakhanyan alleged that the authorities had been

responsible for her husband’s death because of their failure to provide him with adequate medical

care in detention and that the related investigation had been ineffective.

Violation of Article 2 (right to life)

Violation of Article 2 (investigation)

Just satisfaction: EUR 24,000 (non-pecuniary damage)

Lekić v. Slovenia (no. 36480/07)

The applicant, Ljubomir Lekić, is a Slovenian national who was born in 1956 and lives in Ljubljana.

The case concerned the striking off of a company that Mr Lekić had a share in, and his subsequent

liability for the company’s debts.

During the 1990s, Mr Lekić was a member, employee and eventually managing director of the

company L.E.. Following the death or serious injury of four key members and managers in 1993, the

company experienced serious financial difficulties. It faced a civil claim for 5,000,000 Slovenian tolars

(approximately 20,000 euros) from the Railway Company of Slovenia, on account of unpaid transport

services. However, by 1995 the company was no longer liquid or solvent. It eventually became

inactive.

In 1997 the remaining members of the company decided to apply for bankruptcy. However, the

company’s bankruptcy petition was rejected by the court, because there had been no advance

payment of the costs and expenses. The members decided that they could not incur these costs,

choosing instead to wait for the courts to liquidate the company on its own motion, which was

possible under the law at the time.

In 2000, the Railway Company obtained a judgment in its favour, which ordered L.E. to pay it the

outstanding sum.

Slovenian company legislation was changed in 1999. The power of the courts to wind up and

liquidate companies on their own motion was repealed, and instead the courts were granted the

power to strike off companies from the court register without them being wound up. Under this

procedure, companies could be dissolved without their assets being collected and used to pay

creditors. Furthermore, the members of struck-off companies would assume joint and several

liability for the companies’ debts.

In 2001, this new procedure was used to strike off L.E. from the court’s register. L.E. had ceased to

operate at its registered address (or any other premises), so no service on the company could occur.

According to Mr Lekić, he had no knowledge of the strike off.

After the strike-off, the Railway Company applied for an enforcement order against the seven

members of L.E., in relation to the judgment debt of approximately 20,000 euros with statutory

interest. It was granted an order to seize Mr Lekić’s personal possessions, which was served on him

in December 2004. Mr Lekić resisted the order in court, by lodging an objection to it and applying for

a stay of enforcement. He argued that he had not been an active member of L.E. at the relevant

time, which would have exonerated him from paying the company’s debt. The Ljubljana Local Court

rejected the claim that he had been inactive, finding that the burden was on Mr Lekić to prove that

he had not been an active member, and that he had failed to do so. It upheld the enforcement order

and refused to grant a stay of enforcement.

Mr Lekić lodged an appeal, but this was dismissed by the Higher Court of Ljubljana. The court held

that the measure of ‘lifting the corporate veil’ in such a case was consistent with the Constitution.

Mr Lekić lodged two further cassation appeals, but these were both rejected. The final decision was

made in July 2007.

In 2010 the enforcement order against Mr Lekić’s salary was executed, and a part of his monthly

salary payments were seized to pay off the debt. The following year, Mr Lekić reached a settlement

with the Railway Company, and paid the agreed amount. In total, he paid 32,795 euros to his

creditor.

Relying in particular on Article 1 of Protocol No. 1 (protection of property), Mr Lekić complained,

inter alia, that the striking-off of the company and his ensuing liability had interfered with his

property rights and had amounted to an unlawful deprivation of property.

No violation of Article 1 of Protocol No. 1

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