issued by the Registrar of the Court

ECHR 078 (2017)

07.03.2017

Judgments of 7 March 2017

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

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

other Chamber judgments in the cases of Polyakova and Others v. Russia (applications

nos. 35090/09, 35845/11, 45694/13, and 59747/14) and V.K. v. Russia (no. 68059/13);

one Committee judgment, concerning issues which have already been submitted to the Court, can

be consulted on Hudoc and does not appear in this press release.

The judgments below are available only in English.

R.L. and Others v. Denmark (application no. 52629/11)

The applicants, M (the first applicant), F (the second applicant), L, and S, are Danish nationals who

were born in 1965, 1951, 2004, and 2006 respectively and live in Copenhagen. The case concerned

the paternity of the second applicant in relation to L and S.

The first and second applicants married in 2001. In 2004, the first applicant gave birth to a boy, L. As

the second applicant was married to the first applicant, he was registered as L’s father. In 2005 the

first and second applicants legally separated. However, they continued to legally cohabit until June

2006.

In October 2006 the first applicant gave birth to another boy, S. Although the second applicant no

longer lived with the first applicant, and had had no sexual contact with her since 2004, he

submitted a signed declaration to the State Administration for Greater Copenhagen, co-signed by

the first applicant, which stated that together they would take care of and be responsible for S.

Consequently, the second applicant was registered as the father of S.

Without the knowledge of the second applicant, between 2003 and 2008 the first applicant had

been having a relationship with another man, E. When that relationship ended in October 2008, the

first applicant told the second applicant that E was the biological father of S and probably also of L.

The applicants then submitted a formal request that both paternity cases be reopened in order to

formally establish E’s fatherhood of the children. The request was refused by the State

Administration. The applicants then brought their request before the City Court. The reopening was

opposed before the court by E. The children L and S were represented by counsel, who also opposed

the reopening. The first and second applicants submitted that E’s fatherhood and responsibility for

the children should be recognised. E stated that he did not wish to take on the role of being the

children’s father.

In February 2010, the City Court in Copenhagen decided to reopen the paternity cases in relation to

both children, finding that this would be in the overall interests of the children and the union of the

family. E appealed to the High Court of Eastern Denmark. In November 2010 the High Court refused

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

to reopen the paternity cases. Subsequently, the second applicant took a DNA test, which

established that he was not the father of either L or S.

The first and second applicants requested leave to appeal to the Supreme Court, but this was

refused in January 2011.

Relying on Article 8 (right to respect for private and family life) of the European Convention on

Human Rights, the applicants complained that the evidence submitted before the domestic courts

had shown that E. had been the biological father of L and S, and that therefore the paternity cases

should have been reopened, as found by the City Court.

No violation of Article 8

Baczúr v. Hungary (no. 8263/15)

The applicant, István Baczúr, is a Hungarian national who was born in 1958 and lives in Nagykozár

(Hungary). Relying in particular on Article 1 of Protocol No. 1 (protection of property) to the

European Convention, he complained of a significant decrease in the benefit he had received on

account of his reduced capacity to work.

Following the enactment of Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced

Work Capacity, Mr Baczúr applied for disability benefit. He had previously been receiving a net sum

of HUF 156,585 per month (approximately EUR 510) as a rehabilitation allowance, on account of a

50% loss of his capacity to work. Following an assessment under the new law, his state of health was

rated at 46%, and from 1 July 2012 onwards he was provided with only HUF 41,850 per month (later

raised to HUF 55,800 - approximately EUR 140). His attempts to challenge the decision in court

failed. The new rate of payment lasted until 2014, when a further legislative amendment made Mr

Baczúr entitled to a payment of HUF 159,100 per month (approximately EUR 520), retroactively

applicable as of 1 January 2014.

Mr Baczúr complained that the drastic decrease in his monthly disability allowance, which had

prevailed between 1 July 2012 and 31 December 2013, had amounted to an unjustified deprivation

of possessions in view of the fact that his underlying medical condition had not changed.

Violation of Article 1 of Protocol No. 1

Just satisfaction: 5,000 euros (EUR) (pecuniary damage), EUR 5,000 (non-pecuniary damage) and

EUR 9,000 (costs and expenses)

Stanka Mirković and Others v. Montenegro (nos. 33781/15, 33785/15,

34369/15 and 34371/15)

The applicants, Stanka Mirković, Darinka Marjanović, Igor Mirković, and Oliver Mirković, were born

in 1939, 1931, 1961, and 1963 respectively and live in Belgrade and Pljevlja (Montenegro). Stanka

Mirković and Oliver Mirković are Montenegrin nationals; Darinka Marjanović and Igor Mirković are

Serbian nationals. The case concerned the length of civil proceedings that they had all been

involved in.

In December 2004 Igor and Oliver Mirković filed a request with the Restitution and Compensation

Commission, seeking compensation for land expropriated from their legal predecessor in 1946. Ms

Mirković and Ms Marjanović made statements waiving their rights in respect of the property.

On 28 August 2005 the Commission ruled in favour of Igor and Oliver Mirković.

However, in October 2005 the Ministry of Finance quashed that decision upon an appeal filed by the

Supreme State Prosecutor. In April 2006 the Commission issued a new decision, awarding

compensation to all of the applicants on the grounds that they were all heirs of the legal

predecessor. In so doing, it examined the waiver statements of Ms Mirković and Ms Marjanović

made in 2005, but considered that they were not valid.

Between June 2006 and March 2014 the competent second-instance administrative body (firstly the

Ministry of Finance and later the Appeals Commission) and the Administrative Court, before which

the case was first brought in 2006, issued sixteen decisions on the matter in total (eight decisions

each). The Administrative Court never ruled on the merits of the initial compensation request, but

instead quashed or upheld the quashing of the first-instance decision of the Commission. Its last

decision was issued in March 2014, in substance remitting the case once again to the Commission.

The Supreme Court upheld the Administrative Court’s decision in June 2014.

The applicants each lodged a constitutional appeal. In October 2014 the Constitutional Court

rejected the applicants’ constitutional appeals as premature, given that the Commission was still

considering their compensation request. However, in December 2015 the court issued another

decision, dismissing the applicants’ constitutional appeals. On 31 March 2016, at a hearing before

the Commission, the proceedings were adjourned at the applicants’ request until this Court ruled on

their applications.

Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an

effective remedy), the applicants complained of the overall length of the administrative proceedings,

owing to the case being repeatedly remitted.

Violation of Article 6 § 1

Violation of Article 13

Just satisfaction: EUR 1,560 to Oliver Mirković and EUR 1,560 jointly to Stanka Mirković, Darinka

Marjanović and Igor Mirković (non-pecuniary damage), and EUR 625 to all four applicants jointly

(costs and expenses)

Kamenov v. Russia (no. 17570/15)

The applicant, Murat Kamenov, is a Kazakh national who was born in 1968 and lives in Zhangala,

Kazakhstan. The case concerned his exclusion from Russia.

In 2000 Mr Kamenov moved from Kazakhstan to Russia, where he married a Russian citizen. The

couple had two daughters, and settled in Slantseviy Rudnik in the Saratov Region. Mr Kamenov lived

in Russia under regularly extended temporary residence permits. In August 2013 the Department of

the Federal Migration Service granted him a three-year residence permit, which was valid until

August 2016.

However, upon returning from a visit to Kazakhstan in April 2014, Mr Kamenov was denied re-entry

into Russia. He was informed that he was banned from re-entering Russia until January 2030, on the

basis of a report from the Federal Security Service.

Mr Kamenov lodged an appeal against the exclusion order, complaining that the measure had

adversely affected his family life. The case was examined by the Saratov Regional Court. According to

the court it was able to “review” the FSS report which served as the basis for the exclusion.

However, neither Mr Kamenov nor his representative were allowed to see the report, and they were

refused information about why the exclusion had been put in place. When asked about the basis for

the ban, the FSS’s representatives replied that the reasons could not be disclosed in the interests of

State security, and that the information was a state secret.

The Regional Court upheld Mr Kamenov’s exclusion, citing the threat to national security, and stating

that the public interest prevailed over the private interest of Mr Kamenov. Mr Kamenov appealed to

the Administrative Cases Chamber of the Supreme Court of the Russian Federation. However, in

December 2014 the court upheld the decision made at first-instance.

Relying in particular on Article 8 (right to respect for family life), Mr Kamenov complained that the

exclusion order and the re-entry ban imposed on him had violated the right to respect for his

family life.

Violation of Article 8

Just satisfaction: EUR 12,500 (non-pecuniary damage) and EUR 2,390 (costs and expenses)

Cerovšek and Božičnik v. Slovenia (nos. 68939/12 and 68949/12)

The applicants, Silvo Cerovšek and Štefan Božičnik, are Slovenian nationals who were born in 1962

and 1946 respectively and live in Bizeljsko and Artiče (Slovenia). The case concerned the fairness of

their criminal convictions for theft.

The applicants were both charged with separate instances of theft by cutting down and taking trees

from a forest belonging to another person, and appropriating the wood. They were both tried by a

professional judge, A.K., sitting as a single judge. The judge found both Mr Cerovšek and Mr Božičnik

guilty in oral verdicts delivered in June and July 2007. The applicants were ordered to pay the victims

compensation, and sentenced to six and seven months’ imprisonment, respectively, which in both

cases was suspended for three years.

Both applicants gave notice of their intention to appeal. This gave rise to an obligation on the part of

Judge A.K. to draw up written grounds for her verdicts. However, the judge then retired. In 2010 two

different judges delivered written grounds for A.K.’s original verdicts, setting out the reasons for the

defendants’ conviction and sentence.

The applicants appealed against the judgments, complaining that the fairness of the proceedings had

been undermined by the fact that the grounds for their convictions had been provided by judges

who had not participated in the trial and had not convicted them. However, the appeals were both

dismissed by the Ljubljana Higher Court – as were further applications for the protection of legality

made by the applicants to the Supreme Court. The applicants made constitutional complaints about

the judgments to the Constitutional Court, but the court refused to admit these on 3 April 2012.

Relying on Article 6 § 1 (right to a fair trial), the applicants complained that their right to a fair trial

had been violated because the reasons for the convictions had been given by judges who had not

reached the verdict and had not participated in the trial.

Violation of Article 6 § 1

Just satisfaction: EUR 5,000 each Mr Cerovšek and Mr Božičnik (non-pecuniary damage), and

EUR 2,500 each (costs and expenses)

Döner and Others v. Turkey (no. 29994/02)

The applicants are 20 Turkish nationals born between 1953 and 1983. At the time of the events

giving rise to the present application, the applicants lived in Istanbul and their children attended

different public elementary schools. The case concerned the criminal proceedings brought against

them for aiding and abetting the PKK (Workers’ Party of Kurdistan), after the applicants had

submitted petitions requesting that their children be taught in Kurdish.

In December 2001, all but one of the applicants submitted petitions to the Bağcılar, Esenler and

Kadıköy Education Directorates with a request for their children to be provided with education in

Kurdish. It appears that similar petitions were submitted by other parents of Kurdish origin at the

time.

Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the

Istanbul Security Directorate carried out a simultaneous search of the properties of 40 people,

including the applicants, on the grounds that the petitions they had submitted had been made on

the instructions of the PKK. No illegal material was found in the applicants’ homes, but they were all

arrested and taken into police custody. When questioned, two of the applicants denied sending the

petition. The remaining applicants admitted sending the petition but denied any affiliation with the

PKK, stating that their motive had been the desire for their children to be taught in Kurdish.

On 17 January 2002 all the applicants were released, after a hearing before a judge at the Istanbul

State Security Court. The public prosecutor filed an objection about the decision. On the following

day the Istanbul State Security Court upheld the public prosecutor’s objection in respect of seven of

the applicants, and ordered their arrest. Three of the applicants were arrested on 19 January, and

held in custody until a court ordered their release on 12 February 2002.

In the meantime, the public prosecutor issued an indictment against 38 suspects, including all but

one of the applicants, accusing them of aiding and abetting an armed organisation. The accused

were said to have assisted the PKK by participating in its strategy of carrying out non-violent acts of

civil disobedience, aimed at leaving the State in a difficult position in the international arena.

In May 2003 the Istanbul Security Court acquitted all of the accused, because on the facts none of

the elements of the crime had been present in their actions and there was no other evidence to

support the allegations brought against them.

The applicants complained in particular under Article 5 §§ 3 and 4 (right to liberty) that they had not

been brought promptly before a judge, and that there had not been any effective remedies to

challenge the lawfulness of their arrest and detention. They also complained under Article 5 § 5 that

they had had no right to compensation under domestic law in respect of those complaints. Lastly,

relying in substance on Article 10 (freedom of expression), they maintained that they had been

subjected to criminal proceedings for using their constitutional right to file a petition, despite the

absence of any provisions in domestic law criminalising such conduct.

Violation of Article 5 §§ 3, 4 and 5 – in respect of all the applicants

Violation of Article 10 – in respect of all the applicants, except Yılmaz Yavuz

Just satisfaction: EUR 6,500 to Yılmaz Yavuz and EUR 10,000 to each of the 19 other applicants (non-

pecuniary damage), and EUR 3,000 to the 20 applicants jointly (costs and expenses)

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.