issued by the Registrar of the Court

ECHR 356 (2017)

23.11.2017

Judgments and decisions on 23 November 2017

The European Court of Human Rights has today notified in writing six judgments¹and 11 decisions²:

four Chamber judgments are summarised below; a separate press release has been issued for one

other Chamber judgment in the case of Haarde v. Iceland (application no. 66847/12);

separate press releases have also been issued for two decisions, in the cases of Kokkonis and

Chalilopoulou v. Greece (nos. 76386/11 and 76408/11) and Domján v. Hungary (no. 5433/17);

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

the nine remaining decisions, can be consulted on Hudoc and do not appear in this press release.

The judgments below are available only in English.

Just Satisfaction

Chengelyan and Others v. Bulgaria (application no. 47405/07)

The applicants are seven Bulgarian nationals born between 1927 and 1988. Five of them live in

Plovdiv (Bulgaria), one of them lives in the United States. One applicant, who died in 2014, lived in

Burgas (Bulgaria); her heirs have pursued the application on her behalf. The case dealt with the

question of just satisfaction following a judgment by the European Court of Human Rights

concerning the applicants’ complaint about a final judgment in their favour not having been

respected by the domestic courts.

Ancestors of the applicants had owned a plot of land in the old part of Plovdiv with a two-storey

house built on it, which had been expropriated in 1966 and the applicants’ ancestors had received

compensation. Following the adoption of a Restitution Act in 1992, some of the applicants applied

for the revocation of the expropriation. Initially the mayor refused their application, the decision

being upheld by the regional court. However, in a final judgment of October 1998 the Supreme

Administrative Court reversed the decision, finding that the expropriation and subsequent use of the

property had been in breach of the law. The applicants subsequently paid back to the municipality

the compensation received by their ancestors at the time; they also obtained a notarial deed which

named the applicants as the property’s owners.

The applicants could not take possession of the property, which was being used by the municipality.

After unsuccessfully attempting to negotiate an agreement they brought proceedings against the

municipality in order to have the restitution enforced. Their action was dismissed by a final

judgment of the Supreme Court of Cassation in June 2007 which found that the 1998 judgment was

open to indirect judicial review, in particular because the municipality had not participated in the

earlier proceedings and therefore was not bound by that judgment.

In its judgment on the merits of 21 April 2016 the Court found a violation of Article 6 § 1 (right to a

fair hearing) of the European Convention on Human Rights on account of the domestic courts’

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

Inadmissibility and strike-out decisions are final.

failure to recognise the binding force of the Supreme Administrative Court judgment of October

1998, and a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention.

Today’s judgment concerned the question of the application of Article 41 (just satisfaction) of the

Convention, in so far as pecuniary damage was concerned.

Just satisfaction: EUR 462,000, in respect of pecuniary damage, to be distributed among the

applicants in accordance with their shares of the inheritance; and EUR 675, in respect of costs and

expenses, to be paid to Mr Kamer Barkev Shirin.

Grba v. Croatia (no. 47074/12)

The applicant, Zoran Grba, is a national of Bosnia and Herzegovina who was born in 1965 and lives in

Sarajevo. The case concerned his complaint about police entrapment.

In July 2008 an investigating judge from Pula County Court (Croatia) authorised special investigative

measures against Mr Grba – who was suspected of supplying counterfeit banknotes in Croatia –

namely tapping his telephone, covertly monitoring him using undercover agents, and conducting a

simulated purchase operation. In November 2008 the use of such measures was extended for one

month by order of the judge. On four occasions between August and November 2008 Mr Grba sold a

total of over 800 counterfeit 100 euro notes to undercover police officers. He was arrested in

November 2008 and remanded in custody on charges of currency counterfeiting. During the court

proceedings he pleaded not guilty with regard to three instances of the alleged sale of counterfeit

notes but conceded that he was responsible for having “given in to the inducement” by the police on

the last occasion in November 2008.

In May 2009 he was convicted as charged and sentenced to five years and six months’

imprisonment. At the same time the trial court ordered his expulsion from Croatia. Mr Grba

challenged the judgment before the county court arguing, in particular, that the circumstances of his

entrapment by the police had not been properly examined. The county court quashed the judgment

and remitted the case for re-examination. In April 2010 the trial court again convicted him as

charged and gave him the same sentence. Mr Grba again challenged the judgment, notably

submitting that the orders for the use of the measures in question had not been adequately

reasoned and that there had been no reason to continue with the use of simulated purchases after

the first illicit transfer. The county court upheld the first-instance judgment. Mr Grba’s request for

extraordinary review before the Supreme Court and his constitutional complaint were also

dismissed, the latter by decision of December 2011.

Relying on Article 6 § 1 (right to a fair trial) and Article 8 (right to respect for private and family life,

the home and the correspondence), Mr Grba complained in particular of entrapment by agents

provocateurs and unlawful secret surveillance.

Violation of Article 8

Violation of Article 6 § 1 - as regards Mr Grba’s plea of entrapment

Just satisfaction: EUR 1,500 (non-pecuniary damage) and EUR 6,800 (costs and expenses)

Tadić v. Croatia (no. 10633/15)

The applicant, Ivica Tadić, is a Croatian national who was born in 1969 and lives in Zagreb. The case

concerned his allegation of excessive use of force by the police.

On 20 December 2012 Mr Tadić was caught by two police officers when attempting to rob an

exchange office in Zagreb. He fell when running away and the police officers arrested him, using an

armlock. He was escorted to the police station, but later the same evening had to be taken to

hospital as he was complaining that his shoulder hurt. He told a doctor there that he had fallen

during his arrest. He had an X-ray which revealed that he had a broken shoulder. This injury was

subsequently confirmed – as well as a broken arm – during surgery. He eventually ended up having

an artificial shoulder implanted.

In May 2013 an internal police inquiry concluded in a report that the use of force against Mr Tadić

had had a basis in law and had been justified. In particular he had fallen while trying to flee and had

then resisted arrest, forcing the officers to use an armlock. The report relied on statements taken

from Mr Tadić and the police officers. During this inquiry, in February 2013, the police sent their

internal report about the incident, as well as Mr Tadić’s medical record, to the prosecuting

authorities.

A year and a half later Mr Tadić lodged a criminal complaint, alleging that two police officers had hit

and kicked him while lying on the ground during his arrest. However, on being interviewed by the

prosecuting authorities he said that none of the officers had beaten him during his arrest, but

confirmed that they had used an armlock and broken his arm. The accused officers also gave

statements, denying any excessive use of force. Two eyewitnesses to the arrest, one an employee at

the exchange office, said that they had not seen the police officers hitting or kicking Mr Tadić. The

investigation is currently still pending.

Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Tadić alleged that the

police had ill-treated him and that the ensuing investigation into his allegations had been ineffective.

No violation of Article 3 (treatment)

Violation of Article 3 (investigation)

Just satisfaction: EUR 5,000 (non-pecuniary damage) and EUR 2,000 (costs and expenses)

Kitiashvili v. Georgia (no. 37747/08)

The applicant, Zakaria Kitiashvili, is a Georgian national who was born in 1977. The case essentially

concerned his complaint about inadequate medical care in prison. He was granted early release from

prison in November 2012.

Mr Kitiashvili entered the prison system in 2006 with a history of tuberculosis. He was tested for the

disease during his detention on a number of occasions, before being diagnosed at the end of 2008

with recurrent tuberculosis. He was immediately enrolled in a programme as recommended by the

World Health Organisation and, a few months later, transferred to a facility in Ksani for prisoners

with tuberculosis. He was however sent back to a prison in Rustavi for violating internal discipline

and continued treatment for tuberculosis there.

He also developed a number of other ailments during his detention, including a cyst in his right

testicle and an abscess in his lower jaw, and had operations for both in 2008, spending periods in

prison hospital. Around the same time, he was also seen by a neurologist as he was experiencing

headaches and, although unsuccessful, had several treatments prescribed to him. He staged two

hunger strikes in protest against the prison authorities’ reluctance to take his headaches seriously

and also raised the problem with representatives of the Public Defender. He was finally diagnosed

with intracranial hypertension syndrome in 2009 and prescribed treatment.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), Mr Kitiashvili

notably complained about the authorities’ failure to diagnose him in good time with recurrent

tuberculosis and the consequent late starting in his treatment; he also alleged that his treatment for

his other health conditions had been inadequate.

No violation of Article 3