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CoAStaL NLP Group 28

[ "4. The applicant was born in 1958 and is detained in Yuzhno‑Sakhalinsk, Sakhalin Region.", "5. The applicant was accused of three counts of aggravated sexual assault and one count of being an accessory to traffic safety violation causing death of two or more persons. During the pre-trial investigation against him he was released on an undertaking not to leave his place of residence.", "6. On 4 June 2007 the applicant did not appear at the preliminary hearing scheduled by the Yuzhno-Sakhalinskiy Town Court and the Town Court ordered the applicant’s detention instead of his undertaking not to leave the place of residence. The detention order contained no time-limits. The relevant part of the order read as follows:\n“The preliminary hearing was scheduled by the court for 29 May 2007...\nThe accused Kashpruk V.A. duly notified of the hearing did not appear and submitted to the court a copy of a medical record certifying that he undergoes treatment in the MUZ 4 [a hospital].\nIn order to verify this information the hearing was adjourned until 31 May 2007. The accused was duly notified of it.\nHowever, once again he did not appear for the hearing and on 1 June 2007 informed the court that between 29 May and 7 June 2007 he is undergoing medical treatment and ... cannot participate in the hearings.\nThe preliminary hearing was adjourned until 4 June 2007 and the accused was duly notified of it, however he did not appear without presenting any reasons for his absence.\nAccording to the certificate provided by the chief physician of the MUZ 4 the accused is indeed undergoing treatment for upper respiratory tract infection [but] his health condition does not prevent his participation in the court hearings.\nThis information is coherent with the written statement of the a judge of the [Town Court], which indicates that Kashpruk took part in a hearing on 29 May 2007, where he acted as a defense counsel for Mr R., ... and the testimony of the justice of the peace... that on 31 May 2007 Kashpruk consulted the administrative case file against Mr L., Mr B., and Mr K.\nIn view of these circumstances the prosecutor submitted a motion for [detention of the applicant].\nThe defense counsel Mr M., appointed by the court, disagreed...\nAs it had been established in the court hearing Kashpruk is accused of grave offences. [He had been] previously convicted. [His] character references are mostly negative, he is characterized as inclined to violate lawful requirements imposed on him.\nThe impossibility to take part in the hearing is disproven by the actions of the accused, who actively takes part in court hearings representing other persons.\n[The applicant was informed multiple times about an obligation to take part in court hearings and about consequences of the failure to do so]\nUnder these circumstances the failure of the applicant to appear for the scheduled hearings is considered by the court as wilful obstruction to proceedings in the criminal case...”", "7. On 6 June 2007 the applicant appealed against the order.", "8. On 8 June 2007 he was arrested and remanded in custody.", "9. On 15 June 2007 the applicant’s appeal was sent to the other party.", "10. On 19, 20, 21, 22 and 25 June 2007 the applicant complemented his appeal.", "11. On 20, 21, 25 and 26 June 2007 the Town Court sent the applicant’s additional pleadings to the other party.", "12. On 26 June 2007 the Town Court transmitted the case file to the Regional Court.", "13. On 28 June 2007 the Regional Court notified the parties about the date of the hearing scheduled for 18 July 2015.", "14. On 2 July 2007 the applicant lodged an application for release which was examined and rejected on 9 July 2007. The Town Court refused to examine the applicant’s arguments concerning the deficiencies of the detention order of 4 June 2007 pending the appeal of the latter. It further rejected as unsubstantiated the applicant’s argument relating to his medical condition.", "15. On 3, 10 and 12 July the applicant complemented again his appeal.", "16. On 5 and 16 July 2007 the applicant’s complementary appeals were sent to the other party.", "17. On 18 July 2007, that is one month and eleven days later, the Sakhalin Regional Court quashed the detention order on appeal and released the applicant. The Regional Court found that the first-instance court failed to comply with the procedure prescribed by Article 247 of the Code of Criminal Procedure providing that a measure of restraint cannot be modified if no such measure had previously been ordered.", "18. On 26 July 2007 the applicant was placed under an undertaking not to leave his place of residence." ]

[ 2 ]

[ "5. The applicant was born in 1955 and lives in Wieliczka.", "6. The applicant’s brother J.K. worked as a night guard at a bus terminus in Cracow. On 12 November 2003, at around 4 a.m., his clothes caught fire. Drivers at the station raised the alarm and managed to extinguish the fire. J.K. was subsequently taken to hospital. However, because of his serious injuries he died on 26 November 2003.", "7. On 31 December 2004 the Cracow district prosecutor discontinued the investigation into the circumstances of J.K.’s death. During the investigation it was established that J.K. must have either fallen asleep or fainted and that his clothes had caught fire when they came into contact with an electric heater. The prosecutor concluded that it had been an unfortunate accident and that no offence had been committed.", "8. On 24 January 2005 the applicant appealed. He argued that the prosecution authorities had failed to establish the circumstances of his brother’s death. He submitted that witnesses had given different versions of the events. In addition it had not been established how J.K’s clothes could have caught fire and where the electric heater had been placed. He further stressed that J.K. had suffered from serious diabetes and should not have been allowed to work night shifts.", "9. On 25 May 2005 the Chief Inspector of the Małopolska Regional Command, in reply to the applicant’s complaint, stated that the investigation into the circumstances of J.K.’s death had indeed been too long. The officer in charge had already been disciplined.", "10. On 22 August 2005 the applicant again complained to the Cracow Regional Prosecutor about delays in the proceedings. Subsequently, on 19 October 2005 he complained to the Cracow appellate prosecutor about the fact that he had not received any reply from the Regional Prosecutor.", "11. On 21 November 2005 the Cracow appellate prosecutor confirmed that the proceedings had indeed been too long. He further informed the applicant that the Regional Prosecutor had been reproached for not having replied to his complaint in a timely manner.", "12. On 29 November 2005 the Cracow district prosecutor reopened the investigation into the circumstances of J.K.’s death.", "13. On 22 April 2005 the applicant complained about the actions taken by the police officers on 12 November 2003. He alleged that they had failed to perform their duties, to properly secure the place in which his brother had died and that they had fabricated false evidence in order to direct the prosecution against other persons and obstructed the proceedings.", "14. Following the applicant’s complaint referred to above, on 30 December 2005 the Cracow district prosecutor decided to sever the charges against the police officers responsible for securing the evidence on the day of J.K.’s accident and to deal with them in a separate set of proceedings (see section B).", "15. On 28 November 2006 the district prosecutor replied to the applicant’s complaint about the excessive length of the proceedings and found the complaint ill-founded. The prosecutor informed the applicant that prosecutors were independent in their work and it was up to them to make a decision about when the evidence had been collected and at which point the investigation should be closed. The applicant was also informed that the prosecutor in charge had been promoted to the Regional Prosecutor’s office and that a new prosecutor had inherited his cases.", "16. On 21 September 2007 the proceedings were discontinued because it was found that no offence had been committed.", "17. On 8 October 2007 the applicant lodged an appeal against this decision.", "18. On 19 November 2007 the decision of 21 September was upheld by the Cracow-Śródmieście District Court.", "19. On 22 April 2005 the applicant lodged a complaint about actions taken by the police on 12 November 2003. Following this complaint the original investigation was severed and it was decided to examine the charges against the police in a separate set of proceedings (see paragraphs 13 and 14 above).", "20. On 14 June 2005 the applicant complained to the Chief of Police Force in Warsaw about the actions taken by the local police.", "21. On 24 January 2006 the Cracow district prosecutor discontinued the investigation, finding that no offence had been committed. According to the prosecutor’s findings, on the night of the accident at around 4 a.m. one of the bus drivers, J.Ł., heard a man screaming and calling for help. The man ran into the drivers’ room; his clothes were on fire. J.Ł. extinguished the fire using a shower and called an ambulance and the police. The ambulance arrived first and subsequently, at around 4.30 a.m., the police arrived at the scene. The officers concentrated on helping J.K. They spoke to him about the incident and then he was taken to hospital. The detective, who arrived later, examined the room with the help of the company’s health and safety inspector, S.S. The prosecutor referred to the applicant’s arguments that the scene of the accident had not been properly secured; she stated that since the incident had not resulted in any fatalities, the police officers had not been required to secure the scene in any particular way.\nThe prosecutor concluded that the police officers had not failed to properly perform their professional duties and that all the relevant procedural rules had been followed.", "22. On 27 February 2006 the applicant lodged an interlocutory appeal against this decision. He maintained that the detective had arrived at the scene six hours after the accident. In addition, he questioned the fact that the detective had been assisted by S.S., who was an employee of the company.", "23. On 28 November 2006 the Cracow District Court allowed the applicant’s appeal and returned the case to the prosecutor. In particular, it instructed the prosecutor to obtain evidence from S.S. and another witness, W.D., and to verify the actions taken by the police in view of the applicable procedures.", "24. On 23 January 2007 the Cracow district prosecutor again discontinued the investigation into the alleged failure of police officers to comply with their duties. The prosecutor had heard evidence from S.S. and W.D. She repeated the reasons given in the decision of 24 January 2006 and considered that the police actions had complied with the applicable procedures and that no offence had been committed.", "25. On 5 February 2007 the applicant lodged an interlocutory appeal against this decision.", "26. On 19 March 2007 the Cracow Regional Prosecutor quashed the decision of 23 January 2007 and returned the case to the district prosecutor to continue the investigation. He considered that the district prosecutor had failed to comply with the court’s instructions of 28 November 2006 and had failed to analyse whether all officers involved, including the one who had taken the call notifying them of the incident and all the officers who had been present at the scene of the accident, had followed the applicable procedures.", "27. On 16 October 2007 the district prosecutor heard evidence from R.P. – one of the police officers who had intervened on 12 November 2003 – in the presence of the applicant. The applicant asked the witness questions but the witness did not remember much of the incident in 2003.", "28. On 31 January 2008 the district prosecutor discontinued the investigation. In an extensive reasoning of his decision the prosecutor referred to testimonies given by fifteen witnesses and to cross-examination of further two witnesses, S.S. and W.D. The prosecutor also relied on the report of the examination of the scene of the accident and on the case file. He concluded that no offence had been committed as regards the alleged breach of professional conduct on the part of the police officers and that there was not enough evidence to substantiate the allegations that the police officers had falsified any evidence.\nThe two policemen, S.P. and R.P., who arrived at the scene at 4.30 a.m. and who spoke to the applicant’s brother, submitted that they had spoken to the victim directly after the incident; he had been conscious and informed them that he had fallen asleep and when he had woken up his clothes had been already burning.\nAs regards the applicant’s allegations that the electric heater had been secured only six hours after the arrival of the police officers, the court found that (although this had not been not confirmed by any of the witnesses) the heater might have been moved before it was secured because several other persons had been in the room where the accident had happened before the arrival of the police. However, even if it had been moved, there were no grounds to suspect that this had been done in order to deflect suspicion onto any particular person. Here the court again relied on the victim’s statements that he had caught fire as a result of his own negligence.", "29. The applicant appealed again. He maintained that the prosecutor had failed to properly establish the facts and hear all the necessary evidence. He demanded that witnesses A.M., S.S. and W.D. be cross-examined in order to clarify discrepancies between their statements. He also restated that the policemen who had conducted the investigation had failed to follow the relevant procedures, and in particular that the scene of the accident had not been properly secured. He lastly submitted that “his brother had been blamed for the accident” whereas in fact the real reason was that he had suffered a diabetic shock.", "30. On 14 April 2008 the Cracow District Court upheld the prosecutor’s findings and considered that the circumstances of the case had been established sufficiently to make a decision on the merits. As regards the applicant’s request for cross-examination of certain witnesses the court submitted that the request had already been granted in part because S.S. and W.D. had been cross-examined. As regards the contradictions in the testimonies given by A.M., the court considered that they had been sufficiently cleared up by A.M. herself when she had given evidence for the second time and there had been no contradictions between her statements and the remaining evidence, so further examination would only lead to an unnecessary extension of the proceedings. As regards the applicant’s arguments concerning the failure on the part of the policemen to follow the relevant procedures, the court found that the procedures relied on by the applicant had to be followed only in a case where there was a suspicion that a crime had been committed: in the present case there had been no evidence that any third person might have been involved in J.K.’s death. The court further held that the same applied to the requirement to secure the scene of the accident; the applicant’s brother, who had been interviewed after the accident, admitted that his clothes had caught fire because of his carelessness (w wyniku nieuwagi). This also demonstrated that the suspicion that a crime had been committed had been ill-founded." ]

[]

[ "5. The applicant, Ms Khava Sagayeva, was born in 1964 and lives in Urus-Martan in the Urus-Martan district, the Chechen Republic.", "6. The applicant is the sister of Mr Khasan Sagayev, who was born in 1973.", "7. At the material time the applicant lived in Alkhan-Yurt (in the documents submitted it is also referred to as Alkhan-Kala), in the Urus‑Martan district in Chechnya. In August 2000 Mr Khasan Sagayev, along with a number of other relatives, was living in the applicant’s house while she was away in Ingushetia.", "8. At around 12 p.m. on 8 August 2000 a group of about twenty to thirty masked and armed servicemen in camouflage uniforms arrived at the applicant’s house in two armoured personnel carriers (APCs) and several UAZ minivans. They broke into the house and quickly searched the premises, taking away all documents and family photographs. They forced Mr Khasan Sagayev into the APC with registration number 802 and drove away to an unknown destination.", "9. Later on the same day, 8 August 2000, at the request of the applicant’s relatives, Mr Supyan Mokhchayev, the Mayor of Grozny, contacted a military commander, who informed him that APC no. 802 belonged to a military regiment stationed at the Main Federal Military Base in Khankala. Mr Mokhchayev also learnt from anonymous witnesses that Mr Khasan Sagayev had been taken to the military base in Khankala and questioned by three investigators.", "10. The applicant has not seen Mr Khasan Sagayev since his abduction on 8 August 2000.", "11. The applicant did not witness the abduction. Her account before the Court was based on statements provided by her relatives and neighbours.", "12. The Government did not contest the facts as presented by the applicant, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.", "13. From the documents submitted it can be seen that the applicant lodged an official complaint concerning her brother’s abduction on 14 December 2000.", "14. On 14 April 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25040 (in the documents submitted, the case is also referred to as no. 78012).", "15. On 20 June 2001 the investigation was suspended. The applicant was not informed of this development.", "16. The investigation remained suspended from 20 June 2001 to 19 January 2009. From the documents submitted it is apparent that the applicant did not contact the authorities at any time during this period. The applicant has stated that between 2001 and 2008 she was ill and her sister, Ms Kh.S., maintained correspondence with the authorities, both personally and through the International Committee of the Red Cross and the human rights organisations Memorial and Materi Chechni (Mothers of Chechnya). The Government did not dispute this part of the applicant’s submission.", "17. On 20 November 2008 the applicant asked to be granted victim status in the criminal case.", "18. On 19 January 2009, in response to a request from the applicant, the investigation was resumed.", "19. On the same date, 19 January 2009, the investigators granted the applicant victim status in the criminal proceedings and questioned her. She stated that she had not witnessed the abduction herself but had learnt of it from her relatives.", "20. On 21 January 2009 the applicant requested permission to access the entire contents of the investigation file. The investigators rejected her request on 2 February 2009.", "21. On 22 January 2009 the investigators questioned the applicant’s sister, Ms A.S., who stated that she had not witnessed the abduction either but had learnt of it from her relatives.", "22. On 22 January 2009 the investigators questioned another of the applicant’s sisters, Ms Kh.S., who described the circumstances of the abduction. Her statement was similar to the applicant’s account before the Court.", "23. On 19 February 2009 the criminal proceedings were suspended. The applicant was informed thereof.", "24. On 23 March 2009 the investigation was resumed and the applicant was informed thereof.", "25. Between 25 and 29 March 2009 the investigators questioned three of the applicant’s fellow villagers, whose statements did not provide any new information as they had not witnessed the abduction.", "26. On 1 April 2009 the investigators examined the crime scene. No evidence was collected.", "27. On 9 April 2009 the investigators questioned a local police officer, Mr A. A., who stated that the police had been unable to establish the whereabouts of the applicant’s missing brother.", "28. On 10 June 2010 the applicant asked the investigators to update her on the progress of the investigation and on 25 August 2010 she was informed that the proceedings remained suspended.", "29. The investigation into the abduction was subsequently repeatedly suspended and resumed; the last suspension took place on 6 October 2011. The proceedings are still pending.", "30. The applicants, Ms Roza Mukayeva, who was born in 1959, and Mr Khamzat Mukayev, who was born in 1956, live in the village of Duba‑Yurt in the Shali district, the Chechen Republic.", "31. The applicants are the parents of Mr Rasul Mukayev, who was born in 1979.", "32. At the material time Mr Rasul Mukayev was suffering from a second-degree disability. The applicants claimed in their submission that he had been detained during “sweeping-up” operations carried out in Duba‑Yurt in 2001, 2002 and 2003 and released.", "33. In 2004 the village was surrounded by numerous checkpoints. Two checkpoints were located in the vicinity of the applicants’ house in Duba‑Yurt.", "34. On 3 December 2004 at around 5 a.m. an APC arrived at the applicants’ house. Another APC and two UAZ minivans were waiting in a neighbouring street. A group of eight to ten armed servicemen in masks and camouflage uniforms broke into the house. Threatening the applicants in unaccented Russian, they searched the house, handcuffed Mr Rasul Mukayev, pulled his T-shirt over his head and forced him outside, where one of them reported to someone via portable radio: “The object is taken. We are leaving”. The servicemen told the applicants that they were taking Mr Rasul Mukayev to the Shali district department of the interior (the ROVD).", "35. The applicants subsequently learnt from anonymous witnesses that their son had allegedly been taken to the Main Federal Military Base in Khankala.", "36. The applicants have not seen Mr Rasul Mukayev since 3 December 2004.", "37. The Government did not contest the facts as presented by the applicants, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.", "38. On 3 December 2004 an investigation team examined the crime scene.", "39. On 3 December 2004 the investigators questioned the first applicant, whose statement was similar to the applicants’ account before the Court.", "40. On 3 December 2004 the investigators questioned the applicants’ relative, Mr R.Kh., and their neighbour, Mr S.N., whose statements concerning the abduction were similar to the applicants’ account before the Court.", "41. On 23 December 2004 the Shali district prosecutor’s office opened criminal case no. 36148.", "42. On 23 February 2005 the investigation was suspended. The applicants were not informed of this development.", "43. On 27 May 2005 the investigation was resumed following criticism from the supervising prosecutor, who gave orders for the basic steps to be undertaken.", "44. On 2 July 2005 the investigation granted the second applicant victim status in the criminal case.", "45. On 2 July 2005 the investigators questioned the second applicant, whose statement concerning the abduction was similar to the applicants’ account before the Court. In addition, he stated that he had followed the abductors and had seen them driving in the direction of the federal forces’ main military base in Khankala.", "46. On 7 July 2005 the investigation was again suspended and the applicants again not informed.", "47. On 21 September 2010 the first applicant asked the investigators to grant him permission to access the entire contents of the investigation file. On 12 November 2010 the investigators partially granted the request by providing twelve documents from the file.", "48. On 20 December 2011 the investigation was resumed following a corresponding request from the applicants. The proceedings are still pending." ]

[ 0, 1, 2 ]

[ "5. The applicant was born in 1962 and lives in Ohrid.", "6. The applicant was employed by a local company owned by Z.C., which operated a bakery in Resen. At 9.30 p.m. on 20 March 2008 several police officers arrived at the bakery in order to establish whether or not the employees were in possession of the necessary work and residence permits. G.S., a police officer at the time and currently the mayor of Resen, arrived sometime later. At 1.30 a.m. the next morning the applicant arrived, after being called by Z.C. Z.C. and the applicant were taken to the Resen police station and interviewed in the office of M.G., the commander-in-chief of Resen police. The applicant alleged that during the interview G.S. had ill-treated him and that he had left the police station at about 4.15 a.m. on 21 March 2008.", "7. On the same day the applicant was examined in the Ohrid hospital by Dr L.D.B. who issued a certificate (no. 30) in which he was diagnosed with fractura osso nosi post traumatica-in obs. On the reverse of the certificate the following handwritten text appeared:\n“At 5.30 a.m., a fight (тепачка), an X-ray was taken of the nasal pyramid ... realignment and [splinting] were carried out ...”", "8. An undated medical certificate (no. 51150) signed by Dr L.D.B. indicated the following:\n“[The applicant was] admitted on 21 March 2008 at 5.30 a.m. as an urgent case. It concerned a fight. The nose pyramid and the ... right upper nostril were visibly swollen. Assuming that the nasal septum was broken, an X-ray was taken of the nasal pyramid ... The radiologist’s findings are: no traumatic changes to the nasal bone. So the obstruction of the right nasal cavity was caused by swelling. The nasal septum has been realigned to the left and a double front [splint was made] ...”", "9. On an unspecified date between 21 and 27 March 2008 the applicant lodged a complaint of ill-treatment by the police with the public prosecutor. Furthermore, on 27 March 2008 the applicant and Z.C. complained to the DCPS that they had been ill-treated by police officers during the incident between 20 and 21 March 2008. According to the official police notes from that date, the applicant complained that after the discussion at the bakery, he had been arrested and detained (приведен и задржан) at Resen police station for questioning. During questioning, G.S. had insulted and physically assaulted him. He had taken a newspaper out of the applicant’s bag and tried to stuff it into the applicant’s mouth. He had then punched him three times, causing visible injuries, namely a broken nose and facial bruising. Police officers D.L. and M.G., the commander-in-chief of the Resen police, had been present at the time. Z.C. complained that while at the bakery, G.S. had slapped him several times in the face in front of the workers. He had also insulted him and threatened to send him “in a black plastic bag to Kosovo[1]” unless he admitted that he had been giving money to T., a police officer from Resen.", "10. On 27 and 28 March 2008 the applicant was examined again at Ohrid Hospital and prescribed a therapy.", "11. On 2 April 2008 he was examined at Skopje Hospital and diagnosed with facial bruising and a broken nose. Another certificate confirming the injuries was issued by the hospital on 15 July 2008. A CT scan on 25 September 2008 confirmed that he had suffered a broken nose without bone displacement.", "12. In letters dated 24 April, 19 May and 6 June 2008 the public prosecutor, in response to the criminal complaint lodged by the applicant, asked the DCPS to communicate any relevant material regarding the alleged incident on 21 March 2008.", "13. On 17 June 2008 the DCPS sent the public prosecutor a “special report” (посебен извештај) regarding the case, setting out a summary of the complaints made by the applicant and Z.C. It reads as follows:\n“To establish the truth regarding the allegations, the DCPS interviewed the complainants, E.A., B.J., B.T. (bakery workers), Resen labour inspector –D.Dz., as well as police officers G.S., M.G., D.L., Z.S., V.D., T.V., J.I., N.S., S.S. and J.F. On the basis of the discussions held and an inspection of the daily logbook and other official material regarding the case held at Resen police station, [the DCPS] establishes the following:\nOn 20 March 2008 at about 9.45 p.m. K.G., D.L., Z.S. and V.D., plain-clothed police officers, and J.I., a police officer in (official) uniform, arrived at the A. bakery. After identifying themselves to the workers, including the owner Z.C., they informed them that they would be carrying out an inspection ...\nIn the meantime, police officer G.S. arrived at the bakery. He joined in the discussion with Z.C. and the other workers, asking whether they had offered free bread, food and drinks to some police officers in return for their protection. He asked the owner ... Z.C., how much money he had been giving to police officer T. to protect him ... in the presence of the other workers, G.S. slapped Z.C. in the face several times. [He] then... ordered [him] to the storeroom, where G.S. continued slapping him in the face. He threatened to kill him, put him in a black plastic bag and return him to Kosovo unless he admitted to a judge that he had been giving money to T. [G.S.] insulted his ethnicity.\n...\nOn 21 March 2008 at about 1.30 a.m. [the applicant], Z.C. and [six other individuals] were arrested and detained at Resen police station ... When [the applicant] took documents out of his bag concerning the bakery ... G.S. noticed a [K.D] newspaper which had on its front page Kosovo Parliament’s declaration of independence and a picture of A.J.’s face with the new flag of Kosovo. G.S. started searching [the applicant’s] bag and took the newspaper out. He tried to stuff it into [the applicant’s] mouth ... [He] continued using offensive language to insult [the applicant’s] ethnicity. He suddenly punched him three times in the nose causing him visible injuries such as bruising. [The applicant’s] nose started to bleed. This happened in the presence of Z.C., M.G. and D.L. Later, when [the applicant] and Z.C. went to police officer N.S.’s office to give details about the workers from Kosovo, N.S. noticed blood on [the applicant’s] shirt. He asked [the applicant] about the origin of the blood. [He] replied that it was not right that he had been beaten up by a police officer and that he was ready to take responsibility for his actions.\nDuring the discussion, police officer G.S. denied the allegations made by the applicant and Z.C., explaining that he had not used any force during his conversation with them. [His] assertion was confirmed by police officers M.G., D.L., Z.S., V.D., T.V. and J.I., who [said] that no force had been used against [the applicant] or Z.C. by G.S. or any other police officer in the performance of their duties.\nRegarding the inspection carried out at the A. bakery in Resen, the police officers had no plan; there was no search warrant. Besides, there was no information in the daily logbook about [the applicant’s] arrest and detention at Resen police station, or [about] the use of force against him. Nor was a report [about the use of force] drawn up.\nAfter the interview ended and all the relevant evidence for misdemeanour proceedings had been obtained, [the applicant] was released; Z.C. and the other workers from Kosovo stayed...\nGiven the injuries sustained, on 21 March 2008 at about 5 a.m. [the applicant] went to Ohrid [H]ospital, where he obtained immediate medical assistance. An X-ray was then taken of the nasal pyramid and [a nasal plaster] was made. A medical certificate, no.30 ...was issued in this regard.”", "14. As noted in the special report, it was accompanied by considerable written material, which included the applicant’s complaint; official notes regarding interviews held with G.S. and various police officers including M.G., D.L., Z.S., V.D., T.V., J.I. and J.F and N.S.; medical certificates nos. 30 and 51150 and photographs of the applicant with a neck collar and plaster on his nose. The Government did not provide copies of the official notes concerning the interviews held with the police officers listed above.", "15. Further to a request by the public prosecutor dated 12 June 2008, on 30 October 2008 an investigating judge of the Resen Court of First Instance (“the trial court”) opened an investigation into the allegations that G.S. had ill-treated, threatened and insulted Z.C. and the applicant.", "16. Between 30 October and 17 December 2008 the investigating judge heard oral evidence from the applicant, G.S., Z.C., workers B.T. and B.J., police officers N.S., D.L., M.G. and other witnesses.", "17. The applicant stated that the police officers present at the scene had ordered him and Z.C. to go to the police station. Two of them had joined him and Z.C. in the latter’s car and had set off to go there. The applicant repeated that during his interview at the police station, G.S. had used offensive language against him, had tried to stuff a newspaper into his mouth and had punched him three times in the face and nose.", "18. G.S. denied all the accusations made against him by the applicant and Z.C.", "19. Z.C., who gave evidence without the applicant and his representative present, stated:\n“... G.S. treated me correctly ... He did not ill-treat or insult me. It is untrue that G.S. or any other police inspector took me to [the storeroom], pushed me against the flour bags and slapped me. It is absolutely untrue ... I also want to emphasise that it is untrue that G.S. threatened to put me in a black plastic bag and send me back to Kosovo.\nThe whole story was a set-up by [the applicant], so to speak. He suggested that I accuse [G.S.] of ill-treating, insulting and hitting me, telling me that we would both [get] 1 million euros (EUR) compensation from the State, and EUR 100,000 from the accused., I went to Skopje and gave a statement regarding the case, a false statement accusing [G.S.] in the fear that [the applicant] could deport me to Kosovo.\nAn hour later, [the applicant] arrived at the bakery in a taxi from Ohrid. At the police’s request ... I went to Resen police station. I cannot say whether I went in ... with [the applicant], but what is relevant is that I, [the applicant], and five individuals from Kosovo went to Resen police station in cars and jeeps ...after a while, a policeman took me and [the applicant] into the chief-officer of Resen’s office. There was [G.S.], [another officer] and the chief-officer of Resen, I think his name is M.[G] ... At one point I noticed [the applicant] take documents and a newspaper from his bag ... I can firmly say that [G.S.] did not take the newspaper ... and did not hit [him] in the face. I do not know if there was blood on his shirt...\nI can say that the whole thing is a lie constructed by [the applicant], because he forced me to say that the accused had ill-treated and insulted me. Nor did the accused hit [the applicant] at the police station ...”", "20. Bakery workers B.T. and B.J. both confirmed that during the incident on 20 March 2008 G.S. had spoken in a loud voice and asked them who they had given bread for free. Both confirmed that G.S. and Z.C. had gone to the storeroom and that Z.C. had returned with flour on his back. B.J. confirmed that G.S. had slapped Z.C., whereas B.T. maintained that she did not hear Z.C. complain that he had been slapped or ill-treated by anyone that night.", "21. N.S., the police officer responsible for foreigners, stated:\n“after a while, Z.C. and an unknown national from the Republic of Macedonia, who said that his name was Esat Aslani [sic] and that he was the manager of the company, arrived at my office ... he literally told me ‘that’s all fine [referring to the ban on employing foreigners without a work permit], but I should not be beaten up’. I asked him who had beaten him up and pointing with his hand he said ‘[look] up here’. He showed me blood and I noticed that he had a visible blood stain, so to speak. He said that a police officer had beaten him up, but he did not specify who. I told him that it was not my job ... I did not see anything on [the applicant’s] face like a nose injury or blood ...”", "22. Police officers D.L. and M.G. denied that G.S. had slapped Z.C. at the bakery or that G.S. had used offensive language. They confirmed that the applicant had arrived at the bakery and that both he and Z.C. had discussed the issue of illegal workers with them and G.S. in M.G.’s office at Resen police station. They also confirmed that the applicant had had a newspaper in his bag and that G.S. had enquired whose photograph was on the front page. Both denied that G.S. had hit the applicant.", "23. A forensic medical opinion was commissioned by the trial court. On 28 January 2009 Dr Z.K., a court expert, drew up a medical report on the basis of the above-mentioned medical records and a further X-ray. The relevant parts of the report stated:\n“[the applicant] suffered a broken nose without any displacement of bone fragments, as well as facial bruising. These injuries ... amount to bodily injury. These injuries ... were a result of the use of brute force on the face.”", "24. On 24 February 2009 the public prosecutor informed the investigating judge that he was withdrawing the charges against G.S. brought by the applicant and “the Ministry of the Interior’s DCPS by way of the special report” due to the lack of evidence that G.S. had committed the crime in question.", "25. On 2 March 2009 the investigation was closed and the applicant was advised that he could pursue the prosecution as a subsidiary prosecutor. He availed himself of that opportunity and on 13 April 2009 brought a private indictment against G.S. on charges of ill-treatment and bodily injury.", "26. On 15 May 2009 the trial court allowed an objection by G.S. and discontinued the proceedings. On 3 November 2009 that decision was quashed by the Bitola Court of Appeal, which ordered the trial court to further investigate allegations which had meanwhile been raised, namely that the applicant had sustained certain injuries in a traffic accident that had happened before the incident on 21 March 2008. The appellate court also ordered a confrontation between the applicant, G.S. and police officers D.L, M.G. and N.S.", "27. At a hearing on 23 December 2009 the applicant confirmed that he had sustained a neck injury in a traffic accident that had happened on 6 or 7 September 2007 and that because of this he had been wearing a neck collar. On the photographs taken at the DCPS three days after the alleged incident, he had had a neck collar. He denied that there was any connection with the injuries to his nose and eye which G.S. had caused him.", "28. On 5 February 2010 a confrontation took place between the applicant and police officers G.S., D.L. and M.G., who denied that G.S. had punched the applicant.", "29. N.S., who also took part, stated:\n“... I noticed that [the applicant] had blood [on him], namely a small stain on his shirt.”", "30. All the judges of the trial court, including the presiding judge, applied separately to be excluded from the case as they had already sat in a different capacity. On 1 June 2010 the Bitola Court of Appeal assigned the case to the Bitola Court of First Instance as the court with jurisdiction ratione loci.", "31. The Bitola Court of First Instance held several hearings, in which it heard oral evidence from the applicant, G.S. and police officers D.L., M.G. and N.S. The defendant and the police officers maintained their previous statements, denying that G.S. had punched the applicant during the interview at Resen police station. N.S. stated, inter alia, that he had noticed a stain on the applicant’s shirt, but that he could not say for certain whether it had been blood. During the proceedings, the applicant asked the court to examine Z.C., who, according to official information from the Ministry of the Interior, had left the respondent State in November 2009. The court’s attempts to secure his presence at the trial were to no avail since his whereabouts remained unknown despite G.S.’s statements on 21 April and 24 December 2010 that he had been in contact with him and knew where he was living. At the hearing on 21 April 2010, the applicant stated that he had also been in contact with Z.C. who had agreed to give evidence in court and confirm his statement given to the DCPS.", "32. On 1 February 2011 the court acquitted G.S. for lack of evidence. It established that he and several police officers had gone to the bakery to follow up allegations that illegal workers from Kosovo were employed there, and that both Z.C. and the applicant had been questioned at the police station. However, it found that none of the witnesses examined had corroborated the applicant’s allegations of ill-treatment.", "33. On 19 May 2011 the Bitola Court of Appeal allowed an appeal lodged by the applicant and remitted the case for fresh examination. The court held that the first-instance court had not established relevant facts regarding the applicant’s injuries, which had been supported by relevant medical evidence. Furthermore, it had not given any reasons regarding the origin of those injuries, despite the fact that investigative steps had been taken with a view to establishing whether they had been caused in the car accident that had actually happened on 2 October 2007. In this connection, it instructed the lower court to reassess the available evidence and, if needed, to arrange a confrontation with the applicant and the witnesses. The lower court was also advised to analyse the available medical evidence and to consider what time the applicant sought medical assistance.", "34. In the new proceedings, the first-instance court again examined the defendant and the applicant. A confrontation was arranged between him and the police officers who were present at the police station at the relevant time. It also heard oral evidence from Drs L.D.B. (who confirmed the veracity of the information contained in the medical certificate, see paragraphs 7 and 8 above) and Z.K., the court expert.", "35. The applicant submitted in evidence a written statement dated 8 December 2011, certified by the Prizren (Kosovo) Court of First Instance, in which Z.C. stated that his testimony of 1 December 2008 (see paragraph 19 above) had been incorrect and given under duress. He confirmed that the applicant had been hit by G.S. at the police station in the presence of two police officers, as a result of which he had suffered a broken nose. He confirmed his statement given to the DCPS. He stated that he would not give oral evidence in the Bitola Court of First Instance because he feared for his personal safety. However, he agreed to testify in the Prizren Court, the EULEX (EU Rule of Law Mission to Kosovo) or the Macedonian Embassy in Pristina.", "36. On 30 October 2012 the Bitola Court of First Instance again acquitted G.S. due to the lack of evidence to support the applicant’s allegations. The court stated that it had given weight to the evidence given by all the witnesses, especially given that most of them were police officers and Dr Z.K. was an experienced court expert.", "37. On 24 January 2013 the Bitola Court of Appeal quashed that judgment and remitted the case for fresh examination, which, as noted in the judgment, was to be held before a different panel of first-instance court judges. The court found that the lower court had again not established the facts regarding the applicant’s injuries. The available medical evidence confirmed that the injuries described in the medical reports issued soon after the alleged incident on 21 March 2008 had not resulted from the car accident in 2007. The first­-instance court had merely referred to the witness statements without assessing their probative value in connection with the medical evidence. It had given no weight to the medical evidence, which should have been analysed in relation to what time the applicant had sought medical assistance. The court instructed the lower court to reassess the evidence, organise a confrontation between the applicant and the defendant, and take other steps to establish the origin of the applicant’s injuries.", "38. In the resumed proceedings and at the request of the Bitola Court of First Instance, on 30 March 2013 Dr Z.K. supplemented the expert opinion regarding the applicant’s broken nose, saying that it could not be ruled out that he had suffered it in the traffic accident in October 2007. This was so since broken noses healed slowly and remained X-ray detectable for a long time. He further stated that with a nasal injury such as that described in the medical certificate issued by Dr L.D.B. (see paragraph 7 above), bruising should appear between fifteen and twenty minutes after being struck. The medical certificate did not indicate that there had been any bruising on the applicant’s face when he had been examined at Ohrid Hospital.", "39. Dr L.D.B. confirmed that she had indicated in the medical certificate everything she had considered relevant regarding the applicant’s injury. The applicant stated that she had refused to specify that he had been assaulted by the police since she stated “[she] does not want to go to court”.", "40. N.S. commented on his previous statements given to the investigating and trial judges (see paragraphs 21 and 29 above), stating that he could not confirm whether he had seen a blood stain on the applicant’s shirt.", "41. During the proceedings the court made attempts through the Ministry of Justice to secure Z.C.’s attendance at the trial. However, his whereabouts remained unknown despite the fact that the applicant stated that he had been in contact with him and that he had agreed to testify in the Skopje or Kumanovo courts due to fear. The court did not accept that Z.C. had given evidence in these courts.", "42. In a decision of 4 February 2014, the court did not admit in evidence Z.C.’s written statement of 8 December 2011 (see paragraph 35 above) finding that it had not been given in court and could not serve as the basis for a court judgment.", "43. On 7 February 2014 the Bitola Court of First Instance acquitted G.S. due to lack of evidence that he had committed the imputed crimes. The court confirmed that the police, including the accused, had been involved in the inspection at the bakery. The applicant, after being called by Z.C., had arrived at the bakery at 1.30 a.m. on 21 March 2008. At Resen police station, the accused had joined police officers M.G. and D.L., who had interviewed Z.C. Soon after, the applicant had arrived at the office even though he had not been officially summoned. The court also established that there had been a discussion between the accused and the applicant about the newspaper. After the discussion, the applicant had complained to police officer N.S. that he had been hit by a police inspector, alleging that a stain on his shirt had been blood from his nose. The applicant had no visible facial injuries. The Bitola Court of First Instance further indicated that after the applicant had left the police station at about 3 a.m., he had taken part in a fight with unknown individuals at an unknown place, and at 5.30 a.m. he had asked for medical assistance at Ohrid Hospital. Dr L.D.B. had examined him, noting in the medical certificate that the injuries had been sustained in a fight. The applicant had further convinced Z.C. to charge G.S. before the DCPS. As to the latter’s special report, the court stated:\n“... besides the statements of the complainants, accused and witnesses, it does not contain any indication that [the DCPS] established anything relevant for these proceedings, [including] any responsibility on the part of the accused ...”", "44. Relying on medical evidence and statements by Drs L.D.B. and Z.K., the court established that at 5.30 a.m. on 21 March 2008, when the applicant had first been examined at Ohrid Hospital, he had had swelling on his nose, but no bruising. As specified in the medical certificate issued by Dr L.D.B., the injuries had been sustained in a fight. Given the statements the witnesses and Z.C. had given in the investigation, the court concluded that there had been no evidence to support the applicant’s allegations.", "45. On 8 May 2014 the Bitola Court of Appeal allowed the applicant’s appeal and quashed the first-instance court’s judgment. It concluded that the lower court, notwithstanding that it had admitted considerable evidence, “had established incomplete and wrong facts” and “had drawn illogical and unreasonable conclusions”. In this connection, the court stated:\n“The court observes, as already noted in its judgment of 24 January 2013, that the first-instance court disregarded the medical [records] ... and adduced evidence as to whether there was any colouring to [the applicant’s] injury. During the proceedings, an attempt was made to relate [the applicant’s] injury to a traffic accident in October 2007 [in which] he had sustained injuries and worn a neck collar for longer. This is no longer argued in the impugned judgment, but it is alleged that [the applicant’s] injury was sustained in a fight he had taken part in before asking Dr L.D.B for medical assistance. It is unclear on what basis the first-instance court had drawn this conclusion ...\nThe first-instance court now also did not sufficiently assess N.S.’s statement ... in which he clearly said that he had noticed a blood stain on [the applicant’s] shirt. In the impugned judgment, this witness’s statement is changed so that justification was given for the conclusion that [the applicant] did not sustain such an injury ... the first-instance court, in principle, accepts that [the applicant’s] injury was not a result of actions taken by the accused, but ...was sustained in a fight with unidentified persons at an unknown location immediately before the [medical] examination.\n...\nIn such circumstances, the first-instance court finds that [the applicant’s] injury was caused later than the interview that took place at Resen police station ...\n... there is no evidence that after the interview [at the police station the applicant] went somewhere, took part in a fight with unidentified individuals and sustained injuries before asking the doctor for a medical check-up. The reasons the first-instance court gives in support of its judgment are unclear and, to a considerable extent, contradictory and inconsistent with the evidence admitted ...”", "46. On 18 March 2015 the Bitola Court of First Instance acquitted (ослободува од обвинение) G.S. of ill-treatment and dismissed the indictment (се одбива обвинението) as regards the accusations of bodily injury. In this latter connection, the court found that the prosecution had become time-barred. As regards the charges of ill-treatment the court found, for the same reasons as in the previous judgment, that there was insufficient evidence that the applicant’s injury to his nose had been caused by G.S. On the contrary, all the available material suggested that it had been sustained in a fight that had taken place immediately before the applicant had asked for medical assistance at Ohrid Hospital.", "47. On 9 July 2015 the Bitola Court of Appeal allowed the applicant’s appeal and remitted the case to the first-instance court for fresh examination, which, as noted in the judgment, was to be held before a different panel of judges. The court stated that:\n“... the conclusion of the first-instance court was in serious doubt and the established facts were not supported by the evidence admitted ... the first-instance court again disregarded the instructions of the Court of Appeal specified in the [previous] judgments. The first-instance court disregarded the medical [records] ... the first-instance court was previously instructed to assess [N.S.’s] statement; [the latter], which included some indications as to what had happened ... As previously stated, it is clear from [N.S.’s] statement that he had been told by [the applicant] that it had not been right to work without a permit, but that [the applicant] should not have been beaten up. Witness [N.S.] clearly stated that he had seen a blood stain [around] the applicant’s stomach [area] ...It would be necessary for [the first-instance court] to reassess evidence already admitted and pay particular attention to the instructions [specified] in this judgment and earlier judgments of the Court of Appeal, which suggest that the available evidence is sufficient [for the court] to draw a conclusion as to whether the accused had undertaken those actions and committed the crime imputed to him ...”", "48. The fifth round of proceedings is at present pending before the first-instance court.", "49. In a judgment of 12 November 2013, which became final on 4 December 2013, the Supreme Court allowed the applicant’s request for protection of the right to a hearing within a reasonable time (“length remedy”) and acknowledged that the criminal proceedings against G.S. had been too long. It held that the applicant had not contributed to the length of the proceedings, which had been protracted due to the fact that two courts of first-instance had adjudicated the case; the Bitola Court of First Instance had not been diligent in fixing court hearings and the case had been remitted to it twice already. It awarded the applicant the equivalent of 500 euros (EUR) in compensation and ordered the Bitola Court of First Instance to conclude the criminal proceedings as quickly as possible, but no later than six months after receipt of its judgment." ]

[ 1 ]

[ "5. The applicant was born in 1979. At the time of his application to the Court he was detained in prison in Vinnytsya.", "6. On 12 February 2006 an elderly man was found killed in his house in the village of Pavlysh, in the Kirovohrad Region. A criminal investigation was opened by an investigator from the Onufriyivka District Prosecutor’s Office.", "7. On the same day the Onufriyivka District Police Department (“the Police Department”) arrested the applicant under Article 263 of the Administrative Offences Code for minor acts of disorderly conduct, which constituted an administrative offence under Article 173 of that Code. According to the applicant, the police officers over the next two days exerted psychological pressure on him and applied physical violence against him for the purpose of extracting a confession to the murder.", "8. On 14 February 2006 the investigator from the Onufriyivka District Prosecutor’s Office questioned the applicant on suspicion of murder. Before questioning him, the investigator asked the applicant if he wished to have a lawyer. The applicant refused. In the course of the questioning the applicant confessed to the murder.", "9. On 15 February 2006 the applicant participated in a reconstruction of the crime and showed, in the presence of witnesses, how he had committed the murder. Before that investigative measure, the applicant refused to have a lawyer.", "10. On 17 February 2006 the Onufriyivka District Court (“the District Court”) placed the applicant in pre-trial detention.", "11. On 24 February 2006, following a request from the applicant for legal assistance, the investigator offered him a legal-aid lawyer. The applicant refused the lawyer, saying that he wished to have a different one who would be provided by his relatives. On that day the applicant denied his guilt and submitted that he had been psychologically and physically ill-treated by police officers and that this had resulted in his confession.", "12. On 13 June 2006 the applicant was questioned again. He submitted that he would represent himself without a lawyer. He did not admit his guilt and refused to make any further statements.", "13. On 19 June 2006 the case was referred to the District Court for the applicant to be tried.", "14. On 15 August 2006 the District Court remitted the case to the Petrove District Prosecutor for additional investigation. In its reasons for that decision, the court stated that the information about the applicant’s personality, including his prior criminal record, had not been assembled properly; the investigator had ignored the applicant’s request for another lawyer after refusing the legal-aid lawyer; the applicant had not been told of his right to be assisted by a lawyer when examining the case file after the termination of the investigation; and the applicant had not been able to examine all the material in the case file.", "15. On 3 October 2006 the Kirovohrad Regional Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision of 15 August 2006.", "16. On 5 December 2006 the Petrove District Prosecutor provided the applicant with a legal-aid lawyer and also allowed the applicant’s mother to act as defence counsel in the proceedings. When questioned on 12 December 2006 in the presence of the lawyer, the applicant denied his guilt and refused to reply to any further questions.", "17. On 20 February 2007 the Onufriyivka District Prosecutor’s Office refused to institute criminal proceedings against the police officers in relation to the applicant’s allegations of police brutality between 12 and 14 February 2006. Having conducted pre-investigation enquiries, it found no evidence suggesting the applicant had been ill-treated by the officers.", "18. On 23 February 2007 the additional investigation was completed and the case was again referred to the District Court for trial.", "19. During the trial the applicant, who was represented by the legal-aid lawyer, denied the charges and contended that his self-incriminating statements had been obtained by ill-treatment and in breach of his procedural rights.", "20. On 21 June 2007 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. The court based its findings on the real, oral, documentary and expert evidence. The court relied in particular on the applicant’s initial self-incriminating statements, noting that they were consistent with other evidence available in the file. The court considered that the applicant’s subsequent retraction of these statements and denial of guilt were an attempt on his part to avoid punishment.", "21. The District Court also dismissed the applicant’s allegations of ill-treatment as unfounded. It had regard to pre-investigation enquiries conducted by the Onufriyivka Prosecutor’s Office, which did not disclose evidence of any criminal acts by the police officers. The court also questioned the investigator and the witnesses who had taken part in the reconstruction of the crime, who also denied the allegations. It reviewed the videotapes of the applicant’s self-incriminating statements and found no signs of ill-treatment.", "22. On the same day, the District Court issued a separate ruling bringing the procedural violations committed by the law-enforcement officers during the pre-trial investigation in the applicant’s case to the attention of the Kirovohrad Regional Prosecutor. The court stated in particular that the applicant’s arrest and detention between 12 and 14 February 2006 for the alleged administrative offence had not been lawful, noting that the administrative case had never been examined by a competent authority. No appeal was lodged against that ruling.", "23. The applicant appealed against his conviction. He claimed, inter alia, that his defence rights had not been respected at the initial stage of the investigation and that his self-incriminating statements had been obtained as a result of ill-treatment.", "24. On 15 January 2008 the Kirovohrad Regional Court of Appeal upheld the judgment of 21 June 2007, noting that the applicant’s guilt was well established by various items of evidence in the case file, including the applicant’s initial self-incriminating statements. It dismissed as groundless the applicant’s allegations of ill-treatment and violations of his procedural rights. The court further held that the procedural shortcomings identified by the first-instance court did not affect its findings on the substance of the criminal case.", "25. The applicant appealed on points of law, repeating the arguments he made before the Court of Appeal.", "26. On 7 October 2008 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded and upheld the decisions of the lower courts." ]

[ 3 ]

[ "11. The applicant was born in 1978. When he lodged his application he was being detained in Rosdorf Prison, Germany. He now lives in Khashuri/Surami, Georgia.", "12. On the evening of 14 October 2006, the applicant and an unidentified accomplice robbed L. and I., two Lithuanian nationals, in the women’s flat in Kassel.", "13. The perpetrators were aware that the flat was used for prostitution and expected its two female occupants to keep valuables and cash there. They had passed by in the early evening in order to make sure that no clients or a procurer were present. Shortly afterwards they returned and overpowered L., who had answered the doorbell. The applicant pointed a gas pistol which resembled a real gun at both women and threatened to shoot them if they did not disclose where their money was kept. While his accomplice watched over the women, the applicant found or forced the women to hand over to him approximately 1,100 euros (EUR) and six mobile phones.", "14. On 3 February 2007 the applicant, acting jointly with several accomplices, robbed O. and P., two female Latvian nationals who were temporarily resident in Germany and working as prostitutes, in their flat in Göttingen.", "15. On the evening of 2 February 2007, the day before the offence, one of the applicant’s co-accused had passed by O.’s and P.’s flat in Göttingen together with an accomplice, R., an acquaintance of O. and P. They intended to verify whether the two women were the flat’s only occupants and whether they kept any valuables there, and discovered a safe in the kitchen.", "16. On 3 February 2007 at around 8 p.m., the applicant and a further accomplice, B., gained access to O.’s and P.’s flat by pretending to be potential clients, while one of their co-accused waited in a car parked close to the building and another waited in front of it. Once inside the flat, B. produced a knife that he had been carrying in his jacket. P., in order to escape from the perpetrators, jumped from the balcony located approximately two metres off the ground and ran away. The applicant jumped down after her but abandoned the chase after some minutes when some passers-by appeared nearby on the street. He then called the co-accused who had been waiting in front of the women’s flat building on his mobile phone and told him that one of the women had jumped from the balcony and that he had unsuccessfully chased her. The applicant agreed on a meeting point with his co-accused where they would pick him up by car once B. had left the crime scene and joined them.", "17. In the meantime, inside the flat, B., having overpowered O., threatened to kill her with his knife if she did not disclose where the women kept their money or if she refused to open the safe for him. Fearing for her life, O. opened the safe, from which B. removed EUR 300, and also handed over the contents of her wallet (EUR 250). B. left the flat at around 8.30 p.m., taking the money and P.’s mobile telephone, as well as the flat’s landline telephone, with him and joined the co‑accused. The co‑accused and B. then picked up the applicant at the agreed meeting point in their car. At approximately 9.30 p.m. P. rejoined O. in their flat.", "18. O. and P. gave an account of the events to their neighbour E. the morning after the offence. They then left their Göttingen flat out of fear and stayed for several days with their friend L., one of the victims of the offence committed in Kassel, to whom they had also described the offence in detail the day after it occurred.", "19. On 12 February 2007 L. informed the police of the offence committed against O. and P. in Göttingen. Between 15 and 18 February 2007 O. and P. were repeatedly questioned by the police as to the events of 2 and 3 February 2007. In those interviews they described the course of events as set out above. The police, having checked O.’s and P.’s papers, found their residence and occupation in Germany to be in compliance with German immigration and trade law.", "20. As the witnesses had explained during their police interviews that they intended to return to Latvia in the days to come, on 19 February 2007 the prosecution asked the investigating judge to question the witnesses in order to obtain a true statement which could be used at the subsequent trial (eine im späteren Hauptverfahren verwertbare wahrheitsgemäße Aussage).", "21. As a result, on 19 February 2007, O. and P. were questioned by an investigating judge and again described the course of events as set out above. At that time, the applicant had not yet been informed of the investigation proceedings initiated against him, so as not to put the investigation at risk. No warrant for his arrest had yet been issued and he was not yet represented by counsel. The investigating judge excluded the applicant from the witness hearing before him in accordance with Article 168c of the Code of Criminal Procedure (see paragraph 56 below) since he was concerned that the witnesses, whom he had found to be considerably shocked and distressed by the offence, would be afraid of telling the truth in the applicant’s presence. The witnesses confirmed at that hearing that they intended to return to Latvia as soon as possible.", "22. O. and P. returned to Latvia shortly after that hearing. The applicant was subsequently arrested on 6 March 2007.", "23. The Göttingen Regional Court summoned O. and P. by registered post to appear at the trial on 24 August 2007. However, both witnesses refused to attend the hearing before the Regional Court, relying on medical certificates dated 9 August 2007 which indicated that they were in an unstable, post-traumatic emotional and psychological state.", "24. Consequently, on 29 August 2007, the Regional Court sent letters by registered post to both witnesses informing them that the court, while not being in a position to compel them to appear at a court hearing in Germany, nonetheless wished to hear them as witnesses at the trial. The court stressed that they would receive protection in Germany and that all costs incurred attending the hearing would be reimbursed and, proposing several options, asked in what circumstances they would be willing to testify at the trial. While an acknowledgement of receipt was returned for both letters, P. did not respond. O., for her part, informed the Regional Court in writing that she was still traumatised by the offence and would therefore neither agree to appear at the trial in person nor to testify by means of an audio-visual link. O. further stated that she had nothing to add to the statements she had made in the course of the interviews carried out by the police and the investigating judge in February 2007.", "25. The Regional Court nevertheless decided to request legal assistance from the Latvian authorities under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, as supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (see paragraphs 64-66 below), taking the view that O. and P. were obliged under Latvian law to appear before a court in Latvia following a request for legal assistance. It asked for the witnesses to be summoned before a court in Latvia and for an audio-visual link to be set up in order for the hearing to be conducted by the presiding judge of the Regional Court (audiovisuelle Vernehmung). It considered, referring to Article 6 § 3 (d) of the Convention, that defence counsel and the accused, just like the judges and the prosecution, should have the right to put questions to the witnesses for the first time.", "26. However, the witness hearing of O. and P. scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before that date by the presiding Latvian judge. The latter found that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorder as a consequence of the offence and that further confrontation with the events in Göttingen would risk aggravating their condition. O. had further claimed that, following threats by the accused, she feared possible acts of revenge.", "27. By a letter dated 21 February 2008, the Regional Court, which had requested and obtained copies of the medical certificates the witnesses had submitted to the Latvian court, informed its Latvian counterpart that, according to the standards of German criminal procedure law, the witnesses had not sufficiently substantiated their refusal to testify. The court suggested to the competent Latvian judge that the witnesses be examined by a public medical officer (Amtsarzt) or, alternatively, that they be compelled to attend the hearing. The letter went unanswered.", "28. By a decision of 21 February 2008, the Regional Court, dismissing an objection to the admission of the witnesses’ pre-trial statements raised by counsel for one of the co-accused, ordered that the records of O.’s and P.’s interviews by the police and the investigating judge be read out at the trial in accordance with Article 251 §§ 1 (2) and 2 (1) of the Code of Criminal Procedure (see paragraph 61 below). It considered that, as required by said provisions, there were insurmountable obstacles which made it impossible to hear the witnesses in the foreseeable future as they were unreachable. It had not been possible to hear O. and P. in the course of the trial since they had returned to their home country, Latvia, shortly after their interviews at the investigation stage, and all attempts to hear their evidence at the main hearing, which the court had no means of enforcing, had been to no avail. Pointing out that the courts were under an obligation to conduct proceedings involving deprivation of liberty expeditiously, and in view of the fact that the accused had already been in custody for a considerable period of time, the court was of the opinion that it was not justified to delay further the proceedings.", "29. The Regional Court emphasised that at the investigation stage there had been no indication that O. and P., who had testified on several occasions before the police and then before the investigating judge, would refuse to repeat their statements at a subsequent trial. It considered that, notwithstanding the resulting restrictions for the defence on account of the admission of O.’s and P.’s pre-trial statements as evidence in the proceedings, the trial as a whole could be conducted fairly and in compliance with the requirements of Article 6 § 3 (d) of the Convention.", "30. By a judgment of 25 April 2008, the Regional Court, considering the facts established as described above, convicted the applicant of two counts of aggravated robbery combined with aggravated extortion involving coercion, committed jointly with other perpetrators in Kassel on 14 October 2006 and in Göttingen on 3 February 2007. It sentenced the applicant, who had been represented by counsel at the trial, to nine years and six months’ imprisonment.\n(a) The assessment of the available evidence concerning the offence in Kassel", "31. The Regional Court based its findings of fact concerning the offence committed by the applicant in Kassel on the statements made at the trial by the victims L. and I., who had identified the applicant without any hesitation. It further noted that their statements were supported by the statements made at the trial by the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigation. In view of these elements, the Regional Court considered that the submissions made by the applicant, who had initially claimed his innocence and had then admitted that he had been in L.’s and I.’s flat but had only secretly stolen EUR 750, alone, after a quarrel with the women, had been refuted.\n(b) The assessment of the available evidence concerning the offence in Göttingen\n(i) O.’s and P.’s statements", "32. In the establishment of the facts concerning the offence in Göttingen, the Regional Court relied in particular on the pre-trial statements made by the victims O. and P., whom it considered to be key witnesses for the prosecution (maßgebliche Belastungszeuginnen), in the course of their police interviews and before the investigating judge.", "33. In its judgment, which ran to some 152 pages, the Regional Court pointed out that it was aware of the reduced evidentiary value of the records of O.’s and P.’s pre-trial testimonies. It further took into account the fact that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses to the offence in Göttingen at any stage of the proceedings.", "34. The Regional Court noted that the records of O.’s and P.’s interviews at the investigation stage showed that they had given detailed and coherent descriptions of the circumstances of the offence. Minor contradictions in their statements could be explained by their concern not to disclose their residence and activities to the authorities and by the psychological strain to which they had been subjected during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why they had not reported the offence immediately after the events and why the police had only been informed on 12 February 2007 by their friend L.", "35. The Regional Court further took note of the fact that O. and P. had failed to identify the applicant when shown several photos of potential suspects during the police interviews. It observed that the witnesses’ attention during the incident had been focused on the other perpetrator carrying the knife and that the applicant himself had only stayed in the flat for a short period of time. Their inability to identify the applicant also showed that, contrary to the defence’s allegation, the witnesses had not testified with a view to incriminating him. The court further considered that the fact that the witnesses had failed to attend the trial could be explained by their unease at having to recall, and being questioned about, the offence and therefore did not as such affect their credibility.\n(ii) Further available evidence", "36. In its establishment of the facts, the Regional Court further had regard to the following additional evidence: the statements made at the trial by several witnesses to whom O. and P. had reported the offence shortly after it happened, namely the victims’ neighbour E. and their friend L., as well as the police officers and the investigating judge who had examined O. and P. at the pre-trial stage; geographical data and information obtained by tapping the applicant’s and his co-accused’s mobile telephones and by means of a satellite-based global positioning system (GPS) receiver in the car of one of the co-accused; the applicant’s admission in the course of the trial that he had been in the victims’ flat at the relevant time; and the similarity in the way in which the offences in Kassel and Göttingen had been committed.", "37. The Regional Court stressed that, once O. and P. had proved to be unavailable, it had ensured that as many as possible of the witnesses who had been in contact with O. and P. in relation to the events in issue were heard at the trial, in order to verify the victims’ credibility.", "38. In the Regional Court’s opinion the fact that the detailed description of the events given in O.’s and P.’s pre-trial statements was consistent with the account they had given the morning after the offence to their neighbour was a strong indication of their credibility and the veracity of their statements. E. had further testified that, on the evening of 3 February 2007 at around 9.30 p.m., another neighbour, an elderly woman who became scared and angry when she saw P. running around in front of her window, had called on her and asked her to accompany her to the women’s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours rang the doorbell.", "39. The Regional Court further observed that O.’s and P.’s description of the events was also consistent with their friend L.’s recollection of her conversations with O. and P. after the offence.", "40. In addition, the Regional Court noted that the three police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at the trial that they had found O. and P. to be credible.", "41. The Regional Court stressed that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at the trial or during examination by means of an audio-visual link, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully.", "42. In this context it had been of relevance that O.’s and P.’s testimonies as well as the statements of the additional witnesses heard at the trial, had been supported by further significant and admissible evidence such as data and information obtained by tapping the applicant’s and the co-accused’s mobile telephones and by means of a GPS receiver. The information in question had been gathered in the context of police surveillance measures carried out at the relevant time in the criminal investigation initiated against the accused on suspicion of racketeering and extortion on the Göttingen drug scene.", "43. It transpired from the geographical data and the recordings of two mobile-telephone conversations between one of the co-accused and the applicant on the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been in the victims’ flat with B., and that he had jumped from the balcony in order to chase one of the escaping victims, whom he had failed to capture, while B. had stayed in the flat. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time frame in which the robbery in question had occurred.", "44. Furthermore, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity, their own statements at the trial had at least confirmed that one of the co‑accused, together with R., had visited the victims’ flat in Göttingen on the evening before the offence and that they had all been in the car parked close to the victims’ flat at the time of the offence. The accused had initially stated that a different perpetrator and R. had been in the flat at the time of the incident the following day. The applicant had subsequently amended his submissions and claimed that it had been he and B. who had gone into the victims’ flat on 3 February 2007 with a view to making use of the women’s services as prostitutes. He had further conceded that he had followed P. when she escaped over the balcony. He explained that he had done so in order to prevent her from calling the neighbours or the police, since, in view of his criminal record, he had been afraid of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in Kassel.", "45. Finally, the Regional Court considered that the very similar way in which the offences had been committed against two female victims, foreign nationals working as prostitutes in a flat, was an additional element indicating that the applicant had also participated in the offence committed in Göttingen.", "46. In the Regional Court’s view, the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial.", "47. On 23 June 2008 the applicant, represented by counsel, lodged an appeal on points of law against the judgment of the Göttingen Regional Court. He complained that he had not been able to examine the only direct and key witnesses to the offence committed in Göttingen at any stage of the proceedings, in breach of Article 6 §§ 1 and 3 (d) of the Convention. As the prosecution authorities, contrary to the case-law of the Federal Court of Justice (the applicant referred to a judgment of 25 July 2000, see paragraphs 58-59 and 62 below), had not requested that defence counsel be appointed for him prior to O.’s and P.’s hearing before the investigating judge, their statements ought to have been excluded from the trial.", "48. In written submissions dated 9 September 2008, the Federal Public Prosecutor General requested that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings, under Article 349 § 2 of the Code of Criminal Procedure (see paragraph 63 below). The Federal Public Prosecutor General argued that, while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (Totalausfall des Fragerechts), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence.", "49. The Federal Public Prosecutor General considered that the Regional Court had assessed the content of the records of the witnesses’ testimonies read out at the trial particularly carefully and critically. Furthermore, the victims’ statements had been neither the sole nor the decisive basis for the applicant’s conviction by the Regional Court, as the latter had based its findings on further significant evidence. In view of the various layers of corroborating evidence, the applicant had had ample opportunity to challenge the credibility of the two prosecution witnesses and to defend himself effectively.", "50. Endorsing the Regional Court’s reasoning, the Federal Public Prosecutor General further pointed out that there was nothing to demonstrate that the restrictions on the defence’s right to examine O. and P. had been imputable to the domestic authorities. The prosecution authorities had not been obliged to appoint counsel for the applicant in order for counsel to participate in the hearing by the investigating judge. In view of the witnesses’ consistent cooperation, the authorities had had no reason to suspect that, despite their return to their home country, they would no longer be available for questioning at the trial, especially as they had been obliged under Latvian law to at least participate in a hearing via video-link.", "51. By a decision of 30 October 2008, the Federal Court of Justice, referring to Article 349 § 2 of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded.", "52. In its decision of 9 December 2008 rejecting the applicant’s complaint concerning a violation of his right to be heard (Anhörungsrüge), the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 § 2 of the Code of Criminal Procedure necessarily entailed a reference to the reasoned application by the Federal Public Prosecutor General.", "53. In a constitutional complaint dated 30 December 2008 against the decisions of the Federal Court of Justice of 30 October and 9 December 2008, the applicant complained, in particular, that there had been a breach of his right to a fair trial and of his defence rights under Article 6 § 3 (d) of the Convention. He argued that neither he nor his counsel had had the opportunity to question O. and P. at any stage of the proceedings.", "54. By a decision of 8 October 2009, the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s complaint (file no. 2 BvR 78/09)." ]

[ 3 ]

[ "5. The applicant was born in 1974 and lives in Paris.", "6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code.", "7. In 2000 the domestic security and intelligence agency (Direction de la surveillance du territoire – the “DST”) sent an intelligence report to the Paris public prosecutor’s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003.", "8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S.A.", "9. From 2 to 7 May 2004, one of the investigating judges, M.B., accompanied by members of the DST, went to Damascus for the execution of the letter of request.", "10. During the questioning S.A. was allegedly tortured.", "11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004.", "12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “except where they could not have been aware of [those grounds]”.", "13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “confession” of S.A., the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “complicity on the part of the French investigating judges in the use of torture against S.A. in Syria by military personnel of the secret service” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below).", "14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows:\n“Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M.B., investigating judge (First Vice-President) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S.A. ‘had already been questioned on 30 April and 2 May 2004’ and that ‘his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded’.\nHowever, the judge stressed that he had ‘not been allowed to participate in the questioning of S.A. but only to follow it in real time’. On 4 and 5 May the questioning thus continued under the same conditions as the day before.\nFor his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present.\nWhen presented to that judge on 17 June 2004 he indicated that he was ‘tired’, that he ‘wished to see a doctor immediately’, and that he was ‘worried about his wife and daughter’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation.\nAs a result, the French investigating judge was not able to exercise any real control over the conditions in which S.A. was interrogated in Syria, even though he was being held in the ‘Palestine Section’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported.\nIt is therefore almost certain that the admissions or ‘confession’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants.\nAccordingly, S.A.’s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file.”", "15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows:\n“Page 25: ‘it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus.’\nPage 47: ‘the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture.’\nPage 68, paragraph entitled: ‘Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services’.\nPage 69: ‘The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture.’\nPage 70: ‘the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked: it encourages torture.’”", "16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A.’s conviction and sentenced him to ten years’ imprisonment, after excluding the documents in question: “the defendant’s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant’s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S.A. (see p. 68 et seq. of the pleadings)”.", "17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter.", "18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant’s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters.", "19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S.A.’s lawyers, executed with astonishing speed”. It thus found that “it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point..., and on the protection under Article 10 of the Convention of the lawyer’s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002-II), it pointed out that the applicant’s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution.", "20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision.", "21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A.’s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “had visibly sought to ‘do as he pleased’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal)”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “there was no need for [the applicant], in the interest of S.A., to claim without any proof that the French investigating judges had been complicit in the torture of S.A.”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation.", "22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client’s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture.", "23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant’s appeal on points of law, it was rejected in the following terms:\n“However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client’s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...”\n..." ]

[ 6 ]

[ "5. The applicant was born in 1979 and lives in Bucharest.", "6. On 2 June 2007 the applicant had an argument with a taxi driver because the driver had refused to return his change after he had paid for a taxi ride. Following their verbal argument, the taxi driver drove the applicant against his will to a police station.", "7. When the applicant entered the police station and informed the police that he wished to lodge a complaint against the taxi driver he was insulted and beaten by three unidentified police officers. The police officers punched him in the face and kicked him in the ribs for ten minutes. Subsequently they handcuffed him to a metal rail for twenty minutes.", "8. Immediately after the incident the applicant managed to call two friends and a lawyer on his mobile phone. They arrived shortly afterwards at the police station and took pictures of the applicant while he was still handcuffed and had blood on his face as a result of an open wound near his right eye.", "9. The applicant attached to his initial letter to the Court several photographs allegedly taken in the police station which show him in handcuffs and chained to a rail and with a bleeding injury under his right eye.", "10. On the same day the applicant was asked by a fourth police officer to give a statement with regard to the incident. At the same time, one of the police officers who had hit him informed the applicant that he had fined him 200 Romanian lei (RON) – approximately 55 euros (EUR) – because he had verbally abused the taxi driver and the police officers.", "11. After he had left the police station, the applicant went to the Mina Minovici Forensic Institute in order to ask for an expert medical report in respect of his injuries.", "12. On 2 June 2007 the applicant had an argument with a taxi driver because the driver had refused to allow him to get into his taxi with a bottle of beer. The applicant was drunk, aggressive and – according to eyewitnesses – had a bruise under the right eye by the time he arrived at the police station.", "13. Inside the police station, the police officers handcuffed the applicant to a metal rail, but without hitting him. The police officers did not cause any injuries to the applicant, except around the area where the handcuffs were attached to his wrists. Moreover, the applicant was not subjected to a level of physical violence exceeding that required by the handcuffing procedure.", "14. On 5 June 2007 the applicant brought criminal proceedings against the taxi driver for unlawful deprivation of liberty and insult, and against the three police officers who had hit him for abuse of office by restricting his rights, abusive behaviour and insult. In addition, he asked the investigating authorities to identify the three police officers and the taxi driver involved in the incident.", "15. On 26 June 2007, pursuant to the applicant’s request of 2 June 2007, the Mina Minovici Forensic Institute produced an expert medical report. The report noted that the applicant had slightly swollen lesions around the mouth area; a swollen area (on the right side of his face) in the centre of which was an open wound covered with coagulated blood; superficial scrapes over his right clavicle and on his right forearm; and bruising on the right forearm and left arm. The expert medical report concluded that the injuries could have been caused on 2 June 2007 and that the applicant had suffered traumatic injuries which could have been caused by his having been struck with a solid object, scratching and finger compression. The injuries required seven to eight days of medical treatment. The report also noted that after a medical examination carried out at the thoracic surgery ward of Bucharest Emergency University Hospital, he was diagnosed with a simple thoracic contusion caused by physical violence and a bruised eyelid.", "16. On 1 July 2009 the Bucharest Prosecutor’s Office, after it had identified the taxi driver and all the police officers on duty on the day of the incident (including the three police officers involved in the incident, namely, N.B., V.L.G. and C.P.), discontinued the criminal investigation opened at the request of the applicant for unlawful deprivation of liberty and abusive behaviour on the ground that no unlawful act had been committed. It noted that according to the police officers’ statements, the applicant had been drunk on the day of the incident. As soon as he had entered the police station he had started insulting the officers and had become increasingly violent.", "17. The prosecutor’s office also noted that according to police officers C.V. and N.A.T., the applicant had already had an injury on his face, which had stopped bleeding by the time he had entered the police station. Police officers N.B., V.L.G. and C.P. had also confirmed that the applicant had been drunk and aggressive and that he had had an injury on his face which had already stopped bleeding. The taxi driver, R.D., had confirmed the police officers’ statements and had declared that the applicant had repeatedly refused to leave his car and that he had not seen the officers abuse the applicant either physically or verbally inside the police station. Two other witnesses – namely, D.A. and V.D.F., who were friends of the applicant – had confirmed that the applicant had attended a party and that afterwards he had asked them to go to the police station because he had been abused by police officers. When they had arrived at the station they had seen the applicant handcuffed to a metal rail and that he had a facial injury, but they had not seen the police officers abuse him.", "18. The prosecutor’s office held that there was no evidence in the file that the police officers had physically or verbally abused the applicant or that the taxi driver had deprived him of his liberty. Moreover, the applicant had been lawfully immobilised because he had been aggressive. Furthermore, the officers had immobilised the applicant by using only the minimum level of force required. The applicant challenged the decision before the higher prosecutor.", "19. On 12 March 2010 the higher prosecutor attached to the prosecutor’s office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decision before the domestic courts.", "20. On 1 June 2010 the Bucharest District Court dismissed the applicant’s appeal against the decisions of the prosecutor’s office as ill‑founded. The applicant appealed on points of law (recurs) against the judgment.", "21. On 29 June 2010 the Bucharest County Court allowed the applicant’s appeal on points of law and referred the case back to the first‑instance court for re-examination. It held that the first-instance court had failed to summon the taxi driver during the court proceedings and to examine the applicant’s complaint in respect of the taxi driver.", "22. On 22 September 2010 the Bucharest County Court allowed the applicant’s appeal against the decisions of the prosecutor’s office of 1 July 2009 and 12 March 2010 and ordered the prosecutor’s office to re‑open the criminal investigation. It held that the prosecutor’s office had dismissed only some of the criminal complaints lodged by the applicant against the three police officers and the taxi driver and had omitted to examine the others. The police officers appealed on points of law against the judgment.", "23. On 18 November 2010 the Bucharest County Court dismissed as ill‑founded the police officers’ appeal on points of law.", "24. On 16 September 2011 the prosecutor’s office discontinued the criminal investigation against the taxi driver and the three police officers on the ground that according to the available evidence no unlawful acts had been committed. The applicant challenged the decision before the higher prosecutor attached to the prosecutor’s office.", "25. On 2 December 2011 the higher prosecutor attached to the prosecutor’s office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decisions before the domestic courts.", "26. On 14 March 2012 the District Court allowed in part the applicant’s appeal against the decision of the prosecutor’s office of 16 September 2011. The court ordered the prosecutor’s office to reopen the criminal investigation regarding the offences of abusive behaviour and abuse of office in respect of the three police officers and regarding the offence of unlawful deprivation of liberty in respect of the taxi driver.", "27. The court held in respect of the offence of abusive behaviour that the preliminary investigation carried out had not met the requirements of Article 3 of the Convention. The court first noted that the investigation had not been independent, as most of the preliminary investigation (including the questioning of the four police officers and two of the applicant’s witnesses) had not been carried out by a prosecutor but by other police officers who belonged to another section of the Bucharest Police Department (and who therefore belonged to the same organisational structure and were subject to the same chain of command as the officers under investigation). Moreover, the decisions of the prosecutor’s office had relied on the statements collected by the police officers and not the prosecutor himself. Furthermore, the investigation had not been thorough and had failed to clarify the circumstances of the case.", "28. In particular, the court found that the prosecutor’s office had relied only on corroborating evidence and had failed to provide reasons for dismissing the evidence supporting the applicant’s allegations. Moreover, given the conflicting evidence, the preliminary investigation had not clarified whether the origin of the applicant’s facial wound had pre-dated the incident or whether it had stopped bleeding by the time he had entered the police station. The origins of the facial wound had also not been investigated or explained. The circumstances of the applicant’s handcuffing, the level of force used and the time needed, and the exact identity of the officers who had handcuffed him had remained unclear. No reasonable explanation had been provided as to how the handcuffing of the applicant’s hands had resulted in the applicant’s face being injured, given that at least four police officers had initially acted against the applicant and that he had been only verbally and not physically violent.", "29. Accordingly, the court instructed the prosecutor to personally hear the applicant, his witnesses and the police officers present at the police station on the day of the incident in order to establish: whether the applicant’s facial wound had pre-dated the time at which he had entered the police station; whether the applicant had fallen on the stairs at the police station (and, if so, the reason for his fall); whether the applicant had intentionally banged his head against the window of a door; whether the testimony that the applicant’s facial wound had been bleeding had also been supported by other witnesses; whether the police officers had initially approached the applicant outside or inside the station; the names of the police officers present when the applicant had entered the station and at the initial stage of the incident; the names of the officers who had arrived only after they had heard noises and what they had witnessed; the moment at which the applicant had been handcuffed, the reasons for his being handcuffed and the actual process of the handcuffing; the identity of the officers who had actually handcuffed the applicant; whether the applicant had been both verbally and physically aggressive prior to his being handcuffed; the length of time for which the applicant had remained handcuffed and the person who had removed the handcuffs; whether the testimony that the applicant had never been handcuffed had been confirmed by the other witnesses; whether the applicant had entered the police station twice and had been aggressive only the second time; and whether the applicant had been carrying a beer bottle when he had arrived at the station.", "30. The court also instructed the prosecutor to arrange a confrontation between the witnesses, the applicant and the police officers in order to clarify any inconsistencies between their statements; to identify and question other individuals present at the party attended by the applicant on the day of the incident in order to establish whether the applicant had had a facial wound prior to his argument with the taxi driver; to obtain the transcripts of the telephone call between one of the applicant’s friends and the emergency services; and to gather any other relevant evidence needed for the investigation.", "31. In respect of the offence of unlawful deprivation of liberty the court held that according to the available evidence, the applicant had indeed been deprived of his liberty. Accordingly, the court held that the prosecutor’s office had to continue the investigation in order to clarify the circumstances of the case and to establish whether the elements of an offence had been made out.", "32. In respect of the offence of abuse of office, the court held that the prosecutor’s office had discontinued the criminal investigation without having actually carried out any investigation with regard to the applicant’s allegations and instructed the prosecutor’s office to hear the applicant and the police officers in that respect.", "33. On 11 May 2012 the prosecutor’s office opened a criminal investigation against N.B., V.L.G. and C.P. for abusive behaviour.", "34. On 18 March 2014 the prosecutor’s office extended the criminal investigation against N.B., V.L.G. and C.P. to include abuse of office and unlawful deprivation of liberty.", "35. On 10 April 2014 the prosecutor’s office heard the taxi driver.", "36. On 14, 15 and 27 May 2014 the prosecutor’s office heard police officers S.E.C, C.V. and N.A.T.", "37. On 16 June 2014 the prosecutor’s office heard the applicant.", "38. On 23 June 2014 the prosecutor’s office confronted the applicant with the taxi driver and the three police officers who had allegedly assaulted him.", "39. On 24 June 2014 the prosecutor’s office closed the proceedings (clasat cauza) in respect of the taxi driver for the offence of unlawful deprivation of liberty and in respect of the police officers for the offences of abuse of office and abusive behaviour. It held, inter alia, that according to the available evidence, the taxi driver’s actions had lacked all the elements of an offence. Moreover, it was clear that the applicant had been immobilised against his will by C.P., N.B. and V.L.G., and had been handcuffed to a metal rail. The injury on the applicant’s face could have been caused by a cut or a scratch and must have already existed by the time the applicant had arrived at the police station. The fact that it had started bleeding again during the time he had spent at the station was due to the removal of the dried blood during the forcible handcuffing procedure. The applicant’s allegation that he had been repeatedly hit and kicked by the three police officers had not been supported by any evidence. In fact, the absence of more severe injuries had made it difficult to prove, beyond any reasonable doubt, the officers’ aforementioned violent behaviour.", "40. The applicant’s remaining lesions could have been caused during the forcible handcuffing and by the handcuffs themselves, given that the applicant had been struggling and had been resisting being handcuffed. The applicant’s statement that following his fall on the stairs he had injured both his arms and that his hand had been squeezed by officer C.P. had not been supported by the medical expert report. The bruises on the applicant’s right arm and in the clavicle area could have been caused by his immobilisation.", "41. The applicant appealed against the decision of the prosecutor’s office before the domestic courts on the ground that it had complied only in part with the instructions received from the court on 14 March 2012. He also argued that the prosecutor’s office had failed to carry out a speedy and effective investigation.", "42. On 16 February 2015 the Bucharest District Court allowed the applicant’s appeal in part. It closed the proceedings in respect of the offence of abusive behaviour on the ground that the prosecution of that offence had become time-barred. However, it referred the case back to the prosecutor’s office for criminal proceedings to be opened against the three police officers and the taxi driver for unlawful deprivation of liberty. Furthermore, it upheld the decision of the prosecutor’s office to close the proceedings with regard to the applicant’s allegation of abuse of office. Lastly, relying on Article 20 § 2 of the Romanian Constitution and Articles 13 and 3 of the Convention, it found that the prosecutor’s office had failed to carry out an effective investigation in respect of the applicant’s allegations of degrading treatment; accordingly, it asked the Prosecutor General attached to the Bucharest Court of Appeal to assess the need to take over the case in the light of the refusal of the prosecutor’s office to comply with the final judgments of the courts.", "43. The parties provided the Court with only the operative part of the judgment of 16 February 2015 and failed to submit a full copy of the aforementioned judgment.", "44. The proceedings are still pending before the domestic authorities." ]

[ 1 ]

[ "6. The applicant was born in 1972 and resides in Sakarya.", "7. The applicant is a Russian citizen of Chechen origin. He left his country in 1993 and arrived in Turkey, where he was granted a residence permit. He claimed that in view of the ongoing armed conflict in his country of origin, he would face extrajudicial killing, imprisonment or death by torture if he were to be deported or extradited there.", "8. On 9 May 2010, following an order issued by the Bakırköy public prosecutor, the police arrested the applicant at Istanbul Atatürk International Airport on suspicion of illegal entry into Turkey with a false passport.", "9. At 8.15 a.m. on 10 May 2010 the applicant was questioned by the police at the airport. He was subsequently detained at the airport police facility for three days without any judicial order to that effect. He submitted that he had been kept in an overcrowded room.", "10. On 12 May 2010 the police took the applicant to the Kumkapı Removal Centre for Foreigners (“the Kumkapı Removal Centre”) pending his deportation.", "11. The applicant alleged that he had been detained in unhygienic, unhealthy and overcrowded conditions at the Kumkapı Removal Centre.", "12. On 29 September 2010 the applicant’s lawyer lodged a complaint with the Istanbul public prosecutor’s office against police officers from the foreigners’ department of the Istanbul police headquarters alleging that he had been unlawfully detained by State officials. He also complained about the conditions of detention at the Kumkapı Removal Centre, particularly overcrowding, insufficient ventilation and poor hygiene.", "13. On 30 September and 4 October 2010 the applicant’s lawyer filed petitions with the Ministry of the Interior and the Istanbul governor’s office requesting the applicant’s immediate release, claiming that his detention was unlawful.", "14. On 4 October 2010 the applicant’s lawyer also applied to the Istanbul Magistrates’ Court for the applicant’s release, challenging the lawfulness of his detention.", "15. On 13 October 2010 the police released the applicant from the Kumkapı Removal Centre on condition that he applied for the renewal of his residence permit.", "16. On 6 December 2010 the Istanbul governor’s office decided not to examine the applicant’s complaint regarding his detention.", "17. On 10 January 2011 the applicant’s lawyer appealed against that decision. He pointed out, inter alia, that on 19 October 2010 he had requested to be provided with the content of the applicant’s file and that on 8 November 2010 he had been given only a limited number of documents. He submitted that some documents had not been provided as they had been classified as “confidential” and that such practice by the police was not prescribed by law.", "18. On 15 March 2011 the Istanbul Regional Administrative Court quashed the decision, holding that the governor’s office had to decide on whether authorisation should be granted for the prosecution of police officers at the Kumkapı Removal Centre.", "19. On an unspecified date the Istanbul governor’s office decided not to authorise the prosecution of the police officers. Subsequently, on 13 September 2011 the Istanbul public prosecutor decided to terminate the investigation opened at the applicant’s request. In his decision the public prosecutor noted that the applicant had been banned from entering Turkey and that he had been apprehended with a false passport. He further noted that the applicant had not been imprisoned but remanded in custody pending his deportation." ]

[ 1, 2 ]

[ "5. The applicant was born in 1978 and is serving a prison sentence in the Nizhniy Novgorod region.", "6. On 27 June 2007 the applicant was arrested on suspicion of having produced and distributed child pornography.", "7. On 29 June 2007 the Leninskiy District Court of Cheboksary (“the District Court”) authorised the applicant’s detention pending investigation. In particular, the court reasoned as follows:\n“... [the applicant] is suspected of a serious offence ... entailing a custodial sentence exceeding two years. Regard being had to the circumstances of the case concerning [the distribution of child pornography], the [applicant’s] character, and the fact that he applied for a passport, the court considers that if at liberty [the applicant] might abscond or interfere with the administration of justice by way of communicating by e‑mail with the persons who purchased pornographic materials from him. Accordingly, the court considers that it is necessary to remand [the applicant] in custody. The court does not consider it possible to apply any other preventive measure.”", "8. On 22 August 2007 the District Court extended the applicant’s detention until 9 October 2007 noting as follows:\n“... [the applicant] is charged with a serious offence ... entailing a custodial sentence exceeding two years. Regard being had to the circumstances of the case, the [applicant’s] character, the fact that he previously lived in Lithuania and that he worked for a considerable period of time in law enforcement and has extensive connections with the police, the court considers that, if at liberty, [the applicant] might abscond or interfere with the administration of justice ... The court does not consider it possible to apply any other preventive measure.”", "9. On 3 October 2007 the District Court extended the applicant’s pre‑trial detention until 9 November 2007 noting that the circumstances underlying the applicant’s detention pending investigation were still pertinent. On 12 October 2007 the Supreme Court of the Chuvash Republic upheld the court order of 3 October 2007 on appeal.", "10. On 6 November 2007 the District Court extended the applicant’s pre-trial detention until 9 December 2007 referring to the seriousness of the charges against him and his prior service in law enforcement. On 26 November 2007 the Supreme Court upheld that court order on appeal.", "11. On 6 and 24 December 2007 the Moskovskiy District Court of Cheboksary extended the applicant’s pre-trial detention until 27 December 2007 and 27 January 2008 respectively. The court noted that the circumstances underlying the applicant’s detention pending investigation were still pertinent. On 6 January 2008 the Supreme Court upheld the court order of 24 December 2007 on appeal.", "12. On 25 January 2008 the District Court extended the applicant’s detention until 27 February 2008. The court noted as follows:\n“Regard being had to the ongoing investigation, the seriousness of the charges against [the applicant] ... and the fact that he might abscond, put pressure on the victim and witnesses or otherwise interfere with the administration of justice, the court considers it necessary ... to extend the [applicant’s] pre-trial detention ...”", "13. On 4 February 2008 the Supreme Court quashed the court order of 25 January 2008 on appeal, citing the applicant’s exclusion from the court hearing, and remitted the matter for fresh consideration. The court ordered the applicant’s release dismissing the argument that the applicant “might abscond or interfere with the administration of justice” as unsubstantiated. It also noted that, in contravention of the rules of criminal procedure, the detention hearing of 25 January 2008 had been held without the applicant’s legal counsel being present as he had not been duly notified of the time and place.", "14. On 8 February 2008 the investigator in charge of the applicant’s case reclassified the charges against the applicant and ordered him to be detained for forty-eight hours. On 10 February 2008 the applicant was released.", "15. On 12 February 2008 the District Court again authorised the applicant’s detention pending investigation until 27 February 2008. The court noted as follows:\n“Regard being had to the ongoing investigation ..., the seriousness of the charges against [the applicant] ... and the fact that he might abscond, put pressure on the underage victim, who, owing to his age and medical condition, might be influenced by an adult, the court considers it necessary to extend the [applicant’s] pre-trial detention ...”", "16. On 22 February 2008 the Supreme Court upheld the court order of 12 February 2008 on appeal.", "17. On an unspecified date the applicant was charged with several counts of child molestation.", "18. On 26 February 2008 the District Court extended the applicant’s pre‑trial detention until 27 March 2008 with reference to the seriousness of the charges, and the risk of his absconding or putting pressure on the underage victim of the crime. On 14 March 2008 the Supreme Court upheld the court order of 26 February 2008 on appeal.", "19. On 27 March 2008 the applicant was released upon expiry of the statutory maximum period for pre-trial detention.", "20. On 28 March 2008 the District Court dismissed the investigator’s application for the applicant’s detention pending trial and ordered the latter to post bail in the amount of 100,000 Russian roubles (RUB). On 31 March 2008 the applicant’s father put up that amount as bail.", "21. On an unspecified date the District Court received the case file and fixed the preliminary hearing for 25 July 2008.", "22. On 25 July 2008 the District Court found that the prosecutor had failed to duly authorise the extension of the period of detention pending the investigation of the case and returned the case file to the prosecutor’s office. On 4 September 2008 the Supreme Court quashed that decision and remitted the case to the District Court for fresh examination.", "23. On 2 October 2008 the District Court fixed the trial for 15 October 2008.", "24. On 12 April 2010 the District Court granted the prosecutor’s request to remand the applicant in custody pending trial. In particular, the court reasoned as follows:\n“In the course of the trial ... since 1 April 2009 [the applicant] has wilfully and frivolously interfered with the administration of justice.\nEven though [the applicant] was able to participate in the court hearings, he did not appear in court during the periods from 17 to 31 December 2009 and from 13 to 22 January 2010. Nor did [the applicant] appear in court from 6 to 9 April 2010.\nThe fact that [the applicant] was fit to attend the hearings is confirmed by the statements made by the chief physician of [the municipal hospital] on 15 January ... and 7 April 2010 ...\nFurthermore, it appears from the statement made by O.N., the father of the underage victim, A.N., also signed by A.N. and received by the court on 9 April 2010, that [the applicant] constantly put pressure on their family. Without explanation, [the applicant] made them sign various documents and prevented them from participating in the court hearings. They asked the court to protect them from [the applicant].\nThe court perceives with certain scepticism the written statement made by A.N., his parents and their counsel ... whereby they do not agree with the [applicant’] detention pending trial. The court takes into account that [the applicant] lives next door to the underage victim and can put pressure on [him] and his parents.\nAs can be seen from the case file, [the applicant] is charged with [serious offences] entailing a custodial sentence of between two and fifteen years’ imprisonment.\nRegard being had to the seriousness of the charges and to the fact that [the applicant] lives next door to the underage victim and can put pressure on [him] and his parents, the court considers that, if at liberty, [the applicant] might interfere with the administration of justice and put pressure on [A.N.] ...”", "25. According to the Government, on 14 April 2010 the applicant lodged an appeal against the decision of 12 April 2010. On 16 April 2010 the District Court granted the applicant’s request to study the case file in order to prepare for the appeal hearing. On 20 May 2010 the Supreme Court upheld the decision of 12 April 2010 on appeal.", "26. On 5 July 2010 the District Court found the applicant guilty of several counts of production and distribution of child pornography, child rape and molestation and sentenced him to twelve years’ imprisonment.", "27. On 27 October 2010 the Supreme Court upheld the applicant’s conviction on appeal.", "28. On 5 December 2012 the Bor Town Court of the Nizhniy Novgorod Region granted the applicant’s request for commutation of his prison sentence in view of the latest amendments to the Russian Criminal Code and reduced the applicant’s sentence by one year.", "29. On 26 February 2013 the Nizhniy Novgorod Regional Court upheld the decision of 5 December 2012 on appeal.", "30. On 12 April 2011 the applicant brought a claim against the Ministry of Finance of the Russian Federation for the authorities’ failure to determine the criminal charges against him within a reasonable time.", "31. On 26 May 2011 the Supreme Court of the Chuvash Republic dismissed the applicant’s claims. The court noted that the criminal proceedings against the applicant had lasted three years, four months and twelve days. With reference to the particular circumstances of the case and relying on the relevant criteria of the Court’s case-law, the court considered such a period reasonable. On 7 October 2011 the judgment of 26 May 2011 was upheld on appeal.", "32. Pending investigation and trial the applicant was detained in a temporary detention centre, remand prison no. IZ-21/1 and a psychiatric hospital in Cheboksary during the following periods: from 27 June 2007 to 4 February 2008, from 12 February to 27 March 2008, from 12 April to 5 November 2010. According to the applicant, the conditions of his detention were inhuman and degrading." ]

[ 2 ]

[ "6. The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region.", "7. On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial.", "8. On 28 May 2008 the Volzhsk Town Court (“the Town Court”) convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007.", "9. On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region.", "10. The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected.", "11. The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment.", "12. Having served his sentence in full, the applicant was released from detention on 15 May 2013.", "13. On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking.", "14. On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony.", "15. On 11 October 2014 the applicant died in detention.", "16. The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility.", "17. According to the applicant, from 18 October 2007 to 27 June 2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility.", "18. The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd (“institution no. LIU-15”) and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no. LIU‑15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility.", "19. The applicant filed a number of complaints ‒ for instance with the Prosecutor’s Office of the Volgograd Region ‒ arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5. On 31 March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no. IZ-34/5. Referring to the decision of the medical commission on 17 January 2008, the authorities held that the applicant’s tuberculosis had been fully cured.", "20. The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details.", "21. Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission.", "22. On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region.", "23. According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication.", "24. The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there.", "25. On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15.", "26. The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013.", "27. The medical records show that on admission to institution no. LIU‑15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis (“MBT”). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6.", "28. On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found.", "29. A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further.", "30. On 20 November 2012 the applicant was examined by a doctor, who noted in the “epicrisis” (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections.", "31. On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs.", "32. The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention.", "33. In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid.", "34. As follows from the epicrisis of 27 February 2013 and a “regime violation record” dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine ‒ citing their adverse effects on his health through inducing negative development of his hepatitis C ‒ and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal.", "35. On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines.", "36. According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors.", "37. On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction.", "38. From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period.", "39. The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15 July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no. LIU-15 had refused to admit him for treatment before his conviction.", "40. On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities.", "41. Following the fresh conviction, on 21 October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors.", "42. A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin.", "43. In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment.", "44. On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency.", "45. A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment.", "46. On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health.", "47. No further information about the applicant’s treatment was provided after 16 December 2013.", "48. The applicant was certified as having second-degree disability on 1 May 2014.", "49. A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole.", "50. On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15.", "51. The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no. 35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife.", "52. According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household.", "53. Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other.", "54. On 11 September 2013 the applicant formally authorised Ms Yusupova to withdraw money from his bank account. In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died." ]

[ 1 ]

[ "4. The applicants were born in 1965, 1967, 1996, 1998 and 2000 respectively and live in Isaszeg. The first and second applicants are spouses and parents of the third, fourth and fifth applicants.", "5. The applicants lived as specially protected tenants in a flat owned by the local government of Budapest 12th District. Due to the seriously deteriorated condition of the flat, in December 1995 they concluded an agreement with a view to moving to another property of the local government. Subsequently, a dispute arose between the parties concerning the applicants’ rights flowing from the tenancy.", "6. In a first set of civil proceedings, the first applicant challenged the validity of the agreement concluded in December 1995. The Buda Central District Court dismissed the first applicant’s claim on 27 March 1996. The judgment became final at first instance.", "7. In September 1997 the first applicant brought a new action against the local government in relation to the tenancy agreement. This action was also dismissed by the Buda Central District Court; and the first instance judgment was upheld by the Budapest High Court in 2000, on a date not specified in the application.", "8. On 28 August 2001 the first applicant brought a third action before the Budapest High Court, claiming damages sustained in connection to the tenancy dispute.", "9. On 6 August 2002 the second, third, fourth and fifth applicants joined the first applicant’s action.", "10. Both the Budapest High Court and the Budapest Court of Appeal, the latter acting as a second instance court, turned down the applicants’ claims. The dates of the judgments were not specified in the application.", "11. The applicants lodged a petition for review. On 1 October 2014 the Kúria confirmed the final judgment. The judgment was served on the applicants on 4 December 2014." ]

[ 3 ]

[ "5. The applicants are commercial companies authorised to provide services in the area of passenger transport. They are located in Râmnicu-Vâlcea.", "6. On 23 September 2004 Vâlcea County Council adopted a decision which set out a programme of passenger transport for the local area for a period of three years. Within the programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was considered as an individual route. Following a public tender, an association consisting of two companies was granted a licence to transport passengers along that route.", "7. On 15 April 2005 Vâlcea County Council modified its previous decision and adopted a new programme of passenger transport for a period of three years, covering 2005 to 2008. Within the new programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was grouped together with six other routes. Another public tender took place, and the applicant companies submitted a tender for the group. They subsequently received licences to operate public transportation services for the seven routes in the group.", "8. On 24 May 2005 one of the two companies which lost their licence for the Drăgăşani – Băbeni – Râmnicu-Vâlcea route asked the courts to annul Vâlcea County Council’s decision of 15 April 2005, and to oblige the local authorities to adopt a new decision in which the route in question could again be considered as an individual route.", "9. The first applicant company requested (and was granted) leave to intervene in the proceedings in order to defend its own interests. Through its submissions, the applicant company argued that the decision adopted by the council on 15 April 2005 was in accordance with the law, and asked the Argeş County Court to dismiss the action.", "10. On 13 February 2006 the Argeş County Court held that, by grouping routes together, the county council had acted arbitrarily and had limited access for other competitors in the public transport market. The court considered that the routes had been grouped together without any economic or geographical considerations. The court therefore ordered the county council to re-analyse route no. 047 (the Drăgăşani – Băbeni – Râmnicu-Vâlcea route), and to proceed to a new public tender of the route as an individual route. The court used the following terms:\n“We consider that, by grouping together these routes, the creation of a monopoly on the road transport market was encouraged, thereby breaching the principles of free competition.\nIn conclusion, the court holds that it is necessary to partially revoke decision no. 63/15.04.2005 on the approval of the programme for passenger transport... for the period 2005 to 2008 in respect of offer 27, group of routes no. 11, route no. 047 Drăgăşani– Băbeni– Râmnicu-Vâlcea.\nConsidering that ... Order no. 1842/2001 was repealed by Order no. 1987/2005 ..., it follows that the defendant should re-analyse route 047 Drăgăşani-Băbeni-Râmnicu-Vâlcea as an individual route in view of these legal provisions and, taking into account the results, proceed to a new public tender.”", "11. The first applicant company lodged an appeal on points of law (recurs) against this judgment, arguing that the plaintiff had not proved the existence of a legitimate interest for its request, and that the partial annulment of a public tender would be unlawful.", "12. On 28 June 2006 the Piteşti Court of Appeal rejected the first applicant company’s appeal on points of law with final effect. The court explained that there were preconditions imposed by law which had to be fulfilled before a decision to group together certain transport routes could be taken by a local authority. Bearing in mind that in the current case those requirements had not been observed, the lower court had correctly annulled the administrative decision in question in the context of the request before it, namely in respect of route no. 047. The Court of Appeal explained that the lower court had ordered the county council to conduct an analysis of whether or not route no. 047 might be grouped together with other routes, in compliance with the legal provisions in force. Lastly, the court held that non-compliance with those obligations would give those whose interests had been negatively affected the right to request reparation for any consequent damage.", "13. On 6 July 2006 Vâlcea County Council adopted a new decision; modifying the programme of public transport for the period 2005-08 by putting out to public tender all seven routes from group no. 11 as individual routes. Consequently, on 26 July 2006 the applicant companies received a letter from the Romanian Traffic Authority (Autoritatea Rutieră Română) informing them that they had to hand over their licences for the entire group of seven routes within thirty days of the final decision in a new public tender.", "14. On 15 June 2007 the new public tender was organised for the seven routes in question. The applicant companies did not participate.", "15. On 2 October 2006 the applicant companies lodged administrative proceedings requesting the annulment of the decision made by Vâlcea County Council on 6 July 2006. They argued that the Argeş County Court, by its judgment of 13 February 2006, had ordered the analysis as an individual route of only one route out of the group of seven. They further alleged that, by withdrawing their licences for the remaining six routes and organising a new public tender for all of the routes in the group, the authorities had acted unlawfully.", "16. On 23 January 2007 the Vâlcea County Court rejected the applicant companies’ complaint. The court held that the contested decision had been adopted in accordance with the judgment of 13 February 2006, but also in compliance with new regulations adopted by the Ministry of Transport; regulations which no longer provided for the possibility of grouping routes together for economic or geographic purposes.", "17. The applicant companies’ appeal on points of law against that judgment was rejected with final effect by the Timişoara Court of Appeal on 6 December 2007. The Court of Appeal considered that the lower court had made a correct analysis of the facts.", "18. The president of the panel of three judges added a separate dissenting opinion to the judgment on the appeal on points of law. He considered that, by adopting the decision of 6 July 2006, Vâlcea County Council had not properly enforced the judgment of 13 February 2006, and had therefore breached the applicant companies’ right to property guaranteed by Article 1 of Protocol No. 1 to the Convention. The judge explained that the applicant companies had participated in a public tender, and had won the right to exploit the group of seven routes in question. Although the county council had been ordered by final judgment to re‑analyse only one of the routes above as an individual route, they had adopted without any legal basis a new decision which considered all of the routes individually.", "19. On 5 October 2006 the first applicant company requested before the administrative court the annulment of the Romanian Traffic Authority’s decision of 26 July 2006 to withdraw its licences for the entire group of routes. The first applicant company also requested that the enforcement of that decision be suspended pending the delivery of a final judgment in the case.", "20. The first applicant company argued that the contested decision prevented it and its associate (the second applicant company) from participating in the next public tender for the same route. The applicant companies further argued that the withdrawal of their licences had not been in compliance with Article 65 of Order no. 1987/2005, which set out the grounds on which licences could be withdrawn.", "21. On 18 December 2006 the Piteşti Court of Appeal rejected the action as submitted by the first applicant company. The court held that the applicant had not proved the alleged damage caused by the decision of the Romanian Traffic Authority, since it could participate in the new tender. In addition, there was no proof that the applicant company would be prevented from participating in the new tender. The court further explained that, should the applicant company consider itself prejudiced by the administrative act which was in dispute, it could request damages from those responsible for any consequent loss.", "22. The first applicant company lodged an appeal on points of law against that judgment. It alleged that the licences for the entire group of routes could not be lawfully withdrawn, since not all of them had been annulled by a court judgment. The first applicant company argued that, in accordance with Article 66 of Order no. 1987/2005, a company whose licence for a certain route had been withdrawn could not participate in a new tender for the same route.", "23. On 25 April 2007 the High Court of Cassation and Justice decided to allow the first applicant company’s request, and partially annulled the decision of the Romanian Traffic Authority, which was upheld only in respect of the licence for route no. 047. The High Court considered that the licences held by the applicant company for the other six routes of offer 27, group no. 11 constituted “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention, and that there was no reason to order their remittal through an administrative act." ]

[ 9 ]

[ "4. The applicant was born in 1966 and is currently serving a prison sentence in the Kocaeli F-Type Prison.", "5. On 11 October 1996 he was arrested and taken into custody on suspicion of being a member of and aiding and abetting the PKK (Kurdistan Workers’ Party, an illegal organisation).", "6. On 18 October 1996 he was brought before a single judge at the 2nd Chamber of the Istanbul State Security Court, who ordered him to be placed in pre-trial detention.", "7. On 25 October 1996 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and nine other persons, accusing the applicant of membership of an illegal organisation and of taking part in the murder of two persons for the organisation, along with his co-accused. The public prosecutor requested that the applicant be convicted and sentenced under Article 125 of the former Turkish Criminal Code for having engaged in acts aimed at the separation of a part of the territory of the State.", "8. The Istanbul State Security Court held a total of twenty-five hearings following the commencement of the trial on 13 January 1997. The main witnesses against the defendants, who were all police officers, were not heard until 27 March 1998, because they failed to attend the hearings.", "9. Between 4 September 1998 and 26 May 1999 the proceedings were adjourned four times because the defendants in detention, including the applicant, were not taken to the hearings by the prison authorities.", "10. On 13 June 2001 the Istanbul State Security Court found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the former Criminal Code.", "11. On 28 January 2002 the Court of Cassation found that the information regarding the defendants’ identities had not been duly noted in the operative part of the reasoned judgment of the Istanbul State Security Court. It therefore quashed the judgment on those purely procedural grounds and remitted the case to the first-instance court.", "12. On 27 September 2002 the Istanbul State Security Court once again convicted the applicant under Article 125 of the former Criminal Code but, having regard to the recent amendments introduced by Law no. 4771 to that Article, sentenced him to life imprisonment instead of the death penalty. In its judgment, the Istanbul State Security Court noted that the Law on the Execution of Sentences (Law no. 647) and the relevant provisions of the Prevention of Terrorism Act (Law no. 3713) on conditional release in force at the material time would not be applicable to the applicant and that he would, therefore, serve his sentence until the end of his life.", "13. On 30 June 2003 the Court of Cassation upheld the judgment of the Istanbul State Security Court. It appears that this judgment was deposited with the registry of the first-instance court on 12 September 2003.", "14. It further appears that following the entry into force of the new Criminal Code (Law no. 5237) on 1 June 2005, the applicant’s case-file was automatically subjected to a re-examination by the Istanbul Assize Court, which found, on 1 November 2006, that the new Criminal Code did not require that any changes to the previous judgment against the applicant be made. The Court has not been provided with a copy of the relevant decision of the Istanbul Assize Court.", "15. The committal order (müddetname) issued by the Kocaeli public prosecutor’s office on 24 February 2009 concerning the execution of the applicant’s sentence indicated that the applicant would not be entitled to conditional release by virtue of section 1/B (2) of Law no. 4771 and section 107 § 16 of Law no. 5275 on the Execution of Sentences and Security Measures." ]

[ 1, 3 ]

[ "5. The applicant was born in 1951 and lives in Suwałki.", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. On 24 June 1975 the applicant bought his first agricultural property of 4.79 hectares consisting of 6 plots situated in Gawrych Ruda, in the municipality of Suwałki, between lakes Długie, Okrągłe and Wigry. Three wooden buildings – a house, a barn and a pigsty – were situated on one of the plots, no. 31/1.", "8. On 12 January 1976 the Wigry Landscape Park (Park Krajobrazowy) was created.", "9. On 9 October 1979 the applicant bought further property extending over 7.5 hectares in Gawrych Ruda, consisting of three plots classified as farmland, nos. 30/3, 30/4 and 30/5. There were no buildings situated on these plots.", "10. On 27 June 1988 an ordinance by the Council of Ministers created the Wigry National Park. The applicant’s land was incorporated into the area covered by the park.", "11. The applicant submitted that he had not been informed about this incorporation at the time and had not had any means of challenging this measure, either immediately following the action or after 10 October 1994, when Protocol No. 1 to the Convention entered into force in respect of Poland.", "12. The applicant divided his land into 64 smaller plots, sold some of them to third parties and gave some of them to various members of his family. He currently owns plots Nos. 142/9, 30/12, 30/13, 30/14, 30/16, 30/17, 30/18, 30/19, 30/20, 30/23, 30/24, 30/25, 30/26, 30/27, 30/28, 30/29, 30/30, 30/31, 30/33, 30/34, 30/36 and 31/36.", "13. In 1994 a new local land development plan was adopted by the local municipality. Under this plan the applicant’s plots could not be used for construction purposes.", "14. On 21 September 1999 the Director of the Park informed the applicant that his property was located in the zone of the Lakes Wigry and Długie in the Wigry National Park and that the local development plan prohibited any construction for purposes other than maintaining the water reserves of harbours and beaches.", "15. On 19 October 1999 the Director of the Park responded to a proposal from the applicant to sell his properties in Gawrych Ruda, comprising a total surface area of 123,300 square metres, to the Park. The Director asked the applicant to reassess the price, arguing that the proposed price had been based on the assumption that the plots concerned would be suitable for construction purposes, whereas they in fact consisted exclusively of forest and farmland. The applicant was also informed that, since his plots were situated between two lakes, they fell within the protection zone which extended 200 metres out from the shore of each lake and within which no construction was allowed.", "16. The applicant submitted that from 1999 to 2004 four dwellings had been built on plots in the immediate vicinity of his land. The Government submitted that the Director of the Wigry National Park had given consent only with regard to the expansion of existing dwellings (supplementation of the existing farm buildings).", "17. In 1999 and 2000 the applicant divided plot No. 31/1 on which the farm dwelling (siedlisko) was located and sold it to two third parties. The new owners requested and were granted permits to develop the buildings which already existed on the acquired property.", "18. On 30 December 2003 the local land development plan adopted in 1994 expired.", "19. On 25 January 2003 the applicant asked the Mayor of Suwałki to inform him of the designation of his property according to the 1994 local land development plan.", "20. On 20 February 2003 the Mayor informed the applicant that his land was situated within the limits of the Wigry National Park, falling partly within the lake protection zone and that there was no provision for construction thereon. According to the local land development plan, the applicant’s property consisted of forest area and farmland on which further afforestation was recommended.", "21. On 16 February 2003 the applicant asked the Mayor of Suwałki to pay him compensation amounting to 149,040 Polish zlotys (PLN) for amendments made to the local land development plan which had excluded the possibility of any construction on his property.", "22. On 7 March 2003 the Mayor replied that the applicant’s request was ill-founded because the plan in question, which had been adopted by resolution of the Suwałki Municipal Council on 10 November 1994, had not changed the designation of the applicant’s property. The previous binding development plan did not provide for any construction on the applicant’s land, which was situated on agricultural areas with recommended afforestation.", "23. On 21 May 2002 the applicant requested that a preliminary construction permit (warunki zabudowy i zagospodarowania terenu) be granted in respect of plots nos. 30/17 and 30/19.", "24. On 24 October 2002 the Mayor of Suwałki refused to grant the permit requested. It was found that the planned development, consisting of the construction of a house and an outbuilding, would have been situated too close to the lake shore, in an area in which no construction was allowed according to local land development plan. Moreover, the Director of the Wigry National Park had voiced a negative opinion as regards the planned development.", "25. The applicant appealed to the Suwałki Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze). He complained, among other things, that he had been treated in a discriminatory manner because owners of the adjacent plots had obtained building permits and had been able to develop their land.", "26. On 20 December 2002 the Board upheld the challenged decision. The Board confirmed that the development was inadmissible taking into consideration the provisions of the 1994 local land development plan which expressly prohibited construction of any new buildings in the area concerned. As regards the allegedly discriminatory treatment, the Board found that the owners of some plots situated in the neighbourhood had indeed obtained building permits. However, some buildings had previously existed on their property, so the permits relied on by the applicant were not ones that concerned new constructions. The Board did not find any discriminatory treatment because the applicant’s situation had been legally and factually different from that of his neighbours. As regards the two building permits granted to the other persons living in the vicinity, the Board further noted that proceedings had been instituted as a matter of course to declare the respective decisions null and void.", "27. The applicant lodged a complaint against this decision with the Supreme Administrative Court (Naczelny Sąd Administracyjny).", "28. On 17 April 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The Court endorsed the reasoning of the Self‑Government Board of Appeal’s decision and found no breach of law in the administrative proceedings complained of.", "29. In January 2003 the applicant submitted four applications requesting that the municipality issue preliminary construction permits with regard to plots nos. 30/12, 30/13, 30/16, 30/26 and 30/29. On 10 February 2003 the Mayor of Suwałki ordered the applicant to rectify some shortcomings in his applications. The applicant failed to do so and, consequently, they were not processed.", "30. In February 2004 the applicant requested that the municipality issue preliminary construction permits in respect of plots nos. 30/12, 30/13 and 30/17. The applicant sought permission to develop his property by constructing a new residential building, an outbuilding, a septic tank and a well, with access to public road no. 142.", "31. The municipality invited the Park Director to state his position with regard to the applicant’s request. The Director declined to give his consent to the applicant’s project.", "32. The applicant appealed to the Environment Minister (Minister Środowiska), who quashed the decision and ordered that the case be re‑examined. It was noted that the contested decision had been based on the Conservation of Nature Act of 2004, while it should have been based on the earlier Act of 1991.", "33. On 14 February 2005 the Director again refused to give his consent to the applicant’s request. The Director emphasised the historical and landscape values of the area in question and was of the opinion that any construction there would have a negative influence on the unique values on the landscape which the National Park had to protect.", "34. On 18 February 2005 the Director rectified the basis for his previous decision.", "35. On 22 February 2005 the applicant appealed to the Environment Minister.", "36. On 9 September 2005 the Environment Minister upheld the challenged decision.", "37. The applicant lodged an appeal against this decision with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).", "38. On 9 May 2006 the Warsaw Regional Administrative Court gave judgment, quashing both the challenged decision and the preceding decision of 14 February 2005, finding that the administrative authorities concerned had relied on the wrong legal basis. The Court went on to say that the first-instance decision had not been consistent with the second-instance decision. The first refused the applicant permission because the land in question had not been developed and “had never been intended for construction purposes” and the second contained in its reasoning the statement that “there were already other buildings in the vicinity, which did not justify granting further construction permits”.", "39. On 3 September 2006 an inspection of the plots 30/12, 30/13 and 30/17 took place.", "40. On 28 September 2006 the Director of the Wigry National Park again refused to give his consent to the planned development. He considered that the planned construction failed to fulfil at least one of the requirements laid down in Section 36 of the 1991 Act on Conservation of Nature, namely “it was not consistent with the aims of the Park” (nie służy celom parku), because of its commercial purpose, amongst other things, given that the applicant was intending to run a guesthouse there. The Director admitted that there were buildings in the close vicinity of the applicant’s property and that they had recently been developed. However, the applicant intended to build on previously undeveloped land some 500 metres wide which, in the Director’s view, would negatively affect the landscape and the lakeshore.", "41. The applicant appealed to the Environment Minister.", "42. On 29 September 2006 a new local development plan was adopted, which came into force on 30 November 2006. According to the plan, no construction of any buildings on the applicant’s property was allowed.", "43. Additionally, on 25 October 2006 the Environment Minister replied to the parliamentary query (interpelacja poselska) made on behalf of the applicant by J.Z., a member of the Polish Parliament. The Minister confirmed, among other things, that the local land development plan for the Suwałki Municipality, in force before the 1994, had excluded any new construction on the applicant’s plots nos. 30/12, 30/13 and 30/17.", "44. On 27 December 2006 the Mayor of Suwałki discontinued the administrative proceedings taking the view that the entry into force of the new local development plan rendered continuation of the proceedings pointless since, even if a decision on the merits were to be given, it would have to be declared ineffectual (stwierdzenie wygaśnięcia decyzji).", "45. In the meantime, by resolution of 29 June 2005 – before the local development plan was drawn up – the Municipal Council of the Suwałki Municipality adopted framework local planning policy guidelines (studium kierunków i uwarunkowań zagospodarowania przestrzennego gminy) which provided that the plots belonging to the applicant were to become forest land and that no construction could be carried out on them.", "46. On 22 November 2005 the applicant requested that the municipality rectify a breach of legal order in so far as the guidelines had reflected the National Park’s Director’s position that a ban on all construction projects should be imposed on his plot. He submitted that this measure amounted to de facto expropriation without any entitlement to compensation and consequently breached the Constitution in so far as the latter guarantees the right to the peaceful enjoyment of one’s possessions.", "47. As the municipality refused to grant his request, he submitted a complaint to the Regional Administrative Court in Białystok, contesting the lawfulness of the local planning policy guidelines. He argued that the guidelines directly affected his situation. Not only had they made it impossible for him to pursue any construction projects, they also seriously restricted his ownership rights to such an extent that they became illusory. The guidelines inflicted a serious disadvantage on him in that he was unable to build a shed and had to rent storage space from his neighbours. The restrictions did not correspond to any pressing social need as his farm was not located in virgin territory. There were six farms in the vicinity, all of them with dwellings and sheds, the land was being used for agricultural purposes, there was a road and a power supply, and the installation of a sewage system was planned in the future.", "48. By a judgment of 6 July 2006 the Białystok Regional Administrative Court dismissed his appeal. The court first addressed the municipality’s argument that the policy guidelines were not an individual administrative measure addressed to a particular individual, and capable of affecting his legal interests, and which therefore could not be challenged before an administrative court. The court found that, despite being essentially a policy instrument addressed primarily to other municipal bodies and guiding them in the implementation of local planning policy, they affected the applicant’s legal situation to a degree sufficient to hold that he had a legal interest in challenging their lawfulness in judicial proceedings. This was so because the adoption of such guidelines would necessarily influence the outcome of future proceedings in which individuals might seek the adoption of measures falling within the scope of the local planning policy.", "49. The court further stated that the municipality’s authority to impose on individuals restrictions regarding the exercise of their property rights was determined by the applicable laws, including those regulating environmental protection. This authority was not absolute, however, as the municipality was also obliged to respect the public interest, to weigh it against the relevant private interests in the process of land planning and development, to act rationally and to respect the principle of proportionality.", "50. In the present case, the Law on Nature Conservation of 2004 provided for an obligation for the municipality – when adopting the guidelines – to take due note of the position of the Director of the National Park which, in so far as it concerned plots of land situated within the limits of national parks and their nearest neighbourhood (otulina), was binding on the municipality.", "51. The court noted that the applicant had never had a right to develop his property, meaning that the adoption of the framework local planning policy guidelines had not deprived him of any rights. The plan adopted in 1994 did not provide for the applicant’s land to be used for construction purposes. It only provided for the owners to maintain their buildings in good technical condition.", "52. In the present case the restrictions imposed on the applicant were in compliance with the applicable laws and did not breach the applicant’s individual rights. In so far as he had referred to construction projects on neighbouring plots, this issue did not fall within the ambit of the present case, in which only the lawfulness of the measures imposed on him could be examined.", "53. The applicant lodged a cassation against this judgment with the Supreme Administrative Court. He essentially argued that the measures complained of were in breach of Article 64 § 3 of the Constitution (see paragraph 59 below) and that they amounted to an excessive restriction of his ownership rights.", "54. On 2 February 2007 the Supreme Administrative Court dismissed his cassation appeal. Firstly it held that the lower court’s view that the municipality was obliged to ascertain the Director’s position, and was bound by it, was correct.", "55. It further noted that the applicant had erred in arguing that the lower court had failed to apply Article 64 § 3 of the Constitution to the circumstances of the case. Even though that court did not expressly refer to this provision, it was apparent from the written grounds of its judgment that it had been taken into consideration. Its conclusion that the municipality, when restricting the exercise of the applicant’s rights, had acted in compliance with the applicable laws, was correct. The manner in which the municipality had exercised its powers did not go beyond the limits defined by the constitutional protection of property. This conclusion was reinforced by the fact that the applicant’s plots were in any event not already subject to construction under the plan adopted in 1994.\nThe court went on to state:\n“However, the court shared the conclusions of the cassation appeal that solutions adopted in the planning policy guidelines are capable of breaching the applicant’s legal interest, given that he had expressed his wish to change the use to which his plots had hitherto been put by pursuing construction projects on them. The fact that under the previous planning instruments concerning his land the applicant was also prevented from building on it can demonstrate only that his legal situation has not changed, but is not tantamount to saying that his interest as an owner has not been breached, given that he cannot bring his projects to fruition.”", "56. In so far as the applicant argued that the measure complained of was not justified because a number of dwellings had been constructed on neighbouring plots, the court noted that this objection went to the substance of the position formulated by the Director of the National Park. It could not be examined in the proceedings as they were concerned only with the lawfulness of the framework guidelines.", "57. On 8 April 2009 the applicant wrote to the Director of the National Park, proposing that the situation be settled by way of the sale to the Park of four of his plots (Nos. 30/28, 30/29, 30/30, 30/31) on the Wigry lake shore, for a price to be determined by an expert, in return for the Director’s agreement to change the guidelines.", "58. In a letter of 23 April 2009 the Director rejected the applicant’s proposal. He referred to the planning history of his plots and the planning regulation which designated the applicant’s land for afforestation. He reiterated that even on the basis of the 1994 plan, which had expired on 31 December 2003, no construction had been allowed on plots no. 30/12 and 30/13. The situation did not change after adoption of the new plan. As regards the applicant’s proposal to sell some of his plots to the Park, the Director submitted that the Park was generally interested in buying up plots on its territory and did so as long as its financial means allowed. However, he stated that it was not possible to buy the plots in return for amendments to the local development plan." ]

[]

[ "6. The applicant was born in 1954 and until his arrest lived in St Petersburg. He is currently serving his sentence in a correctional colony in the Arkhangelsk Region.", "7. The applicant was arrested on 31 July 2010 on suspicion of aggravated kidnapping, extortion and conspiracy. He remained in detention throughout the investigation and trial.", "8. On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a high‑security correctional colony with the release to be followed by a year‑long restriction of liberty.", "9. On 8 November 2012 the Supreme Court of Russia upheld the conviction on appeal.", "10. The parties provided the Court with the applicant’s medical documents, including his clinical records, discharge summaries, and expert opinions.", "11. The medical records show that the applicant had a long history of cerebral diseases as a result of having sustained a head injury in 1997 that developed into traumatic cystic arachnoiditis. Two years later he underwent a tomography examination which confirmed the presence of a growing liquor cyst located in the right frontotemporal part of the brain. The cyst impacted on his acoustic and visual nerves. The examination also revealed moderate internal hydrocephalus. In the recommendations written on 11 May 2000, the applicant’s doctor noted that a nuclear magnetic resonance examination, an electroencephalography examination and a liquor analysis were required to properly diagnose the applicant’s condition. He further observed that, in the absence of any treatment, it would be reasonable to perform urgent cerebral bypass surgery in order to prevent the applicant from going irreversibly blind. Nothing in the medical documents submitted suggests that the applicant had had any recourse to specific medical assistance or examinations regarding his cerebral problems during the ten years preceding his arrest.", "12. After the arrest the applicant was taken to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no. IZ-47/1”). On admission to that facility the resident prison doctor performed a general medical check-up of the applicant, having noted in the medical file that he had a brain cyst. The doctor concluded that the applicant was “somatically healthy” and was therefore fit to remain in the conditions provided by the detention facility.", "13. On 23 September and 26 October 2010 the applicant was seen by a neurologist. In the absence of any medical documents the prison doctor was only able to perform a visual examination of the applicant. He diagnosed the applicant with hydrocephalus and recommended that an X-ray examination of the skull be carried out to make the correct diagnosis.", "14. In January 2011 the applicant’s medical file was supplemented with his old clinical records from a civilian hospital and the prison doctor examined him anew, paying regard to the additional medical information. He confirmed the diagnosis made in 2000 and recommended a consultation with an ophthalmologist. The applicant was prescribed drug therapy for a month.", "15. An ophthalmologist diagnosed the applicant with angiopathy.", "16. In February 2011 the applicant was diagnosed with tuberculosis. He was immediately transferred to prison hospital no. 2 in St Petersburg, where the disease was successfully treated. The applicant was discharged from hospital with the doctors’ attestation of his full recovery from the infection.", "17. On 8 April 2011 the applicant was sent to Gaaza prison hospital in St Petersburg for an in-depth medical examination. He underwent a large variety of diagnostic procedures, including a magnetic resonance tomography of the brain and cervical vertebrae performed in a Russian civilian hospital, the Mariinskiy Hospital of St Petersburg. The tests showed that the applicant had a liquor cyst in the right frontotemporal part of the brain and that he suffered from vicarious hydrocephalus of mixed genesis and encephalopathy at the initial stage. In addition, doctors were able to establish that the applicant’s cervical vertebrae had several herniated disks and perineural cysts.", "18. Following completion of the diagnostic cycle, the applicant was released from the hospital and sent back to the detention facility. Discharge summaries issued on 15 April 2011 contained a recommendation of supervision by a prison doctor and regular consultations with a neurologist.", "19. In September 2011 the applicant complained about headaches to the attending prison doctor. In response it was recommended that he undergo an additional neurological medical examination in Gaaza prison hospital. However, the hospital refused to admit him because it did not employ a suitably qualified medical specialist, such as a brain surgeon.", "20. In October 2011 the applicant’s lawyer contacted Dr K. from the neurosurgical department of the Scientific Research Institute for Emergency Treatment, who agreed to study the applicant’s clinical records and give his opinion about the state of the applicant’s health at a court hearing on 4 October 2011, where he saw the applicant for the first time. At the hearing the doctor stated that the computer tomography performed on the applicant in 2000 had indicated a brain oedema at the base of the skull. He insisted that any change of the applicant’s lifestyle could induce complications related to the brain oedema and also seizures. Surgery was required to treat the cyst. However, Dr K. concluded that the applicant’s spinal problems were even more serious, as they could leave the applicant entirely paralysed. Nevertheless, the doctor noted that surgery would be only required if the applicant’s health were to deteriorate. The doctor recommended chondroprotective therapy and cerebral bypass surgery for the applicant. He was also to wear a cervical collar.", "21. The applicant also provided the Court with a certificate issued in November 2011 by Dr T., the head of the hospital where the applicant had received medical treatment in 1997-1998. Dr T. argued that the applicant’s condition called for permanent medical supervision by a neurologist and neurosurgeon so that the applicant could be subjected to urgent surgical intervention should the need arise. In Dr T.’s opinion, a detention facility was ill equipped to guarantee such supervision. The applicant also argued that his transfer to a northerly region in which to serve out his sentence had run contrary to the recommendations of his doctor and might have resulted in serious complications of his illness. Finally, he alleged that he lacked effective remedies whereby to complain about the poor quality of his medical treatment.", "22. On 1 December 2011 in response to a request from the applicant’s lawyer, a medical expert commission assessed the applicant’s health and checked for the existence of medical grounds warranting his release from detention. The commission observed that the applicant had received out‑patient treatment and that he had no focal brain injuries, epileptic seizures or significant limitations of his day-to-day activity. Taking account of the results of his dynamic medical examinations, the doctors concluded that the applicant was in satisfactory health and that there were no medical grounds warranting his release from detention.", "23. On 5 April 2012 Dr K. visually examined the applicant. No recommendations were made.", "24. On 4 December 2012 the applicant was examined by a neurologist to whom he complained about headaches, vomiting and vertigo. The doctor recommended drug therapy based on vasobral, piracetam, and vinpocetine. The following visit in January 2013 by the neurologist resulted in a modification of the drug regimen.", "25. On 20 February 2013 a prison doctor approved the applicant’s transfer to a correctional colony, finding him fit to make the journey.", "26. The applicant arrived on 4 March 2013 at correctional colony no. IK‑42/4 in the Astrakhan Region (“colony no. IK-42/4”), where he was seen by the colony doctor, who noted that the applicant had been suffering from brain cyst. At the end of April 2013 the doctor recommended the applicant’s transfer to a hospital for further assessment. No urgency was warranted.", "27. On 25 July 2013 Dr K. drafted another report, assessing the applicant’s condition on the basis of his medical records and the results of his examination on 5 April 2012. Dr K. concluded that his recommendations had not been complied with and that the applicant’s cyst had increased. He stressed that the appropriate treatment could only be ensured in a specialised medical institution, not least because the requisite dynamic monitoring of the applicant’s condition using computer and magnetic resonance tomography examinations needed to be performed every eight months. Lastly, the doctor emphasised that the applicant’s detention in a northerly region could lead to a further deterioration in his health by inducing epileptic seizures and brain ischemia, thus putting his life at risk.", "28. On 8 August 2013 the authorities transferred the applicant to a prison hospital in the Arkhangelsk Region. Following a number of tests, a medical panel declared that the applicant was not suffering from any disability. The applicant was discharged from the hospital with the recommendation that he be re-admitted for further treatment in June 2014.", "29. The last two entries in the applicant’s clinical records are illegible. The parties did not provide the Court with any additional information on the state of his health." ]

[]

[ "5. The applicant was born in 1963 and is currently in detention in Wronki.", "6. The applicant has been serving a prison sentence in Wronki Prison since 31 March 2010.", "7. On 19 September 2010 he brought a civil compensation claim before the Szamotuły District Court. He claimed that the conditions of detention in many of his cells in Wronki Prison were so bad as to amount to a breach of Articles 3 and 8 of the Convention. He referred to the fact that the cells were not properly heated in the autumn and winter and had no proper ventilation in the summer, meaning that the prisoners suffered from intense levels of heat. The windows were old and the frames leaked. He further submitted that the toilet facilities were only separated from the cells by a low fibreboard partition, which made even a minimum level of privacy impossible for him.", "8. On 21 June 2011 the Szamotuły District Court refused a request by the applicant to gather evidence by producing photographs and carrying out an on-the-spot inspection of the cells concerned. It closed the hearing and gave judgment, dismissing the applicant’s claim in its entirety.\nThe court established, referring to evidence submitted by the State Treasury, acting as the legal representative for Wronki Prison, that prisoners had access to sports, cultural and educational activities and medical care. They were provided with personal hygiene items and had appropriate food. Those factors, seen as a whole, alleviated the harm which was an inherent part and consequence of serving prison sentences.\nThe court further found that the toilet facilities in the applicant’s cells were indeed separated off by fibreboard partitions. This did not provide full privacy, but was sufficient to ensure that the prisoners were out of sight of others when they used the toilet. There was a WC and a washbasin in each toilet facility.\nAs regards the applicant’s allegations of inadequate ventilation and insufficient heating in the cells, the court found that the cells were well lit and properly ventilated; the windows had been repaired and the heaters had been changed and worked properly. As regards the alleged lack of light, the court found that the applicant had been granted special permission to use an additional reading lamp.\nThe court was of the view that the State Treasury had not acted unlawfully and that there had been no intention to act in bad faith or to cause harm or damage to the applicant. In the absence of unlawfulness no breach of personal rights could be found. In any event, the conditions in Wronki Prison were not so harsh as to amount to a breach of personal rights.", "9. The applicant appealed, arguing that the court had failed to establish the facts of the case correctly, in the main because it had refused to gather evidence in the form of photographs, film or an inspection of the cells. The judgment had therefore been based on insufficient factual findings. Furthermore, in so far as the court had referred to the general conditions in which the applicant served his sentence (quality of the food, medical care, access to cultural and sports activities), those factors had not constituted the basis of his claim. He had complained neither about poor food quality nor about insufficient access to cultural and sports activities. The grounds of his claim had fundamentally related to the sanitary conditions in the cells and, in particular, a lack of privacy when using the toilet. This lack of privacy had been explicitly confirmed by the first-instance court. He reiterated that the lack of a proper divide between the toilets and the cell amounted to a breach of his personal rights and dignity. He further indicated that some of the cells at the prison had toilet facilities that were properly separated from the rest of the cell by normal walls and a door.", "10. By a judgment of 6 December 2011 the Poznań Court of Appeal dismissed the appeal, fully accepting the findings of fact made by the first‑instance court and that court’s legal assessment of those facts. In particular, the Court of Appeal was of the view that the nuisance caused by the manner in which cells were fitted with toilet facilities, namely by way of fibreboard partitions, did not exceed the normal difficulties and harm which were inherent in serving a prison sentence." ]

[ 4 ]

[ "5. The applicant was born in 1969 and lives in Diósd.", "6. On 4 July 2002 the applicant organised a demonstration aimed at forcing the authorities to preserve the ballot papers of the 2002 legislative elections with a view to a potential recounting.\nThe Government submitted that the ballot papers were bound for statutory destruction on 20 July 2002 as per section 5(3) of Decree no. 48/2001. (XII. 29.) BM on the Procedural Time-limits for the Legislative Elections of 7/21 April 2002.\nIn the applicant’s view, the relevant law could be understood – and was by many – to the effect that the ballot papers could be destroyed as early as 7 July 2002.\nPreviously, on 2 July 2002, Parliament had decided not to put on the agenda a bill for the amendment of the 90-day statutory preservation period of the ballots.", "7. The event organised by the applicant – which had not been announced to the police – consisted of completely blocking all six lanes of a centrally situated bridge over the Danube, Erzsébet Bridge, by parking six cars across it, with their doors locked. The demonstration started at about 8.20 a.m. The demonstrators, including the applicant, refused to comply with the police’s order to remove the vehicles and leave. Apart from ambulances, no vehicles could pass the blockade.\nBy 9.00 a.m. a crowd had gathered and the situation evolved into a massive traffic jam all over Budapest. At about 11.00 a.m. the cars were finally towed away by the police, and the traffic flow resumed at about 12 noon.", "8. On 5 July 2002 the Pest Central District Court imposed a regulatory fine of 50,000 Hungarian forints (HUF)[1] on the applicant. The court held that the applicant, by not complying with the police’s instruction to leave the site of the demonstration, had committed the regulatory offence of disorderly conduct within the meaning of section 142 (1c) of Act no. LXIX on Regulatory Offences.", "9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the 2002 parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian electoral system had provided the basis for a generally transparent, accountable, free, fair and equal process.[2]", "10. The Hungarian media widely covered the events of 4 July 2002 and, in an official communiqué, the President of the Republic condemned the incident, declaring it illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner.[3]", "11. On 2 September 2002 the Budapest XI District Police Department fined the applicant for a parking offence which consisted of his parking his car in the middle of Erzsébet Bridge on 4 July 2002, necessitating its being towed away. On appeal, on 15 May 2003 the Buda Central District Court reduced the fine to HUF 5,000[4].", "12. Criminal proceedings were subsequently instituted against the applicant and his accomplices. On 16 June 2008 he was convicted of “disturbance of public works” within the meaning of section 260(1) of the Criminal Code.", "13. The Pest Central District Court dismissed the defendants’ arguments according to which they had been exercising their freedom of assembly. Making reference to the Court’s judgment in the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007‑III), the court made a distinction, holding that the applicant’s action could not be regarded as a spontaneous and prompt response to an event (the court was satisfied that the statutory date for ballot paper destruction was 20 July 2002 as per Decree no. 48/2001 (see above paragraph 6)), nor was it lawful like in Bukta, since it had contravened the Highway Code and disturbed the functioning of “public works”. In the latter regard, the court observed that the demonstration had caused the traffic to become paralysed all over the capital for several hours and disturbed the running of 29 bus lines in respect of 642 scheduled individual bus trips, concerning approximately 23,000 passengers.\nThe applicant was sentenced to 30 days of community work.", "14. On 26 November 2008 the Budapest Regional Court upheld this judgment. In response to the arguments of the accused on appeal, the court noted that “the message of the judgment is not that non-notified assemblies cannot be peaceful; the message is that an assembly, notified or non-notified, is not peaceful where, by its very manner, it constitutes unlawful conduct.” The court referred to section 2(3) of Act no. III of 1989 on the Right of Assembly, according to which “the exercise of the right of assembly may not constitute an offence, or instigation thereto, or violate the rights and freedoms of others”. Quoting the Court’s judgment in the case of Ezelin v. France (26 April 1991, Series A no. 202), the Regional Court established that “in peaceful assemblies the protection provided under Article 11 shall be ensured for the participants as long as they do not commit any reprehensible act on such an occasion”.\nIn sum, the court held that “it directly follows from the case law of the Constitutional Court and the European Court of Human Rights that the peaceful or non-peaceful nature of an assembly does not depend on whether a participant broke or smashed an asset or applied violence against a property. An assembly may be rendered non-peaceful by passive conduct as well. In its outward appearance the accused parties’ conduct seemed to be peaceful; it is the causal result of their conduct, the major disturbance of road traffic, which rendered their conduct non-peaceful and thereby not protected under the law.”", "15. On 3 December 2009 the Supreme Court dismissed the defendants’ petition for review. It added to the reasoning of the lower courts that “criminal law rules cannot be excluded or restricted by invoking the right of assembly; the exercise of the right of assembly shall not be exempt from compliance with criminal law restrictions.”\nThis decision was served on the applicant on 18 January 2010." ]

[]

[ "5. The applicant was born in 1981. He is currently serving a prison sentence.", "6. On the morning of 3 October 2008, the applicant was digging potatoes together with his wife and G. (Ms), a neighbour, near his house. The applicant and G. had consumed some vodka at breakfast.", "7. The applicant’s eleven-month old daughter was in the house, together with his four-year old stepson, V., who was watching cartoons on a DVD player. The house was locked, and the key was in the applicant’s pocket.", "8. At about 11.15 a.m., when the applicant was carrying a sack of potatoes to the cellar, his wife asked him to have a look at the children. He was gone for about twenty minutes. When he returned, he said that he had had some beer.", "9. At about 12.30 p.m., when the work was finished, the applicant went to the house. He came out and told his wife that her son was dead. When she entered the living room, she saw V. lying on the floor with a cable around his neck. The television set was overturned on the floor nearby. The applicant expressed a presumption that V. had tried to reach the remote control on top of the television, had overturned the television and, as a result, had accidentally been strangled by the cables.", "10. Somebody called the police. By the time they arrived, V. had been put in his bed and the television had been placed on a bed in a different room. The applicant and his wife were questioned as witnesses. They admitted that they had relocated the body and the television, and explained that they had done so because they had felt stressed.", "11. An autopsy of the child was carried out and in the evening of the same day the expert who had conducted it called the investigator and informed him that the boy had been strangled by somebody, and had not died as a result of an accident.", "12. The investigator, together with the police officer on duty, returned to the applicant’s house and inspected the scene once again. The applicant maintained his account that there had been an accident. The police officers took him to the police station, without formally deciding on his procedural status. The applicant did not object.", "13. The police officer on duty had a conversation with the applicant and suggested that he “tell the truth”. As a result, at 10.30 p.m. the applicant wrote a statement of “voluntary surrender to the police”, in which he explained that he had strangled V. having got angry about the mess in the room. The statement contained a note that the applicant had been familiarised with the content of Article 63 of the Constitution (see paragraph 37 below).", "14. On the same day, 3 October 2008, a criminal case was opened against the applicant on suspicion of murder of a child.", "15. The applicant spent the night in the police station.", "16. At about 1 a.m. on 4 October 2008, the applicant was formally arrested as a suspect. He wrote in the arrest report that he waived his right to legal defence and regretted what he had done.", "17. On the same day the applicant wrote another statement of “voluntary surrender to the police” with the same content as the previous one.", "18. On 5 October 2008 the applicant was granted legal aid and a lawyer was appointed for him. During his questioning as an accused and during the reconstruction of the crime, in the presence of his lawyer, the applicant maintained his confession.", "19. On 6 October 2008 the applicant underwent a forensic medical examination, apparently in the context of the judicial decision on his pre-trial detention. No injuries were found on him and he did not raise any complaints before the expert.", "20. In October 2008 (the exact date is not legible in the available copy) a forensic medical expert confirmed the findings of the autopsy report that V. had died as a result of strangulation.", "21. On an unspecified date the applicant signed an agreement on his legal representation by Mr R.", "22. On 20 October 2008 the applicant’s father, acting on the applicant’s behalf, signed a legal assistance agreement with Mr Gavrylchenko (the lawyer who also represented the applicant in the proceedings before this Court). On the same date Mr Gavrylchenko joined the proceedings as the applicant’s lawyer. It appears that Mr R. too continued to represent the applicant.", "23. On 13 November 2008 the applicant refused the services of Mr R.", "24. On 3 December 2008 the investigator ordered the applicant’s forensic psychiatric examination with a view to establishing whether he could be held liable for the criminal offence with which he was charged.", "25. On 10 December 2008 experts completed the aforementioned examination. They concluded that the applicant, although showing an indication of “slight intellectual retardation on the verge of a slight mental disability” (легка інтелектуальна недостатність на межі легкої дебільності), was aware of his actions and could control them.", "26. On 10 February 2009, during his questioning as an accused, the applicant retracted his confession and claimed his innocence. He submitted that he “had incriminated himself under the physical and psychological coercion of the police”.", "27. On 11 February 2009 the investigator decided that the applicant’s allegation warranted a separate investigation. He therefore severed from the case file certain materials which could be of relevance (such as the applicant’s confession, the transcript of his various questioning sessions and the report of his forensic medical examination).", "28. On 23 February 2009 an additional forensic medical expert evaluation, which had been carried out at the request of the applicant’s lawyer, was completed. The expert excluded the possibility that V. had been accidentally strangled by the television cables when the television set had fallen on him, as had been suggested by the applicant, and confirmed that that could not be the origin of his bruises either.", "29. On 5 March 2009 the Chornobay Town Prosecutor’s Office refused to open a criminal case in respect of the applicant’s allegation that he had been coerced by the police, having found that there was no indication of a criminal offence.", "30. On 30 March 2009 the applicant was indicted.", "31. On 18 May 2009 the Cherkasy Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of murder of a child and sentenced him to twelve years’ imprisonment. It relied, in particular, on the applicant’s statement of “voluntary surrender to the police” of 3 October 2008 and the confessions he had made on 5 October 2008 and maintained thereafter until 10 February 2009. The court decided, however, not to take into account his statement of 4 October 2008 on the grounds that it could no longer be regarded as a “voluntary surrender to the police” and the applicant should have been questioned as a suspect and legally represented. Furthermore, the court relied on the material and expert evidence. The applicant’s allegation of police coercion was dismissed as unsubstantiated. The trial court took into account the fact that the applicant had decided to write a “voluntary surrender to the police” as a mitigating factor in fixing his sentence.", "32. On 28 May 2009 a copy of the judgment was served on the applicant.", "33. On 10 June 2009 the applicant appealed on points of law. He complained, in particular, of the lack of access to a lawyer during his initial questioning at the police station on 3 October 2008. He submitted that he had been coerced into confessing by “physical violence and psychological pressure”. The applicant also challenged the accuracy of the expert findings and disagreed with the assessment of the facts by the trial court. The first page of the applicant’s cassation appeal was stamped by the Cherkasy Pre-Trial Detention Centre (SIZO), in which he was detained at the time, confirming that the appeal was sent out on 10 June 2009.", "34. On 24 June 2009 the applicant’s lawyer also submitted an appeal on points of law with similar arguments. The stamp of the trial court on the first page of the appeal shows that it was received on 25 June 2009.", "35. According to the Government, neither the applicant nor his lawyer applied to the Supreme Court to participate in the cassation hearing. However, the case file contains a copy of such a request signed by both the applicant and his lawyer and dated 24 June 2009. It has not, however, been stamped by the Supreme Court and there is no other acknowledgment of its receipt.", "36. On 15 September 2009, in a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, the Supreme Court upheld the judgment of the first-instance court. It considered that the applicant’s right to legal defence had not been violated, as his confession of 4 October 2008 had been excluded from the evidence." ]

[ 3 ]

[ "4. The applicants’ dates of birth and places of residence are given in the Appendix.", "5. The applicants were nominated by the Karabakh Election Bloc as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single-mandate electoral constituencies (see Appendix).", "6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”).", "7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups.", "8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate, after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) withdrawal by the signature collector of his or her own signature certifying a list, invalidating the entire list of 50 signatures; and (g) unspecified “other grounds”; and so on.", "9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.", "10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision. They made some or all of the following complaints:\n(a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary;\n(b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twenty‑four hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make necessary corrections;\n(c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position;\n(d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on these grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired;\n(e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”.", "11. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law.", "12. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with differences often being significant. Furthermore, in almost every case the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).", "13. On various dates, the CEC rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings.", "14. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures:\n(a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints;\n(b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions;\n(c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;\n(d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account.", "15. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed.", "16. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC.", "17. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments.", "18. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal." ]

[]

[ "4. The applicants’ dates of birth and places of residence are given in the Appendix.", "5. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single–mandate electoral constituencies (see Appendix). Mr Natig Jafarov (application no. 25361/11) was self-nominated, while Mr Ali Gasimli, Mr Tazakhan Miralamli, Mr Parviz Hashimov and Mr Eyyub Umudov (applications nos. 25330/11, 25340/11, 25345/11 and 25645/11 respectively) were nominated by the coalition of the Popular Front and Müsavat parties.", "6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”).", "7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups.", "8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) signatures claimed to have been obtained “by deceptive means”; and (g) unspecified “other grounds”.", "9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of the results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.", "10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decisions. They made some or all of the following complaints:\n(a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary;\n(b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twenty‑four hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make the necessary corrections;\n(c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position;\n(d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on those grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired. Likewise, it had been unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for declaring signatures invalid and did not give electoral commissions any discretionary power to introduce any other grounds for that purpose;\n(e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”.", "11. Enclosed with their complaints to the CEC, some of the applicants submitted statements by a number of voters affirming the authenticity of their signatures. However, those statements were not taken into consideration by the CEC.", "12. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law.", "13. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with the differences often being significant. Furthermore, in almost every case, the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).", "14. On various dates, the CEC also rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings.", "15. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures:\n(a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints;\n(b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions;\n(c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;\n(d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account.", "16. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed.", "17. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC.", "18. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments.", "19. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal." ]

[]

[ "5. The applicant was born in 1984 and lives in Borgenhaugen.", "6. On 18 September 2008 the Sarpsborg City Court (tingrett) convicted the applicant inter alia on a charge of attempted rape committed against Ms A during the night of 9 March 2008 in a car parked near a petrol station. At the time Ms A and the applicant had been seventeen and twenty-three years old, respectively. Together they had left a party at Mr C’s home in order to buy mineral water at the petrol station. The applicant had borrowed the car from Mr D, Ms A’s boyfriend. They had both attended a party at Mr C’s home one week before but they did not know each other. The applicant and Ms A had been sitting in the car talking and listening to music for a while before they had decided to return to the party. As the car’s battery was flat it would not start. The applicant had called a friend, Mr B, who worked as a taxi driver and who collected him and Ms A and brought them back to Mr C’s home. The City Court did not find credible the applicant’s explanation that he and Ms A had kissed and to a little extent touched one another voluntarily and that he had not forcibly attempted to rape her.", "7. By a judgment of 5 February 2009, the Borgarting High Court (lagmannsrett), hearing the applicant’s appeal with a jury, convicted him on the attempted rape charge and sentenced him to one year’s imprisonment on account of this (and a number of other offences of which he had been charged in the same proceedings). It ordered him to pay 60,000 Norwegian kroner (NOK) (approximately 7,500 euros at that time) in compensation to Ms A for non-pecuniary damage.", "8. In its reasoning the High Court described in detail how the applicant, after he had called Mr B (who could not come straight away), had attempted to obtain sexual contact with Ms A by force. It stated that in the beginning, when the applicant had tried to kiss and touch her, Ms A had told him that she was not interested because she was the girlfriend of Mr D and slapped the applicant. The applicant had not stopped, but had moved himself over to her seat and held her arms behind the neck support. Ms A tried to defend herself and after a while the situation involved into a fight between them, in which she had been physically inferior and had to come to terms with the situation. The applicant had had such control over Ms A that he was also able to call Mr B again and the fact that Mr B was on his way had not hindered the applicant from continuing, until the moment when the lights from Mr B’s car appeared.", "9. The High Court also noted that Mr B had testified that he had not noticed anything conspicuous about Ms A; she had been cheerful and friendly and her clothes had not been in disorder. However, this did not suggest, in the High Court’s view, that she had not been exposed to sexual abuse causing a great burden on her. She had managed to pull herself together when Mr B had arrived. Her reaction had been expressed vis-à-vis others only when she and the applicant had returned to Mr C’s home, where Ms A cried and was in great despair. Her boyfriend, Mr D, had understood that something was very wrong. After opening herself gradually to him, she had explained what had happened.", "10. During a pause in the oral proceedings before the High Court, after both Ms A and the applicant had been heard, one of the jurors –“J” – had informed the presiding judge of the High Court about her previous contacts with Ms A. When the hearing resumed after the break, the presiding judge informed the public prosecutor, counsel for the defence and Ms A’s assistant advocate (bistandsadvokat) about the matter. Counsel for the defence requested that J be disqualified from taking part in the further proceedings on grounds of lack of impartiality. Ms A’s assistant advocate (bistandsadvokat for offeret) supported counsel’s motion. The public prosecutor expressed understanding for the motion without taking a stance.", "11. The applicant’s contestation of J’s impartiality was made with reference to section 108 of the Administration of Courts Act (domstolloven – see paragraph 23 below) and Article 6 § 1 of the Convention. According to the relevant court record, counsel for the defence had stated:\n“Counsel stated that he had been informed by the High Court’s presiding judge and the other members of the court, that [J] [who was a member of the jury] had informed the presiding judge that she was the foster mother of a child who had been a pupil in the same school class as the victim, and that she had had contacts with the victim in connection with birthday celebrations at her home. [J] thought that she could recall knowing that the victim had participated in class outings which [J] had attended as a parent. The presiding judge had further informed counsel that [J] did not have any further personal knowledge of the victim, but she had a personal view [bilde] of her as a calm girl. Last time there had been any contact between the victim and [J] dated far back in time.”", "12. The High Court withdrew to deliberate on the issue and decided that J ought not to withdraw. It pointed out that a member might be disqualified if the person in question had particular reasons for identifying himself or herself with the victim or if there were any other circumstances to the effect that he or she had a prejudging attitude because of prior knowledge of the victim. However, that was not the situation in the present case. The High Court observed that “the jury member had formed a picture [bilde] of the victim from many years ago where she at the time had experienced her as a quiet and calm person”. However, it could not see that this was capable of influencing J’s attitude to the sustainability of the victim’s explanation and J’s assessment of the question of guilt in the case. In particular the contact had been sporadic many years ago and the High Court did not find that such a contact was capable of influencing, in one way or another, the assessment in the criminal case. The High Court had special regard to the fact that the parties to the case had requested that J recuse herself, but it found the absence of partiality so clear in this case that this could not be decisive.", "13. Consequently, juror J took part in the entire trial before the High Court, including the jury’s deliberations and vote on the questions put to it by the presiding judge on the charge of attempted rape. After the jury had answered the questions in the affirmative and the professional judges had confirmed the jury’s verdict, she took part, together with the other two jurors selected by drawing of lots, in the deliberations with the professional judges on the question of sentencing and award of compensation of non-pecuniary damage to the victim Ms A.", "14. The applicant appealed against the High Court’s procedure to the Supreme Court (Høyesterett), arguing that J’s participation had been incompatible with section 108 of the Administration of Courts Act and Article 6 § 1 of the Convention.", "15. By a judgment of 26 June 2009 the Supreme Court, by three votes to two, rejected the applicant’s appeal.", "16. The majority did not consider that J’s knowledge of the victim from her attendance at birthday parties and class outings with the victim in itself indicated an identification with the victim or weakened in any other way the confidence in J’s impartiality. It had involved sporadic contacts, not a personal knowledge, and the contacts dated several years back in time. Neither had counsel for the defence alleged before the Supreme Court that this was a sufficient ground for disqualification.", "17. Nor could the mere fact that the juror in question had formed a picture of the victim disqualify her. When it was deemed acceptable that a juror may have some prior knowledge of a victim, it ought also to be accepted that the juror has formed a picture of the latter. Therefore, the question was whether the fact that the juror had stated this to the presiding judge and the matter had thereafter been repeated by the defence counsel in open court would bring the matter into a different light.", "18. In the majority’s view, a statement that one had a picture of a young woman one had previously met when she was younger, as a quiet and calm girl, could hardly be perceived as an expression of an assessment of the person’s credibility or give the impression of identification with, or particular sympathies for, her. This was a neutral value judgment; an observation about the child’s inconspicuous conduct. It could possibly be maintained that one could draw the conclusion that a calm girl would hardly make a fuss without any justifications for doing so, which suggested that Ms A’s crying and despair after she returned after the drive was a sign that she had actually been exposed to an attempted rape. However, there was no basis for such a conclusion and there was in any event no reason for attaching weight to such a possibility. J’s information about Ms A had emerged after she had given evidence to the High Court for one hour. At that point, the jury, including J, had a good opportunity to form an independent and updated picture of the victim as a person. That defence counsel and the assistant advocate had requested that J withdraw could not be decisive. Accordingly, there were no particular circumstances capable of calling into doubt J’s impartiality for the purposes of section 108 of the Administration of Courts Act, as interpreted in the light of Article 6 of the Convention.", "19. The minority considered that the assessment of the impartiality issue ought to take as a starting point that the case concerned a serious and stigmatising accusation against the defendant. There was a lot at stake for the victim, as she could easily perceive a verdict acquitting the defendant to mean that the jury believed that she had made an unfounded and serious accusation against the defendant. The minority shared the majority’s view (see paragraph 16 above) that previous contacts between the victim and J could not, of their own, disqualify the latter. What was decisive was whether J’s statement made after she had heard the evidence given by the accused and the witness describing the latter as a “quiet and calm person” would lead to a different conclusion. In this regard, the minority took as a starting point that the credibility of the victim was the decisive evidence in this case. An additional factor of lesser importance was how the surrounding persons had perceived the victim’s behaviour after the alleged rape attempt.", "20. The timing of J’s statement was of considerable importance. For the persons present in court it could seem conspicuous that the juror, after having heard both the accused and the victim’s evidence, had not confined herself to informing about her previous contacts with A but had found it correct to add that she had experienced the victim as a “quiet and calm person”. The timing of J’s affirmation could easily have given the impression that J expressed a positive assessment of the victim.", "21. Whilst a literal interpretation of “quiet and calm person” was not directly related to the credibility assessment, the affirmation was positively loaded and, when expressed just after the victim had given evidence, could at least easily have been perceived as if, according to J, one had to do with a person who would not make a fuss and thus would not make a false accusation about an attempt of rape. That J had expressed a view on how she had perceived her “at the time”, was of secondary importance. This was a nuance that could easily be overlooked by a person overhearing her statement and which, having regard to the timing, could hardly be perceived as a reservation with regard to A’s current character.", "22. An important, albeit not decisive, consideration under section 108 of the Administration of Courts Act was also the fact that both counsel for the defence and the assistant advocate had demanded that J recuse herself. Under Article 6 § 1 of the Convention, “the standpoint of the accused [was] important but not decisive”; in this case the “fear” of lack of impartiality by the applicant had been “objectively justified” (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports of Judgments and Decisions 1996‑III)." ]

[ 3 ]

[ "4. The applicants’ dates of birth and places of residence are given in the Appendix.", "5. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single-mandate electoral constituencies (see Appendix). Mr Khalid Bagirov (application no. 17356/11) was nominated by the Karabakh Election Bloc. The other applicants were self-nominated.", "6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”).", "7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups.", "8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate, after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) “withdrawn” signatures claimed to have been obtained “by deceptive means”; and (g) unspecified “other grounds”; and so on.", "9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.", "10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision. They made some or all of the following complaints:\n(a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary;\n(b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twenty‑four hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make necessary corrections;\n(c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position;\n(d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on those grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired. Likewise, it had been unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for declaring signatures invalid and did not give electoral commissions any discretionary power to introduce any other grounds for that purpose;\n(e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”.", "11. Enclosed with their complaints to the CEC, some of the applicants submitted statements by a number of voters affirming the authenticity of their signatures. However, those statements were not taken into consideration by the CEC.", "12. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law.", "13. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with differences often being significant. Furthermore, in almost every case the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).", "14. On various dates, the CEC rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings.", "15. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures:\n(a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints;\n(b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions;\n(c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;\n(d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account.", "16. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed.", "17. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC.", "18. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments.", "19. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal." ]

[]

[ "6. The applicant was born in 1960 and lives in Miami.", "7. The facts of the case as submitted by the parties can be summarised as follows.", "8. In 2008 the US tax authorities (the Internal Revenue Service [IRS] in Washington) discovered – primarily from a complaint lodged by a former employee of the UBS SA bank in Geneva responsible for asset management for the bank’s private North American customers – that thousands of US taxpayers held UBS bank accounts which had not been declared to their national authorities or else held economic rights in respect of such accounts.\nOwing to the role which it had apparently played in that connection, the bank faced a risk of criminal prosecution.", "9. On 18 February 2009 a deferred prosecution agreement (DPA) was concluded between UBS SA and the US Department of Justice (DOJ). In this document the bank acknowledged that it had, in particular, allowed US taxpayers to use off-shore accounts to conceal their assets and income from the US tax authorities and had met with and provided on-the-spot advice, in the United States, to customers who had not declared their accounts to the IRS. It was agreed that proceedings could be dropped in return for a settlement amount of 780 million US dollars (USD).", "10. On 19 February 2009 the IRS brought a civil action (a so-called “John Doe summons” [JDS]) requesting a formal order to UBS SA to reveal the identities of its 52,000 American customers and to communicate data on their bank accounts.", "11. Switzerland was concerned that the dispute between the US authorities and UBS SA might give rise to a conflict between Swiss and US law should the IRS obtain that information, and the civil proceedings were therefore suspended pending extra-judicial reconciliation.", "12. On 19 August 2009, with a view to identifying the taxpayers in question, the Federal Council (Government) of the Swiss Confederation and the United States of America (“the United States”) concluded an “Agreement concerning the request by the Internal Revenue Service of the United States relating to the Swiss company UBS SA” (“Agreement 09”) ...\nUnder the first Article of Agreement 09 Switzerland undertook to deal with the US request for mutual assistance concerning UBS SA’s American customers in accordance with the criteria laid down in the Appendix to that Agreement and, moreover, in conformity with the Convention of 2 October 1996 between Switzerland and the United States on double taxation (CDI-US 96) ...\nDrawing on those criteria, the parties to Agreement 09 considered that the request for mutual assistance concerned “some 4,450 open or closed accounts”.\nSwitzerland further undertook to set up a “special task force” enabling the Swiss Federal Tax Authority (AFC) to reach its final decisions in the framework of the mutual assistance request within a specific timescale.\nIn return, the Agreement provided that the United States and UBS SA would submit to the US District Court for the Southern District of Florida a joint request for the discontinuance of the request for enforcement of the “John Doe Summons” (see Article 3 of Agreement 09) ...", "13. On 31 August 2009 the IRS submitted a mutual assistance request to the AFC with a view to obtaining information on US taxpayers who, between 1 January 2001 and 31 December 2008, had had “authority to sign or other access rights to” bank accounts “held, supervised or maintained by a section of UBS SA or by one of its branches or subsidiaries in Switzerland”.", "14. On 1 September 2009 the AFC ordered UBS SA to provide information for the purposes of the 15 June 1998 Order concerning the US-Swiss Convention of 2 October 1996 on double taxation (CDI-US 96) ... The AFC decided to instigate a mutual assistance procedure and requested that UBS SA provide, in particular, complete files on the customers mentioned in the Appendix to Agreement 09.", "15. By judgment of 21 January 2010 (A-7789/2009) the Federal Administrative Court (TAF) accepted an appeal against a decision taken by the AFC which concerned, in the framework of the Appendix to Agreement 09, a challenge falling within the category defined in paragraph 2/A/b. In its reasoning, the TAF held that:\n– Agreement 09 was a mutual agreement which should remain within the framework set out by the convention on which it depended, CDI-US 96;\n– under the terms of the aforementioned convention, mutual assistance was granted in cases of tax fraud, but not in cases of tax evasion (that is to say the mere failure to declare a bank account to the tax authorities; regarding this distinction under Swiss tax law ...;\n– accordingly CDI-US 96 only facilitated exchange of information in cases of “fraud or a similar offence” for the purposes of Swiss law, that is to say tax swindle (tax evasion by dint of “creative accountancy”) or document forgery;\n– having regard to the obligations which it imposed on Switzerland, that agreement should have taken the form of an international treaty ratified by the Swiss Federal Parliament and been put to an “optional referendum”;\n– accordingly, the form of a mere friendly agreement concluded by the Federal Council on its own had been insufficient.\nConsequently, the Federal Administrative Court voided the decisions given by the AFC on the basis of Agreement 09.", "16. The entry into force of that TAF judgment of 21 January 2010 called into question the application of Agreement 09.\nIndeed, out of the approximately 4,450 individual cases covered by that agreement some 4,200 concerned situations of long-term tax evasion of enormous proportions. The Swiss Government considered that an inability to provide mutual aid in such cases could create major difficulties for Switzerland in its bilateral relations with the United States. The Federal Council deemed likely that the United States would impose compensatory measures, and that the minimum they could expect was that the US would reactivate the enforcement procedure in respect of the UBS customers through mutual assistance channels. The Federal Council were concerned that an American court might then order UBS SA to provide the IRS with the data in question and force the judgment through by dint of extremely high coercive fines.\nOn 31 March 2010, in order to prevent such a development, after fresh negotiations with the United States, the Federal Council concluded a “Protocol amending the Agreement between Switzerland and the United States concerning the IRS’s request for information on the Swiss company UBS SA, signed in Washington on 19 August 2009”, referred to as “Protocol 10”.\nThe provisions of that protocol were incorporated into Agreement 09. They became provisionally applicable on the date of its signature by the parties.", "17. By Federal Decree of 17 June 2010 “approving the Agreement between Switzerland and the United States concerning the request for information regarding UBS SA, as well as the Protocol amending that Agreement”, the Federal Assembly (the Swiss Parliament) approved Agreement 09 and Protocol 10, and gave the Federal Council leave to ratify them.\nThe consolidated version of Agreement 09 as amended under Protocol 10 is sometimes referred to as “Convention 10” ...\nThe aforementioned Federal Decree stated that the optional referendum mentioned in Article 141 of the Federal Constitution in respect of certain international treaties concluded by Switzerland ... was not available in the present case.", "18. On 15 July 2010 the Federal Administrative Court delivered judgment in a pilot case (A-4013/2010) concerning the validity of Convention 10. In that judgment the TAF ruled that:\n– Convention 10 was fully binding on it within the meaning of Article 190 of the Constitution ...;\n– there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens); accordingly, Convention 10 held the same status as CDI-US 96;\n– as CDI-US 96, like the Convention (for the Protection of Human Rights and Fundamental Freedoms) and the International Covenant on Civils and Political Rights (“UN Covenant II”), had been adopted prior to Convention 10, its provisions were only applicable insofar as they were compatible with the rules of the latter 96, because Convention 10 took precedence by virtue of its posteriority.", "19. UBS SA transmitted the applicant’s file to the AFC on 19 January 2010.\nIn its final decision of 7 June 2010, the AFC ruled that all the conditions had been met for granting mutual assistance to the IRS and ordering the communication to it of the documents published by UBS SA.", "20. On 7 July 2010 the applicant appealed to the Federal Administrative Court against that decision.\nBy judgment of 21 September 2010, without assessing the actual lawfulness of the decision of 7 June 2010, the court set it aside, noting that the applicant’s right to a hearing had been flouted. Consequently, it referred the case back to the AFC, inviting it to allow the applicant to submit his observations and to give a fresh decision on affording the US authorities mutual assistance in his case.", "21. By letter of 28 September 2010 the AFC notified a deadline of 29 October 2010 for the applicant to forward any observations before the issuing of a fresh decision.\nOn 13 October 2010 the applicant submitted a statement of his position on the matter.\nIn its final decision of 4 November 2010 the AFC once again held that all the requisite conditions were fulfilled for granting the IRS mutual assistance and ordering UBS SA to communicate the requested documents to the US authorities.", "22. On 8 December 2010 the applicant appealed to the Federal Administrative Court against the decision of 4 November 2010. He complained, in substance, of a lack of any legal basis for the decisions of 1 September 2009 and 4 November 2010, as well as of the violation of the Convention and other international treaties, owing, in particular, to non‑compliance with the prohibition of the retroactivity of laws and non-respect for his right to respect for his private life, the presumption of innocence, the principle of equality and non-discrimination, and his right to remain silent.", "23. Determining as the final domestic instance, the Federal Administrative Court delivered judgment on 2 March 2011.\nIt first of all held, in substance, that Convention 10 was binding on the Swiss authorities, considering that they did not have to verify its conformity with Federal law and previous conventions.\nSecondly, with reference to the pilot case A-4013/2010 of 15 July 2010 (see paragraph 18 above), the Federal Administrative Court set out the following reasoning:\n“3.2. The AFC’s decision of 1 September 2009 concerning UBS SA does not relate to the grant of mutual assistance. It is merely a decision whereby the lower-level authority requested information from UBS SA for the purposes of Article 20c (3) of CDI-US 96. Therefore, it may be accepted that Agreement 09, in relation with the aforementioned provision, constituted a sufficient legal basis for the AFC to take a decision against UBS SA, requiring, in particular, the handover of the complete files of customers covered by the Appendix to Agreement 09. That being the case, the appellant’s complaint is ill-founded. 4.1.1. In the pilot case A-4013/2010 of 15 July 2010 this court found that Convention 10 was binding on the Swiss authorities. No derogation to it was possible under domestic law or in the authorities’ domestic practice. It was stated that Article 190 [of the Constitution] required the authorities to apply international law, which includes Convention 10, and that – in any event – the conformity of international law with the Federal Constitution and Federal legislation could not be assessed where the international law in question was more recent. The Federal Administrative Court thus accepted that Convention 10 should be applied, even if it was contrary to the Federal Constitution or Federal legislation (see Federal Administrative Court judgment A‑4013/2010 of 15 July 2010, point 3 and the references therein; see also Federal Administrative Court judgments A-7014/2010 of 3 February 2011, point 4.1.1 and the references therein, A-4835/2010 of 11 January 2011, point 5.1.1, and A‑6053/2010 of 10 January 2011, point 2.1). 4.1.2 With particular regard to the relationship between the different conventions (Convention 10, CDI-US 96 [in particular Article 26 thereof], the ECHR [in particular Article 8 thereof] and UN Covenant II [in particular Article 17 thereof]), the court pointed out that that relationship was established pursuant solely to the rules set out in Article 30 of the Vienna Convention on the Law of Treaties of 23 May 1969 (VCLT) and that there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens). This court therefore considered that the rules of Convention 10 took precedence over the other provisions of international law, including Article 8 ECHR and Article 17 UN Covenant II, as the latter two provisions did not comprise jus cogens. It did, however, find that even if Article 8 (1) ECHR were applicable, the conditions set out in Article 8 (2) ECHR, which permits restrictions on the right to respect for private and family life, were fulfilled. Convention 10 was indeed a sufficient legal basis under the case-law of the European Court of Human Rights. Furthermore, Switzerland’s major interests and the interest of being able to honour the country’s international commitments took precedence over the individual interests of the persons concerned by the mutual assistance agreement to keep their pecuniary situation secret ... 4.1.3 This court also stated, in judgment A-4013/2010 cited above, that Article 7 (1) ECHR (no punishment without law) was not relevant to mutual assistance procedures. That provision was, exceptionally, applicable in the framework of Swiss mutual assistance procedure if the person concerned by the assistance was threatened, in the requesting State, with proceedings in breach of Article 7 ECHR ... That was not the situation in the present case ... 4.1.5 This court has also held that the parties to an international agreement are free to provide expressly or implicitly for the retroactive application of such agreement ... Moreover, procedural rules could be applied retroactively to previous events, because the prohibition of non-retroactivity only applied to substantive criminal law, not to procedural law, which included provisions on mutual assistance ... Furthermore, the parties to Convention 10 had wished to characterise differently the facts which had occurred prior to the signature of Agreement 09, which was commonly referred to as ‘retroactive effect’. That wish to apply Agreement 09 – which had become Convention 10 – with retroactive effect transpired clearly from the criteria for granting mutual assistance as set out in the Appendix to Convention 10. Even though the parties had specified, in Article 8 of Convention 10, that that instrument would come into force on the date of its signature, they had wished that retroactive effect to prevail ... 4.1.7. In the present case it should be noted, in the light of the aforementioned judgments, that the following objections as to the validity and applicability of Convention 10 can be discarded without further ado: incompatibility with the ECHR and other international treaties, violation of the principle of the prohibition of the retroactivity of laws (see Article 7 ECHR and Article 15 UN Covenant II), and violation of the right to respect for private life (see Article 8 ECHR). Furthermore, contrary to the appellant’s opinion, Convention 10 is in fact a sufficient legal basis for granting mutual assistance, notwithstanding the failure to put it to a referendum (which is optional). Finally, even though Switzerland was unable – in this specific case – to obtain the same information under its own legislation, it is still bound by its international commitments and must grant mutual assistance where the requisite conditions have been met. 4.2. The appellant further submitted that Convention 10 breached the principles of equality and non-discrimination by solely penalising one specific category of persons, that is to say UBS SA customers. He claimed that Convention 10 only applied to UBS SA customers and not to those of other banks. The appellant relied on Article 8 of the Constitution, Article 14 ECHR, Article 2 paragraph 2 of the International Covenant of 16 December 1966 on Economic, Social and Cultural Rights (UN Covenant I; RS 0.103.1) and Article 2 paragraphs 1 and 26 of UN Covenant II.\nAs stated above, this court cannot verify the conformity of Convention 10 with the Federal Constitution and Federal legislation. That legislation, moreover, overrides any previous international agreements to the contrary (see point 4.1.2 above). Therefore, Convention 10 must be applied even if it establishes different legal regulations for UBS SA customers as compared with the customers of other banks (see Federal Administrative Court judgment A-7156/2010 of 17 January 2011, paragraph 5.2.1).\n...”", "24. On those grounds, the Federal Administrative Court dismissed the applicant’s appeal.", "25. On 24 March 2011 the applicant lodged a public-law appeal with the Federal Court, submitting that the considerations set out in the judgment challenged solely concerned mutual assistance in criminal matters and were not relevant to administrative mutual assistance.\nBy judgment of 11 April 2011 that court declared the appeal inadmissible, mainly with reference to a judgment of 20 December 2010 (ATF 137 II 128), which had found that appeals against AFC decisions given pursuant to the Convention on Double Taxation and subsequent agreements concluded with the United States fell within the scope of administrative mutual assistance.", "26. On 14 December 2012 the banking data concerning the applicant were transmitted to the US tax authorities.", "27. By letter of 14 June 2013, the Court invited the applicant to inform it of the subsequent developments in the case, and, in particular, to give a brief summary of any consequences or any criminal penalties imposed personally and effectively on him in the United States following the disclosure of his banking data as ordered by the Swiss Federal Tax Authority (AFC).", "28. By letter of 7 August 2013 the applicant stated that he was not currently in a position to respond to the Court’s request.\nBy letter of 30 June 2014 the applicant pointed out that the US authorities were still conducting their tax inspection and that he had not yet been charged with any criminal offence.\n..." ]

[]

[ "5. The applicant was born in 1964 and lives in Voronezh (Voronezh Region).", "6. On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”).", "7. Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room.", "8. The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window.", "9. On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness.", "10. On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will.", "11. After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself.", "12. At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor.", "13. At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009.", "14. Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists.", "15. On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P.", "16. On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police.", "17. One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window.", "18. By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed.", "19. The investigator summarised the explanations provided by police officer T., who stated that:\n– at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft;\n– during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window;\n– T. had rushed to prevent him from jumping, but he was too late;\n– no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries;\n– during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother.", "20. The investigator also summarised the explanation provided by police officer Sa., who stated that:\n– at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed;\n– on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov;\n– on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone;\n– he had not heard Sergey Lykov complain of ill-treatment of any kind;\n– later he had learnt that Mr Lykov had attempted to take his own life.", "21. The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov.", "22. At the same time, the investigator noted the statements made by P., to the effect that:\n– between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed;\n– at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person;\n– he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide.", "23. The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide.", "24. The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death.", "25. Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse.", "26. Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above).", "27. On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to:\n– find witnesses who could confirm that Sergey Lykov had suicidal thoughts;\n– verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law;\n– consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability.", "28. In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed.", "29. By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation.\nIn his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above).", "30. The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”.", "31. The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence.", "32. The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”.", "33. On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death.", "34. On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully.", "35. On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons.", "36. On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death.", "37. On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation.", "38. On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it.", "39. On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS.", "40. On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none.", "41. On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred.", "42. In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened.", "43. The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests.", "44. At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him.", "45. On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation.", "46. After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned.", "47. On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified.", "48. On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers.", "49. On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations.", "50. The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”.", "51. The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide.", "52. On 13 January 2014 the investigator issued a decision granting the applicant victim status.", "53. On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window." ]

[ 0, 1, 2 ]

[ "5. The first and second applicants were born in 1948 and 1970 respectively and live in Bujanovac Municipality.", "6. Following the North Atlantic Treaty Organisation’s intervention in Kosovo, on 9 June 1999 the Yugoslav and Serbian Governments agreed to a phased withdrawal of their military and police forces from the territory and a transfer of all effective control to an international security force (“KFOR”). Concerning a number of municipalities, including Suva Reka, the transfer, according to the Military Technical Agreement, was to take place by 15 June 1999. It was further envisaged that it would be up to KFOR to “maintain a secure environment for all citizens of Kosovo”. Pursuant to their own phased withdrawal plan, which was to be synchronised with the Yugoslav Army plan, the Serbian police forces envisaged that a transfer of all effective control in Suva Reka Municipality would in fact take place on 13 June 1999.", "7. On 13 June 1999 the first applicant’s husband was kidnapped by the Kosovo Liberation Army (“KLA”) in Suva Reka Municipality.", "8. On 12 March 2002 the Bujanovac Municipal Court declared the first applicant’s husband dead. This ruling became final by 3 April 2002.", "9. On 19 May 2005 the first applicant, together with her children, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for the mental anguish suffered as a consequence of the incident.", "10. On 19 May 2006 the said court ruled against the plaintiffs.", "11. On 21 November 2007 the first-instance judgment was upheld by the Belgrade District Court on appeal. The first applicant was served with the District Court judgment on 23 May 2008.", "12. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the first applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable, within the meaning of Article 180 § 1 of the Obligations Act (see paragraph 26 below), since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards (see paragraph 6 above). The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.", "13. The first applicant could not have lodged a further appeal on points of law (revizija), given that the amount of compensation claimed was below the statutory threshold.", "14. On 13 June 1999 the second applicant’s husband was kidnapped by the KLA in Suva Reka Municipality.", "15. On 24 June 2002 the Bujanovac Municipal Court declared the second applicant’s husband dead. This ruling became final by 16 July 2002.", "16. On 31 May 2005 the second applicant, together with her children and other family members, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for mental anguish suffered as a consequence of the incident.", "17. On 19 May 2006 the said court ruled against the plaintiffs.", "18. On 3 April 2008 the first-instance judgment was upheld by the Belgrade District Court on appeal.", "19. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the second applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable within the meaning of Article 180 § 1 of the Obligations Act, since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards. The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.", "20. The second applicant could not have lodged a further appeal on points of law, given that the amount of compensation claimed was below the statutory threshold.", "21. The applicants maintained that in other judgments, rendered between 2006 and 2010, the Belgrade District Court and subsequently the Belgrade Appeals Court, as well as the Supreme Court at third instance, had ruled in favour of other plaintiffs, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues.", "22. Given the case-law provided by the parties, in their reasoning in those judgments where the said courts/different benches of the same court had indeed ruled in favour of the plaintiffs, the Serbian authorities were deemed responsible for the lives and safety of all persons residing in Kosovo up until the actual transfer of effective control to KFOR in respect of each of the municipalities considered separately (see, for example, the judgment of the First Municipal Court in Belgrade P. 431/07 of 24 February 2009, upheld on appeal by the Belgrade District Court; the judgments of the Belgrade District Court Gž. 10832/06, 13799/06, and 11483/08 of 26 December 2006, 5 June 2007 and 14 October 2008 respectively; the judgments of the Belgrade Appeals Court Gž. 2005/10 and 605/10 of 17 March 2010 and 10 June 2010 respectively; and the judgments of the Supreme Court Rev. 1551/07, 1092/08 and 939/08 of 5 September 2007, 24 April 2008 and 7 May 2008 respectively).", "23. On 18 March 2008, according to the Government, the Supreme Court’s Civil Division endorsed this line of reasoning, specifically the reasons given in the same court’s ruling Rev. 1551/07 of 5 September 2007 (cited in paragraph 22 above).", "24. On 10 March 2010, in Rev. 1540/10, the Supreme Court of Cassation ruled against other plaintiffs on the same basis as in the applicants’ case, but in its decision Už. 2786/10 of 28 June 2012 the Constitutional Court quashed this ruling and ordered the re-examination of the matter. On 19 April 2013 the Supreme Court of Cassation apparently ruled in favour of the plaintiffs, this time holding that the Serbian authorities were responsible for the lives and safety of all persons residing in Kosovo until the actual transfer of effective control to KFOR in respect of the municipality in question.", "25. On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. This plan contained a series of measures to be undertaken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the jurisprudence of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases." ]

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[ "5. The applicant was born in 1962 and lives in Moscow.", "6. On 6 May 2012 the applicant was arrested during the dispersal of a political rally at Bolotnaya Square in Moscow. He was detained at the police station for at least thirty-six hours pending administrative proceedings in which he was found guilty of failure to obey lawful police orders, an offence under Article 19.3 of the Code of Administrative Offences, and sentenced to fifteen days’ administrative detention. The parties’ submissions on the circumstances surrounding the public assembly and its dispersal are set out in part A, and the specific facts relating to the applicant are set out in part B below.", "7. On 23 April 2012 five individuals (Mr I. Bakirov, Mr S. Davidis, Ms Y. Lukyanova, Ms N. Mityushkina and Mr S. Udaltsov) submitted notice of a public demonstration to the mayor of Moscow. The march, with an estimated 5,000 participants, was to begin at 4 p.m. on 6 May 2012 from Triumfalnaya Square followed by a meeting at Manezhnaya Square, which was to end at 8 p.m. The aim of the demonstration was “to protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to demand fair elections, respect for human rights, the rule of law and the international obligations of the Russian Federation”.", "8. On 26 April 2012 the Head of the Moscow Department of Regional Security, Mr A. Mayorov, informed the organisers that the requested route could not be allocated because of preparations for the Victory Day parade on 9 May 2012. They proposed that the organisers hold the march between Luzhniki Street and Frunzenskaya embankment.", "9. On 27 April 2012 the organisers declined the proposal and requested an alternative route from Kaluzhskaya Square, down Bolshaya Yakimanka Street and Bolshaya Polyanka Street, followed by a meeting at Bolotnaya Square. The march was to begin at 4 p.m., and the meeting had to finish by 7.30 p.m. The number of participants was indicated as 5,000.", "10. On 3 May 2012 the Moscow Department of Regional Security approved the alternative route, having noted that the organisers had provided a detailed plan of the proposed events.", "11. On 3 May 2012 the Moscow Department of Regional Security informed the Chief of the Moscow Department of the Interior, Mr V. Kolokoltsev, that a different group of organisers had submitted notification of another public event – a meeting at Manezhnaya Square – which the Moscow authorities had rejected. The organisers of that event had expressed their intention to proceed in defiance of the ban and to squat on the square from 6 to 10 May 2012, ready to resist the police if necessary. The Department of the Interior was therefore requested to safeguard public order in Moscow.", "12. At 8 p.m. on 4 May 2012 the First Deputy Head of the Moscow Department of Regional Security, Mr V. Oleynik, held a working meeting with the organisers of the demonstration at Bolotnaya Square, at which they discussed the security issues. The Deputy Chief of the Public Order Directorate of the Moscow Department of the Interior, Police Colonel D. Deynichenko, took part in the meeting. The organisers stated at the meeting that the turnout could significantly exceed the expected 5,000 participants. They were warned that exceeding the number originally declared would be unacceptable. According to the applicant, during that meeting the organisers and the authorities agreed that since there was insufficient time for an on-the-spot reconnaissance, which would otherwise have been carried out, the assembly layout and the security arrangements would be identical to the previous public event organised by the same group of opposition activists on 4 February 2012. On that occasion, the march had proceeded down Yakimanka Street, followed by a meeting at Bolotnaya Square, and the venue of the meeting had included the park at Bolotnaya Square (in some documents referred to as “Repin park”) and the Bolotnaya embankment.", "13. On the same day the deputy mayor of Moscow, Mr A. Gorbenko, instructed the Tsentralnyy district prefect to assist the organisers in maintaining public order and security during the event. He ordered the Moscow Department of Regional Security to inform the organisers that their assembly notice had been accepted and to monitor its implementation. Other public agencies were assigned the duties of street cleaning, traffic control and ensuring the presence of ambulances at the site of the assembly.", "14. On 5 May 2012 the Moscow Department of Regional Security requested the Moscow City Prosecutor’s Office to issue a warning to the organisers against exceeding the notified number of participants and against erecting camping tents at the meeting venue, an intention allegedly expressed by the organisers at the working meeting. The Moscow Department of Regional Security also referred to information found on the Internet that the demonstrators would go to Manezhnaya Square after the meeting. On the same day the Tsentralnyy District Prosecutor’s Office issued the relevant warning to two of the organisers, Mr Davidis and Mr Udaltsov.", "15. On the same day the Moscow Department of the Interior published on its website the official information about the forthcoming demonstration on 6 May 2012, including a map. The map indicated the route of the march, the traffic restrictions and an access plan to Bolotnaya Square; it delineated the area allotted to the meeting, which included the park at Bolotnaya Square. Access to the meeting was marked through the park.", "16. On the same day the Police Chief of the Moscow Department of the Interior, Police Major-General V. Golovanov, adopted a plan for safeguarding public order in Moscow on 6 May 2012 (the “security plan”). The ninety-nine-page security plan was an internal document which had not been disclosed to the public or to the organisers. In view of the forthcoming authorised demonstration at Bolotnaya Square and anticipated attempts by other opposition groups to hold unauthorised public gatherings, it provided for security measures in Moscow city centre and set up operational headquarters to implement them.", "17. Thirty-two high-ranking police officers, including eight major-generals, two military commanders and one emergency-relief official, were appointed to the operational headquarters. The Deputy Police Chief of the Moscow Department of the Interior, Police Major-General V. Kozlov, was appointed as head of the operational headquarters; the Chief of the Special‑Purpose Operational Centre of the Moscow Department of the Interior, Police Major-General V. Khaustov, and the Deputy Chief of the Public Order Directorate of the Moscow Department of the Interior, Police Colonel D. Deynichenko, were appointed as deputy heads of the operational headquarters.", "18. The security plan provided for an 8,094-strong crowd-control taskforce, comprising the police and the military, to police the designated security areas and to prevent unauthorised public gatherings and terrorist attacks. The main contingent was the police squad charged with cordon and riot-control duties in accordance with a structured and detailed action plan for each operational unit. Furthermore, it provided for a 785-strong police unit assigned to operational posts across the city centre, with responsibility for apprehending offenders, escorting them to police stations and drawing up administrative offence reports. They were instructed, in particular, to prepare templates for the administrative offence reports and to have at least forty printed copies of them at every police station. The security plan also provided for a 350-strong police unit for intercepting and apprehending organisers and instigators of unauthorised gatherings. The squad had to be equipped with full protection gear and police batons. Each unit had to ensure effective radio communication within the chain of command. They were instructed to keep loudspeakers, metal detectors, handcuffs, fire extinguishers and wire clippers in the police vehicles.", "19. The security plan set out in detail the allocation and deployment of police vehicles, police buses, interception and monitoring vehicles and equipment, dog-handling teams, fire-fighting and rescue equipment, ambulances and a helicopter. It also made provision for a 1,815-strong reserve unit equipped with gas masks, aerosol grenades (“Dreif”), flash grenades (“Zarya‑2”), bang grenades (“Fakel” and “Fakel-C”), a 40-mm hand-held grenade launcher (“Gvozd” 6Г-30), and a 43-mm hand-held grenade launcher (ГМ-94); tubeless pistols (ПБ-4СП) with 23-mm rubber bullets and propelling cartridges, and rifles (KC-23). Two water-cannon vehicles were ordered to be on standby, ready to be used against persistent offenders.", "20. All units were instructed to be vigilant and thorough in detecting and eliminating security threats and to be polite and tactful in their conduct vis‑à-vis citizens, engaging in a lawful dialogue with them without responding to provocations. If faced with an unauthorised gathering they were instructed to give a warning through a loudspeaker, to arrest the most active participants and to record video footage of those incidents. The police chiefs were instructed to place plain-clothes officers among the protesters in order to monitor the threat of violence and terrorist attacks within the crowd and to take measures, where appropriate, to prevent and mitigate the damage and to pursue the perpetrators.", "21. The Chief of the Interior Department of the Tsentralnyy Administrative District of Moscow, Police Major-General V. Paukov, was required, among other tasks, to prepare, together with the organisers, the text of the public announcement to be made if the situation deteriorated. The head of the press communication service of the Moscow Department of the Interior, Internal Service Lieutenant-Colonel Y. Alekseyeva, was in charge of communication with the press. The head of the Department for Liaison with Civil Society of the Moscow Department of the Interior, Internal Service Colonel V. Biryukov, had to ensure “coordination with the representatives of public organisations and also coordination and information flow with other services of the Moscow Department of the Interior”.", "22. The units assigned to police the march and the meeting belonged to “Zone no. 8” (Kaluzhskaya Square, Bolotnaya Square and the adjacent territory). The zone commander was the Chief of the Riot Police of the Moscow Department of the Interior, Police Colonel P. Smirnov, with nine high-ranking police officers (Police Colonel P. Saprykin, Police Colonel A. Zdorenko, Police Lieutenant-Colonel A. Tsukernik, Police Colonel A. Kuznetsov, Police Colonel V. Yermakov, Police Colonel A. Kasatkin, Police Colonel A. Dvoynos, Police Captain R. Bautdinov and Internal Service Lieutenant-Colonel D. Bystrikov) as his deputies.", "23. The units assigned to Zone no. 8 comprised 2,400 riot police officers, of whom 1,158 were on duty at Bolotnaya Square. They were instructed, in particular, to search the demonstrators to prevent them from taking camping tents to the site of the meeting and to obstruct access to Bolshoy Kamenyy bridge, diverting the marchers to Bolotnaya embankment, the site of the meeting. The adjacent park at Bolotnaya Square had to be cordoned off, and the only entrance to Bolotnaya embankment – from Malyy Kamenny bridge – had to be equipped with fourteen metal detectors, which were to be removed just before the march approached the site of the meeting. An exception was made for the organisers and the technical staff, who were allowed access behind the stage through two additional metal detectors. Further arrangements were made for access of the press.", "24. Lastly, the command of Zone no. 8, in particular Police Colonels Smirnov and Saprykin, were under orders to meet the organisers in person at the beginning of the event to remind them of their responsibilities and to have them sign an undertaking. The organisers would undertake to ensure the lawful and safe conduct of the event, and to refrain from any calls for forced change of the constitutional order and from hate speech and propaganda in favour of violence or war. They would also undertake to be present at the venue until the end of the assembly and the departure of the participants. A video recording of the briefing and the signing of the undertaking had to be made.", "25. At about 1.30 p.m. on 6 May 2012 the organisers were allowed access to Bolotnaya Square to set up the stage and sound equipment. The police searched the vehicles delivering the equipment and seized three tents found amid the gear. They arrested several people for bringing the tents, and the installation of the equipment was delayed. During that time communication between the organisers setting up the stage and those leading the march was sporadic.", "26. At the beginning of the march, Police Colonel A. Makhonin met the organisers at Kaluzhskaya Square to clarify any outstanding organisational matters and to have them sign the undertaking to ensure public order during the demonstration. He specifically asked Mr Udaltsov to ensure that no tents were placed on Bolotnaya Square and that the participants complied with the limits on the place and time allocated for the assembly. The organisers gave their assurances on those issues and signed the undertaking.", "27. The march began at 4.30 p.m. at Kaluzhskaya Square. It went down Yakimanka Street peacefully and without disruption. The turnout exceeded expectations, but there is no consensus as to the exact numbers. The official estimate was that there were 8,000 participants, whereas the organisers considered that there had been about 25,000. The media reported different numbers, some significantly exceeding the above estimates.", "28. At about 5 p.m. the march approached Bolotnaya Square. The leaders found that the layout of the meeting and the placement of the police cordon did not correspond to what they had anticipated. Unlike on 4 February 2012, the park at Bolotnaya Square was excluded from the meeting venue, which was limited to Bolotnaya embankment. The cordon of riot police in full protection gear barred access to the park and continued along the whole perimeter of the meeting area, channelling the demonstration to Bolotnaya embankment. Further down the embankment there was a row of metal detectors at the entrance to the meeting venue. By that time the stage had been erected at the far end of Bolotnaya embankment and a considerable number of people had already accumulated in front of it.", "29. Faced with the police cordon and unable to access the park, the leaders of the march – Mr S. Udaltsov, Mr A. Navalnyy, Mr B. Nemtsov and Mr I. Yashin – stopped and demanded that the police open access to the park. According to the protesters, they were taken aback by the alteration of the expected layout and were unwilling to turn towards Bolotnaya embankment; they therefore demanded that the police officers at the cordon move the cordon back to allow sufficient space for the protesters to pass and to assemble for the meeting. According to the official version, the protesters were not interested in proceeding to the meeting venue; they stopped because they had either intended to break the cordon in order to proceed towards Bolshoy Kamennyy bridge and then to the Kremlin, or to stir up the crowd to incite disorder. It is common ground that the cordon officers did not enter into any discussion with the protest leaders and no senior officer was delegated to negotiate. After about fifteen minutes of attempting to engage with the cordon officers, at 5.16 p.m. the four leaders announced that they were going on a “sit-down strike” and sat on the ground. The people behind them stopped, although some people continued to go past them towards the stage. The leaders of the sit-in called on other demonstrators to follow their example and sit down, but only a few of their entourage did so (between approximately twenty and fifty people in total).", "30. Between 5.20 p.m. and 5.45 p.m. two State Duma deputies, Mr G. Gudkov and Mr D. Gudkov, contacted unidentified senior police officers to negotiate the enlargement of the restricted area by moving the police cordon behind the park along the lines expected by the organisers. At the same time Mr V. Lukin, the Ombudsman of the Russian Federation, at the request of Police Colonel Biryukov, attempted to convince the leaders of the sit-in to resume the procession and to head towards the meeting venue at Bolotnaya embankment, where the stage had been set up. During that time no senior police officers or municipal officials came to the site of the sit-down protest, and there was no direct communication between the authorities and the leaders of the sit-in.", "31. At 5.40 p.m. one of the meeting participants announced from the stage that the leaders were calling on the demonstrators to support their protest. Some people waiting in front of the stage headed back to Malyy Kamennyy bridge, either to support the sit-down protest or to leave the meeting. The area in front of the stage almost emptied.", "32. At 5.43 p.m. the media reported that Mr Udaltsov had demanded that the protesters be given airtime on Russia’s main television channels, that the presidential inauguration of Mr Putin be cancelled and that new elections be called.", "33. At 5.50 p.m. the crowd around the sit-down protest built up, which caused some congestion, and the leaders abandoned the protest and headed towards the stage, followed by the crowd.", "34. At 5.55 p.m. the media reported that the police authorities were regarding the strike as a provocation of mass disorder and were considering prosecuting those responsible for it.", "35. At the same time a commotion arose near the police cordon at the place vacated by the sit-down protest, and the police cordon was broken in several places. A crowd of about 100 people spilled over to the empty space beyond the cordon. Within seconds the police restored the cordon, which was reinforced by an additional riot police force. Those who found themselves outside the cordon wandered around, uncertain what to do next. Several people were apprehended, others were pushed back inside the cordon, and some continued to loiter outside or walked towards the park. The police cordon began to push the crowd into the restricted area and advanced by several metres, pressing it inwards.", "36. At 6 p.m. Police Colonel Makhonin told Ms Mityushkina to make an announcement from the stage that the meeting was closed. She did so, but apparently her message was not heard by most of the demonstrators or the media reporters broadcasting from the spot. The live television footage provided by the parties contained no mention of her announcement.", "37. At the same time a Molotov cocktail was launched from the crowd at the corner of Malyy Kamenny bridge over the restored police cordon. It landed outside the cordon and the trousers of a passer-by caught fire. The fire was promptly extinguished by the police.", "38. At 6.15 p.m. at the same corner of Malyy Kamenny bridge the riot police began breaking into the demonstration to split the crowd. Running in tight formations, they pushed the crowd apart, arrested some people, confronted others and formed new cordons to isolate sections of the crowd. Some protesters held up metal barriers and aligned them so as to resist the police, threw various objects at the police, shouted and chanted “Shame!” and other slogans, and whenever the police apprehended anyone from among the protesters they attempted to pull them back. The police applied combat techniques and used truncheons.", "39. At 6.20 p.m. Mr Udaltsov climbed onto the stage at the opposite end of the square to address the meeting. At that time many people were assembled in front of the stage, but, as it turned out, the sound equipment had been disconnected. Mr Udaltsov took a loudspeaker and shouted:\n“Dear friends! Unfortunately we have no proper sound, but we will carry on our action, we are not going away because our comrades have been arrested, because tomorrow is the coronation of an illegitimate president. We shall begin an indefinite protest action. You agree? We shall not leave until our comrades are released, until the inauguration is cancelled and until we are given airtime on the central television channels. You agree? We are power here! Dear friends, [if] we came out in December [2011] and in March [2012], it was not to put up with the stolen elections, ... it was not to see the chief crook and thief on the throne. Today we have no choice – stay here or give the country to crooks and thieves for another six years. I consider that we shall not leave today. We shall not leave!”", "40. At this point, at 6.21 p.m., several police officers arrested Mr Udaltsov and took him away. Mr Navalnyy attempted to go up onto the stage, but he was also arrested at the stairs and taken away. As he was pushed out by the police officers he turned to the crowd shouting “Nobody shall leave!”", "41. At 6.25 p.m. the police arrested Mr Nemtsov, who had also attempted to address people from the stage.", "42. Meanwhile, at the Malyy Kamenny bridge the police continued dividing the crowd and began pushing some sections away from the venue. Through the loudspeakers they requested the participants to leave for the metro station. The dispersal continued for at least another hour until the venue was fully cleared of all protesters.", "43. On 6 May 2012 Police Colonel Deynichenko drew up a report summarising the security measures taken on that day in Moscow. The report stated that the march, in which about 8,000 people had participated, had begun at 4.15 p.m. and had followed the route to Bolotnaya Square. It listed the groups and organisations represented, the number of participants in each group, the number and colours of their flags and the number and content of their banners. It further stated as follows:\n“... at 5.04 p.m. the organised column ... arrived at the [cordon] and expressed the intention to proceed straight to Bolshoy Kamennyy bridge and [to cross it] to Borovitskaya Square. The police ... ordered them to proceed to Bolotnaya Square, the venue of the meeting. However, the leaders at the head of the column – [Mr Udaltsov, Mr Nemtsov and Mr Navalnyy] – ... called on the marchers through the loudspeaker not to move. Together with some thirty protesters they sat on the ground. Another group of about twenty, called by [their leaders], sat as well. The police ... repeatedly warned them against holding an unauthorised public gathering and required them to proceed to the venue of the meeting or to leave. Besides that, two State Duma deputies, Gennadiy Gudkov and Dmitriy Gudkov, the Ombudsman of the Russian Federation, Vladimir Lukin, and a member of the Civic Chamber, Nikolay Svanidze, talked to them, but those sitting on the ground did not react and continued chanting slogans ... From 5.58 p.m. to 7 p.m. persons on Malyy Kamennyy bridge and Bolotnaya embankment made attempts to break the cordon, and threw empty glass bottles, fireworks, chunks of tarmac and portable metal barriers at the police officers. From 5 to 6 p.m. music was playing on the stage ... At 5.20 p.m. ... a deputy of the Vologda Regional Duma called on the participants to head to the Malyy Kamennyy bridge to support those sitting on the ground ... At 6 p.m. one of the organisers, Ms Mityushkina ..., went on the stage and declared the meeting closed. At 6.20 p.m. Mr Udaltsov went on the stage and called on the people to take part in an indefinite protest action.\nAt 7 p.m. a group of about 20 individuals including Ms Mityushkina ... attempted to put up three one-sleeper camping tents on Bolotnaya embankment.\n...\nFrom 6 p.m. to 9 p.m. necessary measures were taken to push the citizens away from Malyy Kamennyy bridge, Bolotnaya embankment and Bolotnaya Street and to arrest the most actively resisting ones ..., during which twenty-eight police officers and military servicemen [sustained injuries] of various gravity, four of whom have been hospitalised.\nIn total, 656 people were detained in Moscow to prevent public disorder and unauthorised demonstrations ...\n...\nThe total number of troops deployed for public order and security duties in Moscow was 12,759 servicemen, including 7,609 police officers, 100 traffic police officers, 4,650 military servicemen and 400 members of voluntary brigades.\nAs a result of the measures taken by the Moscow Department of the Interior the tasks of maintaining public order and security have been fully discharged, and no emergency incidents have been allowed to occur.”", "44. On the same day the Investigative Committee of the Russian Federation opened a criminal investigation into suspected offences of mass disorder and violent acts against the police (Article 212 § 2 and Article 318 § 1 of the Criminal Code).", "45. On 28 May 2012 an investigation was also launched into the criminal offence of organising mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.", "46. On 22 June 2012 the Investigative Committee set up a group of twenty-seven investigators and put them in charge of the criminal file concerning the events of 6 May 2012.", "47. On an unspecified date two human-rights activists filed a request with the Investigative Committee to open a criminal investigation into the conduct of the police in the same events; they complained, in particular, of the suppression of a lawful public assembly. Another petition was filed, also on an unspecified date, by forty-four human-rights activists and members of NGOs, calling for the curbing of repression against those who had been arrested and prosecuted in relation to the events of 6 May 2012 and denying that mass riots had taken place at Bolotnaya Square.", "48. Following an enquiry from the Investigative Committee about publication of the maps of the assembly of 6 May 2012, on 13 August 2012 the Moscow Department of the Interior replied as follows:\n“... on 5 May 2012 the Moscow Department of the Interior published on its official website ... a notice on ‘Safeguarding public order in Moscow during the public events on 6 May’. The notice included information about the route, the map of traffic restrictions and information about the location of the socio-political events, which a large number of participants were expected to attend, the security measures and the warning against any unlawful acts during the events.\nThe decision to publish this notice was taken by the head of the Department on Liaison with the Mass Media of the Moscow Department of the Interior with the aim of ensuring the security of citizens and media representatives planning to take part in the event.\nThe pictures contained in the notice were schematic and showed the approximate route of the [march] as well as the reference place of the meeting – ‘Bolotnaya Square’ – indicated in the ‘Plan for Safeguarding Public Order in Moscow on 6 May 2012’.\nOn 4 May 2012 a working meeting took place at the Moscow Department of Regional Security with participants from among [the organisers and the Department of the Interior], where they discussed the arrangements for the march ..., the placement of metal detectors, the stage set-up and other organisational matters.\nAfter the meeting ... the [Moscow Department of the Interior] prepared a [security plan] and map providing for the park at Bolotnaya Square to be cordoned off with metal barriers [and] for the participants in the meeting to be accommodated on the road at the Bolotnaya embankment.\nGiven that the agreement on the route of the demonstration and the meeting venue had been reached at the aforementioned working meeting at 9 p.m. on 4 May 2012, the [security plan] and the security maps were prepared at extremely short notice (during the night of 4 to 5 May 2012 and the day of 5 May 2012), to be approved afterwards, on 5 May 2012, by senior officials at the Moscow Department of the Interior.\nThe Department of the Interior did not discuss the security maps and [security plan] with the organisers. Those documents were not published as they were for internal use, showing the placement of the police forces ... and setting out their tasks.”", "49. On an unspecified date eight prominent international NGOs set up an international expert commission to evaluate the events at Bolotnaya Square on 6 May 2012 (“the Expert Commission”). The Expert Commission comprised six international experts whose objective was to provide an independent fact-finding and legal assessment of the circumstances in which the demonstration at Bolotnaya Square had been dispersed. In 2013 the Expert Commission produced a fifty-three-page report containing the chronology and an assessment of the events of May 6 2012. It identified the sources used for the report as follows:\n“The work of the Commission was based on the following materials:\n- evidence from the official investigation, reports and statements made by the relevant authorities and any other official information available on the case;\n- information from public investigations and observations gathered by human rights defenders, journalists and others; and\n- reports by observers and journalists, witness testimony and video materials.\n...\nIn order to provide an objective and complete picture of the events, the Commission developed a series of questions that it distributed to the city administration of Moscow, the Investigative Committee of the Russian Federation, police authorities in Moscow, the Ombudsman of the Russian Federation and event organisers. Unfortunately the Commission did not receive replies from the city administration, police authorities or Investigative Committee. As a result, the analysis contained in this report is based on information from open sources, including materials presented by the event organisers, observers and non-governmental organisations, materials from public investigations and information provided by defence attorneys engaged in the so-called ‘Bolotnaya case’. These materials include: eyewitnesses’ testimony, videos from the media and private actors, documents and some open data about the Bolotnaya criminal case. The experts analysed more than 50 hours of video-records and 200 documents related to the Bolotnaya events. In addition, they met organisers, participants and observers of the events and attended several court hearings of the Bolotnaya case.”", "50. Concerning the way the assembly of 6 May 2012 had been organised, the Expert Commission noted the following:\n“... the Moscow Department of Regional Security announced on 4 May [2012] that the event would follow a similar route to the previous rally on 4 February [2012]. The participants were to assemble at Kaluzhskaya Square, set off at 4 p.m. along Bolshaya Yakimanka and Bolshaya Polyanka for a rally in Bolotnaya Square, and disperse at 7.30 p.m. The official notification of approval was issued on 4 May 2012 – just two days before the beginning of the event.\nThat same day, the [Moscow Department of the Interior] published a plan on its website indicating that all of Bolotnaya Square, including the public gardens, would be given over to the rally, while the Bolshoy Kamenny bridge would be closed to vehicles but would remain open to pedestrians. This was the same procedure [the] authorities had adopted for the two previous rallies on Bolotnaya Square on 10 December 2011 and 4 February 2012.\n...\nOn the evening of [5 May 2012], the police cordoned off the [park] of Bolotnaya Square. According to Colonel Yuri Zdorenko, who was responsible for security at the location, this was done ‘in order to prevent the participants from setting up a camp and from [carrying out] other [illegal] acts.’ [The] authorities received information [that] the protesters might attempt to establish a protest camp at the site, causing them to decide that the rally should be confined to only the Bolotnaya waterfront area – a much smaller area than had been originally allocated for the assembly.\n...\nThe police did not, however, inform the organisers of the changes they had decided upon, and they only became aware of the police-imposed changes to the event when they arrived at the site on the afternoon of 6 May [2012].\nThe City Council did not send out a written announcement that a special representative from the city authorities would be present at the event, nor did the chairman of the Moscow local department of the [Interior], Vladimir Kolokoltsev, issue any special orders on sending a special representative of the Ministry to the event.\n...\nThe organisers requested 12 hours to set up a stage and sound equipment for the rally; however, on the morning of 6 May, the authorities only allocated six hours of advance access. Furthermore, at 1.30 p.m., the police did not allow vehicles with stage equipment onto the site until they had been searched. The searches revealed a small number of tents, and [the] authorities detained a number of people as a result. The police finally allowed the truck with the stage equipment onto Bolotnaya Square at 2.50 p.m., just 70 minutes before the march was due to begin.”", "51. As regards the circumstances in which the assembly was dispersed, the Expert Commission’s report stated as follows:\n“As the march approached Bolotnaya Square, [the] demonstrators found that a police cordon was blocking off most of the square, leaving only a narrow stretch along the waterfront for the rally. The police established a triple cordon of officers on Bolshoy Kammenyy bridge, which prevented any movement in the direction of the Kremlin. The first cordon was positioned close to the junction of Malyy Kamennyy bridge and the Bolotnaya waterfront. Students from the Police College and officers of the Patrol Guard Service (without any protective equipment) made up this line. Behind them were two rows of OMON [riot police – OMOН], a line of voluntary citizen patrol (druzhinniki), and another cordon of the OMON [the riot police]. A number of water cannons were visible between the second and third cordons.\n[The report contained two photographs comparing the police cordon on 4 February 2012, a thin line of police officers without protection gear, and the one on 6 May 2012, multiple ranks of riot police with full protection gear backed up by heavy vehicles.]\nThe police cordons, which blocked off movement in the direction of the Kremlin, created a bottleneck that slowed the march’s progress to such an extent that it came to a virtual stop as demonstrators attempted to cross the bridge. Moreover, just beyond Luzhkov bridge, the marchers had to go through a second set of metal detectors, where progress was very slow since there were only 14 detectors.\nBy 5.15 p.m., the majority of the march was immobile. A number of leaders, including Sergey Udaltsov, Alexey Navalnyy and Ilya Yashin, encouraged demonstrators to sit down on the road in front of the ‘Udarnik’ cinema facing the police cordon to protest [against] the inability of the march to continue and to demand that they be given access to the originally allocated space for the rally on Bolotnaya Square. An estimated 50-200 people joined the sit-down protest. The leaders stressed the need to maintain a peaceful protest and appealed to demonstrators to remain calm. Participants chanted: ‘We will not go away’ and ‘Police together with the people’. The leaders attempted to address the crowds using loudspeakers, but those behind the sit-down protest could not hear or see events as they transpired. The sit-down protest did not completely block the road, but it did restrict the movement of those approaching the police lines and the bottleneck caused by the police cordon. As a result, the crowd grew denser as more demonstrators arrived from Bolshaya Yakimanka Street.\nAt 5.42 p.m., the chief of the [Moscow Department of the Interior] issued a statement: ‘The organizers of the rally and other participants refuse to proceed to the agreed place of the rally (to Bolotnaya Square). They [have] stopped on the roadway near the ‘Udarnik’ theatre. Some of them [have] sat on the ground and thus blocked the movement of the column. Despite repeated warnings on the part of the police to proceed to the place of the rally, they won’t move thereby creating a real threat of a jam and trauma for the participants. An inquiry commission is working on the spot to document their actions related to appeals to commit mass public disorder with a view to further consider the issue of instituting criminal proceedings.’\nSome demonstrators appeared to become frustrated with standing and waiting and began to walk away. Some tried to pass through the police cordon to leave the area, but the police refused to let them through. Instead, they were directed to go back through the crowd to Bolshaya Polyanka Street, even though this was practically impossible.\nThe police used loud speakers to inform demonstrators of the rally location. They asked participants to pass directly to Bolotnaya Square and not stop at the bridge, despite the fact that the major part of the square was closed to demonstrators. They announced that all actions on the bridge could be considered illegal. However, given the poor quality of the sound equipment, only those nearest the police could hear this information; the majority of protesters did not hear the police instructions.\n...\nFrom the moment difficulties first arose for demonstrators attempting to cross Malyy Kammenyy bridge, demonstrators made repeated attempts to negotiate with the police over moving their cordons to allow protesters onto Bolotnaya Square.\nDmitry Oreshkin, a member of the Presidential Human Rights Council, and Member of Parliament Gennady Gudkov tried to talk to the police authorities at around 5.30 p.m., but there was no response. Shortly after participants broke through the police cordon at 6.20 p.m., a group of human rights activists spoke to Colonel Birukov, head of the [Moscow Department of the Interior]’s press service. At 7 p.m., Member of Parliament Ilya Ponomarev tried to stop violence during the clashes on the embankment by speaking to the authorities, but he did not get a positive response.\nMany of those involved in organising the event stated that they tried to engage with [the] police throughout the day to ensure the event took place in a peaceful manner.\nNadezhda Mityushkina: ‘I tried unsuccessfully to find the responsible people in the Ministry of the [Interior] in order to solve the organisational problems. I knew whom to contact in case we needed help when issues arose ... Only at 6 – 6.30 p.m. did a police officer approach me. I knew from previous demonstrations that he was a senior officer responsible for communication with event organisers ... and he told me that the authorities had suspended the demonstration. He told me, as one of the rally organizers, to announce from the stage that the event was over, which I did following our conversation.’\nIgor Bakirov: ‘A police officer in a colonel’s uniform contacted me only once, and I showed him the documents [confirming] my credentials as an event organiser. Later clashes with the police erupted, I couldn’t find anyone with whom to communicate and cooperate.’\nSergey Davidis: ‘I personally did not meet nor have time to get into contact with the authorities regarding the fences set up around the perimeter of the rally. I assumed some other organisers had already spoken to the authorities regarding this issue or were speaking with them at that time. There was no one to contact and nothing to talk about. I only saw the OMON officers who behaved aggressively and were not predisposed to get into a conversation.\n...’\nAt 5.55 p.m., as people tried to move through the narrow gap between the police cordon and the waterfront to reach Bolotnaya Square, the police line moved two steps forward, further pressing the crowd. This in turn generated a counter response from the crowd, and protesters began pushing back. In several places, the police cordon broke, and a few dozen people found themselves in the empty space behind the first police line. It is impossible to determine whether the breaking of the cordon was the result of conscious action by sections of the crowd or if the police cordon simply broke due to the pressure from such a large number of people. Some of those who made it past the police lines were young men, but there were also many elderly citizens and others who did not resemble street fighters. Those who found themselves behind the police cordon did not act in an aggressive manner but appeared to move towards the entrance to the Bolotnaya [park], the supposed rally point.\nDifferent demonstrators reacted very differently to the breaking of the police line. Some tried to move away, others called for people to break the cordon, while some tried to restrain the crowd from [trampling on] those who were still taking part in the sit-down protest. As pressure and tension grew, the sit-down protesters stood up rather than risk being trampled. There was a high degree of confusion, and people were not clear on what was happening.\nJust after the breaking of the police cordon at approximately at 6 p.m., a single Molotov cocktail was thrown from the crowd. It landed behind the police ranks and ignited the trousers of ... a 74-year-old demonstrator who had passed through the cordon. The police used their fire extinguishers to put out the fire. This was the only such incident recorded during the day ...\n...\nSoon after the cordons were broken, the authorities began to detain those who remained behind the police lines, taking them to special holding areas. The police also arrested some protesters at the front of the crowd who had not tried to break the cordon. The police cordon was fully restored after about four minutes.\n...\nAt 6.10 p.m., Sergey Udaltsov, Alexey Navalnyy and Boris Nemtsov managed to walk from the Udarnik cinema to the stage at the waterfront followed by a large number of people. A police cordon blocked access to the stage, but they were allowed through. As they tried to start the rally, the police intervened ... the OMON officers then detained Sergey Udaltsov on stage and shortly afterwards detained Boris Nemtsov and Alexey Navalnyy as well. By 6.50 p.m. the organizers began to disassemble the stage.\n...\nIn the two hours between 6 p.m. and 8 p.m., the demonstration was marked by two distinct types of activity. For much of the time, demonstrators and the police stood face to face without much happening. These moments were interspersed with periods when the police advanced and the crowd moved back. There does not appear to have been any clear reason for the police decision to advance other than to divide the crowd up into smaller sections. More than anything, the police advances served to raise tensions and provoke some members of the crowd to push back. There is little evidence that demonstrators initiated the violence. Rather, they appear to have become aggressive only in response to the authorities’ advances.\nDuring these interchanges some protesters threw objects at the police, and the police used their batons freely. The crowd threw plastic bottles, shoes and umbrellas ...\nAt around 6.20 p.m. the police announced that the rally was cancelled and asked protesters to disperse. The police used a loudspeaker to state, ‘Dear citizens, we earnestly ask you not to disturb public order! Otherwise, in accordance with the law, we will have to use force! Please, leave here, and do not stop. Go to the metro.’ Although the police used a loudspeaker, the announcement was not loud enough to reach the majority of the crowd. It is likely that only those nearest to the loudspeakers could have heard the call to disperse.\nThere was confusion over the police demands because at the same time ... Colonel Birukov, head of the Moscow [Department of the Interior]’s press service, told a group of human rights defenders (including Vladimir Lukin, Dmitri Oreshkin, Victor Davydov and Nikolai Svanidze) that the demonstrators could continue to Bolotnaya Square to take part in the rally.\n...\nBy 6.30 p.m. the crowd at the corner of Malyy Kamennyy bridge and the waterfront was cut in two. Those on Malyy Kamennyy bridge were pushed in the direction of Bolshaya Polyanka Street, while those on the waterfront were cut off from both Bolshoy and Malyy Kamennyy bridges.\nAround 6.54 p.m., the police cordon that acted as a barrier along the waterfront near the Luzhkov bridge was removed, and demonstrators were able to move freely along the Bolotnaya waterfront. Approximately 15 minutes later, some 200 police officers in protective equipment who had formed a cordon at the Luzhkov Bridge began pushing protesters in the direction of Lavrushinsky Lane, which runs from Bolotnaya Square to the Tretyakovskaya metro station. At the same time, police began to push people back along the Bolotnaya waterfront from the Luzhkov bridge towards the Udarnik cinema. Those who remained on the waterfront linked arms in passive resistance. The police pushed forward, divided the crowd and began to detain demonstrators.\nAt about 7.47 p.m. ... authorities created a corridor to allow demonstrators to leave the Bolotnaya area.\n...\nAt 7.53 p.m. a group of OMON officers appeared from the bushes of Bolotnaya Gardens and divided those demonstrators that remained on the square. Those on one side were able to move towards Malyy Kamennyy bridge, while those on the other remain[ed] totally blocked between the police lines.\nAt 8.08 p.m. the last groups of people slowly left the waterfront along a corridor formed by the policemen. The police also began to move people away from the Kadashevskaya waterfront on the other side of the Obvondoy Channel. Some people were detained, while others were pushed along Bolshaya Polyanka Street in the direction of the Lavrushinsky Lane.\nBetween 9 and 10 p.m. around two thousand demonstrators moved along Bolshaya Ordynka Street chanting slogans ... and the OMON officers began to detain people and actively disperse the column.”", "52. On 20 March 2013 the Zamoskvoretskiy branch of the Investigative Committee dismissed ten individual complaints and two official enquiries made in relation to the matter, one by Mr Ponomarev, a deputy of the State Duma, and another one by Mr A. Babushkin, President of the Public Supervisory Committee of Moscow. The complaints and enquiries concerned the allegedly unlawful acts of the police in dispersing the rally on 6 May 2012, including excessive use of force and arbitrary arrests. The Investigative Committee interviewed one of the ten individuals who had lodged the complaints and four police officers deployed in the cordon around Bolotnaya Square, including squadron and regiment commanders. They stated, in particular, that they had been acting under orders to maintain public safety and to identify and arrest the most active instigators of unrest; only those resisting the demands of the police had been arrested and no force had been used unnecessarily. The police officers stated that when the police had had to intervene, they had used combat manoeuvres and truncheons but not tear gas or other exceptional means of restraint. Squadron Commander S. explained that he had been deployed in the sector adjacent to the stage and that there had been no incidents or disorder in that sector; no one had been arrested. The decision listed thirteen other internal inquiries carried out following individual complaints and medical reports; in six cases the allegations of abuse had been found to be unsubstantiated and in seven cases the police conduct had been found to be lawful. As regards the substance of the complaints at hand, the Investigative Committee found as follows:\n“... having crossed Malyy Kamennyy bridge, the column leaders stopped. Many participants in the march bypassed the organisers and proceeded to Bolotnaya Square towards the stage ... When the march participants had filled nearly all of Bolotnaya embankment, limited by the police cordon on one side and by the stage on the other side, the organisers were still at the point between Malyy Kamennyy bridge, Bolotnaya Square, [the park] and the Udarnik cinema ...\nAt this time the organisers demanded that the police officers let them pass through to the Kremlin. The police told them that they would not let anyone pass through to the Kremlin because the event was authorised to take place at Bolotnaya Square, where the stage had been specially set up, and they were told to proceed. After that, the organisers decided to call a sit-down protest and called upon those present to disobey the lawful orders of the police. After that, the meeting participants congregated opposite the Udarnik cinema, where after a while they attempted to break the cordon, which [the police] did not manage to prevent. Therefore the police began arresting those who had been most actively involved in breaking the cordon; they were put in a police van and then taken to police stations in Moscow. After the confrontation had been localised, the police officers slightly dispersed the crowd, having apprehended the most active perpetrators. From the very beginning of the sit-down protest the police requested the participants through loudspeakers to proceed to the stage, not to act on provocation and not to commit unlawful acts, but these requests had no effect and therefore [it was clear that] the breaking of the cordon had been organised. In suppressing it the police officers acted in coordination and concert. They did not apply force or special means of restraint. However, the work of the officers charged with apprehending offenders did involve the use of force and special means of restraint, in so far as necessary, against persons putting up resistance.\nLater on, in the area of Malyy Kamennyy bridge and at the [park] corner some localised confrontations took place ... force and special means of restraint were used. All those detained at Bolotnaya Square were taken to the police stations ... Administrative offence reports were then submitted to the Justices of the Peace for consideration on the merits.\n...\nIn accordance with Article 42 of the Criminal Code, any acts of a public official connected with the use of his or her official powers which have caused damage to interests protected by law may not be classified as a criminal offence if they were committed pursuant to a binding order or instruction.\n...\nAfter the organisers had decided to call a sit-down protest ... [they] provoked mass disorder, during which the participants threw various objects at the police, thus causing injuries to some of them. Because of this turn of events the police officers detained those participating in the mass disorder with justifiable use of force, and by special means of restraint against those who resisted.\n...\nIn view of the foregoing, the institution of criminal proceedings against the police officers ... is refused for the absence of corpus delicti.”", "53. On 24 May 2013 the first criminal case against twelve individuals suspected of participation in mass disorder was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges (“the first Bolotnaya case”).", "54. On 2 December 2013 Mr Navalnyy gave testimony as a witness in the first Bolotnaya case. He testified, in particular, as follows:\n“The political organisers and the formal organisers, we all had a clear idea ... and the Moscow mayor’s office confirmed that the march would be the same as the one that had taken place on 4 February 2012. Bolotnaya Square is a traditional place for holding various opposition events. We all had a clear understanding what the route would be, where the stage would be, what the layout would be. We came there at that time for a rather traditional, customary event, the scenario of which was well-known to everybody ... two days beforehand the maps showing where people would assemble and the direction of the march were published on the official [news] website RiaNovosti; they are still posted there. The map was published on the [police] website ‘Petrovka, 38’ and this map is still posted there. Not only the organisers, but the participants too, they knew where they were going ... When we approached the venue of the meeting ... we saw that the map showing where people would assemble on the square had been essentially altered. It was essentially different from the map of 4 February [2012], and, above all, different from the document which had been agreed with the Moscow mayor’s office and had been published on the website[s] RiaNovosti and ‘Petrovka, 38’ ... [according to which] people were to assemble on Bolotnaya embankment as well as in the park at Bolotnaya Square. However, when we came we saw that the park at Bolotnaya Square, taking up about 80% of the square, was barred and cordoned off ... since [the cordon] did not correspond [to the map] the column stopped. The event organisers and the people who came just waited for this question to be resolved, for the police to remove the wrong cordon, for the police chiefs to reply as to what had changed, why the approved meeting was not being conducted according to the scenario that had been approved ... I had previously [organised events] ... Somebody had taken the map and changed the location of the meeting. This had practically never happened before ... to show visually that we were not moving anywhere, we sat on the ground ... the first line of [the police] cordon was composed of 20-year-old conscripts, and with a thousand people pressing on it the cordon broke. It could only break. This led to an uncontrollable situation, as several policemen were walking and trying to say something through megaphones – impossible to tell what they were saying. Some activists passing by were also speaking through megaphones – impossible to tell what they were saying. No authorities were present on the spot. And [it was] impossible to understand who was in command. So all of that caused the rupture of the police cordon. People started spreading across that spot ...Then I tried to walk over to the stage to try and explain to the gathering what was going on, using the amplifiers. I did not know then that the police had already cut off the amplifiers.\n[Question to the witness] Did anybody try to negotiate with the participants of the sit-down protest?\n- Attempts had been made as much as possible in the circumstances ... everybody had stopped because we all wanted to understand where the representatives from the mayor’s office were, where the appropriate representative of the Department of the Interior was. All the [high-ranking] police officers were asked, but they only shrugged. Nobody could understand what was going on. The State Duma deputies present on the spot tried to act as negotiators, but ... they said that nobody wanted to come up to us. We could see some police officers resembling chiefs, at a distance ... but it was impossible to get to them ... it was impossible to reach the [police] command. Nobody would come to us. Nobody could negotiate despite everyone’s wish to do so.\n... when I was in the detention facility I lodged a complaint about the hindrance of a peaceful public event. This complaint was with the Moscow Department of the Interior. I have set out the arguments [as to why] I considered that there had been ample evidence that the officials of the Moscow Department of the Interior had deliberately provoked the crowd to panic so that [they] could later make claims about mass disorder.”", "55. On the same day Mr Davidis gave testimony as a witness in the first Bolotnaya case. He testified, in particular, as follows:\n“The negotiations with the [mayor’s office] were very difficult this time ... I had been the organiser of most events from 25 December 2011. It was always possible to meet the deadline, to find a compromise, [but not this time]. ... It was [only] on 4 [May 2012] that we received the written agreement. On the same day the working meeting took place ... Usually, everything is decided no later than five days before the event. This time there was practically twenty-four hours’ notice. We could not even bring the vehicles carrying the stage to the square before 1 p.m. [on 6 May 2012]. We were put under very harsh conditions ... we had to put up the stage within three hours ... At the [working meeting] technical issues were discussed, but for the previous events we held, as a matter of practice, [there was] an on-site reconnaissance: the representatives of the organisers [together with] the representatives of the police ... would visit the site, walk through the route and determine where the barriers would be put, the stage, the lavatories, so that there was no ambiguity in understanding the event. This time, because [the working meeting] was on 4 [May 2012], and the event was on 6 [May 2012], it was already clear at the working meeting that we wouldn’t have time for an on-site reconnaissance; therefore at Mr Deynichenko’s suggestion it was stated that in organising the event we would follow the example of the assembly held on 4 February [2012]. Then, it was also a march from Kaluzhskaya Square and a meeting at Bolotnaya Square. The only thing that was noted was that this time the stage would be a bit closer to the park at Bolotnaya Square, at the corner of the square, because originally the event had been declared for 5,000 participants. We had a feeling that people were disappointed, somehow low-spirited, and that not many would come. When we realised that there would be more people I told that to Mr Oleynik [the First Deputy Director of the Regional Security Department], but he told us that it was unacceptable. But it was clear that we could not do anything about it. We warned that there would be significantly more participants ... When we called Mr Deynichenko the following day he told [us] that he had had a map drawn up by the Department of the Interior, and that Mr Udaltsov could come during the day to see it to clarify any issues. During the day he postponed the meeting several times and then he was no longer picking up the phone. Therefore it was not possible to see or discuss the map.\n[Question to the witness] Was the blocking of the park discussed at the working meeting, or later?\n- No, of course not. The event of 4 February [2012] had been organised so that the meeting was held at Bolotnaya Square. Bolotnaya Square is an area comprising the park and Bolotnaya embankment. It was supposed that people would ... turn [like before] towards the park. It was said that everything except the position of the stage, which would be moved forwards 20 metres, would be the same as [the last] time, this was expressly spelled out. We were guided by it.\n[Question to the witness] With whom was it discussed that the positioning of the security forces would be the same, [give us] the names?\n- This was spelled out at the big working meeting at the office of Mr Oleynik and in his presence. Since we realised that we had no time for an on-the-spot reconnaissance, Mr Deynichenko suggested that it would be like the last time as we had already walked along this route.\n...\n... Nadezhda Mityushkina called me several times and complained that they were having trouble bringing in the equipment ... that they could not find anyone in charge. Usually it is the police representative who is responsible for the event, separately for the march and for the meeting. When I crossed [to] the area allocated to the march, even before passing through the metal detectors, Colonel Makhonin, who is traditionally in charge of the march, called me. We met. I gave him a written undertaking not to breach the law ... I told him that [two members of staff] had been arrested [at the stage area] ... he promised to release them ...\n[Question to the witness] What exactly did Colonel Makhonin say? The areas allocated to the march and to the meeting, were they determined in front of the camera?\n- No we did not discuss it ...\n... at the turning [from Malyy Kamenny bridge] the procession came to a standstill ... some people sat on the ground ... those who sat down had justifiably asked for an expansion. I could not push through to get there. I learned that both [State Duma deputies] were conducting negotiations; I thought that it was probably going to settle this situation ... at a certain point Ms Mityushkina called me and said that the police were demanding to close the event. I explained ... that if [the police] considered that there had been breaches, they had to give us time to remedy these defects, they could not end the event at once. I called Mr Udaltsov ... and said that we were coming, [that there was] no need to end anything. Actually when I reached the corner the sit-in protest had already ended. The organisers who had participated in the sit-in protest and [other] people tried to approach the stage ...\n...\nThe official website of the Moscow [Department of the] Interior published the map on which it was shown, just as agreed [and] just as on 4 February 2012, [that] the border [of the meeting venue] was outlined at the far end of the park and not the near one ... all agreements were breached.\n[Question to the witness] During the working meeting on 4 [May 2012] or at the beginning of the [march], did the Department of the Interior warn you about any preparations for provocations, breach of public order, the campsite?\n- No, there were no such talks with the police.\n...\n[Question to the witness] If one has a badge, does it help in principle for talking to the police?\n- No, it does not make any difference. I personally called Mr Deynichenko and asked him to take measures. There was no communication with the police. The police officers did not pick up the phone calls. [I] did not manage to find anyone in charge of the police.\n...\n[Question to the witness] When, according to the rules, ... should the appointments be made to coordinate ... on the part of the organisers and the mayor’s office?\n- The law does not expressly say [when] ... we received no documents from the [Moscow Government] or the Department of the Interior. We had no information as to who was responsible.\n[Question to the witness] That means that at the beginning and during the event you did not know the names of those in charge?\n- Except for the officer in charge of the march, Colonel Makhonin.\n...\n[Question to the witness] When the emergency occurred, who did you try calling at the Department of the Interior command ...?\n- By then I was no longer trying to call anyone. I had heard that [the two State Duma deputies] were holding negotiations. I called Mr Udaltsov to tell him that they were trying to close the meeting, but he told me that they were already heading to the stage, that they had ended the sit-in protest.\n...\n[Question to the witness] Why did the police announce that the event was banned?\n- I cannot explain why such a decision was taken. They themselves impeded the conduct of the event and then they ended it by themselves ...\n...\n[Question to the witness] The reason why [the event was] closed was the sit-down protest?\n- As I understood from Ms Mityushkina, yes.\n[Question to the witness] How did the police make their demands? Through loudspeakers?\n- I would not say that it was some sort of large-scale [announcement]. It was more through physical force. But some demands were made via megaphones, there were no other means.”", "56. On 5 December 2013 Mr Nemtsov gave testimony as a witness in the first Bolotnaya case. He testified, in particular, as follows:\n“... I was not one of the organisers of the event, but I was well informed about the way it had been authorised. On the website of the Moscow Department of the Interior a map was posted showing the location of the police [cordon] and the access points. The map was in the public domain and one could see that the park of Bolotnaya Square should have been opened. But it turned out to be closed. Moreover, we openly announced on the Internet, and it was reported in the media, that the route would be exactly the same as on 4 February 2012 ... On 4 February 2012 there was an authorised event ... all of [Bolotnaya] Square was open, no cordons on Bolshoy Kamennyy bridge. We easily turned into the square, there had been no scuffles ... we were sure that on 6 May 2012 it would be exactly the same picture ... but the police had deceived us, blocked Bolotnaya Square, having left a very narrow passage for the demonstrators. We understood that it would be hard to pass through this bottleneck. We stopped, and to show the police that we were not going to storm the Kremlin and the [Bolshoy] Kamennyy bridge we sat on the ground ... Mr Gudkov [the State Duma deputy], ... offered to be an intermediary in the negotiations between the protesters and the police ... we waited, all was peaceful ... he several times attempted to negotiate but this came to nothing. It became clear that ... the crowd were about to panic. We got up. And an awful scuffle began ... I was moving [to the stage] ... when I arrived there I saw a strange scene for an authorised event. The microphones had all been switched off, Mr Navalnyy and Mr Udaltsov had been arrested just before me. The police never act like that at authorised events. I took a megaphone and addressed the people. I did not speak for long. Within a few minutes the police apprehended me. ...\n[Question to the witness] Why, as you say, were the police particularly aggressive?\n- The demonstration took place just one day before Mr Putin’s inauguration. Naturally, the police had received very strict orders. Naturally, they were paranoid about ‘Maidan’. The fact that they had treacherously breached the agreement and closed off the square, this proves that there were political orders. I was particularly surprised at Mr Gorbenko, the deputy mayor, with whom Mr Gudkov was negotiating. He is a reasonable man, but here he was like a zombie, he would not negotiate with Mr Gudkov. This was strange ... he did not want to talk like a human. ...\n[Question to the witness] Did you know about the intention to set up tents, or about the breaking of the cordon?\n- No, I did not know about it then.\n...\nWe demanded only that [the authorities] implement what had been agreed with [the organisers].”", "57. On 18 December 2013 Ms Mirza, the head of the Ombudsman’s secretariat, gave testimony as a witness in the first Bolotnaya case. She testified, in particular, as follows:\n“... [on 6 May 2012] I was present as an observer ... unlike the usual events held at Bolotnaya Square, [this time] the park was cordoned off ... when we passed the metal detectors ... Mr Biryukov called and asked us to return urgently because ... at Malyy Kamennyy bridge ... [protesters] had sat down on the ground ... [The Ombudsman] tried to persuade these people to stand up and to go and conduct the meeting ... At this time the [second] riot police cordon, which had stood between Bolshoy Kamennyy bridge and Malyy Kamenny bridge, apparently approached the crowd, therefore the pressure built up from both sides ... I tried to leave the congested area ... showed my observer’s badge ... but the riot police were not listening to me, laughed slightly and continued to press, there was no reaction on their part. This somewhat surprised me because we found ourselves there at the request of the Moscow Department of the Interior.\n...\nUsually there was no such multi-layered defence. Bolshoy Kamenny bridge was blocked as if it was warfare, beyond what was required, as we thought ... among the protesters we saw several people in masks, and we reported that to the police, [as] this was unusual. The mood of the Department of the Interior was also unusual, and so was the mood of the riot police. A police chief from the Moscow Department of the Interior, Mr Biryukov, told me, for example, that he could do nothing, that he was not in charge of the riot police and that the riot police reported to the [federal] police, and this was also unusual to us. I spoke to the deputy mayor ... and saw how upset he was, and his very presence there was also [a rare occasion].\n...\nAs I was later told by Mr Biryukov from the Department of the Interior, [the protesters had sat down on the ground] because the passage had been narrowed down. The passage had indeed been narrowed down, I can confirm that, I saw that, the passage was much narrower than usual, and there were metal detectors which were not supposed to be there.\n...\nMr Biryukov was in charge on behalf of the Moscow Department of the Interior – this is absolutely certain because he is always in charge of such events. His name, his function and his telephone number were written on our badges so that he could be contacted if any questions or doubts arose. As to the [representative of the mayor’s office], [I am not sure].\n[Question to the witness] You have explained about the cordon. Why was it not possible, for example, to move it [back] so as to prevent a scuffle?\n- Mr Biryukov is a very constructive person and he knows his job, but he could not explain to me why he could not influence the riot police.\n... [the deputy mayor also] told me that he could not do anything, it was said to me personally. At this time the breaking of the cordon occurred. [The Ombudsman] and our staff, together with a few other people, walked out through [the gap] ...\n[Question to the witness] Did you receive any information while at the cordon? Perhaps you heard from the police officers about the official closure of the public event?\n- No.\n... After the cordon had already been broken, when the arrests had begun, [then] they were telling us through a megaphone to disperse, that the meeting was over, I heard it.”", "58. On 23 December 2013 Mr N. Svanidze, a member of the Civic Chamber of the Russian Federation, gave testimony as a witness in the first Bolotnaya case. He testified, in particular, as follows:\n“... [on 6 May 2012] I was present as an observer ... [when] everybody headed towards the narrow bottleneck at the embankment ... it created a jam. Several dozen people sat on the ground, and the cordon moved towards them ... I asked ‘Why won’t they open up the passage?’, but Viktor Aleksandrovich [Biryukov] would turn his face away and would not answer when told that the passage had to be opened. I understood that there was no point talking to him, he was not in command.\n...\n[Question to the witness] Did [the Ombudsman] or anyone else attempt to negotiate the widening of the passage?\n- We could not do anything. We requested it, [Ms Mirza] requested it and I think that [the Ombudsman] did too, but nothing was done. The passage was not widened.\n...\n[Question to the witness] Were there any calls to move towards the Kremlin?\n- No.\n...\n[Question to the witness] During your presence at the event did you know on what territory the meeting had been authorised?\n- Yes, I was convinced that [it was] Bolotnaya Square and the park at Bolotnaya Square.”", "59. On the same day Mr Vasiliev, a staff member at the Ombudsman’s office, gave testimony as a witness in the first Bolotnaya case. He testified, in particular, as follows:\n“... [on 6 May 2012] I was present as an observer ... on that day we gathered at the press centre of the Department of the Interior, we were given maps, instructions on how to behave, the list of public observers ...\n... the Ombudsman asked [the protesters sitting on the ground] why they were not going to the meeting venue. I could not hear the answer, they got up and headed on, after that, congestion occurred ... [the Ombudsman] began looking for the officer responsible for the cordon. There was [the chief press officer] Mr Biryukov there, [the Ombudsman] told him: ‘let’s move the cordon back so that people can pass’ [but] Mr Biryukov told him that it was outside his powers. [The Ombudsman] asked in whose powers it was; he replied ‘I don’t know’. At that moment the police began splitting the crowd ...”", "60. On 21 February 2014 the Zamoskvoretskiy District Court of Moscow delivered a judgment in the first Bolotnaya case. It found eight individuals guilty of participation in mass disorder and of violent acts against police officers during the public assembly on 6 May 2012. They received prison sentences of between two and a half and four years; one of them was released on parole. Three co-defendants had previously been pardoned under the Amnesty Act and a fourth had his case disjoined from the main proceedings.", "61. On 22 May 2014 the Zamoskvoretskiy branch of the Investigative Committee dismissed five complaints by individuals who had sustained injuries on 6 May 2012, allegedly through the excessive use of force by the police. The complaints had originally been a part of the criminal investigation file concerning the mass disorder, but were subsequently disjoined from it. During the investigation of the mass disorder case, confrontations were conducted between those who had lodged complaints (in the capacity of the accused in the criminal case) and the police officers accused of violence (in the capacity of victims in the criminal case). The relevant part of the decision read as follows:\n“In suppressing attempts to break the police cordon, the police officers acted in coordination and concert, without applying physical force or special means of restraint; however, the work of the officers charged with apprehending offenders did involve physical force and special means of restraint, in so far as necessary [to restrain] those resisting.\nAfter the crowd of protesters had calmed down and thinned out a little, the police officers began to tighten the cordon, [and] by doing so encouraged the citizens to proceed to the stage. At the same time many participants in the meeting who did not want to go there began to return to Bolshaya Yakimanka Street in Moscow. The police also accompanied them.\nLater, in the area of Malyy Kamennyy bridge and at the corner of the park [at Bolotnaya Square] confrontations took place between the provocateurs, the persons calling for defiance and the persons displaying such defiance. During the apprehension of those persons force was used by the police because of their resistance, and in a number of cases, special means of restraint were also used for apprehending the most active instigators.\n...\nBecause of such a turn of events the police officers justifiably used physical force to apprehend the participants in the mass disorder, and also special means of restraint in relation to some of them who attempted to resist.”", "62. On 20 June 2014 the Moscow City Court upheld the judgment of 21 February 2014, having slightly reduced the prison sentences for two of the defendants.", "63. On 24 July 2014 the Moscow City Court found Mr Udaltsov and Mr Razvozzhayev guilty of organising mass disorder on 6 May 2012. The judgment contained the following findings:\n“The witness Mr Deynichenko testified that on 4 May 2012 he had taken part in a working meeting at the Moscow Department of Regional Security... as a follow-up to the meeting a draft security plan was prepared, and all necessary agreements were reached with the organisers concerning the order of the march and meeting, the movement of the column, the stage set-up, access to the meeting venue, barriers and the exit from the stage; the [organisers] had agreed on that. The question of using the park at Bolotnaya Square was not raised because the declared number of participants was 5,000, whereas over 20,000 people could be accommodated in the open area of the square and the embankment, and [the organisers] had known that in advance. It had been discussed with them how the cordon would be placed from Malyy Kamennyy bridge to the park of Bolotnaya Square, so the organisers knew about the cordon in advance. The placement of the cordon was indicated in the [security plan]. This document was for internal use and access to it was only given to the police; the location of the forces could be changed in an emergency by the operational headquarters. The organisers did not insist on an on-the-spot visit; such visits are held at the initiative of the organisers, which had not been requested because they had known the route ... and the meeting venue ... [The witness Mr Deynichenko] had known that at the beginning of the march the event organisers, including Mr Udaltsov, had discussed between them that they were not going to turn towards the meeting venue but would stop and try to break the cordon to proceed to Bolshoy Kamennyy bridge.\n...\nThe witness N. Sharapov testified that Mr Udaltsov had known the route of the march and had not raised a question about opening up the park at Bolotnaya Square. Moreover, the park was a nature reserve with narrow lanes ... the park had been opened up previously [for a public event], as an exception, on only one occasion, on 4 February 2012, but then it was winter, it was snowing and the declared number of participants had significantly exceeded 5,000. No such exception was made for 6 May 2012.\n... according to the statement of the Moscow City Security Department, ...the meeting venue at Bolotnaya embankment could accommodate 26,660 people ...\nThe fact that no map of the assembly route or the placement of the police had been produced at the working meeting of 4 May 2012, that these questions had not been expressly discussed, ... that the event organisers present at the working meeting had not been shown any maps, was confirmed by them.\n... the court concludes that no official map had been adopted with the organisers and, in the court’s opinion, [the published map] had been based on Mr Udaltsov’s own interview with journalists ...\nTherefore the map presented by the defence has no official character, its provenance is unknown and therefore unreliable and it does not reflect the true route of the demonstration and the placement of the police forces.\n... the witness Mr Makhonin ... testified that on 5 May 2012 he received the [security plan] ... Before the start of the march he personally met the event organisers Ms Mityushkina, Mr Udaltsov [and] Mr Davidis and in the presence of the press and with the use of video recordings explained to them the order of the meeting and the march, warned against the breach of public order during the conduct of the event; and stressed the need to inform him personally about any possible provocations by calling the telephone number known to the organisers. He asked Mr Udaltsov about the intention to proceed towards the Kremlin and to cause mass disorder because the police had received information about it from undercover sources; Mr Udaltsov had assured him that there would be no breaches of order at the event and that they had no intention to move towards the Kremlin ... He (Mr Makhonin) arrived at Bolotnaya Square after the mass disorder had already begun ... After the mass disorder began he tried calling Mr Udaltsov on the phone but there was no reply. Mr Udaltsov did not call him ... Other event organisers had not asked him to move the cordon. Given the circumstances, Ms Mityushkina, at his request, announced the end of the meeting, and the police opened additional exits for those willing to leave. In addition to that, the police repeated through a loudspeaker the announcement about the end of the meeting ...\n... the witness Mr Zdorenko ...testified that ... following information received [from undercover sources] about the possible setting up of a camp site, at about 9 p.m. on 5 May 2012 he arrived at Bolotnaya Square and organised a search of the area including the park. The park was cordoned off and guarded ... if necessary, at the decision of the operational headquarters, the venue allocated for the meeting could be significantly extended at the expense of the park [at Bolotnaya Square]. However, there was no need for that given that there were no more than 2,500-3,000 persons on Bolotnaya Square ... [others being stopped at] Malyy Kamennyy bridge.\n...\nThe witness A. Zharkov testified that ...while the stage was being set up he had seen an unknown man smuggling four camping tents in rubbish bins.\n...\nThe witness M. Volondina testified that ... before the beginning of the march, police information came through from undercover sources that the event organisers intended to encircle the Kremlin holding hands to prevent the inauguration of the Russian President.\nThe witness M. Zubarev testified that ... he had been [officially] filming ... while Police Officer Makhonin ... explained the order ... and warned the organisers ... and asked Mr Udaltsov to inform him of any possible provocations. Mr Udaltsov stated that they would act lawfully and that he had requested the police to stop any unwanted persons from joining the public event ...\nThe witness Y. Vanyukhin testified that on 6 May 2012 ... at about 6 p.m. Mr Udaltsov, while on the way to the stage, told people around him that they were going to set up a campsite ...\n... the witness Ms Mirza testified that ... Police Officer Biryukov had asked her and [the Ombudsman] to come to Malyy Kamennyy bridge where some of the protesters, including Mr Nemtsov and Mr Udaltsov, had not turned right towards the stage but had gone straight to the cordon, where they had begun a sit-in protest on the pretext that access to the park of Bolotnaya Square had been closed and cordoned off ... While [the Ombudsman] was talking to those sitting on the ground they remained silent and did not reply but would not stand up.\nThe witness Mr Babushkin testified that ... after the first confrontations between the protesters and the police had begun, the latter announced through a loudspeaker that the meeting was cancelled and invited the citizens to leave.\nThe witness Mr Ponomarev testified that ... the police cordon had been placed differently from [the cordon placed for] a similar march on 4 February 2012 ... he proposed to Mr Udaltsov that the cordon be pushed back so that the police would go back a few steps and widen access to Bolotnaya Square, and the latter replied that he would figure it out when they reached the cordon ... he knew that Mr G. Gudkov was negotiating with the police about moving the cordon, which had now been reinforced by the riot police.\n... the witnesses Mr Yashin and Mr Nemtsov testified that ... during the steering committee meeting the question of setting up tents during the public event had not been discussed ... while [Mr G. Gudkov] and [Mr D. Gudkov] were negotiating with the police ... the crowd built up [and] suddenly the police began moving forward, the protesters resisted and the cordon broke ...\nThe witness Mr G. Gudkov [deputy of the State Duma] testified that ... at the request of the organisers, who had told him that they would not go anywhere and would remain sitting until the police moved the cordon back and opened up access to the park at Bolotnaya Square, he had taken part in the negotiations with the police on that matter. He had reached an agreement with the officers of the Moscow Department of the Interior that the cordon would be moved back, but the organisers who had filed the notice [of the event] should have signed the necessary documents. However, those who had called for a sit-in, including Mr Udaltsov, refused [to stand up] to go to the offices of the Moscow Department of the Interior to sign the necessary documents, although he (Mr Gudkov) had proposed several times that they should do so ...\n... the witness Mr D. Gudkov [deputy of the State Duma] testified that ... together with Mr G. Gudkov he had conducted negotiations with the police ... an agreement had been reached that the cordon at the Malyy Kamennyy bridge would be moved back and the access to the park would be opened up, but at that point some young men in hoodies among the protesters began first to push the citizens onto the cordon provoking the [same] response, after that the cordon was broken, the [police] began the arrests and mass disorder ensued.\n...\n... the court [rejects] the testimonies to the effect that it was the police who had begun moving towards the protesters who were peacefully sitting on the ground and thus provoked the breaking of the cordon ... [and finds ] that it was the protesters, and not the police ... who began pushing against the cordon, causing the crowd to panic, which eventually led to the breaking of the cordon and the ensuing mass disorder.\n...\nThe court takes into account the testimony of Mr Davidis that ... at about 6 p.m. Ms Mityushkina, who was responsible for the stage, informed him about the demand of the police that she announce, as an event organiser, that it was terminated. He passed this information on to Mr Udaltsov by phone, [and he] replied that they were standing up and heading towards the stage ... he knew that on 6 May 2012 [some] citizens had brought several tents to Bolotnaya Square, but Mr Udaltsov had not informed him about the need to put up tents during the public event.\n...\nThe court takes into account the testimony of Mr Bakirov ..., one of the [formal] event organisers ..., that nobody had informed him about the need to put up tents during the public event.\n...\n[The court examined] the video recording ... of the conversation between Mr Makhonin and Mr Udaltsov during which the latter assured Mr Makhonin that they would conduct the event in accordance with the authorisation, he would not call on people to stay in Bolotnaya Square and if problems occurred he would maintain contact with the police.\n...\n... [the court examined another video recording] in which Mr Makhonin and Mr Udaltsov discussed the arrangements. Mr Makhonin showed Mr Udaltsov where the metal detectors would be placed; after that they agreed to meet at 3 p.m. ... and exchanged telephone numbers ...\n...\nAccording to [expert witnesses Ms N. and Ms M.], the borders of Bolotnaya Square in Moscow are delimited by Vodootvodnyy channel, Serafimovicha Street, Sofiyskaya embankment and Faleyevskiy passage, and the [park] forms a part of Bolotnaya Square. During public events at Bolotnaya Square the park is always cordoned off and is not used for the passage of citizens.\nThese testimonies are fully corroborated by the reply of the Head of the Yakimanka District Municipality of Moscow of 27 July 2012 and the map indicating the borders of Bolotnaya Square.\n...\n[The court finds] that the place of the sit-in ... was outside the venue approved by the Moscow authorities for the public event ...\n...\nThe organisation of mass disorder may take the form of incitement and controlling the crowd’s actions, directing it to act in breach of the law, or putting forward various demands to the authorities’ representatives. This activity may take different forms, in particular the planning and preparation of such actions, the selection of groups of people to provoke and fuel mass disorder, incitement to commit it, by filing petitions and creating slogans, announcing calls and appeals capable of electrifying the crowd and causing it to feel appalled, influencing people’s attitudes by disseminating leaflets, using the mass media, meetings and various forms of agitation, in developing a plan of crowd activity taking into account people’s moods and accumulated grievances, or guiding the crowd directly to commit mass disorder.\n... this offence is considered accomplished as soon as at least one of the actions enumerated under Article 212 § 1 of the Criminal Code has been carried out ...\n... the criminal offence of organisation of mass disorder is considered accomplished when organisational activity has been carried out and does not depend on the occurrence or non-occurrence of harmful consequences.\n...\nThere are no grounds to consider the closure of access to the park of Bolotnaya Square and the placement of a guiding police cordon at the foot of Malyy Kamennyy bridge to be a provocation ... since it was only to indicate the direction and it did not obstruct access to the meeting venue at Bolotnaya Square.\n... the reinforcement of the cordon ... was necessary in the circumstances ... to prevent it from breaking ... but the police [cordon] did not advance towards the protesters.\nIt is therefore fully proven that the mass disorder organised by Mr Udaltsov [and others] ... led to the destabilisation of public order and peace in a public place during the conduct of a public event, put a large number of people in danger, including those who had come to fulfil their constitutional right to congregate in peaceful marches and meetings, and led to considerable psychological tension in the vicinity of Bolotnaya Square in Moscow, accompanied by violence against the police ... and the destruction of property ...”", "64. The Moscow City Court sentenced Mr Udaltsov and Mr Razvozzhayev to four and a half years’ imprisonment. On 18 March 2015 the Supreme Court of the Russian Federation upheld the judgment of 24 July 2014, with a number of amendments.", "65. On 18 August 2014 the Zamoskvoretskiy District Court of Moscow examined another “Bolotnaya” case and found four individuals guilty of participating in mass disorder and committing violent acts against police officers during the demonstration on 6 May 2012. They received prison sentences of between two and a half and three and a half years; one of them was released on parole. That judgment was upheld by the Moscow City Court on 27 November 2014.", "66. On 6 May 2012 the applicant arrived at Bolotnaya Square at about 6 p.m. to take part in the meeting. He stood in front of the stage on Bolotnaya embankment, within the area designated as the meeting venue.", "67. According to the applicant, between 6 p.m. and 7 p.m. the area around him remained peaceful, although there was general confusion. He claimed that he had not heard any announcement about the termination of the meeting; he had heard the police orders made through a megaphone to disperse, but in the general commotion he was unable to leave immediately and remained within the authorised meeting area until 7 p.m., when he was arbitrarily arrested by the police dispersing the demonstration. The applicant denied that he had received any warning or orders before being arrested. The police apprehended him and took him to a police van, where he waited for an hour before it left Bolotnaya Square for the police station. According to the applicant, there was no traffic at Bolotnaya Square at the time of his arrest; it was still suspended.", "68. According to the Government, the applicant was arrested at 8.30 p.m. at Bolotnaya Square because he was obstructing the traffic and had disregarded the police order to move away.", "69. At 9.30 p.m. the applicant was taken to the Krasnoselskiy District police station in Moscow. At the police station an on-duty officer drew up a statement on an administrative offence (протокол об административном правонарушении) on the basis of a report (рапорт) by Police Officer Y., who had allegedly arrested the applicant. Y.’s report contained the following handwritten statement:\n“I [Y.] report that on 6 May 2012 at 9.30 p.m., at 5/16 Bolotnaya Square, together with Police Lieutenant [A.], I arrested Mr Frumkin.”", "70. The rest of the report was a printed template stating as follows:\n“... who, acting in a group of citizens, took part in an authorised meeting, went out onto the road and thus obstructed the traffic. [He] did not react to the multiple demands of the police to vacate the road ..., thereby disobeying a lawful order of the police, who were fulfilling their service duty of maintaining public order and ensuring safety. He thereby committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences.”", "71. The statement on the administrative offence contained an identical text, but indicated that the applicant had been arrested at 8.30 p.m. The applicant was charged with obstructing traffic and disobeying lawful police orders, an offence under Article 19.3 of the Code of Administrative Offences. His administrative detention was ordered with reference to Article 27.3 of the Code of Administrative Offences (протокол об административном задержании). The “reasons” section of the order remained blank.", "72. At 2 p.m. on 7 May 2012 the applicant was taken to court, but his case was not examined. After having spent the day in a transit van without food or drink, at 11.55 p.m. he was taken back to the cell at the Krasnoselskiy District police station. A new order for the applicant’s administrative detention was issued, indicating that he had been detained “for the purpose of drawing up the administrative material”.", "73. At 8 a.m. on 8 May 2012 the applicant was brought before the Justice of the Peace of circuit no. 100 of the Yakimanka District, who examined the charges. The applicant requested that the case be adjourned on the grounds that he was unfit to stand trial after the detention; he also requested that the hearing be opened to the public and that two police officers be examined as witnesses. Those requests were rejected in order to expedite the proceedings. A further request for the examination of several eyewitnesses was partly refused and partly granted. Three witnesses for the defence were examined.", "74. On the basis of the report written by Police Officer Y., the court established that at 8.30 p.m. on 6 May 2012 the applicant had been walking along the road at Bolotnaya Square and obstructing the traffic, and that he had then disobeyed lawful police orders to vacate the venue. The Justice of the Peace rejected as unreliable two eyewitnesses’ testimonies to the effect that the police had not given the applicant any orders or warnings before arresting him. The applicant was found guilty of disobeying lawful police orders, and was sentenced under Article 19.3 of the Code of Administrative Offences to fifteen days’ administrative detention.", "75. On 11 May 2012 the Zamoskvoretskiy District Court of Moscow examined an appeal lodged by the applicant. At the applicant’s request the court examined Ms S. as a witness. She testified that at 7.46 p.m. on 6 May 2012 she had been looking for her son when she saw the applicant in a police van and spoke to him. She also testified that at 9.03 p.m. she had been at Bolotnaya Square; the site had been fully cordoned off and the traffic had not resumed. The court rejected the applicant’s argument that the police report and the police statement were inconsistent as regards the time of his arrest and found that the correct interpretation of those documents was that the time of arrest had been 8.30 p.m. and the detention at the police station 9.30 p.m. The court dismissed the video recording submitted by the applicant on the grounds that it did not contain the date and the time of the incident, but found that the applicant’s guilt had been proved by other evidence. It upheld the first-instance judgment.", "76. On 11 January 2013 the Deputy President of the Moscow City Court examined the applicant’s administrative case in supervisory-review proceedings and upheld the earlier judicial decisions." ]

[ 7, 2, 3 ]

[ "5. The applicant was born in 1973 and is detained in Drobeta Turnu Severin Prison.", "6. On 28 October 2009 the applicant was convicted of rape and sentenced to ten years’ imprisonment. He has since been serving his sentence in various Romanian prisons.\n \n... 14. The medical report drawn up when the applicant was admitted to prison on 28 October 2009 indicates that he was “clinically healthy” (clinic aparent sănătos). 15. From 26 May to 9 June 2011 the applicant was placed in the hospital wing of Rahova Prison, Bucharest, where he underwent surgery on 3 June 2011 for an inguinal hernia on his right side. 16. From 2 to 8 October 2012 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison, for digestive problems. He was included in a screening programme for digestive and liver conditions. Following a medical test to identify the viral markers of hepatitis, the applicant was found to be suffering from viral hepatitis C (purtator VHC). A biochemical blood analysis was conducted; the results indicated that his ALAT, ASAT and GGT enzyme levels were normal, as was his total bilirubin. 17. In a note summarising the medical tests conducted during the applicant’s hospitalisation (scrisoare medicală), the doctor who had treated him observed that the applicant’s disease was progressing satisfactorily and that no additional examination was necessary at that stage. He recommended that the applicant adhere to a specific diet and refrain from smoking. He prescribed symptomatic treatment, namely hepatoprotective drugs and vitamin therapy, noting that these were to be administered “if needed” (la nevoie). The applicant’s health was scheduled for re-examination within six months. 18. The applicant was provided with a special diet for persons suffering from disease (norma 18). During January, February and March 2013 he was treated with hepatoprotective drugs. 19. On 21 February 2013 the applicant refused to be hospitalised for his health check-up. His medical records do not indicate the reasons for this refusal. However, they indicate that his health was to be re-examined within six months. 20. From 5 to 8 August 2013 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison for re-testing of his liver function. Blood tests showed that the ALAT and ASAT enzymes were slightly above the normal levels. On leaving the hospital wing, the applicant was advised to follow a course of hepatoprotective drugs, vitamin therapy and symptomatic treatment, to be administered if needed. He was also advised to have his condition reassessed within six months. 21. The applicant continued to be provided with the special diet for persons suffering from disease. In August, October and December 2013 he was treated with hepatoprotective drugs. The list of the applicant’s medical consultations shows that, following a medical examination on 9 December 2013 in Jilava Prison, it was recommended that he attend a medical consultation for hepatitis C in Ion Cantacusino public hospital. 23. On 14 January 2014 the applicant refused to be hospitalised for re-assessment of his health with regard to the hepatitis C condition. On 19 January 2014 the applicant was examined by an internal medicine specialist, who noted that his general state of health was good. 24. On 28 January 2014 the applicant was examined by the prison doctor. The latter noted a diagnosis of “liver disease under observation” and indicated that the applicant had complained of vomiting. An anti-spasmodic drug was prescribed and administered to him. 25. On 13 February 2014 the applicant complained of palpitations. He was examined by the prison doctor, who recommended a cardiology test. 26. From 18 to 21 February 2014 the applicant was placed in the internal medicine and cardiology unit in the hospital wing of Jilava Prison, on the grounds that he required medical supervision for retro-sternal pain and that, as a smoker, he was an at-risk patient. An electrocardiogram and blood test were carried out. The biochemical blood analysis revealed that the ALAT enzyme was one-and-a-half times over the upper norm, that the ASAT enzyme was slightly over the norm and that the GGT enzyme was at normal levels. 27. A medical certificate issued at the end of his hospitalisation indicated that the applicant was suffering from unstable angina (angor intricat de novo) and potentially toxic liver disease (hepatopatie posibil toxică). The applicant was prescribed treatment for his heart disease and a course of hepatoprotective treatment, to be followed for one month. 28. In March 2014 the prison took the necessary steps to purchase the hepatoprotective drug, which was administered to the applicant at the beginning and end of May 2014. The applicant’s medical records indicate that he was treated with hepatoprotective drugs in June and July 2014. 29. In the meantime, on 2 August 2013 the applicant had applied to the judge delegated by the court to supervise the observance of prisoners’ rights in Jilava Prison (“the delegate judge”), complaining about his physical conditions of detention and a lack of medical treatment for his hepatitis C. 30. By a decision of 19 August 2013, the delegate judge dismissed his complaint. He confirmed the applicant’s allegations that he was being held in a cell measuring 33.96 m², occupied by twenty-seven inmates and containing four tables and six chairs. He further held that the prison authorities had attempted to improve conditions in the cell, noting that it had recently been renovated. He stated that the toilet block was separated from the cell, and that the cell received natural and artificial light. The fact that the cell was equipped with three-tier bunk beds arose from an objective cause, namely an increase in the number of detainees, and not from a lack of good will on the part of the prison authorities. 31. With regard to the medical treatment provided to the applicant, the judge noted that he received the special diet for persons suffering from disease and that he had just received vitamin therapy. 32. Following an appeal by the applicant, on 4 December 2013 the Bucharest Court of First Instance upheld, in a final judgment, the delegate judge’s decision of 19 August 2013.\n..." ]

[ 1 ]

[ "5. The applicant was born in 1981 and is serving a prison sentence in Bor in the Nizhniy Novgorod Region.", "6. According to the official version of events, on 30 December 2004 D.M., S., R.M., the applicant and an unknown person broke into Kh.’s house and assaulted her until she showed them where some money was hidden. They tied her up with electric cable, took the money, a hunting knife and a mobile telephone and then left. She reported the robbery to the authorities that day.", "7. According to the official version of events, D.M., Siv., R.M., the applicant and an unknown person planned to commit a robbery. At around 8 p.m. on 22 March 2005 they collected together some ski masks, an air gun, gas sprays, a police uniform and a sawn-off shotgun. S. drove them all to B.’s house. S. stayed in the car with the shotgun while the rest of the group approached the house. R.M. put on the police uniform and knocked on the door. When G. opened it, R.M. threatened him with an air gun, threw him to the floor and entered the house with his accomplices. At around 9.30 p.m. some police officers, who had been informed earlier that a robbery was being planned, arrived at B.’s house. When they entered, R.M. shot one of them with the air gun. The police arrested him and the applicant. D.M. and the unknown person got away. S. was later caught. The applicant was taken to the police station.", "8. According to the applicant, when the policemen showed up at B.’s house, they handcuffed him. He did not resist arrest, but they still assaulted him inside the house. They then took him outside, threw him down on the porch and assaulted him again. They kicked him and struck him with the butt of a gun. Afterwards, he was taken to the police station, where the officers assaulted him again. They questioned him repeatedly through the night and threatened to put him in a cell with dangerous inmates who would assault him knowing that he was a former law enforcement officer. As a result, he confessed to the robbery of 30 December 2004. However, the police officers forged the date on the confession, indicating that he confessed on 20 April 2005.", "9. At 12.30 p.m. on 23 March 2005 investigator S. questioned the applicant, who chose to remain silent in order not to incriminate himself. He was represented by lawyer K. According to him, the police officers questioned him again at 2 p.m. They threatened and insulted him.", "10. At approximately 4 p.m. that day the applicant was examined by a forensic medical expert, Sk., in the presence of a police officer. She prepared report no. 358 on 25 March 2005 noting that, according to the applicant, he suffered from headaches and impaired vision in the right eye and had sustained his injuries in the course of arrest. The expert documented the injuries and concluded that they might have been caused by the impact of blunt objects at the time and in the circumstances indicated by him. She further suggested that the applicant should seek medical advice to exclude the possibility of concussion. According to her report, the applicant sustained the following injuries:\n“bruising around the eyes, intense swelling of the left eyelid ... bruising and swelling of soft tissue on the forehead, an abrasion in the centre of the forehead, bruising to the ears, abrasions on the left temple and right cheekbone, a small surface contusion on top of the head, haemorrhaging and a small bruise on the inside of the lips, a bruise on the back and haemorrhaging on the left buttock.”", "11. According to the applicant, on the way back to the police station two police officers assaulted him again. After arriving at the station, several officers made him sign some documents. They struck him on the head and continued threatening him.", "12. On 24 March 2005 the Melekesskiy District Court of the Ulyanovsk Region authorised the applicant’s pre-trial detention. He remained in custody pending investigation and trial.", "13. On the same date investigator S. questioned the applicant at the police station in the presence of lawyer K. The applicant described the events preceding his arrest on 22 March 2005 and admitted his involvement in the robbery. Fearing for his life, he did not tell the investigator about the ill-treatment. According to the applicant, he was forced to admit his involvement in the robbery because he had been threatened and pressured by the police prior to meeting the investigator.", "14. On 29 March 2005 the applicant was transferred from the police station to a remand prison.", "15. According to the official version of events, on 20 April 2005, while detained in the remand prison, the applicant signed a confession admitting his involvement in a robbery which was incorrectly written as having taken place on 29 December 2004.", "16. On an unspecified date the applicant confirmed, when questioned by the investigator in the presence of his lawyer, that he had taken part in the robbery of 30 December 2004.", "17. On 23 June 2005 the applicant was taken to the crime scene, where he gave explanations as to the events of 22 March 2005 in the presence of lawyer Sh. who had been appointed to represent him.", "18. On 12 September 2005 investigator Kuz. questioned the applicant in the presence of lawyer Sh. The applicant confirmed his previous statements of 24 March and 23 June 2005. He also provided information as regards the robbery of 30 December 2004.", "19. On 9 November 2005 the same investigator questioned the applicant again in the presence lawyer Sh. The applicant confirmed his earlier statements.", "20. On 25 May 2006 the District Court fixed a trial start date of 7 June 2006.", "21. On 21 December 2006 the applicant testified in court. He revoked his confession, alleging that the police officers had put mental and physical pressure on him to confess to the robberies. He also testified against his co-defendants. In particular, he stated:\n“I was arrested ... at about 10 p.m. Even though I did not resist arrest, [police officers] beat me up during the arrest and right afterwards to make me make the necessary statements for them. They beat me up in the yard of B.’s house, then on the porch and inside the house. When ... inside, B. punched me in the eye. [The police officers] punched and kicked me and struck me with the butt of a gun. They told me to confess to a robbery ... These were M., G. and U. They accompanied the beatings with a threat that if I refused to confess to the robbery, they would charge me with murder. They also asked me to testify against [co-defendants]. ... They beat me up until I agreed to cooperate. Then G. recorded my confession. As a result of [the beatings] I suffered trauma and injuries. My rib was broken. On 23 March 2005 I told forensic expert Sk. about them but she did not mention them in her report.”", "22. On 30 December 2006 the District Court found the applicant guilty of two counts of robbery and sentenced him to eleven years’ imprisonment. The court relied on the applicant’s statements (see paragraphs 9, 13 and 15‑19 above). As regards the robbery of 30 December 2004, the court relied on the statements made by defendant K., Kh. and her husband, forensic medical evidence and other exhibits submitted by the prosecution. Kh. identified the applicant and his co-defendants as the persons who had broken into her house and robbed her. As regards the robbery of 22 March 2005, the court based its findings on the statements and testimony given by the defendants including the applicant, the victims B. and G., police officers, as well as forensic and other evidence. As regards the applicant’s injuries, the court noted:\n“The court verified the allegation made by the applicant [and his co-defendants] that they confessed under mental and physical pressure exerted by police officers including U., B., and G. These [police officers] submitted, when questioned in court, that they had not put any pressure on the defendants, nor made [them] confess. The [district] prosecutor’s office did not confirm [the defendants’] allegations either. The court concludes that the injuries sustained by [the applicant and two of his co-defendants] as documented in the forensic reports were inflicted in the course of their lawful arrest. Regard being had to the above, the court concludes that the confessions made by [the applicant and three of his co-defendants] about their involvement in the crimes are admissible and objective, in so far as they were found to be credible as being in accordance with other evidence. The court does not discern any evidence to confirm the defendants’ allegation of an infringement of their right of defence in the course of the pre-trial investigation.”", "23. On 16 April 2007 the Ulyanovsk Regional Court upheld the applicant’s conviction on appeal in substance. As regards the confessions allegedly extracted under coercion, the appellate court noted:\n“The argument raised by the defence before the appellate court, that the defendants’ confessions and testimony given in the course of the pre-trial investigation admitting that they had taken part in the crimes and testifying against [each other] were obtained under physical and mental pressure, has been subject to thorough examination by the trial court. It concluded that those allegations were unsubstantiated. Furthermore, the trial court only relied on the defendants’ concurring statements given in the presence of their lawyers, that is, in circumstances excluding the possibility of unlawful methods of investigation.”", "24. According to the parties, on an unspecified date in 2005 the applicant complained to the District Prosecutor’s Office (“the prosecutor’s office”) of ill-treatment during arrest and in police custody. On 13 April 2005 the district prosecutor refused to institute criminal proceedings against the police officers. The applicant did not appeal against that decision.", "25. On 6 March 2006 the applicant lodged another complaint with the prosecutor’s office. The prosecutor dismissed it on the same date, noting:\n“The criminal case file contains sufficient evidence that the [applicant is] guilty ... A study of the material in the case file has shown that no evidence was obtained in contravention of [the rules of criminal procedure] that could be found inadmissible. It follows from the material in the case file, including the statements made by [the applicant] in the course of the preliminary investigation, that no pressure was put on him. Physical force was only used against him during the arrest.\nThe [applicant’s] arguments should be construed ... as an attempt to avoid criminal liability ... ”", "26. On 18 September 2007 the applicant resubmitted his complaint. On 27 September 2007 senior investigator R. refused to institute a criminal investigation against the alleged perpetrators, noting:\n“In order to elucidate the circumstances of the case, [the investigator] asked for a copy of the judgment in the [applicant’s] criminal case. According to [that], the [applicant’s allegations of ill-treatment] were subjected to examination by the [trial] court. The court questioned [the police officers implicated by the applicant]. However, his allegations were found unsubstantiated and viewed as an attempt by [him] to avoid criminal liability.\n...\n[Police officer] K. submitted, when questioned, that ... he had arrived at [the crime scene] after [the applicant] had been arrested. He had visited [him] at the police station, but had not put any physical or psychological pressure on him. He knew that at the time of the arrest, a member of the criminal group had opened fire at the policemen and as a result, one of the perpetrators had escaped. The police had had to use force against all of them, which had been justified in the circumstances of the case.\n...\nHaving examined the above-mentioned material, I conclude that there is nothing ... to suggest that [the police officers] committed a crime against [the applicant].”", "27. It appears that the decision of 27 September 2007 was quashed and the matter was remitted for an additional inquiry. On 9 November 2007 R. again refused to open a criminal investigation into the applicant’s allegations of ill-treatment. He reiterated the reasoning from the decision of 27 September 2007 verbatim. He also relied on the statements made by police officer M. and forensic medical expert Sk., noting:\n“[Police officer M.] submitted, when questioned, that he had been part of the arrest team. His task was to cover the officers conducting the arrest ... When he arrived at the crime scene, all the members of the criminal group had been arrested. He had not interacted with them ... he had not put any physical or psychological pressure on them.\nForensic medical expert Sk., who examined [the applicant], submitted, when questioned, that she had documented all the complaints made by [him] in respect of his health. She had also recommended that he consult a traumatology specialist. However, she had received no documents from a traumatologist for forensic expert evaluation and had to proceed without them. If she had noticed [that the applicant had] a broken rib, she would have noted it in the report.”", "28. On 25 August 2008 the regional prosecutor quashed that decision and ordered an additional inquiry into the matter. On the same date the Dimitrovgrad Town Court of the Ulyanovsk Region dismissed an appeal by the applicant against the decision of 9 November 2007, noting that it had been quashed by the Regional Prosecutor’s Office.", "29. On 4 September 2008 R. again refused to institute criminal proceedings against the police officers. He relied on his earlier reasoning of 27 September and 9 November 2007.", "30. On 6 December 2008 he issued another decision refusing to open a criminal investigation into the applicant’s allegations of ill-treatment. He reiterated his earlier reasoning verbatim. As regards the applicant’s allegation that he had been coerced into making a confession on 20 April 2005, the investigator noted:\n“[The applicant] indicated in his complaint that on 20 April 2005 Ye., V. and U. had taken him to their office and made him write a confession, threatening to put him in a cell with dangerous inmates.\n...\nYe. submitted, when questioned, that, as far as he could recollect, [the applicant] had been detained at their police station and might have made a confession. However, he could not remember who had been present when [he] confessed. Any threat to the effect that [the applicant] would be put in a hostile environment with other inmates would have been impossible. People arrested and inmates were detained [separately] in accordance with the law. No one had put any physical or psychological pressure on him.\n[Police officer V.] submitted, when questioned, that he had no recollection of [the applicant].”", "31. On 20 December 2008 R. again refused to institute criminal proceedings against the police officers. The applicant appealed, arguing that the inquiry in response to his complaint was incomplete. In particular, the investigator had not questioned certain witnesses or checked how many times the officers had questioned him while in custody.", "32. On 29 May 2009 the Town Court stopped considering the applicant’s appeal, as on 25 May 2009 the prosecutor’s office had already quashed the decision of 20 December 2008.", "33. On 7 June 2009 R. refused to open a criminal investigation, relying on his earlier findings.", "34. On 11 August 2009 the Town Court upheld the investigator’s decision of 7 June 2009. On 23 September 2009 the Regional Court upheld this most recent decision on appeal." ]

[ 1 ]

[ "5. The applicant was born in 1969 and lived, prior to his conviction, in Chelyabinsk.", "6. On 29 December 2000 the applicant was arrested on suspicion of double murder. He remained in custody pending the investigation and trial.", "7. On 13 September 2001 the Chelyabinsk Regional Court found the applicant guilty of murder, accessory to murder and attempted fraud, and sentenced him to twenty-three years’ imprisonment. The court comprised one professional judge and two lay judges.", "8. On 12 April 2002 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.", "9. On 23 July 2004 the applicant lodged a supervisory-review complaint challenging the lawfulness of his conviction. He alleged, inter alia, that the trial court had not been a tribunal established by law, given that the lay judges who considered his case had been appointed to the tribunal in contravention of the applicable legislation.", "10. On 22 December 2004 the Kopeysk Town Court of the Chelyabinsk Region reduced the applicant’s sentence by seven months, in compliance with the latest amendments to the Russian Criminal Code.", "11. On 29 April 2005 the Presidium of the Supreme Court of the Russian Federation received the case file for supervisory review.", "12. On 15 June 2005 the Presidium quashed the judgments of 13 September 2001 and 12 April 2002 and remitted the matter to the Chelyabinsk Regional Court for fresh consideration. Referring to the case of Posokhov v. Russia (no. 63486/00, § 41, ECHR 2003‑IV), the Presidium noted that the lay judges had not been authorised to consider the applicant’s case, which had affected the lawfulness and well-foundedness of the applicant’s conviction. Lastly, the Presidium ordered that the applicant be detained pending a new trial.", "13. On 22 July 2005 the Regional Court fixed the preliminary hearing for 1 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. The parties did not inform the Court of the outcome of the hearing of 1 August 2005. It appears that it was re-scheduled.", "14. On 5 August 2005 the Regional Court held a preliminary hearing of the case. The applicant and his lawyer attended the hearing and made submissions to the court. The applicant asked the court to release him on an undertaking not to leave his place of residence. He noted that he had already served over four years of the earlier imposed prison sentence which rendered the further extension of his pre-trial detention unnecessary. The prosecutor discerned no change in the applicant’s situation that would be in favour of the applicant’s release and asked the court to extend the applicant’s detention pending trial. The court fixed the new trial for 18 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. In particular, the court noted as follows:\n“Deciding on the preventive measure and having heard the parties to the proceedings, the court considers that the remand of the [defendants] in custody during preliminary investigation as a restrictive measure has been lawful and justified. There are no grounds to replace it with a more lenient measure ... in view of the gravity of the charges and the defendants’ character.”", "15. On 18 August 2005 the Regional Court opened the trial and on 19 September 2005 it found the applicant guilty as charged and sentenced him to twenty-two years and three months’ imprisonment. The time already served by the applicant was set off against the newly imposed sentence. The court found that the applicant and Sh. had killed V. and Sk. in an attempt to fraudulently obtain the proceeds from the sale of a flat owned by V. The court comprised a single judge. The applicant was represented by a lawyer.", "16. On 23 June 2006 the Supreme Court upheld the conviction on appeal. The applicant and his lawyer were present at the hearing and made submissions to the court.\nOn 13 October 2005 the Supreme Court upheld the decision of 5 August 2005 on appeal." ]

[ 2 ]

[ "5. The applicant, a former military unit commander, was born in 1963 and lives in Vladivostok.", "6. On 28 May 2008 the applicant was arrested on suspicion of fraud.", "7. On 30 May 2008 he was released having given an undertaking not to leave his place of residence.", "8. On 1 July 2009 the Military Court of the Vladivostok Garrison (the Garrison Court) convicted the applicant of fraud committed in abuse of position and sentenced him to four years’ imprisonment with a dishonourable discharge. The applicant was arrested in the courtroom and placed in a remand prison.", "9. On 29 January 2010 the Military Court of the Pacific Fleet (the Fleet Court) quashed the conviction on appeal and ordered a retrial. The court held that the custodial measure applied to the applicant should remain unchanged until 1 April 2010 in view of the seriousness of the charges against him, and the risk of his absconding and threatening witnesses, a risk confirmed by the statements of Sh., a witness.", "10. On 15 February 2010 the Garrison Court rejected the applicant’s application for release, including in its reasoning the seriousness of the charges and the risk of the applicant absconding and exerting pressure on witnesses. The decision mentioned that it could be appealed against within a three-day time-limit to the Fleet Court. The applicant appealed.", "11. However, on 26 March 2010 the Fleet Court discontinued the appeal proceedings against the decision of 15 February 2010. Relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, the court held that the refusal of an application for release was not amenable to a separate appeal before the final decision in the case, as it was not in breach of the applicant’s right to access to a court and his right to have the case heard within a reasonable time, and did not delay the progress of the proceedings.", "12. In the meantime, on 22 March 2010 the Garrison Court extended the applicant’s detention until 1 July 2010. The court again mentioned the seriousness of the charges against the applicant in its reasoning. It further held, with reference to a medical report, that the applicant’s state of health allowed him to participate in the proceedings, and that his judge-ordered removal from the courtroom until the end of the proceedings due to unacceptable behaviour gave sufficient grounds to believe that, if released, he might influence the witnesses and abscond from justice.", "13. On 25 March 2010 a copy of the extension order of 22 March 2010 was handed over to the applicant after the three-day time-limit for lodging an appeal against it had expired.", "14. On 27 March 2010 the applicant lodged his appeal against the extension order of 22 March 2010.", "15. On 8 April 2010 the Garrison Court renewed the time-limit for the applicant to lodge his appeal against the extension order of 22 March 2010.", "16. On 21 April 2010 the applicant’s appeal was submitted to the Fleet Court for examination. On the same day the Fleet Court scheduled the hearing for 23 April 2010, to be held by video link, and sent notification to the remand prison where the applicant was being held.", "17. On 23 April 2010 the applicant was informed of the examination of his appeal before the Fleet Court. He requested an adjournment of the hearing because of the late notification. The applicant also asked the Fleet Court to ensure his physical presence at the examination of the appeal as a hearing impairment condition prevented him from following effectively the examination of his appeal by video link.", "18. On 23 April 2010 the Fleet Court granted the applicant’s request and adjourned the examination of his appeal against the custody order of 22 March 2010 until 30 April 2010.", "19. On 29 April 2010 the Garrison Court convicted the applicant of nine counts of fraud committed in abuse of office and sentenced him to four years’ imprisonment with a dishonourable discharge.", "20. On 30 April 2010 the Fleet Court upheld on appeal the custody order of 22 March 2010.", "21. On 2 December 2010 the Fleet Court discontinued the appeal proceedings against the judgment of 29 April 2010 as the applicant had withdrawn his request for reconsideration." ]

[ 2 ]

[ "5. The applicant was born in 1972 and lives in Budapest. He submits that he is a practicing Catholic. According to the documents in the case-file he is a teacher of religion by profession.", "6. On 2 June 2005 the applicant was arrested on suspicion of misuse of explosives.", "7. On 11 May 2007 the Central Investigation Prosecutor’s Office indicted the applicant in the Pest County Regional Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives.", "8. The first hearing in the case took place before the Pest County Regional Court on 17 December 2007. Up until 10 March 2009 the trial judge, Ms K.B.H., held 24 hearings.", "9. Later, the applicant was charged by the Budapest Chief Prosecutor’s Office with armed robbery. The two sets of criminal proceedings were joined by the Pest County Regional Court on 22 June 2009.", "10. The applicant challenged the trial judge for bias, which motion was dismissed. At the applicant’s renewed request, the trial judge recused herself. A new judge, Ms Gy.Sz., was appointed to try the case. She held 11 hearings in the period June to December 2009. This judge eventually declared herself biased; and the case was assigned to yet another judge, Ms A.F., who held 23 hearings between September 2010 and April 2011.", "11. Meanwhile, on 25 October 2010 the applicant was indicted by the Komárom-Esztergom Regional Prosecutor’s Office for aggravated murder. The case was joined to the ongoing criminal proceedings on 28 January 2011 by the Pest County Regional Court.", "12. On 17 April 2011 applicant challenged Ms A.F. for bias. On 24 June 2011 the Budapest Court of Appeal dismissed this motion. It pointed out that the trial judge had declared herself impartial, along with the four other eligible judges of the Pest County Regional Court. Despite the decision of the Court of Appeal, the trial judge eventually recused herself, since, in her view, the applicant’s letters addressed to the Regional Court had infringed her dignity.", "13. Subsequently, in July 2011 the case was assigned to another judge at the Pest County Regional Court, Mr S.P., who did not hold any hearing. On 25 January 2012 he also recused himself following the applicant’s different motions, apparently containing insinuations. The remaining three judges of the Pest County Regional Court declared themselves biased as well. On 31 January 2012 the Budapest Court of Appeal appointed the Budapest High Court to try the case. The trial judge at the High Court held the first hearing on 7 May 2012.", "14. On 28 February 2014 the applicant was found guilty and sentenced to life imprisonment with the possibility of parole after 30 years.", "15. On 2 July 2015 the second-instance court quashed this judgment and remitted the case to the first-instance. The case is currently pending there.", "16. In the context of the above proceedings, on 4 June 2005 the Kaposvár District Court remanded the applicant in custody.", "17. His detention was repeatedly prolonged at the statutory intervals until 30 May 2008 when the Budapest Court of Appeal suspended his detention and ordered him to serve a prison sentence which had become enforceable in connection to other criminal proceedings unrelated to the present case.", "18. On 21 May 2010, on the new charges of aggravated murder put forward by the Komárom-Esztergom Regional Prosecutor’s Office, the Tatabánya District Court again remanded the applicant in custody. The decision was upheld on appeal by the Komárom-Esztergom Regional Court on 1 June 2010.", "19. The applicant was actually placed in pre-trial detention again on 2 February 2011, after having served his prison sentence. He submitted that under the law, his detention should have been reviewed within six months, that is, on 2 August 2011 at the latest but that this had not taken place.", "20. On 10 February 2011 the applicant filed an interlocutory application for his immediate release and placement in house arrest with the Pest County Regional Court. The court dismissed the application on the same day. The applicant appealed without success. His further requests for release or, alternatively, a less coercive measure were to no avail.", "21. On 21 November 2011 the Budapest Appellate Public Prosecutor’s Office requested the Budapest Court of Appeal to review the applicant’s pre-trial detention under section 132(2) of the Code of Criminal Procedure.", "22. On 5 December 2011 the detention was extended until the delivery of the first-instance judgment under section 129(1)(b) and (d) of the Code of Criminal Procedure (risks of absconding and of reoffending). The Budapest Court of Appeal held that there was a risk that the applicant might abscond given the seriousness of the charges and the gravity of the punishment and reoffend given that he was a multiple recidivist and the number of offences he was charged with.", "23. The Kúria endorsed this decision on 6 January 2012, holding that the impending severe punishment substantiated the risk of absconding, due to which the applicant’s presence at the proceedings could not be ensured in any other way. It also observed that the last offence had been committed by the applicant during his conditional release from his nine-year imprisonment, thus there was a real risk of reoffending. The court dismissed the arguments put forward by the applicant concerning his health status, unspecified, and concluded that his personal conditions did not militate for a less severe measure.", "24. The applicant’s pre-trial detention reached the statutory time-limit of four years on 2 February 2012. On 23 January 2012 the Budapest Surroundings High Court placed the applicant under house arrest with continuous police surveillance, to be carried out in the flat of Ms I.T, an acquaintance of the applicant. The applicant was allowed to leave the flat every second Wednesday of the month, between 8 a.m. and 4 p.m. The court noted that the reasons for the applicant’s detention were still valid, and a less restrictive measure was to be applied only because the statutory four‑year time-limit for pre-trial detention had expired. The court also dismissed the applicant’s request for release on the undertaking not to leave his place of residence. According to the court, the applicant’s argument concerning his mother’s ill health and the modest financial situation of his host could not serve as a ground for the application of a less stringent measure.", "25. On 8 February 2012 the Budapest High Court extended the applicant’s house arrest until the adoption of the first-instance judgment. It noted that the applicant was charged with a crime punishable with 10 to 15 years’, or life, imprisonment which in itself demonstrated the risk of absconding. It also relied on the applicant’s previous criminal conduct and the number of offences the applicant had been charged with to find that there was a risk of reoffending", "26. On 5 March 2012 the Budapest High Court granted the applicant’s request for leave for 21 March 2012 to visit his mother in hospital between 8 a.m. and 12 noon and to undergo dental treatment.", "27. On 8 March 2012 the applicant requested his release from house arrest, pointing out that he had no income on his own and intended to work. He also produced a job offer from a company. His request was dismissed on 14 March 2012 by the Budapest High Court on the ground that no new circumstances existed that would affect the necessity of the house arrest.", "28. On 16 April 2012 the applicant was granted exceptional leave from house arrest for every last Friday of the month between 9 a.m. to 3 p.m. to visit his hospitalised mother. The remainder of the applicant’s request, that is leave from house arrest twice a week, was dismissed.", "29. His further request for extraordinary leave to visit his mother for five hours on 21 June 2012 and to study his case file at the premises of a non-governmental organisation was granted on 18 June 2012.", "30. On 16 July 2012 the applicant was granted leave to visit his father in the town of Pápa on 28 July 2012 between 6 a.m. and 6 p.m.", "31. The applicant’s further request for leave for medical reasons was granted on 18 July 2012. However, the Budapest High Court dismissed his application for leave so as to look after his mother on a daily basis, in particular to assist her with insulin injections. The court reasoned that Ms I.T., the applicant’s acquaintance and a co-defendant in the criminal proceedings, who lived in the flat of the applicant’s mother, could do so in his stead. The court also stated that lengthy daily leave would be incompatible with the house arrest.", "32. The applicant’s further motions for leave to accompany his mother to medical examinations were granted on 20 July and 1 August 2012 for 23 July (between 3 p.m. and 10 p.m.) and 3 and 15 August 2012, respectively.", "33. The applicant lodged further requests for leave in August 2012 to visit his terminally ill father in Pápa twice a month, to take his mother home after her hospitalisation and to make certain arrangements with her bank and her previous workplace, since she was under guardianship proceedings.", "34. By a decision of 14 August 2012 the Budapest High Court granted the applicant leave to visit his father every fourth Saturday between 6 a.m. and 6 p.m., and to accompany his mother coming home from hospital on 22 August between 7 a.m. and 10 a.m. His request to visit his mother’s financial institution and workplace was dismissed, since he had not specified their addresses, whereas under section 138(1) of the Criminal Procedure Code, leave could be granted only for a specific time and destination. As regards the applicant’s more frequent visits to his father, the court noted that regular, long-term leave from the house arrest would jeopardise its purpose of securing the applicant’s presence throughout the proceedings. The applicant appealed, arguing that the time period to assist his mother was too short, that his father’s health was deteriorating fast, requiring more frequent visits, that is, every second week, and that he had already submitted the contact details of his mother’s financial institution and workplace. On 1 October 2013 the Budapest Court of Appeal, acting as a second-instance court, found that the applicant’s appeal concerning the restricted time to assist his mother was well-founded, nonetheless no longer pertinent, because she had already left the hospital. The remainder of the applicant’s appeal was dismissed.", "35. The applicant’s further requests for leave to visit his ill father, lodged on 14 August and 2 September 2012, were not granted. The applicant’s father died on 8 October 2012.", "36. On 10 October 2012 the court granted the applicant leave for the period 15 to 17 October 2012 to make arrangements concerning the funeral of his father.", "37. On 3 December 2012 the Budapest High Court released the applicant from house arrest with an undertaking not to leave his place of residence. The court observed that there were no grounds to believe that the applicant would pervert the course of justice or reoffend. Nonetheless, in its view, he was charged with a serious offence requiring a coercive measure.", "38. On appeal, the Budapest Court of Appeal reversed the first-instance decision and placed the applicant under house arrest on 20 December 2012. It noted that given the seriousness of the offence there existed a danger of his absconding and given his previous multiple convictions, a risk of reoffending.", "39. On 21 December 2012 the Budapest High Court dismissed the applicant’s motion for leave to attend Mass on every Sunday between 7 a.m. and 11 a.m. and his further request for leave on 27 and 28 December 2012 and 2 and 4 January 2013. The court observed that the applicant, being a teacher of religion by profession, was not disproportionately restricted in the exercise of his religious conviction. This decision was upheld on appeal on 24 January 2013, the Court of Appeal holding that the applicant’s religious conviction did not justify the granting of permissions of leave from the house arrest; and that such permissions were normally to reflect an intervening change in the detainee’s personal circumstances. The court noted that such a request could only be granted if it was submitted concerning a specific place and purpose.", "40. Meanwhile, the applicant’s host, Ms I.T. complained on a number of occasions to various authorities that the police officers surveying the applicant interfered with her private life. She also submitted that, as she had indicated from the beginning of the house arrest, she did not have the necessary financial means to accommodate the applicant.", "41. On 7 January 2013 Ms I.T. submitted a motion to the Budapest High Court stating that the applicant was to leave her flat since she could not further provide for him. On the same day, the applicant requested the court to establish the place of his house arrest at a camping site in Nagyteve. He was informed by the court that, according to information received by the relevant authorities, the camping site was not suitable for residence during the winter. Notwithstanding this information, the applicant maintained his request.", "42. A new decision was issued by the investigating judge on 8 January 2013 establishing the place of the applicant’s house arrest at the Nagyteve camping site. On 8 January 2013 the Pápa Police Department issued a report on the applicant’s presence at the camping site, stating that the “weather conditions, the lack of food supply and the poor hygienic conditions” endangered the applicant’s health. On 9 January 2013 the Veszprém County Chief Police Department lodged a request with the Budapest High Court to amend its decision of 8 January 2013 since the camp site was unsuitable for long-term residence.", "43. On 14 January 2013 the applicant sought the termination of his house arrest again. His motion was dismissed on 16 January 2013 by the Budapest High Court, which stated that there was no reason to overturn the decision of 20 December 2012 and that he had been aware of the conditions of the camping site when he had requested to be committed there.", "44. On 18 January 2013 the local general practitioner arranged for the applicant to be admitted to Pápa Hospital. The examinations carried out at the hospital did not result in the finding of any such disease as warranting the applicant’s further treatment, so he was released on the same day and placed in a social care institution in Pápa.", "45. On 21 January 2013 the Budapest High Court amended its decision of 8 January 2013 and ordered the applicant’s house arrest to be carried out in the flat of Ms I.T. again. The applicant’s appeal against this decision was to no avail. In its decision of 26 February 2013 the Budapest Court of Appeal reiterated that the applicant was a multiple reoffender charged with serious crimes, thus the risk of absconding and reoffending existed. The court also noted that had the statutory maximum of detention on remand not expired, the most restrictive measure should have been applied. It further argued that the measure was not disproportionate, since the protraction of the proceedings had been compensated for by the statutory discontinuation of the applicant’s detention on remand. The court also dismissed the applicant’s argument that some co-defendants were released from house arrest.", "46. On 10 July 2013 the Budapest High Court carried out the statutory review of the applicant’s house arrest and, at the same time, decided on the applicant’s request for release. During the court hearing the judge presented to the applicant and the prosecutor a letter allegedly originating from one of the applicant’s previous cellmates. The writer of the letter informed the court that the applicant intended to obstruct the criminal proceedings by physically threatening the investigating judge and subsequently requesting his exclusion for bias, initiating criminal proceedings against the trial judge for judicial errors and absconding and inciting the co-accused to do so. The applicant sought direct access to the document, arguing that without receiving information on the author’s identity he was unable to challenge this latter’s motivation and the credibility of the content of the letter. Relying on the protection of the author’s personal data as provided in section 60(1) of the Criminal Procedure Code, the court dismissed the applicant’s request.", "47. The court upheld the applicant’s house arrest because of the risk of reoffending and absconding as provided in section 129(2)(b) and (d) of the Criminal Procedure Code. In its decision the court relied on the seriousness of the crimes and the gravity of the impending punishment in holding that there was a likelihood that the applicant would abscond. It also held that given the fact that the applicant was a recidivist, there was a risk of reoffending. In its decision the court mentioned the letter as one of the factual elements to consider.", "48. On 22 July 2013 the Budapest High Court authorised the applicant to leave house arrest to undergo physiotherapy every second weekday in the period 22 July to 15 August 2013.", "49. On 8 August 2013 the applicant’s request for leave to take up a job and to look after his ill mother on a daily basis was dismissed by the Budapest High Court, which found that such a daily leave would defeat the purpose of house arrest.", "50. On 12 September 2013 the applicant was appointed as his mother’s guardian.", "51. The applicant stayed in house arrest until 8 November 2013, when he was placed in pre-trial detention in connection with criminal proceedings concerning another offence.", "52. As of 2 July 2015 the applicant has been again in pre-trial detention following the second-instance court’s decision to quash his conviction and remit the case to the first-instance." ]

[ 2, 3 ]

[ "6. The applicant was born in 1954 and lives in Skopje.", "7. On 3 April 2006 the State Anti-Corruption Commission, chaired at the time by M.M., who subsequently (July 2006) became the Minister of Justice, asked the State Judicial Council (“the SJC”) to review (предлог за проверка) a civil case (no. IV P.br. 2904/01) which the applicant had adjudicated at first instance as president of a three-judge panel. The case concerned compensation proceedings against the State.", "8. On 19 April 2006 the Civil Division of the Supreme Court convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no. IV P.br. 2904/01. According to the record of that meeting, the opinion had been requested by Judge D.I., who was the President of the Supreme Court at that time. The record did not list the members of the Civil Division of the Supreme Court that adopted the opinion. According to the applicant, Judge D.I. was a member of the Civil Division that adopted the opinion.", "9. On 26 April 2006 the SJC asked the plenary of the Supreme Court, under section 21 of the State Judicial Council Act of 1992 (“the 1992 Act”, see paragraph 24 below), to draw up a report on the issue of whether the applicant’s dismissal from the office of judge would be justified.", "10. On the same date the SJC, composed in accordance with Article 104 of the Constitution (see paragraph 22 below), instituted (поведува постапка) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no. IV P.br. 2904/01. It referred to the request submitted by the State Anti‑Corruption Commission and further relied, inter alia, on the opinion of the Civil Division of the Supreme Court. The applicant responded in writing.", "11. In December 2006 eight members of the SJC (all judges) were appointed in accordance with Amendment XXVIII of the Constitution (see paragraph 23 below). V.G., a member of the SJC, was nominated as the complainant (овластен предлагач), as set out in section 55 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 25 below), in the applicant’s case.", "12. On 25 December 2006 the plenary of the Supreme Court, chaired by Judge D.I., drew up an opinion regarding the applicant’s case. The relevant part of the opinion, signed by Judge D.I., reads as follows:\n“The plenary of the Supreme Court ... unanimously endorses the complete [text of] the opinion of the Civil Division and finds that there are grounds for dismissing (the applicant) for professional misconduct.”", "13. On 26 February 2007 a hearing was held before the SJC Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”), set up under section 58 of the 2006 Act (see paragraph 25 below). V.G. was not a member of the Commission. Both the applicant, who was represented by legal counsel, and V.G. submitted their arguments verbally. The Commission also took into account the opinions of the Civil Division and the plenary of the Supreme Court. On 28 February 2007 it drew up a report, which it communicated to the SJC.", "14. On 14 March 2007 the plenary of the SJC, which included only ten of its members, namely eight judges elected by their peers, as well as the then Minister of Justice and Judge D.I., who were ex officio members of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), dismissed the applicant from the office of judge for professional misconduct. The SJC found that she had wrongly applied procedural and material law in civil case no. IV P.br. 2904/01, which she had decided out of the established order in which cases should have been dealt with. The dismissal decision referred to the request submitted by the State Anti‑Corruption Commission and further was based on evidence adduced at the hearing before the Commission, including the opinions of the Civil Division and the plenary of the Supreme Court.", "15. The applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified in section 60 of the 2006 Act (see paragraph 25 below), the Appeal Panel was composed of nine judges, of whom three were Supreme Court judges, four Appeal Court judges and two judges from the court of the applicant. On 8 May 2007 the Appeal Panel dismissed the applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included Judge L.Š., who had adjudicated in another case allegedly related to case no. IV P.br. 2904/01. According to the applicant, her request for the withdrawal of Judge L.Š., a copy of which was not produced, was to no avail.", "16. On 19 December 2007 the Constitutional Court rejected (отфрла) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience, freedom of thought and freedom of public expression. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between exercising the office of judge and that particular freedom. It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under the Constitution (У.бр.145/2007).", "17. The applicant submitted copies of several articles published between April and December 2006 in the daily newspapers Vreme and Dnevnik.", "18. An article published on 20 April 2006 quoted a report by the Supreme Court stating that the law had been wrongly applied in civil case no. IV P.br. 2904/01.", "19. An article of 27 December 2006 stated that the Supreme Court had confirmed that the applicant should be dismissed from office. It reported Judge D.I. as saying that the SJC in its new composition should follow their recommendations. In this connection, the article quoted Judge D.I. as saying:\n“We only gave a reminder that responsibility should be established (треба да се сноси одговорност).”", "20. An article of 28 December 2008 stated:\n“D.I., the President of the [Supreme] Court, asked (the SJC) to dismiss (the applicant) for professional misconduct.”", "21. An article dated 11 January 2007 published in the daily newspaper Dnevnik quoted Judge D.I. as saying, inter alia:\n“We will submit an opinion as to whether (the applicant) should be dismissed once the responsibility of other institutions has been established. For the Supreme Court, that there has been professional misconduct [on the part of the applicant] is beyond any doubt (не е спорна нестручноста и несовесноста на судијката во случајов). The Civil Division has already established that.”" ]

[ 3 ]

[ "5. The first applicant was born in 1974 and lives in Vecumnieki. The second applicant was born in 1980 and lives in Riga.", "6. The facts of each individual case, as submitted by the parties, are summarised below.", "7. On 20 January 2005 a judge of the Valmiera District Court issued a detention order authorising the pre-trial detention of the first applicant for a duration of two months. The applicant was suspected of the sale of narcotics and of providing unauthorised objects to imprisoned prisoners. The decision stated that the first applicant’s whereabouts were unknown, that he had absconded from the pre-trial investigation and that there was a risk that he might abscond even after his whereabouts were established. The order was executed on 26 August 2005 when the police arrested the applicant. The applicant appealed.", "8. On 16 September 2005 the decision concerning the detention order was upheld by a panel of the Vidzeme Regional Court composed of three judges who were presided over by Judge G.K. The decision stated that the applicant had previously absconded and that, given the seriousness of the charges against him and the fact that he had no permanent place of residence, the court was not persuaded that he would not seek to abscond again.", "9. On 5 December 2005 a panel of the Vidzeme Regional Court, composed of two lay judges and presided over by Judge G.K., commenced the adjudication of the applicant’s criminal case. Relying on section 52(4)(1) of the Criminal Procedure Law, which prevented a judge from adjudicating a criminal case if he or she had previously been involved in the criminal proceedings, the defence challenged the participation of Judge G.K. The court, presided by the challenged judge, rejected the challenge, arguing that Judge G.K. had reviewed the applicant’s detention order prior to the enactment of the Criminal Procedure Law[1], so her previous participation in the criminal proceedings could not serve as grounds for her recusal.", "10. On 7 December 2005 the Vidzeme Regional Court convicted the applicant of the sale of narcotics and of providing unauthorised objects to imprisoned prisoners. In his appeal the applicant complained, inter alia, that section 52(4)(1) of the Criminal Procedure Law precluded Judge G.K. from adjudicating on his criminal case.", "11. On 7 September 2006 the appeal was dismissed by the Criminal Division of the Supreme Court. Concerning the complaint of partiality, the court stated the following:\n“Judge G.K. reviewed the detention order at the time the Code of Criminal Procedure was in force. The adjudication of this [criminal] case was commenced after the Criminal Procedure Law had come into force, therefore the Court does not recognise a conflict of interests [of the judge] in that it cannot be concluded that G.K. had previously participated in any capacity in the criminal proceedings at issue”.", "12. On 24 October 2006, following an appeal on points of law lodged by the first applicant, the Senate of the Supreme Court dismissed the complaint concerning the allegedly unlawful composition of the first-instance court due to the participation of Judge G.K. The Senate upheld the lower courts’ findings that when Judge G.K. had participated in the review of the applicant’s detention order the Code of Criminal Procedure was in force, which authorised a judge to examine a criminal case even if he or she had previously taken decisions concerning preventive measures in the criminal case at issue. Observing that the criminal case was adjudicated on the merits after the new Criminal Procedure Law had come into force, the Senate concluded that Judge G.K. had not participated in the criminal proceedings at an earlier stage in any capacity.", "13. On 1 April 2005 the second applicant was detained on suspicion of robbery. On 4 April 2005 a judge of the Rēzekne Court authorised his pre‑trial detention. The second applicant appealed.", "14. On 18 April 2005 the second applicant’s appeal was dismissed by a panel of the Latgale Regional Court composed of three judges – J.D. (the presiding judge), D.S., and J.V. The court noted that in his appeal the second applicant had indicated that he had confessed to the offence and that he would not evade the investigation because he had to repay a bank loan. The applicant also indicated his intention to start a family. The court established, inter alia, that the applicant had four prior convictions, including one for robbery. It went on to state:\n“Despite having served a prison sentence, [the second applicant] does not learn any lessons and is once again suspected of having committed an identical crime. He commits such acts regardless of the considerations included in his own appeal, [such as] a bank loan, an intention to start a family, a permanent job and a place of residence...\n[The applicant’s] personality and tendency to commit crimes are to be seen as exceptional grounds for [applying pre-trial detention]”.", "15. On 4 December 2006 the Rēzekne Court convicted the applicant of robbery and of theft of personal identity documents and sentenced him to a prison term of eight years. The applicant appealed.", "16. On 2 February 2007 the applicant’s appeal was examined by a panel of the Latgale Regional Court composed of judges J.V. (the presiding judge), J.D. and D.S., the same judges who had previously examined his appeal against the decision of 4 April 2005. The applicant’s appeal was dismissed.", "17. The applicant submitted an appeal on points of law, in which he complained, among other things, about the composition of the appeal court. According to the applicant, the composition had been unlawful because of the three judges’ prior involvement in the same criminal proceedings. He stated that “the court could not be impartial”.", "18. On 19 April 2007 a single judge of the Senate of the Supreme Court informed the applicant that his appeal on points of law had not been accepted for adjudication on the merits in the Senate. With regard to the complaint about the composition of the appeal court, the judge referred to an earlier decision of the Senate (see Relevant domestic law and practice, paragraph 27 below) in which no violation of the applicable procedural law had been found in a situation identical to that of the applicant." ]

[ 3 ]

[ "5. The applicant was born in 1998 and lives in Vinkovci.", "6. By a judgment of 14 September 1999 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s father to pay for her maintenance. In particular, he was ordered to pay 500 Croatian kunas (HRK) per month in the period between 7 May and 14 September 1999, and 10% of his salary in the period after the latter date.", "7. On 15 January 2001 the applicant’s mother applied on behalf of her daughter to the Vinkovci Municipal Court for enforcement of that judgment. In particular, she sought payment of HRK 2,500 on account of unpaid outstanding monthly instalments of child maintenance together with the statutory default interest accrued as of 14 September 1999, and garnishment of 10% of the debtor’s salary from the issuance of the writ of execution.", "8. By a decision of 23 January 2001 the Vinkovci Municipal Court declined its territorial jurisdiction in the matter and transferred the case to the Varaždin Municipal Court (Općinski sud u Varaždinu).", "9. On 20 March 2001 the Varaždin Municipal Court invited the applicant’s mother to supplement the application for enforcement by enclosing the judgment sought to be enforced stamped with the certificate of enforceability, and the power-of-attorney authorising the applicant’s advocate to represent her in the proceedings. The applicant’s mother did so on 9 April 2001.", "10. On 20 April 2001 the court invited the applicant’s mother to correct the application for enforcement by specifying outstanding monthly instalments of child maintenance that had not been paid by the debtor, and the statutory default interest accrued on each unpaid instalment.", "11. On 7 May 2001 the applicant’s mother replied that in the application for enforcement she had sought payment of HRK 2,500 with the statutory default interest accrued from 14 September 1999 (see paragraph 7 above) and thus saw no reason why the application for enforcement had to be corrected.", "12. On 3 February 2002 the applicant’s mother urged the court to speed up the proceedings and issue a writ of execution (rješenje o ovrsi). She indicated that the debtor was paying the child maintenance at his own discretion and convenience both in terms of amount and time, rather than in accordance with the judgment sought to be enforced.", "13. On 18 February 2003 the Varaždin Municipal Court issued a writ of execution by garnishment of the debtor’s salary in the manner sought in the application for enforcement, and forwarded the writ to the debtor’s employer. The court also specified that the funds would be transferred to the applicant mother’s account once the writ became final.", "14. On 3 March 2003 the debtor appealed against the writ. He claimed that he was regularly paying the child maintenance and submitted some documentary evidence in support of his claim.", "15. On 17 March 2003 the applicant’s mother invited the court to forward the appeal to the second-instance court and suggested that the documents submitted by the debtor be forwarded to his employer with a view to deducting of what had been paid and paying her the difference.", "16. On 25 November 2003 the Varaždin Municipal Court invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance. The applicant’s mother did not reply.", "17. On 19 May 2004 the debtor’s employee returned the writ of execution to the first-instance court informing it that the debtor had retired on 30 December 2003.", "18. On 15 September 2005 the court held a hearing which the applicant’s representative did not attend.", "19. On 11 December 2005, 20 November 2006 and 5 February and 31 May 2007 the court again invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance (see paragraph 16 above).", "20. On 14 June 2007 the applicant’s mother asked the court to carry out the writ of execution by garnishment of the debtor’s pension. She reiterated that in the period between 14 September 1999 and 11 June 2007 the debtor was not regularly paying the child maintenance. She also submitted that since payments had been rare and irregular she had not been able to keep the record and thus suggested to obtain payment slips from the debtor in order to determine how much of the child maintenance he had paid in that period.", "21. On 4 September 2007 the court held a hearing which the applicant’s mother and representative did not attend. At the hearing the debtor was unable to prove all his payments because he was no longer in possession of all payment slips. On the same day the court invited the Croatian Postal Service to provide that information but it eventually informed the court that it could not provide the information requested.", "22. On 26 September 2007 the court for the sixth time invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance (see paragraphs 16 and 19 above). On 22 December 2007 the court reiterated its request.", "23. On 30 January 2008 the applicant’s mother reiterated that the debtor was not regularly paying the child maintenance and that therefore she was unable to keep record of his payments and specify to what extent he had not complied with his obligation (see paragraph 20 above). She invited the court to simply order garnishment of 10% of the debtor’s pension with a view to securing payment of future instalments.", "24. On 28 October 2008 the court invited the regional office of the Croatian Pension Fund to provide the information on the level of the debtor’s pension. On 5 November 2008 the Fund submitted the requested information.", "25. On 4 November 2008 the applicant’s mother in a telephone conversation urged the court to deliver a decision and reiterated that she was unable to specify the unpaid instalments of maintenance (see paragraphs 20 and 23 above).", "26. On 31 May 2010 the court invited the applicant’s mother to make submissions as regards further actions to be taken in the enforcement proceedings.", "27. On 10 June 2010 the applicant’s mother informed the court that the debtor owed the total of HRK 15,000 on account of unpaid instalments of child maintenance and invited it to order garnishment of his pension in the amount of at least HRK 700 per month with a view to securing payment of future instalments. On 14 July 2010 the debtor replied that he was regularly paying the maintenance and thus owed nothing to the applicant.", "28. On 31 July 2010 the court held a hearing which both parties attended. The applicant’s mother reiterated that the debtor owed HRK 15,000 on account of unpaid instalments of child maintenance but could not specify in respect of which period given that he was paying the maintenance only partially and irregularly (see paragraphs 20, 23, 25 and 27 above). The debtor replied that the documentary evidence he had submitted (see paragraph 14 above) suggested that he had thus far paid for the applicant’s maintenance HRK 53,739. At the end of the hearing the court yet again invited the applicant’s mother to specify the exact amount of the applicant’s claim and suggest further steps to be taken in the proceedings, within fifteen days otherwise the application for enforcement would be considered withdrawn.", "29. On 13 September 2010 the applicant’s mother did so by stating that the debtor owed HRK 24,331. She again asked the court to order garnishment of 10% of his pension with a view to securing payment of future instalments (see paragraph 23 above). In his reply of 24 September 2010 the debtor again denied existence of any debt (see paragraph 27 above) but agreed to garnishment of 10% of his pension.", "30. On 3 May 2011 the court again invited the applicant’s mother to propose further steps to be taken in the proceedings (see paragraphs 26 and 28 above).", "31. On 26 May 2011 the applicant’s representative invited the court to obtain an expert opinion in order to determine the exact amount of the debt.", "32. By a decision of 3 May 2012 the court decided on the debtor’s appeal of 3 March 2003 (see paragraph 14 above) so that it instructed him to institute separate civil proceedings to declare the enforcement inadmissible (in part or in full). That decision became final on 6 June 2012. As a result thereof, the writ of execution of 18 February 2003 (see paragraph 13 above) also became final on the same day.", "33. On 11 July 2012 the court informed the Croatian Pension Fund that the writ of execution had become final and ordered it to commence garnishment of 10% of the debtor’s pension.", "34. On 6 September 2012 the court invited the Croatian Pension Fund to inform it whether it had complied with the court’s order of 11 July 2012.", "35. On 21 September 2012 the Croatian Pension Fund informed the court that it could not have complied with the order because 1/3 of the debtor’s pension – allegedly the maximum portion of one’s income that could be garnished under the law (see paragraphs 57-59 below) – was already being garnished pursuant to the writ of execution issued in the concurrent enforcement proceedings in which the applicant sought enforcement of another (newer) judgment ordering payment of child maintenance (see paragraphs 44-49 below).", "36. The garnishment of 10% of the debtor’s pension pursuant to the writ of execution of 18 February 2003 (see paragraph 13 above) was therefore suspended until the other writ was carried out in full, that is, until 12 December 2013 (see paragraph 49 below).", "37. On 1 January 2014 the Fund commenced garnishment of the debtor’s pension pursuant to the writ of execution of 18 February 2003. That writ was carried out in full on 12 November 2014 whereupon on 20 February 2015 the court issued a decision declaring that the enforcement was completed.", "38. Meanwhile, on 26 May 2011 the applicant’s mother on behalf of her daughter lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Varaždin County Court (Županijski sud u Varaždinu) complaining about the length of the above enforcement proceedings.", "39. By a decision of 22 February 2012 the Varaždin County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 6,600 Croatian kunas (HRK) in compensation and ordered the Varaždin Municipal Court to complete the enforcement within six months of service of its decision. It held that the proceedings had not been complex, that there had been substantial periods of inactivity in the proceedings attributable to the first-instance court amounting altogether to five and a half years, and that a delay of more than one year and eight months had been attributable to the applicant who had failed to specify the amounts sought even though she had been repeatedly invited to do so (see paragraphs 16, 19, 22 and 28 above).", "40. On 13 February 2012 the applicant appealed complaining about the amount of the compensation.", "41. By a decision of 18 May 2012 the Supreme Court (Vrhovni sud Republike Hrvatske) increased the amount of compensation to HRK 8,100 having regard to the urgent character of the enforcement proceedings and to what was at stake for the applicant (payment of child maintenance).", "42. On 20 September 2012 the applicant’s mother on behalf of her daughter lodged a constitutional complaint against the Supreme Court’s decision.", "43. By a decision of 15 November 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and on 4 December 2012 served its decision on her representative. It held that the contested decision was not amenable to constitutional review in terms of section 62 of the Constitutional Court Act (see paragraph 52 below).", "44. In the meantime, on 12 May 2011 the applicant’s mother on behalf of her daughter instituted proceedings before the Varaždin Municipal Court against the applicant’s father with a view to increasing the level of child maintenance stipulated in the judgment of 14 September 1999 (see paragraph 6 above).", "45. By a judgment of 21 September 2011 the court ruled for the applicant and ordered her father to pay HRK 800 per month for her maintenance as of 25 May 2011. The judgment became final on 9 February 2012 and enforceable on 12 March 2012.", "46. On 15 April 2012 the applicant’s mother applied on behalf of her daughter to the same municipal court for enforcement of that judgment.", "47. On 25 April 2012 that court issued a writ of execution by garnishment of the debtor’s pension, which became final on 30 May 2012.", "48. On 13 July 2012 the court ordered the Croatian Pension Fund to commence garnishment of the debtor’s pension.", "49. In the period between 17 July 2012 and 12 December 2013 the Fund was garnishing from the debtor’s pension the amounts corresponding to the regular monthly instalments of maintenance as they were becoming due, as well as the unpaid outstanding instalments. By the latter date all outstanding instalments of maintenance had been paid and the Fund has continued to garnish only the regular instalments as they became due." ]

[ 3 ]

[ "6. The applicants were born in 1959 and 1946, and live in Ohrid and Tetovo, respectively.", "7. Following allegations raised by a lawyer (which were subsequently withdrawn), V.V., a member of the State Judicial Council (“the SJC”), a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 20 below), made enquiries through the President of the court in which the first applicant worked as a judge. A preliminary inquiry was carried out, and on 19 April 2008 V.V. requested, under sections 55 and 58 of the State Judicial Act of 2006 (“the 2006 Act”, see paragraph 21 below) and section 5 of the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 25 below), that the SJC initiate professional misconduct proceedings in respect of the first applicant. In the request V.V. claimed that the first applicant had not been diligent in conducting proceedings in a civil case. The first applicant responded in writing.", "8. On 4 June 2008 the SJC set up, under section 58 of the 2006 Act (see paragraph 21 below), a Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”).", "9. On the basis of V.V.’s request and the Commission’s report as to whether the request was justified, on 3 October 2008 the plenary of the SJC initiated proceedings for professional misconduct in respect of the first applicant.", "10. On 12 November 2008 the Commission held a hearing at which it heard evidence from V.V. and the first applicant. It also took other evidence into account. On 1 December 2008 the Commission drew up, under section 55(6) of the 2006 Act, a report on the question whether the request for the first applicant’s dismissal had been justified. It submitted the report to the plenary of the SJC for consideration.", "11. On 17 December 2008 the plenary of the SJC, the composition of which included V.V., dismissed the first applicant for professional misconduct.", "12. The first applicant challenged that decision at second instance, namely before an Appeal Panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified under section 60 of the 2006 Act, they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. On 24 September 2009 the Appeal Panel dismissed the first applicant’s appeal and upheld the SJC’s decision.", "13. On 21 July 2008 R.P., a member of the SJC, applied to the SJC for professional misconduct proceedings to be instituted in respect of the second applicant. It had been alleged that, as an on-duty investigating judge, the second applicant had not been diligent in the investigation of an incident that had occurred in the Tetovo detention centre. Under section 8 of the Rules (see paragraph 25 below), the request was submitted to the second applicant for comments. He responded in writing.", "14. On an unspecified date, the SJC set up, under section 58 of the 2006 Act, a five-member Commission in the second applicant’s case. On 12 December 2008 the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the second applicant.", "15. With two separate decisions delivered on 29 December 2008, the plenary of the SJC, including R.P., initiated professional misconduct proceedings in respect of the second applicant and ordered his temporary suspension. The decisions were not amenable to appeal.", "16. On 20 January 2009 the Commission held a hearing at which R.P. and the second applicant presented their arguments and concluding remarks (завршни зборови). Evidence against the second applicant was also considered. On the same date, the Commission submitted a report to the SJC regarding the circumstances of the case.", "17. On 12 February 2009 the plenary of the SJC, the composition of which included R.P., dismissed the second applicant for professional misconduct. The second applicant appealed against his dismissal to the Appeal Panel that had been formed in his case within the Supreme Court, arguing, inter alia, that he had not been given the opportunity to comment on the evidence against him when the request for his dismissal had been served on him. He also asked the Appeal Panel to inform him of the date of its session. At a hearing held in private on 5 May 2009, the Appeal Panel dismissed the second applicant’s appeal.", "18. On 25 June 2009 the second applicant challenged his dismissal before the Administrative Court by means of an administrative-dispute action (тужба за управен спор). He complained, inter alia, about the alleged refusal of his request for exclusion of Judges N.I. and J.V. who had been parties to the decision of the Appeal Panel in his case. He had requested their withdrawal because Judge N.I. had applied at the relevant time to the SJC for the post of president of a first-instance court, and Judge J.V. allegedly had a close relationship with the public prosecutor involved in the case in respect of which he had been dismissed. On 6 October 2010 the Administrative Court rejected the second applicant’s action as inadmissible. That decision was upheld by the Higher Administrative Court.", "19. The second applicant produced copies of articles published in local newspapers on 26 January and 13 February 2009 reporting on his case. The article published on 26 January 2009 cited the then President of the SJC as saying that the Commission was still dealing with the case and that no report had yet been submitted to the SJC for consideration. On 13 February 2009 the newspaper announced that the second applicant had been removed from office." ]

[ 3 ]

[ "5. The applicant was born in 1943 and is currently detained in the centre for persons in preventive detention on the premises of Rosdorf Prison (hereinafter the “Rosdorf preventive detention centre”).", "6. Between 1966 and 1984, the applicant was convicted by the criminal courts five times. He was found guilty of sexual assault of a seven-year-old girl and attempted rape of a fourteen-year-old girl, committed under the influence of alcohol, and of attempted sexual acts with a thirteen-year-old boy. He was found to have committed other unlawful acts, including arson and strangulating a ten-year-old boy during a burglary, but was not held criminally liable because he had been drunk. He was sentenced, in particular, to terms of imprisonment ranging from six months to ten years.", "7. On 18 April 1986 the Hanover Regional Court convicted the applicant of two counts of attempted murder, combined with attempted rape in one case, and of two counts of dangerous assault. It sentenced him to fifteen years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 46 below).", "8. The Regional Court found that between 7 July 1985 and 3 October 1985, the applicant had stabbed a nineteen-year-old female cyclist in the back in a life-threatening manner for sexual gratification; had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple, again for sexual gratification; and had stabbed a twenty‑three ‑year‑old woman three times in a life-threatening manner in an attempt to rape her. He had committed those offences under the influence of alcohol in a park in Hanover. Still drunk, he had then broken into a house, strangulated a four-year-old girl and had injured her with a knife below the waist for sexual gratification. He was arrested on 9 October 1985.", "9. Having consulted two medical experts, the Regional Court found that at the time of committing the offences, the applicant had been in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 62 below). He was diagnosed with sexual deviance, a personality disorder and psycho-organic syndrome, which was probably a consequence of his longstanding alcohol abuse. As long as the applicant did not drink alcohol, those abnormalities did not affect his criminal responsibility as he was able to control his aggression. However, combined with the consumption of alcohol, they led to his criminal responsibility being diminished.", "10. The Regional Court decided to order the applicant’s preventive detention under Article 66 § 2 of the Criminal Code. It considered that as a result of his personality disorder, the applicant had a propensity to commit serious offences which seriously harmed the victims both physically and mentally. As confirmed by the two medical experts, there was a high risk that if released, the applicant would commit further violent offences for sexual gratification under the influence of alcohol, similar to those of which he had been found guilty. He therefore presented a danger to the general public.", "11. Lastly, the Regional Court decided not to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 63 below). The court endorsed the experts’ finding that the applicant’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity. Public security could therefore be better safeguarded by placing the applicant in preventive detention.", "12. The applicant served his full term of imprisonment, and on 12 June 2001 he was placed for the first time in preventive detention, for which he was held in a wing of Celle prison. By 11 June 2011 he had served ten years in preventive detention.", "13. The courts responsible for the execution of sentences ordered the continuation of the applicant’s preventive detention at regular intervals. In particular, the Lüneburg Regional Court ordered the continuation of his detention on 13 May 2011 and 5 October 2012.", "14. On 26 July 2013 the Lüneburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the continuation of the applicant’s preventive detention. The Regional Court further ordered the Rosdorf Prison authorities to offer the applicant, within three months of the date on which its decision became final, a specific anti-hormonal therapy with medication aimed at reducing his sadistic fantasies and his libido, and thus his dangerousness. The court had consulted the Celle Prison authorities and the prosecution and had heard the applicant in person as well as his counsel, who represented him throughout the proceedings before the domestic courts.", "15. The Regional Court considered that the requirements for ordering the continuation of the applicant’s preventive detention laid down in the second sentence of section 316f(2) of the Introductory Act to the Criminal Code (see paragraph 53 below) had been met.", "16. The Regional Court confirmed that the said transitional provision was applicable to the applicant’s case. It noted that at the time of his last offence on 3 October 1985, the applicant’s first placement in preventive detention could not exceed ten years. It was only following the entry into force of the Combating of Sexual Offences and Other Dangerous Offences Act on 31 January 1998 (see paragraph 51 below) that the courts responsible for the execution of sentences could prolong preventive detention without any maximum duration. The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively, as defined by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraphs 66-72 below). The Regional Court further noted that the second sentence of section 316f(2) of the Introductory Act to the Criminal Code had regard to, and had taken up, the standards set up by the Federal Constitutional Court in the above-mentioned judgment for the continuation of retrospectively ordered or retrospectively prolonged preventive detention.", "17. The Regional Court considered that, in accordance with section 316f(2) of the Introductory Act to the Criminal Code, the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 64 below). It endorsed the findings made on that point by W., an external psychiatric expert it had consulted, in his report dated 8 June 2013. The expert had been obliged to draw up his report on the basis of the case files as the applicant had refused to be examined. Expert W. had confirmed that the applicant suffered from sexual sadism, a sexual deviance, and was addicted to alcohol, even though he had not drunk since being detained. The Regional Court stressed that expert W.’s assessment confirmed the findings made by a number of previous experts, notably those made in January and May 2011 by two experts who had diagnosed the applicant with a sexual preference disorder with sadomasochistic, fetishist and paedophiliac elements and with an alcohol addiction without current consumption of alcohol.", "18. Furthermore, the Regional Court found that, as required by section 316f(2), second sentence, of the Introductory Act to the Criminal Code, there was still a very high risk that, owing to specific circumstances relating to his personality and his conduct, the applicant would if released commit the most serious sexually motivated violent offences, similar to those of which he had been convicted. Endorsing the findings of expert W., in accordance with the above-mentioned previous expert reports, the court noted that the applicant had admitted to his sadistic fantasies but had been unable to address them through therapy. In Celle Prison, he had stopped participating in any activities for persons in preventive detention. The Regional Court stressed that, in his assessment of the applicant’s dangerousness, the expert had taken into consideration his advanced age of sixty-nine years. However, he had convincingly explained that the applicant’s sexual deviance had not yet been considerably alleviated thereby. Furthermore, his alcohol addiction had not yet been treated adequately. However, the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released.", "19. The Regional Court considered that the prolongation of the preventive detention of the applicant, who had been detained for almost thirty years, was still proportionate in view of the considerable threat he posed to the public. It noted in that context that the applicant’s detention in a supervised residence, which it had suggested in its previous decision, was not possible in practice.", "20. As regards the order issued by the Regional Court, based on Article 67d § 2 of the Criminal Code, read in conjunction with Article 66c § 1 sub-paragraph 1 of the Criminal Code (see paragraphs 49 and 54 below), that the Rosdorf Prison authorities offer the applicant specific anti-hormonal therapy, the court found that that order was necessary to guarantee the applicant sufficient care while in preventive detention. Expert W. had stressed – as he had already done in 2012 – that the prison authorities must at least attempt to treat the applicant, who was willing to undergo treatment with medication. The anti-hormonal therapy to be offered had proved to diminish sadistic fantasies and the libido, and could therefore reduce the applicant’s dangerousness.", "21. On 1 August 2013 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted reasons on 14 August 2013. He argued, in particular, that his preventive detention, a penalty which had been prolonged retrospectively, failed to comply with the Convention.", "22. On 2 September 2013 the Celle Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the requirements laid down in section 316f(2), second sentence, of the Introductory Act to the Criminal Code for ordering the continuation of the applicant’s preventive detention had been met.", "23. Taking into account the report submitted by expert W., the Court of Appeal held that the applicant was suffering from a mental disorder as defined in section 1(1) of the Therapy Detention Act. Referring to the Federal Constitutional Court’s case-law (see paragraphs 73-76 below), it found that a mental disorder under that Act did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 61-62 below). Specific disorders affecting a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1(1) of the Therapy Detention Act. The applicant’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision.", "24. Moreover, there was still a very high risk that, if released, the applicant would commit the most serious violent and sexual offences, similar to those of which he had been convicted, owing to specific circumstances relating to his personality and his conduct. The applicant’s dangerousness had not been reduced through therapy; nor had he become less dangerous by his advancing age. He currently did not participate in any serious therapeutic activities and kept trivialising his offences. Moreover, expert W. had confirmed that his mental illness was difficult to treat. The Court of Appeal further endorsed the Regional Court’s finding that the applicant’s continued detention was still proportionate, despite the considerable overall length of his detention.", "25. On 24 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Lüneburg Regional Court and the Celle Court of Appeal. He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty, read in conjunction with the constitutional right to protection of legitimate expectations guaranteed in a State governed by the rule of law.", "26. The applicant argued that under the European Court of Human Rights’ well-established case-law (he referred to M. v. Germany, no. 19359/04, ECHR 2009), the retrospective prolongation of a person’s preventive detention – a penalty – beyond the former ten-year time-limit breached the prohibition on retrospective punishment under Article 7 of the Convention and did not comply with sub-paragraph (a) of Article 5 § 1 of the Convention. Moreover, his continuing preventive detention could not be justified under sub-paragraph (e) of Article 5 § 1 either. He did not suffer from a mental disease as required by that provision. In addition, the notion and scope of “mental disorder” under the applicable provisions of domestic law and in the domestic courts’ case-law was unclear.", "27. The applicant further stressed that the Regional Court had recommended his placement in a supervised residence. In those circumstances, his continued preventive detention on the premises of Rosdorf Prison was no longer proportionate. He conceded, however, that his detention in the new preventive detention centre on the premises of Rosdorf Prison complied with the constitutional requirement to differentiate between preventive detention and detention for serving a term of imprisonment.", "28. On 29 October 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2182/13). The decision was served on the applicant’s counsel on 7 November 2013.", "29. On 5 December 2011 the Lüneburg Regional Court, civil section, ordered the applicant’s placement in Moringen Psychiatric Hospital under the Therapy Detention Act. It found that the applicant suffered from a mental disorder for the purposes of section 1 of that Act and that there was a high risk that, if released, he would commit further serious offences. On 31 January 2012 the Celle Court of Appeal quashed that decision on the grounds that detention under the Therapy Detention Act could only be ordered once the preventive detention of the person concerned had been terminated by a final decision.", "30. On 25 April 2014 the Göttingen Regional Court, in a decision reviewing the continuation of the applicant’s preventive detention, ordered the continuation of the applicant’s preventive detention. It noted that the applicant had repeatedly refused treatment with medication to diminish his libido.", "31. On 15 January 2015 the Göttingen Regional Court, having consulted medical expert J., again ordered the continuation of the applicant’s preventive detention under Article 67d § 3 of the Criminal Code, read in conjunction with section 316f(2), second sentence, of the Introductory Act to the Criminal Code (see paragraphs 51 and 53 below). On 24 April 2015 the Braunschweig Court of Appeal dismissed an appeal lodged by the applicant against the decision of the Regional Court.", "32. Until 20 February 2012 the applicant had been held in preventive detention in a wing of Celle Prison. He had participated in therapy with a psychologist between 2005 and 2010, but had then stopped that therapy. He had refused to participate in the alcohol addiction treatment programme offered to him or any other treatment measures.", "33. On 20 February 2012 the applicant was transferred with his consent to a wing of Celle Prison for persons in preventive detention where a transitional concept had been adopted. The aim was to improve the available treatment options in the light of the duty to differentiate preventive detention and detention for serving a term of imprisonment, by reference to the European Court of Human Rights’ judgment in M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 66-72 below). The applicant participated in group therapy sessions run by a doctor and in a social skills training course. He stopped attending the group for addicts and refused to take medication to reduce his libido for fear of side effects.", "34. Since 2 June 2013 the applicant has been detained in the new Rosdorf centre for persons in preventive detention, a separate building constructed on the premises of Rosdorf Prison.", "35. The conception of preventive detention in the centre was developed in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment, as defined in the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 67 and 70 below) and as further specified in the newly enacted Article 66c of the Criminal Code and in the Lower Saxony Preventive Detention Act (see paragraphs 54, 56-57 and 59-60 below).", "36. Up to forty-five persons can be detained in the Rosdorf centre. Detainees are placed in apartment units measuring some 23 square metres containing two furnished rooms and a bathroom. With the exception of detainees posing a particular security risk, the detainees can move freely within the preventive detention building and on its outdoor premises from 6 a.m. to 9.45 p.m. They may furnish and paint their rooms, to which they have their own keys. The rooms are equipped with a controlled access to the internet including e-mail, telephone, television, CD and DVD player and radio. There are common rooms for residential groups consisting of some seven detainees, which include a kitchen, a dining room, a television room and rooms for games, handicraft work and exercise. The outdoor premises, measuring some 1,600 square metres, can be used for sports, recreation or gardening.", "37. Persons in preventive detention in the Rosdorf centre may wear their own clothes. They can either take meals prepared by the centre’s staff or prepare their own meals (in which case they receive an allowance for purchasing food in the centre’s supermarket). Persons in preventive detention may work, but are not obliged to do so. They may receive visits regularly.", "38. According to information furnished by the Government, at the relevant time the applicant was one of some thirty persons detained in the Rosdorf preventive detention centre. In order to comply with the duty to provide the necessary therapy and care and to motivate detainees to participate in the relevant therapies and treatment, the centre’s staff comprised one psychiatrist, four psychologists, five social workers and twenty-five members of the general prison service. The staffing situation was similar to that of Moringen Psychiatric Hospital, situated in the same Land and where persons were detained under Article 63 of the Criminal Code.", "39. Detainees are examined at the beginning of preventive detention in order to determine the necessary therapy and care. A personal treatment plan (Vollzugsplan) is then drawn up.", "40. According to the personal treatment plan drawn up for the applicant by the Rosdorf centre on 28 November 2014, it was noted that in the past, from July 2013 until August 2014, the applicant participated in group sessions aimed at preventing detainees from relapsing into excessive alcohol consumption. He then stopped attending the meetings. He also regularly participated in group sessions at which detainees discussed their experiences during leave from detention. He stopped participating in those meetings in August 2014 too, arguing that the participants were not granted sufficient additional leave. In addition, he had motivation meetings with a psychologist fortnightly until March 2014, when he stopped attending the meetings, alleging that the psychologist lacked experience. He took part in weekly residential group meetings from June 2013 until February 2014, when he stopped attending the meetings, arguing that his treatment plan did not meet his expectations. He did not take part in any structured leisure activities and spent most of his day alone watching television. He declined repeated invitations to take part in group sessions of the treatment programme for offenders. Thus, as from August 2014 the applicant no longer participated in any therapy measures. He proved reliable during leave from the detention centre under escort on a number of occasions.", "41. According to the Rosdorf centre’s treatment plan for the applicant of 28 November 2014 and an internal note from a staff member of the centre, the applicant has refused regular and repeated offers to start a treatment with medication to reduce his libido, which had been recommended by expert W. in 2013, for fear of side effects. In December 2014 he showed willing for the first time to take up such treatment." ]

[]

[ "6. The applicants were born in 1963 and 1951, and live in Ohrid and Skopje respectively.", "7. On 24 June 2009 N.H.A., a member of the SJC, a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 23 below) requested that the SJC initiate professional misconduct proceedings in respect of the first applicant. The request was submitted under sections 55 and 58 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 24 below) and the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 30 below), which provided that a member of the SJC could seek the institution of professional misconduct proceedings in respect of a judge. In the request N.H.A. claimed that the first applicant had violated the rules on legal representation of the parties in a case he had adjudicated. The first applicant replied in writing.", "8. A commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”) was set up under section 58 of the 2006 Act, composed of five SJC members. N.H.A. did not participate in the composition of the Commission. On the basis of the N.H.A.’s request, the first applicant’s reply and obtained evidence, the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the first applicant, which the SJC did with a separate decision.", "9. On 10 November 2009 the Commission held a hearing at which it heard evidence from N.H.A. and the first applicant. The first applicant stated that on that occasion he had submitted a written request for the withdrawal of N.H.A., citing lack of impartiality. He provided the Court with a copy of that submission. The record of the hearing held on 23 November 2009 indicates that the first applicant referred to that request in his concluding remarks. No decision was taken in respect of the request. The Government submitted that there was no copy of it in the case file. The records of the hearings of 10 and 23 November 2009 were signed by the first applicant, N.H.A. as the complainant, and the members of the Commission.", "10. On 9 December 2009 the plenary of the SJC, which included N.H.A., dismissed the first applicant from the office of judge for professional misconduct, finding that he had violated the rules on legal representation of the parties.", "11. The first applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified under section 60 of the 2006 Act (see paragraph 24 below), they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges from the court of the defendant. The applicant also sought the withdrawal of Judge T.S. from the Appeal Panel because of a bad personal relationship with him. On 22 March 2010 the President of the Supreme Court, relying on sections 64 and 67 of the Civil Proceedings Act (see paragraphs 26 and 27 below), dismissed the first applicant’s request, finding no grounds for doubt in respect of Judge T.S.’s impartiality.", "12. On 27 April 2010 the Appeal Panel, which included Judge T.S., dismissed the appeal and upheld the SJC’s dismissal decision of 9 December 2009.", "13. By two separate submissions of 8 June and 26 August 2009 (received by the SJC on 23 June and 9 September 2009 respectively), the Minister of Justice, who was an ex officio member of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), requested that the SJC institute professional misconduct proceedings in respect of the second applicant. The requests concerned two separate criminal cases (nos. Кок.бр.7/08 and К.бр.1297/02-I), in which the second applicant had sat as president of the adjudicating panels. It was alleged that she had failed to establish the identity of a convicted person (in case no. Кок.бр.7/08) and that there had been a possible conflict of interests (in case no. К.бр.1297/02‑I). The second applicant replied in writing.", "14. The SJC set up a Commission in the second applicant’s case, which did not include the Minister of Justice. On the basis of the requests, the second applicant’s reply and obtained evidence, the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against her. On 12 March 2010 the plenary of the SJC initiated professional misconduct proceedings in respect of the second applicant and temporarily suspended her from the office of judge. The relevant parts of that decision read as follows:\n“The SJC, on the basis of [the Minister’s] requests ... set up (a commission to determine whether there had been professional misconduct on the part of the second applicant) ... (The Commission) ... submitted to the SJC a report (as to whether the request was justified).\nThe SJC ... discussed the requests and (the Commission’s) report and decided (to initiate professional misconduct proceedings) ...”", "15. This decision was served on the Minister of Justice, as the complainant, the second applicant and the President of the Skopje Court of Appeal in which the second applicant worked as a judge.", "16. On 24 March 2010 the President of the SJC rejected as inadmissible an appeal by the second applicant against that decision.", "17. On the same date, the President of the SJC asked the SJC to initiate professional misconduct proceedings in respect of the remaining judges who had sat, together with the second applicant, on the adjudicating panel of the Skopje Court of Appeal in criminal case no. Кок.бр.7/08. The grounds for the request were the same as those indicated in the request dated 8 June 2009 (see paragraph 13 above). On 25 March 2010 the President of the SJC agreed to act as complainant in respect of the requests dated 26 August 2009 (with regard to the second applicant) and 24 March 2010. It was agreed that the proceedings should be joined.", "18. On 5 May 2010 the president of the Commission set up in the second applicant’s case refused her request for a public hearing. As stated in the decision, professional misconduct proceedings before the SJC were confidential and the public was excluded in order to preserve the reputation of the judge concerned.", "19. On 15 June 2010 the plenary of the SJC, including the Minister of Justice and the President of the SJC, dismissed the second applicant and Judge V.Dž. from the office of judge for professional misconduct. The grounds for the second applicant’s dismissal were as set out in the requests for her dismissal submitted by the Minister of Justice. The SJC stayed the professional misconduct proceedings (запира постапка) in respect of the remaining judges named in the request of 24 March 2010. The decision was served on the second applicant, the complainant and the President of the Skopje Court of Appeal.", "20. The second applicant appealed to the Supreme Court Appeal Panel against her dismissal (see paragraph 11 above). She complained, inter alia, that the Minister of Justice, as an ex officio member of the SJC and the person who had set in motion the dismissal proceedings against her, had been party to the decision to dismiss her. She requested permission to attend the session before the Appeal Panel in order to argue her case.", "21. At a hearing held on 10 December 2010 in the presence of the second applicant, the Appeal Panel formed within the Supreme Court in her case upheld the dismissal decision for the reasons given by the SJC.", "22. The second applicant lodged a constitutional appeal with the Constitutional Court, arguing that her dismissal had violated her rights under Articles 9 (equality of citizens) and 16 (freedom of conscience, thought and public expression of thought) of the Constitution. On 22 June 2011 the Constitutional Court rejected the appeal finding that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the second applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between the exercise of the office of judge and freedom of expression. The court ruled that the office of judge entailed a right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms for which it had competence to decide under the Constitution (У.бр.18/2011)." ]

[ 3 ]

[ "4. The applicant was born in 1954 and is serving his prison sentence in Gorodyshche Town. Before his arrest he lived with his partner Te. in a privately owned house located in the Rusanovskiye Sady District of Kyiv.", "5. The police received intelligence information that a group of people were detaining a man in a privately owned house in Rusanovskyie Sady, and were illegally selling apartments owned by third parties.", "6. On 9 February 2004 police officers B., T., and S. entered the applicant’s house and asked whether or not he had any firearms. The applicant showed them a gun and some ammunition which a certain Va. had brought round to his house earlier. The police took the applicant to the police station. The applicant’s arrest was recorded on video. Before the Court the applicant stated, without providing any further details, that during and after his arrest police officers B., T., and S. had subjected him to physical and psychological ill-treatment.", "7. According to the Government’s version of events, on the same day the applicant voluntarily, in the presence of investigator Ch., gave a written statement saying that from July to August 2003 he had kept a certain Mr N. in his house at the request of Kr. and Ko. In September 2003 Kr. and Ko. brought Mr V. and Ms Sh. to his house and asked to keep them in the basement. The applicant agreed in return for payment. In November 2003 V. and Sh. died in the basement because of cold. The applicant buried them in his backyard and thoroughly cleaned the basement.", "8. In his first letter to the Court, the applicant stated, without providing further details, that police officers T. and B. and investigator Ch. had forced him into making the above self-incriminating statement by means of physical and psychological pressure. In his application form, the applicant stated that he had not written the above statement and did not know who had written it.", "9. On 10 February 2004, during reconstruction of events which was conducted by investigator Ch. and recorded on video, the applicant showed where he had buried V. and Sh., and the police sent their bodies for forensic examination. The experts established that the victims had died of cold in November 2003.", "10. On the same day investigator Ch. ordered the applicant’s detention, and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of two people. The applicant’s defence rights were explained to him, and he expressed a wish to have a lawyer.", "11. On 11 February 2004 investigator Ch. appointed a lawyer, R., under legal aid scheme to act as the applicant’s defence counsel. Upon being questioned by Ch. on 11 and 12 February 2004 in the presence of that lawyer, the applicant confirmed his previous statements. He also said that he had been aware that V. and Sh. had been put in his basement in order to prevent them from hindering the illegal sale of their apartments.", "12. On 13 February 2004 the Dniprovskyy District Court of Kyiv ordered the applicant’s detention pending trial. On the same date a medical doctor examined the applicant and found no injuries on his body. The applicant did not raise any complaints of ill-treatment or his health condition.", "13. On 20 February 2004 investigator Ch. charged the applicant with murdering Sh. and V.", "14. On the same date the applicant was questioned in the presence of lawyer R. and confirmed his previous statements.", "15. On 17 May 2004 the applicant had a formal confrontation with Kr. in the presence of R. The applicant confirmed his previous statements.", "16. On 3 June 2004 investigator Ch. appointed another lawyer, K., under legal aid scheme as the applicant’s defence counsel instead of R. The latter was no longer able to perform his duties as a defence lawyer because of illness.", "17. On the same date the applicant was questioned in the presence of lawyer K. and denied all the statements he had given earlier. He stated that he had given self-incriminating statements previously because he had been in a state of “shock”.", "18. On 6 July 2004 investigator Ch. instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to Sh. and V.", "19. On an unspecified date the applicant complained to Ch. that during and after his arrest he had been ill-treated by police officers B., T., and S. It is unclear whether the applicant provided any details about such ill-treatment because a copy of the complaint available to the Court is unreadable.", "20. On 11 July 2004 investigator Ch. questioned B., T., and S., who denied that they had put the applicant under any pressure.", "21. On 13 July 2004 Ch. refused to institute a criminal investigation into the applicant’s allegations of ill-treatment and the applicant did not appeal against that decision. A copy of the decision is available to the Court, but is unreadable. On the same date Ch. refused the applicant’s request to have a formal confrontation with his girlfriend, Te. Later that day, the applicant absconded from the detention facility where he was being held, but was found by the police and brought back to the facility on the same date.", "22. On the same day, the police instituted criminal proceedings against the applicant for absconding.", "23. On an unspecified date the police questioned Pl., who worked as a doctor in a hospital in the town of Svetlovodsk. Pl. said that N. had been admitted to the hospital in the autumn of 2003. N. had told Pl. that he had been the victim of fraud, and that his apartment in Kyiv had been sold without his knowledge or consent.", "24. On an unspecified date the police questioned Ru., who said that in the summer of 2003 he had sold his house to a woman called Olya. N. had lived in that house and had told Ru. that he had been the victim of fraud.", "25. The applicant asked the investigator if he could have a formal confrontation with a certain Ro., but this request was refused.", "26. On 5 August 2004 the investigator appointed another lawyer, V., to act as the applicant’s defence counsel under legal aid scheme instead of lawyer K. The reason for that decision remains unknown. On 8 September 2004 the pre-trial investigation was completed, and the applicant studied all the material in the criminal file.", "27. The indictment stated that a group of people, including Kr., had asked the applicant to keep N. in his house while N.’s apartment had been sold without his knowledge or consent. The applicant had agreed in return for payment, and had kept N. in his house for about a month. After that, the same group of people had asked the applicant to keep V. and Sh. in his basement in order to prevent them from hindering illegal sale of their apartments. V. and Sh. had died of cold in the basement, and the applicant had buried them in his yard. The apartments of N. and V. had been sold while they had been kept in the applicant’s house. The apartment belonging to Sh. had been sold before she had been brought to the applicant’s basement. According to the indictment, by holding N., V., and Sh. in his house, the applicant, acting jointly with others, participated in fraud entailing the illegal sale of the victims’ apartments.", "28. On 2 February 2005 a TV channel transmitted a programme called “Black Square”. According to the applicant, in that programme an investigator dealing with his criminal case spoke about his arrest and “persuaded the public” that the applicant was guilty as charged. Neither a recording of that programme, nor any further information about its contents was made available to the Court.", "29. On 3 February 2005 the Kyiv Court of Appeal, composed of two professional judges and three lay judges and acting as the first-instance court in the applicant’s case, commenced the trial.", "30. On 8 February 2005 the court appointed Krav. as the applicant’s lawyer under legal aid scheme instead of lawyer V. The grounds for that decision remain unknown.", "31. Before the court, the applicant stated that when he had been detained by the police “his head had not been working” because he had been drunk. After the arrest, he had drunk some vodka given to him by the police, and that was why he did not remember what he had said or done from 9 to 11 February 2004. He “was not sure” that he had written the self-incriminating statement on 9 February 2004. Investigator Ch. had promised to charge him with only the offence of concealment if he admitted that he had kept V. and Sh. in his basement. Actually, V., Sh., and N. had voluntarily stayed in his house and none of them had been forcefully held in the basement. In November 2003 Sh. and V. had drunk too much vodka, had fallen asleep in one of the rooms of his house, and had died of cold. He did not know that the victims’ apartments had been sold without their consent. He had been afraid of the police and for that reason he had not reported the deaths of V. and Sh. and had buried them in his yard. After his arrest the police officers had not beaten him.", "32. The court questioned investigator Ch. in the applicant’s presence and the latter asked him questions. Ch. stated that the applicant had not been drunk on the day of his arrest and the police had not given him any alcohol from 9 to 11 February 2003. Ch. denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment.", "33. The court questioned experts who had examined the bodies of V. and Sh. and the applicant’s lawyer asked them questions. The experts stated that they could not exclude the possibility that V. and Sh. had died of cold while they had been asleep in one of the rooms of the applicant’s house. They said that it was also possible that they had died in the basement.", "34. On 17 March 2005 Ro. was questioned by the court in the applicant’s presence and stated that he had seen V., still alive, in the applicant’s basement, and had heard how V. had asked the applicant to release him. Later, Ro. had seen V.’s dead body in the applicant’s basement. Ro. had met N. in the applicant’s house on several occasions, and N. had told him that a group of people intended to “sell” him, and were keeping him in the applicant’s house. The applicant asked Ro. questions during the hearing and received answers.", "35. Upon being questioned by the court, N. stated that in July 2003 certain “Olya” and “Volodya” had taken some of his documents, had brought him to the applicant’s house and had left him there until the end of August 2003. The applicant had not allowed him to leave the house and had told N. that he had had a gun. While N. had been staying in the applicant’s house he had observed the applicant, Olya, Volodya, and Kr., and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent. In August 2003 Olya had moved N. to the house which she had bought from Ru. In September 2003 Volodya and Olya had placed N. in a hospital in the town of Svetlovodsk. From there, N. had called his relatives in Kyiv and had learned that his apartment in Kyiv had been sold. He had then returned to Kyiv and had complained to the police. When N. had returned to the building where his apartment was located, the neighbours had told him that several people had been moving his furniture out of the apartment. They had described one of those people and N. had understood that it had been the applicant. The applicant was present during N.’s questioning by the court and asked him questions.", "36. On 31 March 2005 the court questioned the applicant’s girlfriend, Te., in the applicant’s presence. She stated that N. had been living in the applicant’s house for about a month because he had been “having a rest” there. She further stated that a man and a woman had been locked in the basement of the applicant’s house against their will. The people who had brought N. to the applicant’s house had instructed Te. not to allow him to leave the house and not to talk to him about the apartment. She had been told that N.’s apartment was being sold in accordance with his wishes, but she had understood that, in fact, he had not known that the apartment was being sold. Once, the applicant had brought various pieces of furniture to the house and had explained Te. that the furniture belonged to N. Kr. had visited the applicant and had brought him food and money for feeding V., Sh., and N.", "37. On 8 April 2005 the applicant asked the court to recall Te. as witness so that he could question her again. That request was granted, however, Te. did not appear before the court because the police could not find her at her permanent place of residence.", "38. Kr. stated before the court that he had brought N., a man and a woman to the applicant’s house, where they had voluntarily stayed. In the autumn of 2003 the applicant had informed Kr. that the man and the woman had died in one of the rooms of his house and he had moved their bodies to the basement. Kr. had helped the applicant to carry two dead bodies from the basement to the yard and to bury them.", "39. The applicant asked the court if he could call and question Pl. and Ru., because, according to him, their statements contradicted those of N. The request to call Pl. was granted but Pl. refused to appear before the court stating that he was too busy with his work in the Svetlovodsk hospital. The request to call and question Ru. was not granted by the court. The applicant requested (unsuccessfully) that the court order a forensic examination of his basement, such an examination being aimed at establishing whether or not V. and Sh. had indeed spent several weeks there.", "40. On 25 May 2005 the Kyiv Court of Appeal convicted the applicant of having forcefully held N., V., and Sh. in his house, an action which led to the deaths of V. and Sh. The court also found the applicant guilty of absconding from detention facility, illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to N. and V. The applicant was sentenced to fifteen years of imprisonment. On the same date the lawyer Krav. stopped representing the applicant for unknown reasons. In his observations submitted in reply to those of the Government, the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before the Supreme Court. The case file does not contain copies of any such requests.", "41. On 11 August 2005 the applicant appealed against his convictions. He stated that the trial had not been objective or fair, and that the first-instance court had misinterpreted the facts of the case, and had refused to call witnesses proposed by him. Ru. and Pl. had not been questioned at a court hearing, although their statements contradicted those of N., while the statements of Te. and Ro. contained contradictory and false information. His request for examination of his basement had also been refused.", "42. On 22 December 2005 the Supreme Court upheld the applicant’s convictions and sentence, having found no irregularities in the first-instance court’s decision.", "43. On 7 June 2006 the applicant sent his first letter to the Court. On 29 August 2006 he submitted a duly signed and completed application form. On 29 September 2006 and 21 March 2007 the Court asked the applicant to provide a copy of his cassation appeal, and copies of his complaints concerning the alleged ill-treatment by the police. The applicant asked the Kyiv Court of Appeal to send those documents to him, but on 14 May 2007 that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings.", "44. On 24 January 2008 the Kyiv Court of Appeal sent the applicant the copies which he had requested (see paragraph 43 above).", "45. In October 2011 the applicant requested the same court to send him various materials from his case file, in particular, all the courts’ decisions, reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings. The applicant stated, without elaborating further, that he needed those documents to “substantiate his complaints” before the Court. On 18 November 2011 the Kyiv Court of Appeal refused the applicant’s request on the same grounds as on 14 May 2007.", "46. Before the Court the applicant stated that the services provided to him by his lawyers had been of low quality. They were not interested in his case because he did not have any money to pay them.", "47. According to the applicant, the conditions of his detention at the pre-trial detention facility (ITT) in which he was detained for three periods between 9 February and 27 July 2004 were inhuman and degrading." ]

[]

[ "5. The applicants were born in 1988 and 1992 and were at the time of the introduction of the application detained in Hermes Block, Lyster Barracks Detention Centre, in Hal Far.", "6. Ms Moxamed Ismaacil, the first applicant, entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number (12U-007).", "7. At that point she was presented with two documents, one containing a Return Decision and the other a Removal Order (no copies available). According to the first applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal and the migrants translate for each other.", "8. The first applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. She claimed that the document was provided in a language she could not understand. According to the Government she did not request a booklet in another language.", "9. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the first applicant was detained. She was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks.", "10. Ms Abdirahman Warsame, the second applicant, also entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number (12U-009).", "11. She was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the second applicant that she would remain in custody until removal is affected and that an entry ban would be issued against her. The two documents further informed her of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal and the migrants translate for each other.", "12. She was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. None of these documents, in English, were explained to Ms Abdirahman Warsame who could not understand the language. According to the Government the second applicant did not request a booklet in another language.", "13. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. She was detained in Lyster Barracks (Zone unspecified).", "14. A few days following their arrival both the applicants were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below).", "15. Two months later, on 2 and 9 November 2012 respectively, they were called for a refugee status determination interview. By decisions of 19 January 2013, communicated to the applicants on 31 January 2013, the Refugee Commissioner (RC) rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Halane village, in Qoryooley district, in Lower Shabelle Region, in southern Somalia. Thus, they did not fulfil the eligibility criteria for either refugee status or subsidiary protection.", "16. On 7 February 2013, with the aid of lawyers from the Jesuit Refugee Service (JRS) the applicants appealed against the decisions. The Refugee Appeals Board (RAB) informed the applicants that they had until 18 March 2013 to present submissions. This time-limit was extended and appeal submissions were lodged in April 2013.", "17. By the date their application was lodged with this Court, that is eleven months and three weeks from the date of their arrival, no decision had been issued. The applicants were hoping to be released on the lapse of twelve months from their arrival as per normal domestic practice.", "18. Ms Moxamed Ismaacil, the first applicant, was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks, in conditions which she considered prison-like and basic, although she considered Zone D to be better than the latter unspecified Zone. She explained that the place was overcrowded and noisy, and it was hard to keep it clean. There were twenty people in one dormitory and ninety-five people in the zone, with only one fridge. In summer the heat was unbearable and in winter it was too cold. They were fed the same food every day, and only allowed one hour of sunshine per day. She maintained that male detainees held in the upper floors often abused them verbally. Other factors which she considered had to be taken into consideration were her young age, her inability to communicate in any language except for Somali, and the fact that the detention centre was staffed exclusively by men. She further noted the absence of access to effective medical care, given that no interpreters were available. She had visited the clinic in the detention centre several times because she was sick, and was repeatedly told to drink water and take paracetamol tablets. Often no doctors were available and it was the soldiers at the detention centre who decided whether the issue warranted emergency treatment.", "19. Ms Abdirahman Warsame explained that she endured the same circumstances mentioned above by Ms Moxamed Ismaacil. She added that she was depressed and that she often felt upset and agitated, at times she would stop drinking and eating and then lose consciousness. Despite her gastric pains, no special diet was provided for her and the doctors only administered paracetamol, to the extent that she started vomiting blood. In June 2013 she was hospitalized for a week. She alleges that she had become very weak physically and started suffering from memory loss.", "20. Ms Moxamed Ismaacil was released from detention on 14 August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 15 October 2013.", "21. Ms Abdirahman Warsame was also released from detention on 14 August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 14 July 2014." ]

[ 2 ]

[ "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. On 19 January 2005 bank C. brought enforcement proceedings against the applicant before the Setúbal Court seeking the payment of a debt of 106,278.60 euros (EUR) plus EUR 23,122.72 in interest.", "6. On 8 October 2007 a writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank (penhora do apartamento). On an unspecified date a judicial enforcement officer (agente de execução) was appointed by the Setúbal Court as depositary (fiel depositário), thus being in charge of the apartment and responsible for the course of the enforcement proceedings through the sale of the applicant’s apartment, pursuant to the Code of Civil Procedure.", "7. On 29 September 2009 the applicant lodged a complaint with the Setúbal Court regarding the judicial enforcement officer’s inactivity in the proceedings.", "8. On 15 February 2012 the applicant lodged a complaint with the Commission for the Efficiency of Executions (Comissão para a Eficácia das Execuções) complaining about the judicial enforcement officer’s professional conduct which was preventing the sale of the applicant’s apartment. On 18 June 2012 the Commission acknowledged the receipt of the applicant’s complaint and in July 2012 informed him that they would start disciplinary proceedings against the judicial enforcement officer.", "9. On 3 October 2012 following the applicant’s complaint of 29 September 2009, the Setúbal Court adopted a decision removing the judicial enforcement officer from his post on the grounds of professional negligence and appointed a new one.", "10. According to the last information received by the Court on 8 July 2014 the proceedings are still pending at first instance." ]

[ 3 ]

[ "6. The applicants are a married couple and were born in 1956 and 1966 respectively. They have been in the Netherlands since 1999.", "7. The applicants and their three children (two daughters, A and B, born in, respectively, 1992 and 1993, and a son C, born in 1997) entered the Netherlands on 17 December 1999 and, on 26 December 1999, applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Convention”) and/or treatment in breach of Article 3 of the Convention from the mujahideen and/or the Taliban in Afghanistan on account of the first applicant’s professional activities during the former communist regime.", "8. The first applicant submitted that he had become a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) in 1978 and that, as a conscript, he had served in a battalion in Kabul from 1978 to January 1981. Feeling a moral obligation to serve his country, he had subsequently decided to join the army for a professional military career.", "9. From March to December 1981 he had taken a preparatory course for university studies in the Soviet Union, which had mainly consisted of Russian language lessons. He had subsequently been sent by the Director of Political Affairs of the General Staff of the Ministry of Defence to the Minsk Higher Combined Arms Military Political School in Belarus, where he had studied between 1982 and 1986. On 5 July 1986 he had graduated with a Master’s degree in pedagogic and social sciences.", "10. Holding the rank of captain, the applicant had been assigned to Division 5, which was responsible for controlling the border between Afghanistan and Iran. From September 1986 to December 1989 the first applicant had worked in that area in the political affairs division of the border security unit. He had been responsible for cultural matters, including propaganda, combating illiteracy amongst soldiers, and the creation of patriotic awareness amongst them. He had further been given the task of persuading deserters who had been caught to do their military service in the Afghan army. The first applicant stated that he had apprehended about 300 such deserters between 1986 and 1989, and that he had only failed in respect of fifteen of them to persuade them to do their military service. These fifteen individuals had been handed over to the Military Public Prosecutor. In 1988 he had been promoted to the rank of senior captain.", "11. In 1990 he had been appointed first secretary or deputy scientific officer of the Army Museum in Kabul, which fell under the responsibility of the propaganda division of the Ministry of Defence. He had been responsible for collecting weapons for the museum. He had later been promoted to deputy director of the museum and, holding the rank of major, had worked in that function until 1992.", "12. The first applicant’s problems had started after the mujahideen had taken power in 1992. Mujahideen had come to the army museum to take exhibits which they thought were valuable as weaponry or otherwise. When they recognised the first applicant as an army officer who had worked for the former regime, the mujahideen had incarcerated him – together with three other officers and a soldier – in the basement of the museum. He had been released after a week. The mujahideen had wanted him to cooperate with them by helping them to take arms and ammunition out of the museum. He had refused all such requests, which had led to aggressive behaviour towards him on the part of the mujahideen. The first applicant had repeatedly reported this attitude to these mujahideen’s superiors in the Ministry of Defence, namely two generals with whom the first applicant had collaborated during the former communist regime. These two generals had both remained in their position at the Ministry of Defence and were working with the Hezb-e-Harakat-e-Islami of Ahmad Shah Massoud. After the museum had been placed under the control of a mujahideen commander, the first applicant had resigned in March 1994 and taken the keys of the museum to the Ministry of Defence, to be given to one of the two generals.", "13. The second applicant – who had also applied for asylum on behalf of the applicants’ children – had worked as a guide in the same army museum in Kabul when the city was captured in 1992 by the mujahideen. Under pressure from the mujahideen and in the footsteps of her husband, she had also resigned from her job in 1994.", "14. Shortly after the first applicant had resigned from his post in the museum, the applicants received a written death threat in the courtyard of their house: the house was destroyed a few days later. After a brief stay with the second applicant’s father in another neighbourhood of Kabul, the applicants moved in March 1994 to Kunduz, which was under the control of followers of Ahmad Shah Massoud, who – like the applicants – was of Tajik origin. In Kunduz, the applicants lived off the income generated by land owned by the first applicant’s family, and the first applicant, admittedly not out of any financial necessity, opened a small shop in order to have something to do.", "15. In April or May 1998 – after the Taliban had seized power in Kunduz on 26 June 1997 – two of the first applicant’s cousins appeared at the applicants’ house together with eight to ten Taliban. According to the first applicant, he had been betrayed by these two relatives. They had informed the Taliban of his position under the former communist regime and his whereabouts. The Taliban conducted a search for weapons in the applicants’ house. Although they found none, the Taliban arrested the first applicant and his brother. They were separated shortly after their arrest.", "16. During his detention by the Taliban, for the first two weeks in a basement on a military base in Kunduz and subsequently in the Kunduz prison, the first applicant had been interrogated, ill-treated and forced to perform hard labour. As it happened sometimes that in the evening hours two or three detainees were taken away from the cell they shared with the applicant and others and were never seen again, the first applicant feared for his life during his detention.", "17. On a date he could not remember, the first applicant was taken before a tribunal composed of four mullahs, who interrogated him whilst he was being ill-treated. He was subsequently forced to place his fingerprint on documents, most of which were written in Arabic.", "18. During his subsequent transport in a convoy consisting of five cars from Kunduz to a prison in Kabul, the first applicant had managed to escape when the convoy had come under armed attack, he believed by followers of Ahmad Shah Massoud. The first applicant had then fled to Mazar-i-Sharif, where he had been joined by his family on 7 November 1999. On 12 November 1999 the applicants and their children had left Afghanistan.", "19. The first applicant was interviewed by Dutch immigration officials about his flight and the motives for it on three occasions; the second applicant on two occasions. On 8 January 2004 they were informed of the intention (voornemen) of the Minister for Immigration and Integration (Minister voor Vreemdelingzaken en Integratie) to refuse them asylum. Having noted the first applicant’s asylum account, an official general report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”)[1], and two different person-specific official reports (individuele ambts-berichten), DPC/AM 635082 and DPC/AM 696035, both drawn up by the Ministry of Foreign Affairs on 15 December 2000, the Minister decided to refuse the first applicant asylum and to hold Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. On 4 February 2004, a lawyer acting on behalf of the applicants submitted written comments (zienswijze) on this intention.", "20. After interviewing both applicants once more, the Minister rejected their asylum applications, in separate decisions taken on 17 February 2004. The elaborately argued notices of intention of 8 January 2004 were added to the decisions and formed part of them.", "21. The Minister found, inter alia, that the first applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention, thus excluding him from international protection under the 1951 Convention . Although the Minister attached credence to the first applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. His statements relating to certain of the tasks he said he had performed (namely his stated activities relating to what was called the PDPA’s national reconciliation policy, amnesty, reconstruction and demilitarisation) were found to be highly implausible.", "22. On the basis of the two person-specific official reports of 15 December 2000, the Minister found that, at the relevant time, the political affairs divisions of the Afghan army consisted solely of highly loyal and skilled professional soldiers, that people working for these divisions regularly provided the security service KhAD/WAD with person-specific and general information (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”; the KhAD was set up in 1980 and transformed in 1986 into a ministry called “WAD”, which remained in existence until the communist regime fell in 1992. Although the WAD was the successor of the KhAD, the security service continued to be commonly referred to as KhAD); those working for the political affairs divisions had relatively easy access to the PDPA leadership, and one of their tasks had been to remove anti-government soldiers from the army, if need be with the help of the KhAD. They were thus inextricably connected to the frequent arrests, torture, disappearances and/or executions of disloyal members of the army by the KhAD.", "23. The Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. The Minister relied in this regard on the general official report of 29 February 2000.", "24. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in KhAD and the political affairs divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention on the basis of the prescribed test known as the “personal and knowing participation test”.", "25. On this point, the Minister found that, in view of the contents of the aforementioned official reports of the Ministry of Foreign Affairs, the first applicant had known or should have known about the criminal character of the KhAD, given his position in one of the political affairs divisions of the army and the contacts he had maintained professionally. The Minister further found that the first applicant had directly facilitated the crimes committed by KhAD by performing his tasks in the Afghan army, inter alia the attributed task of arresting and persuading deserters trying to flee across the border to continue military service, failure of which led to the handing over of these deserters to the office of the Military Public Prosecutor.", "26. As regards Article 3 of the Convention, the Minister noted that, during an additional interview on his asylum motives held on 1 July 2003, the first applicant had been explicitly invited to submit specific evidence that he would be exposed to a risk of treatment contrary to Article 3 in Afghanistan. The Minister found that the first applicant had not furnished sufficient specific grounds to establish that he would run a real risk of treatment contrary to this provision if returned to Afghanistan. Thus, he had failed to indicate which specific persons or groups would be looking for him, and had only stated in generally phrased terms that he feared persecution by the mujahideen. In respect of the first applicant’s alleged fear of returning to Afghanistan as a (former) member of the PDPA, the Minister held that the first applicant was in a position not dissimilar to that of many other Afghan nationals. Furthermore, the Minister, with reference to the most recent general official report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003, held that the sole fact that an asylum seeker had been a member of the PDPA did not in itself suffice to render Article 3 applicable in the eventuality of an expulsion.", "27. Separate appeals by the applicants were rejected in two distinct judgments handed down on 4 August 2005 by the Regional Court (rechtbank) of The Hague, sitting in Assen.", "28. As regards the first applicant, the Regional Court accepted the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the first applicant. It also rejected the first applicant’s arguments based on Article 3 of the Convention. It agreed with the Minister that the first applicant’s fear that he would be subjected to treatment in breach of this provision was based on assumptions, and that he had not submitted any specific evidence of the identity of the person(s) or group(s), or for what reasons, he expected to encounter problems if he were returned to Afghanistan, whereas – according to an official country assessment report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003 – mere membership of the PDPA and active participation in its regime was in itself not enough to raise an issue under Article 3 of the Convention in the event of expulsion of the alien in question. It further rejected, for lack of substantiation, the first applicant’s claim that the International Security Assistance Force (ISAF) in Afghanistan would be unable to provide him with sustained protection.", "29. Further separate appeals by the applicants were rejected on summary reasoning on 19 December 2005, in two distinct rulings given by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeals did not provide grounds for quashing the impugned rulings (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against these rulings.", "30. On 2 February 2006, the applicants’ fourth child, a daughter named Mina, was born in the Netherlands.", "31. On 29 August 2006, the applicants applied for a regular, non-asylum-related, residence permit. This request was rejected on 6 January 2007. The applicant’s objection (bezwaar) was dismissed on 4 December 2007 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicants initially lodged an appeal with the Regional Court of The Hague, but withdrew this appeal on 15 July 2008.", "32. In the meantime, on 19 February 2008, the second applicant had submitted a fresh asylum claim for herself and on behalf of the three youngest children. The applicants’ eldest daughter had made her own asylum claim. Pursuant to section 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht), a repeat claim – like the one submitted by the second applicant – must be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The asylum claim submitted by the second applicant and her eldest daughter was based on the claim that they had become westernised. The oldest daughter further claimed that she feared being forced into marriage.", "33. On 17 September 2010, after an initial negative decision had been quashed on appeal, the Minister of Justice allowed the asylum claim submitted by the second applicant and the three youngest children. The eldest daughter was also granted asylum.", "34. More than a year earlier, namely on 12 February 2009 and at the applicants’ request, the President of the Chamber had decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Afghanistan for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). At the same time, the President had decided under Rule 54 § 2 (b) that the Government should be invited to submit written observations on the admissibility and merits of the case.", "35. Also, on 27 February 2009 the first applicant had submitted a fresh asylum claim, based on the alleged deterioration in the general security situation in Afghanistan and an increased individual risk of treatment prohibited by Article 3, namely the fact that he was an ex-communist, that he was an atheist and thus belonged to a religious minority, and the fact that he had lived abroad for a long period. He also claimed that, due to his work, he was well known in Afghanistan and was prominent in Afghan circles in the Netherlands. On 19 February 2010, the first applicant was informed of the intention of the Deputy Minister of Justice to reject this request. The first applicant submitted written comments (zienswijze) on this intention on 6 April 2010.", "36. This request was rejected on 22 October 2010 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel). An appeal by the first applicant against this decision was rejected on 31 October 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. It found that the first applicant had not shown evidence that the general security situation in Afghanistan had deteriorated since the determination of his first asylum request, or that the further elements relied on by him did not constitute “nova” warranting a reconsideration of the decision taken on his initial asylum request. In so far as the first applicant relied on Article 8 of the Convention, the Regional Court held that asylum proceedings offered no scope for such arguments, which should be raised in proceedings on a request for a non-asylum-based residence permit, and that it was open for the first applicant to apply for a residence permit based on his family life within the meaning of Article 8. A further appeal by the applicant was dismissed by the Administrative Jurisdiction Division on 31 October 2012. No further appeal lay against this ruling." ]

[]

[ "7. The applicant was born in 1976 and is currently detained at the Corradino Correctional Facility in Paola.", "8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during pre‑trial investigations and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage.", "9. The applicant, at the time twenty-seven years of age, was arrested on 15 April 2003 on suspicion of importation and trafficking of drugs (heroin) in relation to two episodes in March and April 2003. On 17 April 2003 while under arrest and precisely during questioning, after being duly cautioned about his right to remain silent, the applicant, in the absence of a lawyer, gave a statement to the police, which however he refused to sign.", "10. In his statement he said that he regularly drove a white Ford Escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts on 3 March 2003 and that he did not know a certain N. and M. and three other Turkish nationals (K., R., and M.I.). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville, or having received anything from M. or ever having made a phone call to two specific numbers shown to him by the police. He further denied having gone to Paceville with his wife in his car and making contact with M. on 5 March 2003; he also denied that on that day M. had given him heroin capsules in the presence of his wife. He claimed however to have gone to Paceville at 10 a.m. to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever used heroin, and when was the last time he had done so. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he was unaware of the purpose of the paper, which had been in his car for a very long time.", "11. On the same day (17 April 2003) the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also produced another two statements implicating the applicant, given by two prosecution witnesses (N. and M., two Turkish female drug couriers, mentioned above) who had also been arrested and investigated in connection with the same crimes, and who had also not been legally assisted during the police investigation into their case.", "12. In the meantime, on 15 April 2003 the duty magistrate (C.) had been informed that the applicant had been arrested, that a search had been carried out at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry (inkjesta), she appointed the police investigating officer to hold an on-site inquiry, and at the same time appointed a number of experts to assist him (see Articles 546 - 548 of the Criminal Code, relevant domestic law, paragraph 31 below). In their document of appointment, however, the experts were required to report their findings to her within three days. The following day she acceded to the Commissioner of Police’s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In the procès-verbal of 23 April 2003 no findings were reported by her, given that on 21 April 2013 the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings (kumpilazzjoni) had already started in respect of the applicant (see paragraph 9 above). All the relevant documents were attached to the procès-verbal and the record of the in genere inquiry sent to the Attorney General.", "13. The same magistrate (C.) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The resulting bill of indictment was filed by the Attorney General on 14 June 2006.", "14. In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported, or taking steps preparatory to the importation, of heroin between February and 15 April 2003; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use. The Criminal Court sentenced him to twenty-one years’ imprisonment and a fine of 70,000 euros (EUR). During these proceedings the applicant had objected to the statements made by N. and M. on various grounds, however these objections were withdrawn on 30 October 2006, apart from one objection concerning the inadmissibility of the results of the identification parade.", "15. The applicant appealed, claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of the facts, and a disproportionate punishment.", "16. During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional courts on constitutional grounds (different from those raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request.", "17. By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant’s appeal was dismissed and the first-instance judgment confirmed (apart from a slight change in respect of the timing of the third charge).", "18. In so far as is relevant, the Court noted that the jury had had the advantage of seeing and hearing all the witnesses, and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement. The first issue which the jury had to decide was whether the two couriers (N. and M.) had made contact with the applicant in March 2003. In his statement to the police the applicant denied knowing the two women and other people mentioned by them, and also denied that he had made and received calls to and from Turkey. However, the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N. food, gloves, disinfectant and a laxative, and to whom M. had given the capsules they had carried in their stomachs. A number of factors gave credibility to the women’s identification of the applicant: (i) the circumstances of the meetings they had with him at which time he was using a white four-door car and was in the company of an Asian woman; (ii) the applicant’s statement that he habitually made use of a white four-door Ford Escort and that he was married to a Thai woman; (iii) the fact that when arrested N. and M. had separately identified the applicant in photographs; (iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage and before the jury. In the light of all those factors the jurors could reasonably conclude that the person N. and M. had met in March 2003 and to whom they had delivered the capsules was the applicant.", "19. This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police. The experts had stated that the capsules contained heroin. The court rejected the applicant’s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered a key transit route to Europe for heroin.", "20. It appeared from the evidence given by the two women that they had imported heroin in April 2003, which was the second time they had come to Malta. They had been forced to return in April since, in March, M. had lost most of the capsules she was carrying when vomiting on board the flight. The court considered that a recipient would expect to receive the full delivery, and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault. It followed that, from their testimony, it was reasonable for the jury to conclude that what N. and M. had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M. had indicated the applicant as the recipient. The court rejected the applicant’s argument that he could not be the recipient because the women had referred to someone whose father had passed away, which was not the case for the applicant. It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant.", "21. The court further noted that on 15 April 2003, when the delivery was meant to take place, the police had seen the applicant drive around the area (at least three times) in his white Ford Escort, a short time before M. was arrested. Indeed the jurors had not believed the applicant’s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant had denied any connection with Turkey, despite the fact that he could not explain the Turkish names written on a piece of paper which was found in his car and which he admitted he had written himself, and that N. had testified that the applicant had spoken to a Turkish person on the telephone.", "22. The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003.", "23. The applicant instituted constitutional redress proceedings, claiming a breach of his right to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings. He requested a remedy including, but not limited to, a declaration that the criminal proceedings be cancelled and compensation paid.", "24. By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claim.", "25. In respect of the statement made by the applicant on 17 April 2003 the court noted as follows: (i) the applicant had not raised the issue before his criminal proceedings came to an end, and the judgment was now res judicata; (ii) neither had he raised the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii) the applicant’s statement was not determinant to finding him guilty: in his statement he had not admitted to trafficking in drugs or that he knew N. and M., and he had chosen to remain silent when questioned about drug use; (iv) while it was true that the Court of Criminal Appeal had referred to extracts from his statement, this was not the basis of his conviction, which was based on the evidence given in court by M. and N. and on the results of the previous identification parades – indeed he had said nothing relevant in his statement.", "26. The court concluded that the proceedings having ended it had to look at the entirety of the proceedings, and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him, and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself.", "27. The court rejected the second complaint in relation to legal assistance for the witnesses, in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged; the applicant could have challenged them during the trial but had opted not to do so.", "28. Lastly, in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police, did not act as a prosecutor, and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant’s case was also tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in the committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30 October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passivity.", "29. By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant’s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v. Turkey [GC] (no. 36391/02, ECHR 2008) had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made his statement. The rationale of the right was precisely that, and not to allow guilty persons to be let off scot‑free because of a formality which had no real or serious consequences. In the present case the applicant did not claim that he was forced to make the statement, or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding abuses, which in fact did not happen in the applicant’s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage, namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant’s case, and thus there could be no violation of his rights. The Constitutional Court held that even if the statement had been determinant for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever, as the applicant had not admitted to anything and the Court of Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant’s version. It had been other evidence that had led to his finding of guilt. Lastly, the Constitutional Court noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article 6.", "30. As to the complaint related to the witnesses, the court did not rule out the applicant’s locus standi, which could come into play if their statements had been made under duress. However, it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly it confirmed the reasoning of the first-instance court relating to the impartiality of the magistrate, finding the applicant’s argument opportunistic." ]

[ 3 ]

[ "6. The applicant was born in 1965 and has been residing in the Netherlands since 1997.", "7. The applicant entered the Netherlands on 2 December 1997 and applied for a residence permit for the purpose of asylum as well as for reasons not related to asylum. In support of this application, he gave the following account in his interviews with immigration officials.", "8. He had been a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) since 1978/79, and had worked for the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”)[1] from 1982 to 1992. Upon the PDPA’s advice the applicant had joined the KhAD as an alternative to mandatory military service. He had been stationed in Paktia from 1982 to 1986, where he had initially performed administrative tasks for one month within KhAD’s local Political Affairs department, followed by preparing/compiling course materials for KhAD’s internal training within the same department. He had done this until 1986. He had also been involved in the organisation of cultural events for KhAD’s youth department.", "9. In 1984 the applicant had been sent to the Union of Soviet Socialist Republics (“USSR”) for six months for training (KhAD’s organisation and the functioning of a secret service). Upon completion of this training he had been promoted to the rank of third lieutenant. In 1986 the applicant had participated in six months of political training, also in the USSR.", "10. From 1987 to 1988 the applicant had worked for KhAD’s Political Affairs department in Kandahar. From 1988 to 1992 he had worked for KhAD’s “Directorate 89”, located in Kabul, where he had been given the task of internal control and research into the functioning of KhAD staff. The applicant’s highest attained military rank, through periodical promotions, was that of major.", "11. The applicant had fled from Afghanistan to Pakistan on 5 May 1992, a week after the fall of the PDPA regime. After the applicant’s flight, his father was assaulted in Afghanistan by mujahideen who had come to ask him about the applicant’s whereabouts. The applicant’s father had to have a kidney removed as a consequence of the battering he suffered at the hands of the mujahideen. The applicant’s family had joined the applicant in Pakistan six months after the applicant’s departure from Afghanistan, but they had lived separately for safety reasons. His family had lived with relatives in Pakistan, close to the Afghan border. The applicant himself had stayed in Karachi. On an unspecified date in 1995, unidentified mujahideen had come to the applicant’s parents’ home searching for the applicant. On that occasion, the applicant’s youngest brother had been ill-treated and another brother had been taken away, tortured and killed by the mujahideen in their attempt to find the applicant.", "12. On 21 April 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request, holding that the applicant had failed to establish personal circumstances warranting a decision to grant him asylum. The applicant had never been approached personally by the mujahideen in Afghanistan; he had only made vague declarations about the post he had held in the KhAD, and he had lived for more than five years in Pakistan without experiencing problems and/or having been found by the mujahideen (who were said to be active in Pakistan too). Although they might have known where the applicant’s family were, it was considered implausible that the mujahideen would have been aware of the applicant’s whereabouts in Pakistan. The Deputy Minister also held that the applicant’s submissions regarding the assault on his father and killing of his brother were brief and vague.", "13. The Deputy Minister of Justice did, however, grant the applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 3 December 1997, on the basis of a temporary categorial protection policy (“categoriaal beschermingsbeleid”) in respect of Afghanistan.", "14. On 18 May 1998 the applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 21 January 2000, following a hearing held on 30 September 1999 before an official board of enquiry (ambtelijke commissie), the Deputy Minister rejected the applicant’s objection. The Deputy Minister found, inter alia, that the applicant had failed to establish that he had held a position within KhAD of sufficient importance to warrant the conclusion that he would run a real risk of persecution upon his return to Afghanistan. The Deputy Minister further noted that the applicant had not experienced any problems with the mujahideen either, stressing that the applicant had easily crossed a mujahideen-controlled border crossing with Pakistan in 1992. The Deputy Minister further found that the applicant had failed to demonstrate that he ran a real risk of persecution by the Taliban, who were in charge of most of Afghanistan at the time the impugned decision was taken. The Deputy Minister underlined in this regard the unlikelihood of the Taliban having been aware of the applicant’s past activities for KhAD, including the two military training programmes he had allegedly attended in the USSR. The Deputy Minister also dismissed the applicant’s argument that, in Afghanistan, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention.", "15. The applicant lodged an appeal against this decision with the Regional Court (rechtbank) of The Hague. Pending these appeal proceedings, the applicant was informed that the Deputy Minister had decided, in view of the applicant’s involvement with the KhAD, to examine the possible applicability of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention) to his case and that for this reason the impugned decision of 21 January 2000 was withdrawn. Thereupon, the applicant withdrew his appeal.", "16. Meanwhile in December 2000, the situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was converted ex lege into an indefinite residence permit after he had held it for a period of three years. Subsequently, with the entry into force of the Aliens Act 2000 (Vreemdelingenwet 2000) on 1 April 2001, the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum.", "17. On 17 March and 9 April 2003, the applicant was interviewed by the immigration authorities about the nature of his activities for the KhAD.", "18. On 22 March 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to revoke his residence permit and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD.", "19. The Minister found it established that the applicant had worked as a commissioned officer in the KhAD’s Directorate 89 from 1988 to 1992 and considered that, in his account to the Netherlands authorities, he had sought to trivialise his activities for the KhAD. She rejected the applicant’s argument that the applicability of Article 1F of the 1951 Refugee Convention ought to have been examined at an earlier stage, holding that at the relevant time (1997/98) considerably less information had been available to the Netherlands asylum authorities about the full extent of the human rights violations committed by the KhAD, notwithstanding that to a certain extent there had been a general awareness of the nature of the former communist regime in Afghanistan.", "20. The Minister then proceeded to an analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed and so-called “knowing and personal participation” test. Noting, inter alia, the applicant’s steady career path in the KhAD, the Minister excluded the possibility of the applicant not having known or not having been involved in human rights violations committed by the KhAD. Relying on the official report of 29 February 2000, the Minister underlined the widely known cruel character of KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations as well as the climate of terror which it had spread throughout the whole of Afghan society. The Minister lastly emphasised that the applicant had done nothing to distance himself from KhAD during the ten years he had made a career there, referring to the applicant’s own statement to the effect that he had consciously chosen to stay with KhAD in order to avoid being sent to the war front. The Minister considered that the consequences of that choice were for the applicant to bear.", "21. On 28 April 2004, the applicant submitted written comments (zienswijze) on the Minister’s intended decision and, on 19 May 2005, he was once more heard before an official board of enquiry.", "22. On 6 January 2006 the applicant was served with an additional notice of intent in which the Minister examined whether the applicant’s expulsion to Afghanistan would be compatible with his rights under Article 3 of the Convention, as required in expulsion cases according to the case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State. The Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, the position of ex-communists and persons associated with the former communist regime was not yet entirely clear. Members of the KhAD/WAD possibly ran a risk of becoming a victim of human rights violations from the side of the authorities (except for the government) but more so from the side of the population (victims’ relatives) as they were identified with human rights violations during the communist regime. However, there were no indications that persons in Afghanistan should fear persecution merely because of their ties with the former communist regime. The Minister, therefore, held that the applicant had to demonstrate personal facts or circumstances warranting the conclusion that his return to Afghanistan would be in breach of Article 3 of the Convention, and found that the applicant had not done so. In reaching this finding, the Minister noted that the applicant’s fear of being subjected to treatment proscribed by Article 3 had remained unsubstantiated in any concrete manner and was only based on assumptions. The applicant had not specified which particular faction of the mujahideen had been looking for him shortly after he left Afghanistan, nor whether that faction was currently holding any position of power in Afghanistan. The Minister further took into account the applicant’s statement made at the hearing of 19 May 2005 that in the meantime his parents and brother had returned to Kabul. Although the applicant’s father had allegedly been approached in early 2005 by individuals asking for the applicant, the Minister held that it had not been demonstrated that the applicant’s parents and brother had experienced serious difficulties from the authorities or any groups. The Minister further considered that the mere fact that Article 1F of the 1951 Refugee Convention was being held against the applicant did not in itself warrant the conclusion that, if expelled to Afghanistan, he would have to fear treatment contrary to Article 3 of the Convention. The Minister also rejected as still unsubstantiated the applicant’s claims that he risked treatment contrary to Article 3 because he would be considered an infidel as his family was not professing Islam, as he drank alcohol and had studied, and also because of his ethnicity.", "23. The applicant submitted additional written comments on 15 February 2006 and, on 18 May 2006, was heard once more before an official board of enquiry.", "24. In her decision of 28 November 2006, the Minister revoked the applicant’s residence permit. The notices of intent of 22 March 2004 and 6 January 2006 were added to the decisions and formed part of them. The Minister did not deviate, in the relevant part, from her earlier conclusions in the notices of intent and went on to confirm them on all points. The applicant’s rebuttals were dismissed as not raising any new grounds. Moreover, in a letter of the same date the Minister informed the Public Prosecutor’s Office (Openbaar Ministerie) that Article 1F of the 1951 Refugee Convention had been held against the applicant and asked the Public Prosecutor’s Office to consider prosecuting the applicant under criminal law. No further information on any follow-up to this letter has been submitted.", "25. On 11 December 2006, the Minister notified the applicant of her intention also to impose an exclusion order (ongewenstverklaring) on him. The applicant submitted written comments on this intended decision on 21 December 2006 and on 9 July 2007 was heard before an official board of enquiry.", "26. An appeal by the applicant against the Minister’s decision of 28 November 2006 was rejected on 13 July 2007 by the Regional Court of The Hague, sitting in ‘s-Hertogenbosch. It accepted the Minister’s impugned decision to hold Article 1F against the applicant as well as the underlying reasoning. It further upheld the Minister’s decision and underlying reasoning that the applicant’s removal would not be contrary to his rights under Article 3 of the Convention.", "27. On 19 September 2007, the Administrative Jurisdiction Division rejected a further appeal by the applicant on summary grounds, holding:\n“What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.”\nNo further appeal lay against this ruling.", "28. On 28 September 2007, the Deputy Minister of Justice imposed an exclusion order on the applicant. An objection by the applicant to this decision was rejected by the Minister on 8 January 2008. On 14 January 2008, the applicant appealed to the Regional Court of The Hague. No further information about these appeal proceedings has been submitted." ]

[]

[ "5. The applicants were employed as police officers. They were all charged with the commission of various criminal offences. They were dismissed from the police force pursuant to Article 45 of the Ministry of Interior Act 1991 which was in force at the time. Subsequently, all the applicants were acquitted. However, their dismissals remained in force. They unsuccessfully challenged their dismissals in civil proceedings before the national courts.", "6. On 26 April 2004 a criminal complaint was lodged against the first applicant with the Jagodina District Court (“the District Court”). He was reported to have instigated his superior, the second applicant, to abuse his power. He was arrested the same day and criminal proceedings were instituted against him.", "7. On 26 April 2004, simultaneously with the initiation of criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.", "8. On 5 May 2004 the Ćuprija Municipal Prosecutor charged the applicant for alleged instigation to abuse of power.", "9. On 7 June 2004 the competent directorate of the Ministry of the Interior rendered a decision by which the applicant was dismissed from the police force. The decision noted that criminal proceedings had been instituted against the applicant and that Article 45 of the Ministry of Interior Act 1991 which was in force at the time of the dismissal could be applied. The applicant lodged an appeal against this decision. On 16 July 2004 the Minister, acting as a second-instance administrative body, rejected his appeal, confirming the dismissal.", "10. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits. The Disciplinary Court concluded that the applicant had already been dismissed from the police force as a result of the initiation of the criminal proceedings against him and that this fact rendered the disciplinary proceedings redundant.", "11. On 29 November 2004 the Ćuprija Municipal Court (“the Municipal Court”) acquitted the applicant. The Prosecutor appealed against this decision. On 29 March 2005 the District Court confirmed the Municipal Court’s decision and the applicant’s acquittal became final.", "12. Shortly after the applicant’s acquittal in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the above decisions on dismissal. On 10 March 2006 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his former post. The court held that the formulation of Article 45 of the 1991 Ministry of Interior Act left broad discretionary powers to the Ministry of Interior to dismiss its employees even when no criminal responsibility was attributable to them. It concluded that this legal solution “most certainly left the possibility of abuse of this authority.” It also observed that the applicant had been acquitted in criminal proceedings instituted against him. Finally, the court noted that the applicant had been dismissed without any determination of his disciplinary responsibility but solely through the use of the discretionary power given to the Ministry by Article 45 of the 1991 Ministry of Interior Act and without any further reasoning.", "13. The Ministry of the Interior appealed against this decision. On 2 November 2006 the District Court upheld the decision and reasoning of the Municipal Court.", "14. The Ministry of the Interior lodged an appeal on points of law before the Supreme Court. On 25 April 2007 the Supreme Court quashed the District Court’s decision and decided that the applicant’s dismissal was lawful. According to the Supreme Court, the Ministry of Interior had used its discretionary power under Article 45 of the Ministry of Interior Act 1991 in accordance with the law. It concluded that the applicant’s acquittal in the criminal proceedings and the absence of a decision on the merits in the disciplinary proceedings were irrelevant to his dismissal. It also held that the lower courts had overstepped the limits of their authority in considering the necessity, proportionality and correctness of the dismissal decision.", "15. On 26 April 2004 a criminal complaint was lodged against the second applicant with the District Court. He was alleged to have committed the crime of abuse of power. He was arrested the same day and criminal proceedings were instituted against him.", "16. On 26 April 2004, simultaneously with the initiation of the criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.", "17. On 5 May 2004 the Municipal Prosecutor charged the applicant with alleged abuse of power.", "18. On 7 June 2004 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force. The reasoning of the decision was identical to that in the case of the first applicant. The applicant appealed against this decision. On 19 July 2004, the second-instance administrative body confirmed the decision.", "19. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits for the same reasons as in the case of the first applicant.", "20. On 29 November 2004 the Municipal Court acquitted the applicant. The prosecutor lodged an appeal which was dismissed on 29 March 2005 by the District Court. It confirmed the Municipal Court’s decision and the applicant’s acquittal became final.", "21. The applicant instituted civil proceedings after the acquittal, in which he requested the annulment of the above decision on dismissal. On 25 April 2005 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his previously held post. The reasoning of the court was the same as in the case of the first applicant.", "22. The Ministry of the Interior appealed against this decision. On 8 July 2005 the District Court upheld the decision and reasoning of the Municipal Court.", "23. The Ministry of the Interior lodged an appeal on points of law. On 27 March 2007 the Supreme Court quashed the above decisions on the same grounds as in the case of the first applicant.", "24. On 19 October 1999, the Vranje District Prosecutor lodged an indictment with the Vranje District Court (“the District Court”) against the third applicant for the alleged unauthorised possession of weapons and ammunition. On 17 December 1999 the Vranje District Court found him guilty as charged and sentenced him to one year of imprisonment.", "25. On 14 June 2000 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force with the same reasoning as in the case of the first and the second applicants. The applicant appealed. On 13 July 2000 the second-instance administrative body confirmed the above decision. No disciplinary proceedings were instituted against the applicant.", "26. On 6 November 2001 the Supreme Court confirmed the applicant’s conviction in criminal proceedings. The applicant lodged a request for the re-opening of the proceedings, which was granted. On 2 September 2005 the Vranje District Court acquitted the applicant. The Prosecutor appealed against this decision. On 22 February 2006 the Supreme Court confirmed the acquittal.", "27. Shortly after the applicant was acquitted in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the 14 June 2000 decision on dismissal.", "28. On 18 October 2006 the Vranje Municipal Court accepted the applicant’s claim and ordered the Ministry of the Interior to reinstate the applicant in his previously held post. The Ministry of the Interior appealed. On 7 February 2007 the Vranje District Court quashed this decision, giving essentially the same reasons as in the decisions of the Supreme Court delivered in the cases of the first and the second applicant. The applicant lodged an appeal on points of law. On 3 August 2007 the Supreme Court upheld the District Court’s decision.", "29. In the criminal proceedings against the third applicant, another police officer, G.M. was a co-defendant. G.M. was charged with the same crime as the applicant and was acquitted. He is still employed as a police officer.", "30. The third applicant also instituted a separate set of civil proceedings in which he requested compensation for non-pecuniary damage related to his unlawful detention, stress sustained in prison and the loss of reputation caused by the imprisonment. On 10 October 2008 the Gnjilane Municipal Court partially accepted the applicant’s claim and awarded him 780,000 dinars (RSD), (approximately 6,330 euros (EUR)). On 18 December 2008 the Gnjilane District Court partially upheld this decision, decreasing the awarded amount to RSD 530,000 (approximately EUR 5,640). The awarded sum was paid to the applicant accordingly." ]

[ 3, 4 ]

[ "5. The applicants were born in 1958 and 1961 respectively and live in Zagreb.", "6. On 13 February 2001 the applicants’ mother died after being admitted for respiratory problems to the Jordanovac Clinical Hospital Centre (Klinički bolnički centar Jordanovac; hereinafter: the “Hospital”), a public health care institution.", "7. An autopsy performed on the next day by the General Medical Pathology and Anatomical Pathology Department of the Zagreb University Medical Faculty (Zavod za opću patologiju i patološku anatomiju Medicinskog fakulteta Sveučilišta u Zagrebu) indicated that the cause of death was a respiratory insufficiency leading to cardiac complications.", "8. The applicants were informed of the results of the autopsy and the measures which had been taken in the treatment of their mother were explained to them.", "9. According to the applicants, based on a mutual agreement, it was decided that the first applicant would pursue legal remedies concerning the death of their mother.", "10. In July 2001 the first applicant met two health inspectors at the Ministry of Health (Ministarstvo zdravstva; hereinafter: the “Ministry”) to whom she complained of their inability to obtain their mother’s medical records and about the circumstances in which she had died. The inspectors, however, took no further action concerning these complaints.", "11. On 1 October 2002 the first applicant complained to the Croatian Medical Chamber (Hrvatska liječnička komora; hereinafter: the “CMC”) that her mother had died in unclear circumstances which had severely affected her family. She also expressed her dissatisfaction with the functioning of the medical system and complained in particular of her own medical treatment.", "12. Upon receiving the first applicant’s complaint, the Professional Supervisory Commission of the Croatian Medical Chamber (Povjerentsvo za stručni nadzor Hrvatskw liječničke komore; hereinafter: the “Commission”) invited the first applicant to specify in respect of which doctor and medical institution she made her complaints.", "13. By a letter of 28 February 2003 the Commission informed the first applicant that it considered her complaints to be withdrawn as she had failed to specify them as requested.", "14. On 17 March 2003 the first applicant replied to the letter of the Commission maintaining that there must have been some misunderstanding with the correspondence she had received from them. She indicated that her complaint concerned the Hospital, its director doctor, LJ.P., and the head of the intensive care unit doctor, B.S. The first applicant in particular submitted that her family had never received any relevant documents concerning their relative’s death. A copy of this reply was sent to the Ministry.", "15. After receiving the first applicant’s complaint, the Ministry requested the Hospital to provide a report concerning her mother’s death.", "16. On 16 April 2003 the Hospital submitted a report to the Ministry concerning the medical treatment of the applicants’ mother and the circumstances of her death.", "17. On 30 April 2003 the Ministry forwarded all available documents to the Commission and requested a report on the actions taken with regard to the first applicant’s complaint.", "18. By a letter of 2 May 2003 the Commission informed the first applicant that it had not found any malpractice in the medical treatment of her mother.", "19. The first applicant objected to these findings on 6 June 2003. She stressed that her family had never received any concrete document indicating the cause of death of their relative and that the letter which she had received from the Commission lacked the relevant reasoning.", "20. On 15 July 2003 the first applicant submitted further observations on her objection and on 20 November 2003 she urged the CMC to adopt a decision on the matter.", "21. On 21 October 2003 the CMC Executive Board (Izvršni odbor Hrvatske liječničke komore), as a second-instance body of the CMC, dismissed the first applicant’s objection as ill-founded, upholding the decision of the Commission. It also informed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court (Upravni sud Republike Hrvatske).", "22. After receiving the decision of the CMC Executive Board, the first applicant requested the CMC for an explanation concerning the procedure before it. On 4 December 2003 she received a reply from the CMC indicating that she had been accordingly informed that she could lodge an administrative action in the Administrative Court and that there was no need for the CMC to communicate further with her concerning the matter.", "23. On 24 November 2003 the first applicant lodged an administrative action in the Administrative Court challenging the decision of the CMC Executive Board. She argued that the bodies of the CMC had not replied to her submissions and had failed to properly assess the circumstances of her mother’s death.", "24. On 24 April 2006 the first applicant urged the Administrative Court to examine her case. She received a reply from the Administrative Court on 11 May 2006 indicating that due to a backlog at that court her case had still not been examined.", "25. The applicant then complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) about the manner in which her case was processed by the Administrative Court and on 4 October 2006 the Ministry of Justice requested the Administrative Court for a report on the matter. The Administrative Court replied on 14 November 2006, reiterating its previous explanation as to the reason why the case had not been examined.", "26. On 14 February 2007, upon another complaint by the first applicant, the Ministry of Justice requested the Administrative Court for a report concerning the progress of the case.", "27. On 2 March 2007 the Office of the President of the Republic of Croatia (Ured Predsjednika Republike Hrvatske), based on the first applicant’s complaint, urged the Administrative Court to speed up the proceedings in her case.", "28. On 5 October 2007 the Administrative Court declared the first applicant’s administrative action inadmissible on the ground that the decision of the CMC Executive Board was not an administrative decision concerning any of her rights or obligations or legal interests.", "29. On 8 January 2008 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of the ineffectiveness of the proceedings before the lower bodies and her family’s inability to obtain any concrete information about the circumstances of their relative’s death.", "30. On 27 February 2010 the first applicant urged the Constitutional Court to examine her case. Meanwhile she supplemented her constitutional complaint with further arguments and complaints, complaining in particular about the inordinate length of the proceedings in her case.", "31. On 19 August 2010, the first applicant also asked the Constitutional Court to allow her to inspect the case file.", "32. In the meantime, the first applicant complained to various domestic authorities, including the Office of the President of the Republic of Croatia, the Office of the Prime Minister of Croatia (Ured Predsjednika Vlade Republike Hrvatske) and a Deputy in the Parliament about the ineffectiveness of the domestic authorities’ response to her complaints concerning her mother’s death.", "33. On 26 November 2012 the Ministry, replying to a question of the Deputy, stressed that it had never taken any action within its competence concerning the applicants’ case, although it had taken note of the proceedings before the competent bodies of the CMC and informed the first applicant of its findings with regard to the decisions of the CMC.", "34. On 17 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint of 8 January 2008 as ill-founded (see paragraph 29 above), upholding the decision of the Administrative Court. It also declared the applicant’s additional complaints inadmissible as being lodged out of time and for non-exhaustion of the length of proceedings remedies. The decision of the Constitutional Court was served on the first applicant on 14 January 2014.", "35. On 6 February 2004 the first applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) alleging medical negligence by unknown Hospital staff. In particular, the first applicant submitted that upon the admission of her mother to the Hospital she had been given a drug to which she was allergic, which had caused an allergic reaction and further medical complications leading up to her death.", "36. After lodging the criminal complaint, the first applicant inquired several times with the Zagreb Municipal State Attorney’s Office about the progress of the investigation.", "37. On 13 September 2006 the first applicant submitted a written request to the Zagreb Municipal State Attorney’s Office urging it to examine her criminal complaint.", "38. As she received no reply from the Zagreb Municipal State Attorney’s Office, the first applicant complained to the Ministry of Justice about the inactivity in processing her complaint.", "39. Based on the first applicant’s complaint, on 4 October 2006 the Ministry of Justice requested a report from the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) concerning the case.", "40. Since it received no reply, on 14 February 2007 the Ministry of Justice again urged the State Attorney’s Office of the Republic of Croatia to produce a report concerning the proceedings at issue.", "41. On 1 March 2007 the State Attorney’s Office of the Republic of Croatia informed the Ministry of Justice and the first applicant that the Zagreb Municipal State Attorney’s Office had requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to commission an expert report concerning the circumstances of the applicants’ mother’s death. It also stressed that this fact should be known to the first applicant as she had been duly informed about the status of the proceedings when she had made an inquiry in the Zagreb Municipal State Attorney’s Office.", "42. After receiving this information, the first applicant made several inquiries in the Zagreb County Court concerning the status of the case. On 11 January 2008 she was informed by that court that the Zagreb Municipal State Attorney’s Office had never requested any investigative actions concerning her criminal complaint.", "43. Meanwhile, on 21 December 2007 the Zagreb Municipal State Attorney’s Office found that the first applicant’s case file had been lost and ordered that it should be reconstructed.", "44. The Zagreb Municipal State Attorney’s Office also ordered the police to conduct an investigation into the circumstances of the first applicant’s complaint. In addition, it requested the Zagreb University Medical Faculty to provide the autopsy report, and it commissioned an expert report concerning the circumstances of the applicants’ mother’s death.", "45. On 2 January 2008 the police produced a report on the interviews with the applicants’ mother’s general practitioner and doctor B.S. The latter denied any medical malpractice and administration of the drug to which the applicants’ mother was allergic. His statement was confirmed by the Hospital director, doctor LJ.P. The police also obtained the relevant medical records concerning the medical treatment and death of the applicants’ mother.", "46. On 8 January 2008 an expert, doctor J.Š., produced a report indicating that the cause of death of the applicants’ mother was a respiratory insufficiency leading to cardiac complications. The report did not indicate any medical malpractice on the part of the Hospital doctors.", "47. On 25 January 2008 the Zagreb Municipal State Attorney’s Office rejected the first applicant’s criminal complaint on the ground that there was no reasonable suspicion that a criminal offence had been committed in the medical treatment of the applicants’ mother. The first applicant was instructed that she could take over the prosecution as a subsidiary prosecutor.", "48. On 13 February 2008 the first applicant asked the Zagreb Municipal State Attorney’s Office to provide her with a copy of the entire domestic case file.", "49. On 21 February 2008, after she had received the relevant documents from the Zagreb Municipal State Attorney’s Office, the first applicant instituted criminal proceedings in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) against doctor B.S. on charges of medical negligence.", "50. In the meantime, the first applicant complained to various domestic authorities about the ineffectiveness of proceedings before the Zagreb Municipal State Attorney’s Office and on 11 April 2008 she received a reply from the State Attorney’s Office of the Republic of Croatia expressing its regrets for the protracted length of the proceedings dealing with her criminal complaint.", "51. On 7 August 2008 the Zagreb Municipal Criminal Court requested the Zagreb Municipal State Attorney’s Office to forward the relevant documents concerning the first applicant’s case.", "52. The documents were provided on 16 October 2008.", "53. On 16 March 2009 the Zagreb Municipal Criminal Court invited the first applicant to amend her request to prosecute (optužni prijedlog) as required under the relevant domestic law concerning the factual and legal basis of the charges against doctor B.S.", "54. On 30 March 2009 the first applicant submitted an indictment (optužnica) against doctor B.S. on charges of medical negligence.", "55. As there was no progress in the proceedings, on 13 November 2009 the applicant urged the Zagreb Municipal Criminal Court to examine her case.", "56. On 22 December 2009 the Zagreb Municipal Criminal Court commissioned an expert report concerning the medical treatment and death of the applicants’ mother. It requested an investigating judge of the Zagreb County Court to coordinate that procedural action.", "57. An expert report of 11 March 2010, drafted by doctors D.M. and I.Š., indicated that there had been no irregularity in the medical treatment of the applicants’ mother. It further found that the drug, to which the applicant’s mother was allergic, had neither been used nor indicated for use during her treatment on 13 February 2001. The experts also excluded the possibility that the applicants’ mother had died as a result of an allergic reaction.", "58. The first applicant received the expert report on 27 August 2010.", "59. On 22 September 2010 the first applicant challenged the findings of the expert report, arguing that it had failed to examine all aspects of the medical treatment and death of her mother. The first applicant thus requested that the experts be ordered to re-examine and accordingly supplement their findings.", "60. On 4 April 2011 a three-judge panel of the Zagreb Municipal Criminal Court returned the indictment to the first applicant, ordering her to institute an investigation before an investigating judge of the Zagreb County Court.", "61. The first applicant complied with that order and on 25 April 2011 requested that an investigation be opened before an investigating judge of the Zagreb County Court.", "62. On 14 October 2011 an investigating judge of the Zagreb County Court questioned doctor B.S., who denied any medical malpractice maintaining that the drug to which the applicants’ mother was allergic had neither been used nor indicated in her treatment.", "63. On 12 December 2011 the investigating judge expressed his disagreement with the first applicant’s request for opening of an investigation and forwarded the case file to a three-judge panel of the Zagreb County Court.", "64. On 16 February 2012 a three-judge panel of the Zagreb County Court dismissed the first applicant’s request for an investigation on the ground of lack of evidence of medical malpractice. The first applicant challenged this decision by lodging an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske).", "65. Meanwhile, the first applicant complained to the Supreme Court about the length of the criminal proceedings and on 18 September 2012 the Supreme Court found a violation of her right to a trial within a reasonable time and awarded her 2,500 Croatian kunas (HRK) in non-pecuniary damage (approximately EUR 340).", "66. On 28 November 2012 the Supreme Court dismissed the first applicant’s appeal and upheld the decision of the Zagreb County Court of 16 February 2012 (see paragraph 64 above). The decision of the Supreme Court was served on the first applicant on 24 December 2012.", "67. The first applicant then lodged a constitutional complaint with the Constitutional Court, complaining of the ineffectiveness of the proceedings before the lower courts and their failure to elucidate the circumstances of her mother’s death.", "68. On 28 February 2013 the Constitutional Court declared the constitutional complaint inadmissible on the ground that the decisions of the lower courts did not concern any of her rights or obligations or any criminal charge against her. The decision of the Constitutional Court was served on the first applicant on 12 March 2013.", "69. On 28 March 2013 the first applicant lodged a request for the reopening of the proceedings before the Zagreb County Court, alleging procedural flaws in the processing of her case.", "70. The Zagreb County Court rejected the request as unfounded on 29 October 2013 and this was upheld by the Supreme Court on 20 March 2014.", "71. The first applicants also lodged a criminal complaint against the medical experts D.M. and I.Š. on 27 August 2013 alleging that they had provided false evidence. On 7 October 2013 she received a reply from the Zagreb Municipal State Attorney’s Office indicating that it considered her criminal complaint unfounded in any respect." ]

[ 0 ]

[ "6. The applicant is of Pashtun origin, was born in 1964 and has been in the Netherlands since 1998.", "7. The applicant entered the Netherlands on 3 August 1998 and on 4 August 1998 applied for asylum, submitting the following account in his interviews with immigration officials held on 4 August 1998, 26 August 1998 and 21 March 2000.", "8. After completing his elementary education in 1976, the applicant had attended the military academy in Kabul. He had graduated in 1982 and had started working in 1982 with the rank of second lieutenant at an administrative department of one of the directorates of the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”)[1] during the former communist regime in Afghanistan. He had become head of this department – which was responsible for handling confidential documents – in 1988, which function he had continued to hold until the fall of the ruling communist People’s Democratic Party of Afghanistan (“PDPA”) in 1992. In 1990 he had been promoted to the rank of lieutenant-colonel.", "9. The applicant’s directorate had been assigned the task of negotiating and concluding agreements with groups that opposed and fought the communist Government, namely the mujahideen. These agreements entailed remunerated cooperation with the ruling PDPA. The applicant had attended meetings between thus “employed” mujahideen commanders and executives of the directorate. During these meetings the performance of such commanders was assessed and decisions were taken on whether or not they should continue to be paid. The applicant had taken minutes at those meetings. He believed that the mujahideen were holding him personally responsible for the discontinuation of their pay where decisions to that effect had been taken. In addition, these mujahideen commanders had never admitted to cooperating with the KhAD and were very keen on keeping this a secret, for which reason they were interested in eliminating the applicant.", "10. In 1992, after the fall of Kabul, these mujahideen commanders had come looking for the applicant. They were said to have come to his office and asked for him. The applicant had been informed of this by the president of the directorate he had worked for, who had maintained good relations with the mujahideen and hence had remained in post there.", "11. The applicant and his family had fled to Mazar-e-Sharif, where they had led a quiet life until 1997, when various mujahideen groups had come to the city, including those mujahideen feared by the applicant. He had gone into hiding, during which period his house had been searched by the mujahideen. The applicant and his family had then fled to Pakistan.", "12. On 15 September 1999, a person-specific official report (individueel ambtsbericht) not concerning the applicant was drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken). According to this report, torture was systemic in WAD interrogation centres and within the KhAD the loyalty of its staff was carefully controlled. It was considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in the implementation of the above methods. This report was taken into account in the applicant’s asylum procedure.", "13. The applicant’s asylum claim was also examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015).", "14. By a decision of 18 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum claim. The Deputy Minister held, inter alia, that serious reasons had been found for believing that the applicant had committed acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”).", "15. Referring to the official report of 29 February 2000 (see paragraph 13 above), the Deputy Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Deputy Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. It was also noted that the KhAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, new recruits were initially assigned to KhAD/WAD sections actively engaged in tracking down “elements that posed a threat to the State”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations the KhAD was associated with. In this regard the Deputy Minister emphasised that every promoted officer had been involved in arrests, interrogations, torture and even executions.", "16. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention. In the light of the above, the applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. In view of the applicant’s career and several promotions, the Deputy Minister excluded the possibility of the applicant not having been involved in human rights violations committed by the KhAD.", "17. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof that the applicant had personally committed the alleged crimes; it sufficed that serious reasons existed to consider that the applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. In this context the Deputy Minister referred, inter alia, to paragraphs 42 and 43 of “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996), stating:\n“persons who are found to have performed, engaged in, participated in orchestrating, planning and/or implementing, or condoned or acquiesced in the carrying out of any specified criminal acts by subordinates, should rightly be excluded. ... voluntary continued membership of a part of a government engaged in criminal activities may constitute grounds for exclusion where the member cannot rebut the presumptions of knowledge and personal implication.”", "18. The Deputy Minister further referred to a letter of 28 November 1997 sent by the Deputy Minister of Justice to the President of the Lower House of Parliament (Tweede Kamer) stating that Article 1F was also applicable when the person concerned had not himself committed any acts referred to in this provision but had been an active and conscious member of an organisation known for committing war crimes and crimes against humanity. As the applicant had not in any way distanced himself from or resisted the crimes committed by the KhAD, the Deputy Minister concluded that Article 1F was applicable to the applicant’s case. Consequently, the applicant’s asylum request was rejected and Article 1F held against him.", "19. The Deputy Minister further found no grounds on the basis of which the applicant would be eligible for a residence permit on compelling humanitarian grounds (klemmende redenen van humanitaire aard). As regards the applicant’s plea under Article 3 of the Convention the Deputy Minister held that, even assuming that a real risk existed of the applicant being subjected to treatment contrary to that provision in Afghanistan, Article 3 did not guarantee a right to residence. The Deputy Minister considered in this context that granting residence to the applicant would conflict with the State’s interest in terms of its credibility on the international stage, particularly regarding its responsibility towards other States. In the Deputy Minister’s view, a situation in which the Netherlands was forced to become a host State for individuals who had elsewhere shocked public and international legal order with acts considered to constitute grave crimes under both Dutch and international law was to be avoided.", "20. The applicant’s objection (bezwaar) to this decision was rejected, after he had been heard on it on 16 May 2003 before an official board of enquiry (ambtelijke commissie), on 11 August 2003 by the Minister of Immigration and Integration (Minister van Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice. The Minister endorsed the Deputy Minister’s impugned decision and proceeded, in addition thereto, to an analysis of the applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “personal and knowing participation test” and held Article 1F against him.", "21. As regards the “knowing” element, the Minister – having regard to the official report of the Ministry of Foreign Affairs of 29 February 2000 (see paragraph 13 above) – found that the applicant had known or should have known about the criminal character of the KhAD. The Minister did not attach any credence to the applicant’s submissions that he had not known about the human rights violations committed by the KhAD. Basing herself on the Ministry of Foreign Affairs official report of 29 February 2000, the Minister held that the commission of human rights violations by the KhAD under the PDPA rule was a fact of common knowledge and that, therefore, it was unthinkable that the applicant would have been ignorant of those acts. The Minister emphasised in this regard the high rank the applicant had held, the long period he had worked for the KhAD and the fact that he had attended meetings with the executives of the Directorate in which he had been employed. The Minister concluded that the applicant had knowingly participated in torture and executions.", "22. As regards the applicant’s personal participation in human rights violations attributed to the KhAD, the Minister found, basing herself to a large extent on the same factual information as the Deputy Minister had done in his previous decision, that the applicant had failed to demonstrate that he had not committed such violations himself or that his conduct, or lack thereof, had prevented these violations from being committed. The Minister held, therefore, that the applicant had personally participated in the commission of acts referred to Article 1F of the 1951 Refugee Convention.", "23. The Minister did not attach credence to the applicant’s rebuttal, which amounted to his case having to be distinguished from the general situation with regard to the KhAD and its officers as described in the official report of 29 February 2000. The applicant had claimed that he had obtained a desk job not by proving his loyalty to the KhAD in sinister ways – as the official report stated – but rather through bribes. The Minister held that, based on the applicant’s position and description of his tasks (including the processing of high-level classified information), he had attempted to trivialise his activities and had greatly impaired his credibility in consequence. On this point, the Minister relied, inter alia, on Amnesty International’s “Reports of torture and long-term detention without trial” of March 1991, according to which the Directorate in which the applicant had been employed was engaged in systematic torture.", "24. The Minister further identified several inconsistencies in the applicant’s declarations and rebuttals, from which it was concluded that his declarations concerning certain of the tasks he stated he had performed were highly implausible. As regards the applicant’s various rebuttals, it was found, in the relevant part, that the burden of proof in terms of Article 1F of the 1951 Refugee Convention was less stringent than in a criminal prosecution (“serious reasons for considering” that the applicant might have been guilty of human rights violations sufficed to render this provision applicable). Taking into account that the applicant had never sought to leave the KhAD or the WAD, for which he had worked for about ten years, in which his last held rank was that of lieutenant-colonel, and in which he had been promoted to head of his department, the Minister concluded that there were no indications that the applicant had been forced or had involuntarily worked for the KhAD/WAD.", "25. As regards the applicant’s claim that the official report of 29 February 2000 of the Ministry of Foreign Affairs was not accurate and was based on unreliable sources and that, therefore, it was too general in scope and could not be applied to his case, the Minister held that this report was founded on several acclaimed sources, such as the United Nations Special Rapporteur, Human Rights Watch, numerous Amnesty International reports, and a variety of United Nations publications.", "26. The Minister went on to analyse, of her own motion, the applicant’s eligibility for a residence permit for reasons not related to asylum. It was held that no such permit could be issued, since the application of Article 1F of the 1951 Refugee Convention gave rise to “contraindications” against the applicant in terms of his eligibility for other types of residence permit. However, while reiterating that Article 3 of the Convention did not guarantee a right to residence, the Minister considered that it could not be ruled out that the applicant, in the present circumstances, would run a real risk of treatment contrary to that provision if expelled to Afghanistan, for which reason the applicant was not to be expelled.", "27. The applicant lodged an objection against the refusal by the Minister to grant him a residence permit for reasons not related to asylum. This objection was rejected by the Minister on 16 January 2004, confirming her impugned refusal.", "28. The applicant appealed against the Minister’s decisions of 11 August 2003 and 16 January 2004 before the Regional Court (rechtbank) of The Hague, arguing, inter alia, that the factual underpinning of the Ministry of Foreign Affairs official report of 29 February 2000 contained errors, which had led the Minister to draw incorrect conclusions as to the applicant’s personal and knowing participation in the crimes referred to in Article 1F of the 1951 Refugee Convention.", "29. In its judgment of 10 February 2005, the Regional Court of The Hague sitting in Utrecht held that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decisions, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and that therefore, the Minister had been entitled to rely on them. In addition, the Regional Court noted that the evaluation of the credibility of facts adduced by asylum seekers fell to a large extent within the Minister’s discretion and could, therefore, only be evaluated marginally by the court. The Regional Court agreed with the Minister on all points as to the latter’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant and, consequently, to refuse him an asylum-based residence permit. As regards the Minister’s separate decision of 16 January, refusing the applicant a residence permit for reasons not related to asylum, the Regional Court adopted a different reasoning, but reached the same conclusion.", "30. In respect of Article 3 of the Convention, the Regional Court held, with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed the Minister’s decision of 11 August 2003 and remitted the case back to the Minister for a fresh decision.", "31. After the applicant had once more been heard on 20 May 2005 before an official board of enquiry, the Minister rejected the asylum request anew in a fresh decision of 2 August 2005. In this fresh decision, the Minister limited herself to Article 3 of the Convention. She dismissed the applicant’s fear of returning to Afghanistan as a (former) member of the PDPA and former officer of KhAD, referring to an official report issued by the Ministry of Foreign Affairs in January 2005 and holding that the sole fact that an asylum seeker had been a PDPA member was not enough in itself to render Article 3 applicable in the eventuality of expulsion. The Minister further noted that the mere fact that the applicant had a different political conviction from those currently in power in Afghanistan similarly did not suffice to render Article 3 applicable. The Minister further took into account that the applicant had stated that he was not a known person in Afghanistan. The applicant had no concrete indication that he would be searched for by any group or person. In addition, relatives of the applicant – including his father and brother – were still living in Afghanistan without ever having encountered any problem.", "32. The Minister further addressed the applicant’s claim that he had reason to fear certain named mujahideen commanders, who would identify him as the KhAD officer who had not paid them, or paid them less than agreed upon. The applicant had submitted that he had attended meetings – where he had only taken minutes – in the course of which cooperation agreements had been reached between the KhAD and a mujahideen commander. In addition, the applicant had alleged that these mujahideen commanders were keen on ensuring that nobody in present-day Afghanistan would find out that they had cooperated with KhAD in the past, for which reason they were interested in eliminating the applicant. On this point, the Minister held that the applicant had failed to establish these commanders’ whereabouts and current influence in Afghan society. The Minister noted that according to the applicant’s own statements, he did not believe that these individuals occupied high positions in today’s Afghanistan. Furthermore, the Minister considered that the mujahideen commanders were aware of the applicant’s role in those meetings as well as of the identity of the person taking the decisions as regards financial support of the mujahideen, and that it was therefore implausible that they would be after the applicant. Finally, it was underlined that the applicant had been able to stay in Afghanistan until 1997 without any problems. For these reasons, the applicant’s claim that he was being sought by the mujahideen was dismissed as founded on nothing but suspicion and speculation. The claim based on Article 3 was consequently rejected.", "33. The applicant appealed anew to the Regional Court of The Hague, arguing, inter alia, that the Minister had erred in finding him guilty of participation in torture under the auspices of the KhAD. In his view, the Minister had disregarded the fact that the applicant had held an administrative position in KhAD which was only concerned with maintaining contacts with the mujahideen and reaching agreements with them. Furthermore, the Minister had been inconsistent in finding, on the one hand, that the applicant had participated in human rights violations, but, on the other hand, that the applicant had not held an important position within the PDPA party. The applicant submitted that it was likely that he was well known enough for his former adversaries, who were now those in power in Afghanistan, to find him and subject him to treatment contrary to Article 3 of the Convention.", "34. The Regional Court of The Hague sitting in Amsterdam rejected the applicant’s appeal on 12 April 2006. It noted that, according to a general official report on Afghanistan of July 2005 by the Ministry of Foreign Affairs, that some former military officials, members of the police and the KhAD/WAD security services possibly risk falling victim to human rights violations – not only by the authorities but also by the population (victims’ relatives), unless they maintained relations with influential Islamic and political parties or tribes. According to the court, this did not mean that every former KhAD officer ran a real risk of treatment contrary to Article 3, and the applicant was thus required to establish the existence of such a risk in the particular circumstances of his case. The Regional Court agreed with the Minister that the applicant had failed to do so, as his claims were found to be merely based on unsubstantiated expectations, including his claimed fear of persecution by the mujahideen commanders who had been paid by the KhAD/WAD. No further appeal lay against this ruling." ]

[]

[ "4. On 19 December 2005 the Sverdlovskiy District Court of Belgorod convicted the applicant of a drug offence and sentenced her to three years’ imprisonment. The judgment became final on 8 February 2006.", "5. On 21 December 2006 the Presidium of the Belgorod Regional Court, by way of a supervisory review, quashed the conviction and ordered a new trial. By the same decision the Presidium authorised the applicant’s release on an undertaking to appear.", "6. A copy of the Presidium’s decision was sent by regular mail and reached the facility where the applicant was serving her sentence only on 9 January 2007. Upon receipt of a certified copy, the applicant was released on 15 January 2007.", "7. On 5 June 2007 the Sverdlovskiy District Court acquitted the applicant of all charges, relying on the Court’s judgment in the Vanyan v. Russia case (no. 53203/99, 15 December 2005).", "8. The applicant complained to a court, seeking a declaration that the delay in her release from prison covering the period from 21 December 2006 to 15 January 2007 had been unlawful. On 25 April 2007 the Oktyabrskiy District Court of Belgorod, noting the provisions of Article 173 § 5 of the Code on the Execution of Sentences, according to which early release may be carried out on the day of receipt of the release order, held that the applicant had been unlawfully detained from 9 to 15 January 2007.", "9. In August 2009 the applicant applied to a court, seeking compensation for the unlawful prosecution. By a judgment of 15 October 2009, the Sverdlovskiy District Court, relying on the provisions of the Civil Code relating to compensation for damage incurred on account of unlawful conviction or prosecution, found that the applicant had been “deprived of her liberty from 19 December 2005 to 15 January 2007” but had been later acquitted of all charges. The District Court awarded her 170,000 roubles (approximately 4,300 euros (EUR) at the material time), noting that the amount of compensation had been calculated with due account for the fact that the applicant’s detention from 9 to 15 January 2007 had been declared unlawful.", "10. The judgment was upheld on appeal by the Belgorod Regional Court on 22 December 2009. The award was paid in full in April 2010." ]

[ 2 ]

[ "5. The applicants were born in 1969, 1975 and 2002 respectively. They have been residing in the Netherlands since 1996.", "6. The first applicant entered the Netherlands and applied for asylum on 10 March 1996, submitting the following account to the immigration authorities. He stated that he was a single Afghan national of Tajik origin, that he had never joined a political party, and that he had worked from 1988 to 1992 for the Afghan security service Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”)[1] of the former communist regime in Afghanistan.", "7. In 1988 he had reported for compulsory military service. In response to his request to be posted close to home, he had been assigned to the KhAD/WAD in Herat. After his basic training, which had lasted three months, he had started to work for Department 5 of the KhAD/WAD in Herat, which – under President Najibullah’s national reconciliation policy sought to establish peaceful relations with the mujahideen and their reintegration into Afghan national institutions – did not combat the mujahideen opposition but sought to try to negotiate with and persuade mujahideen groups to conclude peace agreements. These agreements entailed remunerated cooperation with the ruling communist People’s Democratic Party of Afghanistan (“PDPA”).", "8. In the first year and as a conscript, he had performed guard duties and certain administrative tasks, such as making propaganda posters for the PDPA’s national reconciliation policy, taking minutes of meetings, copying information from reports into books to be held in the central archives, and collecting and recording neighbourhood reports.", "9. After having worked for a year for the KhAD/WAD as a conscript, he had agreed to become a professional soldier. He had been appointed to the rank of Second Lieutenant (“Doham Bridman”). His activities had consisted mainly of administrative duties relating to the processing of information gathered by more senior officers about mujahideen commanders. He had worked for the KhAD/WAD until April 1992, when he left work after the communist Najibullah regime was overthrown by the mujahedin. Shortly after they had seized power, the mujahideen proclaimed an amnesty for persons who had worked for the KhAD/WAD. He had returned to work, had been given other tasks and had worked for the mujahideen until 18 or 19 January 1996, when the Taliban seized power in Herat. Until that moment, Herat had been governed by a commander who, like the applicant, was of Tajik origin. One day after the arrival of the Taliban in Herat in the second half of January 1996 and fearing for his life, the first applicant had fled to Turkmenistan from where he had travelled by air to the Netherlands.", "10. On 12 September 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum claim then made by the first applicant, holding that he had failed to establish personal circumstances warranting a decision to grant him asylum. The mere fact that he belonged to the Tajik ethnic minority did not suffice in that respect. Although the Deputy Minister acknowledged that it was not unlikely that former KhAD staff members might experience problems from the new Government in Afghanistan, she found this not to be the case as regards the first applicant, as he had continued working for the Afghan authorities during the rule of the mujahideen from 1992 to 1996 without experiencing any problems. The Deputy Minister further considered it unlikely that the Taliban were or would become aware of the first applicant’s past professional activities for the former communist regime.", "11. The Deputy Minister of Justice did, however, grant the first applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 10 March 1996, on the basis of the unabated bad situation (“onverminderd slechte situatie”) in Afghanistan.", "12. On 11 October 1996, the first applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 11 December 1996, the Deputy Minister rejected the objection. Although the first applicant could have appealed to the Regional Court (rechtbank) of The Hague, he did not do so.", "13. On 4 June 1998, the first applicant made a second asylum claim, which pursuant to article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) had to be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The new elements on which the first applicant based his fresh asylum request were his relationship with a woman in 1993 in Afghanistan out of which a child might have been born, his past work for the KhAD, and various documents, including a copy of a judgment handed down in October/November 1995 in which a Taliban Islamic Court in Herat - in proceedings held in absentia – had convicted the first applicant and seven others of conspiracy against the Taliban and sentenced them to death. For identification purposes, photographs of the convicts, including the first applicant, were appended to this judgment. The first applicant had only learned about the existence of this judgment on 26 November 1997, thus after his flight from Afghanistan, when his mother had sent him the judgment by mail from Iran, where she had gone for medical reasons. The first applicant did not know how or when his mother had obtained the judgment, but he assumed that it had been put up around his neighbourhood at some point in time, as local custom prescribed. The first applicant had also been informed, in a letter from his mother, that his brother had been captured and tortured in order to locate him. The first applicant further submitted on 11 September 1998 a detailed written account of his activities for the KhAD.", "14. Meanwhile, in March 1999, the situation in Afghanistan not having sufficiently improved, the first applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years.", "15. In her decision of 28 February 2001, after the first applicant had been interviewed again by the immigration authorities during which he stated inter alia that he had held the rank of First Lieutenant in the KhAD, the Deputy Minister rejected the first applicant’s second asylum claim and, considering that there were serious reasons for believing that the first applicant was guilty of acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (the 1951 Refugee Convention), applied this asylum exclusion clause.", "16. Referring to an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015), the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture, murder, arbitrary executions and other human rights violations, and the climate of terror which it had spread throughout the whole of Afghan society, including the army.", "17. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD/WAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention. She noted that the KhAD/WAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, newly recruited officers were initially placed in departments of the KhAD/WAD specifically responsible for investigating “elements of State security”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations. In the light of the above, and noting that KhAD’s Directorate 5, for which the first applicant had worked in Herat, had two interrogation centres in Kabul, the first applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. The Deputy Minister dismissed the first applicant’s claim that he had only performed tasks of an administrative nature. The Deputy Minister found, on the basis of the first applicant’s statements, that he had actually been involved in activities of an operational nature: persuading enemies of the regime to cooperate by accompanying his superiors on field missions and taking minutes of meetings that had taken place between the KhAD and those enemies, namely the mujahideen. The Deputy Minister did not attach credence to the first applicant’s claim that he had been ignorant of the human rights violations committed by the KhAD/WAD. In this regard it was held that the first applicant had worked directly for the commanders in chief of his Directorate and had accompanied them on field missions. It was therefore highly implausible that he would have had no knowledge whatsoever of the human rights violations for which the KhAD/WAD was responsible. The Deputy Minister held that it should be concluded from the first applicant’s functions and work effected for the KhAD/WAD that he had been specifically implicated in the human rights violations committed by the KhAD/WAD.", "18. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof of personal commission by the first applicant of the alleged crimes; it sufficed that serious reasons existed to consider that the first applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. Accordingly, Article 1F of the 1951 Refugee Convention was held against the first applicant, and as a consequence his application for a residence permit for asylum purposes was denied.", "19. The Deputy Minister also revoked the first applicant’s residence permit, which he had obtained by the Deputy Minister’s decision of 12 September 1996. It was held in this regard that the first applicant had not given a correct and full insight into his past activities, which, had he done so, would have stood in the way of issuing him the residence permit he had been granted.", "20. The Deputy Minister further requested the Public Prosecutor’s Office (Openbaar Ministerie), by letter of 28 February 2001, to examine the possibilities of prosecuting the first applicant in the Netherlands for the crimes imputed to him on the basis of Article 1F of the 1951 Refugee Convention. The Deputy Minister sent another letter to the same effect on 12 February 2003. No further information about the follow-up to these letters has been submitted.", "21. On 27 March 2001, the first applicant submitted an objection (bezwaar) to this decision. On 20 December 2002, the first applicant was heard on his objection before an official board of enquiry (ambtelijke commissie). On 12 February 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the objection. The Minister upheld the Deputy Minister’s previous decision and proceeded, in addition thereto, to an analysis of the first applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “knowing and personal participation test”.", "22. As regards the “knowing” element, the Minister found, relying on the aforementioned official report of the Ministry of Foreign Affairs, that the first applicant had known or should have known about the criminal character of the KhAD/WAD. Basing himself on the Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the Minister held that, according to a letter of the Deputy Minister of Justice of 3 April 2000, knowing participation was in principle to be assumed in cases of persons who had worked for certain categories of organisations, to which the KhAD/WAD belonged. Having regard to the official report of 29 February 2000 (see paragraph 17 above) and other international materials, the Minister considered that the systematic and large-scale commission of human rights violations by KhAD/WAD under the PDPA’s rule was a fact of common knowledge and that therefore the first applicant could not have been ignorant of those acts. The first applicant’s argument that, given his low rank, he had had no knowledge of and could not be held responsible for human rights violations attributed to the KhAD/WAD, was thus not accepted by the Minister, who emphasised that the first applicant had declared that everyone had feared the regime and that he had successfully found an administrative post during his mandatory military service. The Minister found that, by admitting to the ubiquitous fear of the regime, the first applicant had admitted to having known of atrocities committed by that regime. As regards the first applicant’s personal participation in human rights violations attributed to KhAD, the Minister found that he had failed to establish that he had not committed the alleged crimes himself or that his conduct, by act or omission, had prevented those crimes from being committed. The Minister held, therefore, that the first applicant had personally participated in the crimes imputed to him.", "23. Although the Minister considered that it could not be ruled out that the first applicant would run a risk of treatment contrary to Article 3 of the Convention if he were expelled to Afghanistan, it was nevertheless held that he was under an obligation to leave the Netherlands.", "24. The Minister lastly found that the first applicant was not eligible for a residence permit under the three-year policy (this was a policy entitling asylum-seekers to a residence permit if their asylum requests had not been finally determined within three years, provided that there were no contraindications such as, for instance, a criminal record) as Article 1F of the 1951 Refugee Convention had been held against him, which constituted a contraindication.", "25. The first applicant’s objection to the refusal to grant a residence permit under the three-year policy was rejected by the Minister on 17 April 2003.", "26. Meanwhile, the second applicant had joined the first applicant in the Netherlands. She was granted a residence permit for the purpose of residing with her husband on 30 March 2000, thus at a time when the first applicant still held his provisional residence permit.", "27. On 16 March 2001 the Deputy Minister of Justice also revoked the second applicant’s residence permit, as it was linked to the first applicant’s residence permit, which had been revoked. The second applicant submitted an objection to this decision. The Minister of Immigration and Integration rejected the second applicant’s objection on 12 February 2003. Meanwhile, on 8 November 2002, the second applicant had given birth to the third applicant.", "28. Both the first and second applicants appealed to the Regional Court (rechtbank) of The Hague against the decisions taken against them, namely, as regards the first applicant, the Minister’s decisions of 12 February and 17 April 2003 and, as regards the second applicant, the Minister’s separate decision of 12 February 2003.", "29. The Regional Court joined both applicants’ appeals and, in its judgment of 26 May 2005, agreed with the Minister’s decision and underlying reasoning to hold Article 1F of the 1951 Refugee Convention against the first applicant and the consequential decisions to revoke the residence permits held by the first and second applicants. However, as regards Article 3 of the Convention and with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, it held that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker was refused a residence permit but could not be expelled to his or her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed all decisions appealed against as regards both the first and second applicants, and remitted the case to the Minister in order for her to take a fresh decision.", "30. On 12 October 2005, in accordance with the court’s judgment and after the first applicant, in view of the changed situation in Afghanistan, had been heard once more before an official board of enquiry on 24 August 2005, the Minister took a fresh decision on the objections submitted by the first and second applicants. She maintained her decisions that Article 1F should be held against the first applicant and that both applicants were accordingly ineligible for a residence permit.", "31. As regards Article 3 of the Convention, the Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, certain categories of former officials – who were identified with human rights abuses committed during the communist regime, including KhAD officials – continued to be at risk in Afghanistan, not only from current power holders but more so from the population (families of victims) and the mujahideen, unless they enjoyed protection by virtue of good contacts with influential Islamic and political parties and/or tribes. To determine the level of risk, the official report enumerated a set of factors which would need to be balanced in each individual case: the extent to which the person in question was likely to be identified with communist ideology, his or her rank in the former regime, and the existence of any ties which family members might have with the former communist regime. The Minister noted that mere membership of the PDPA did not suffice to establish a real risk of being subjected to treatment in breach of Article 3 of the Convention.", "32. The Minister went on to hold that the first applicant had not attracted the particular attention of any groups or individuals in the period prior to the coming to power of the Taliban. The Minister underlined in this regard that, after the fall of the PDPA regime, the first applicant had easily obtained a job in the local police headquarters for the mujahideen governor of Herat, Ismail Khan, who was currently the Minister for Energy in Afghanistan.", "33. As regards the first applicant’s fear of the Taliban, the Minister held that the general situation in Afghanistan had improved since 2004 and that any Taliban insurgents were concentrated mostly in areas outside Herat. As to the first applicant’s fear of execution of the death sentence pronounced against him by the Taliban, the Minister held, basing herself on the most recent official report of the Netherlands Ministry of Foreign Affairs, that the population register, which had already been inaccurate, had not improved during Taliban rule due to illiteracy or a lack of interest in maintaining it. Furthermore, many courts of law had been destroyed during armed conflict. It was, therefore, not likely that the present authorities would be aware of the judgment against the first applicant. Moreover, judgments delivered under the Taliban rule were not executed without prior verification by a court of law of their compliance with current Afghan law. In this light the Minister did not attach much credence to the first applicant’s submissions that his mother had not been allowed to collect her possessions in Afghanistan due to her son’s conviction by the Taliban court. In addition, the Minister considered that it was unlikely that the first applicant would again be sentenced to death by Afghanistan’s present courts, in view of the fact that the conviction had been based on an alleged conspiracy against the Taliban. The first applicant’s submission that his being branded an infidel in the judgment could still have value before today’s Afghan courts was dismissed by the Minister, who found that, under the Taliban regime, the mere denunciation of the Taliban government in itself already constituted infidel status.", "34. The Minister further noted, basing herself on a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on the first applicant on 19 September 2005, that in 1999 he had obtained an Afghan passport through Afghanistan’s diplomatic representation in the United Kingdom. Since the United Kingdom had not recognised the Taliban as Afghanistan’s lawful government, the Afghan embassy in the United Kingdom still represented the Government of President Burhanuddin Rabbani, who had been president from 1992 to 1996, thus until the capitulation of Kabul to the Taliban. The Minister took note of the fact that Mr Rabbani’s political party, the Jamiat-e-Islami, was currently well represented in the present Afghan Government. As the first applicant had successfully applied for a passport from an embassy represented by that party, the Minister held that he could not have come to Jamiat-e-Islami’s negative attention. Moreover, the passport had been issued more than three years after the death sentence had been handed down. In addition, as it did not appear that the first applicant had converted to another religion or had in other ways offended Islam, the Minister did not find it likely that he would be deemed an infidel again in today’s Afghanistan.", "35. As regards the first applicant’s identification in present-day Afghanistan with communist ideology, the Minister’s finding that this did not pose him any problems during the mujahideen rule over the country led to the conclusion that he was unlikely to encounter such problems in the future. Furthermore, the first applicant had not made any mention, in the course of the interviews held with him, of any ties that members of his family may have had to the communist regime, nor of any problems he expected to encounter upon return as a result of any such ties.", "36. The Minister therefore concluded that the first applicant had not demonstrated that he would be exposed to a real of being subjected to treatment contrary to Article 3 of the Convention if returned to Afghanistan.", "37. The appeal by the first and second applicants was rejected on 18 August 2006 by the Regional Court of The Hague sitting in Arnhem. It concurred with the Minister on all points. No further appeal lay against this decision.", "38. On 11 June 2008, after the first and second applicants’ separation and divorce, the second and third applicants submitted a fresh asylum request, which was granted on 10 March 2009, based on the position that the second applicant, as a single woman, and her child would find themselves in on returning to Afghanistan." ]

[]

[ "4. The applicants, a married couple, were born in 1952 and 1954 respectively and live in Piliscsaba.", "5. On 7 December 2001 the first applicant was deliberately shot by one of his colleagues and suffered serious injuries making him disabled.", "6. On an unspecified date in 2004, the first applicant and his family (including his wife, the second applicant) brought an action in damages against the first applicant’s employer. On 14 June 2005 the president of the Pest County Labour Court ordered the priority treatment of the case.", "7. On 19 January 2006 the Pest County Labour Court found for the applicants in an interim judgment establishing the well-foundedness of the legal basis of the claim. The first instance interim judgment was upheld by the Pest County Court on 5 January 2007.", "8. The exact compensation amount to be paid by the employer was decided by a judgment of the Pest County Labour Court on 9 November 2010. The decision was upheld and partly amended by the final judgment of the Pest County Court adopted on 4 May 2011." ]

[ 3 ]

[ "5. The applicant was born in 1985 and lives in Sokołów Podlaski.", "6. On 8 April 2009 the applicant was arrested and remanded in custody. He was charged with, inter alia, murder, attempted murder, and illegal possession of firearms.", "7. On 2 December 2011 the Ostrołęka Regional Court convicted the applicant of battery and attempted murder and sentenced him to twelve years’ imprisonment.", "8. On 25 October 2012 the Białystok Court of Appeal upheld the first‑instance judgment.", "9. On 8 November 2013 the Supreme Court dismissed the applicant’s cassation appeal.", "10. On 10 April 2009 the Czerwony Bór Prison Penitentiary Commission (“the commission”) classified the applicant as a “dangerous detainee”. It considered that it was necessary to place him in a cell for dangerous detainees as he had been charged with murder committed with the use of firearms. The commission referred to the applicant’s “personal circumstances and serious lack of moral character”. The applicant did not appeal against the decision.", "11. Between 7 July 2009 and 7 January 2010, the commission reviewed its decision every three months. In renewing its decision to classify the applicant as a “dangerous detainee”, the commission reiterated the same reasoning, which read as follows:\n“His characteristics, personal circumstances, serious lack of moral character and [the fact of] being charged with offences committed with the use of a firearm, pose a serious danger to society and to the security of the remand centre.”", "12. The reasoning given on 5 April, 30 June and 30 September 2011 differed slightly in that gave a detailed description of the offences with which the applicant had been charged as the grounds for extending the regime. The commission referred to the offences of murder and three attempts to commit murder with the use of a firearm.", "13. The applicant lodged an appeal against the decision of 30 September 2011.", "14. On 13 December 2011 the Białystok Regional Court dismissed the applicant’s appeal, holding that the decision had been lawful.", "15. On 29 December 2011 the commission extended the application of the “dangerous detainee” regime to the applicant for the eleventh time. The reasoning given was the same as in the decisions of 2009.", "16. On 29 March 2012 the commission lifted the “dangerous detainee” regime in respect of the applicant. It considered that, on the basis of the relevant documentation and the assessment of the applicant’s behaviour, he no longer posed a danger to society or to the security of the remand centre." ]

[ 1 ]

[ "5. The applicant was born in 1953 and is serving his sentence in correctional colony no. 2 in the Astrakhan Region.", "6. On 9 May 2012 the applicant was arrested on suspicion of murder committed during a fight with the victim. Two days later the Kirovskiy District Court of Astrakhan authorised his remand in custody, having noted the gravity of the charges, his previous convictions, including for violent crimes, his failure to “get on the road to improvement”, the absence of an “official” source of income, and his lack of dependants.", "7. That decision was upheld on appeal by the Astrakhan Regional Court, which fully endorsed the District Court’s reasoning. In addition, the Regional Court took into account that the applicant was suffering from the human immunodeficiency virus (HIV) but stated that there was no medical evidence that he could not continue being detained in the conditions of a temporary detention facility.", "8. Another extension of the applicant’s detention followed on 9 July 2012, when the District Court accepted the investigator’s arguments that he was likely to re-offend, abscond and interfere with the investigation. The District Court linked those risks to the gravity of the charges against the applicant, his having received “negative characteristics” at his place of residence, as well as his having already been “the subject of criminal prosecution”. At the same time the court examined medical evidence produced by the applicant in support of his claim that the fact that he was suffering from an advanced stage of HIV precluded his detention. The District Court dismissed the claim, stressing that the applicant regularly received medication prescribed by a prison doctor and that his detention in the temporary detention facility did not pose a risk to his health.", "9. The District Court issued further orders extending the applicant’s pre‑trial detention on 2 August, 6 September and 7 November 2012. Each time, it relied on the gravity of the charges and the risk flowing of the applicant absconding, interfering with the course of justice and reoffending. Neither detention order mentioned that the applicant had a criminal record. The applicant’s arguments about the progress of his HIV infection and the rapid deterioration of his health did not convince the District Court. The order of 7 November 2012 extended the applicant’s detention until 9 December 2012. It was upheld on appeal by the Astrakhan Regional Court on 14 November 2012, with reference to the gravity of the charges and the applicant’s “personality”. The relevant part of the decision reads as follows:\n“On 11 May 2012 ... the Kirovskiy District Court of Astrakhan ordered [the applicant’s] detention. Subsequently, the detention was lawfully extended. ...\nIn extending the detention for up to seven months, the court reasonably took into account that [the applicant] was charged with a particularly serious criminal offence and that, in view of his personality and the circumstances of the case, he was liable to reoffend or destroy the evidence.\nThe court also correctly held that the case was particularly complex, due to the large number of investigatory activities and complex expert examinations to be conducted. The court also took into account the applicant’s lengthy treatment in the prison hospital.\nThe court correctly concluded that there were no grounds for changing the measure of restraint.”\nThe Regional Court did not address the applicant’s arguments, raised in his statement of appeal, that the investigating authorities significantly delayed a number of procedural actions, including the expert examination scheduled as early as June 2012 and not yet performed.", "10. The District Court further extended the applicant’s pre-trial detention on 8 December 2012, summarily referring to his “personality” and “socially dangerous conduct”. The court also pointed out that some unspecified expert examinations had been conducted, which had “objectively influenced the length of the investigation”.", "11. On 30 December 2012 the applicant’s pre-trial detention was again extended on the grounds of the gravity of the charges and the continued risk of his absconding and interfering with the course of justice. The court used similar wording as in the previous detention orders.", "12. On 16 March 2013 the applicant was served with the final version of the bill of indictment. The bill indicated that the applicant had no criminal record.", "13. On 6 August 2013 the District Court convicted the applicant of murder. The court found that he had killed the victim in the course of an altercation caused by the victim’s insults. The District Court sentenced the applicant to seven years of imprisonment, having taken into account the following mitigating circumstances: the applicant had no criminal record, was “positively characterised”, had surrendered himself to the police, had confessed to the killing and felt deep remorse, and the victim had behaved provocatively having initiated the conflict with the applicant.", "14. In January 2004 the applicant was diagnosed with stage 4A HIV. He was taken under the supervision of specialists of the Astrakhan Regional Centre for Protection from AIDS (hereinafter “the AIDS Centre”).", "15. Medical certificates provided by the applicant show that he had started receiving antiretroviral therapy on 22 March 2011 with very positive results. The viral load had significantly decreased and the applicant’s immune status had improved. A CD4 cell-count test carried out on 17 February 2012 showed that the level of CD4 cells was 489 cells/mm3.", "16. On 11 May 2012 the applicant was placed in detention facility no. 1. On the same date he was examined by a doctor, who recorded no complaints and diagnosed him with a stomach ulcer in remission.", "17. On 26 June 2012 doctors from the AIDS Centre recorded a deterioration in the applicant’s condition. They recommended continuation of the antiretroviral therapy and an in-patient examination.", "18. Between 12 July and 12 September 2012 the applicant underwent a check-up in the prison hospital of correctional colony no. 2 (“the hospital”). He was diagnosed with chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, fungal esophagitis, urolithiasis, and hepatic haemangioma.", "19. It appears that on 16 July 2012 an immunological test was performed. It showed that the level of CD4 cells was 649 cells/mm3.", "20. Since August 2012 the doctors have again recorded a deterioration in the applicant’s condition and an increase in his viral load. They linked the deterioration to prior interruptions in the antiretroviral therapy. It is not clear from the documents submitted by the applicant when and why those interruptions occurred.", "21. On 20 September 2012 a doctor from the AIDS Centre diagnosed the applicant with stage 4A HIV and fungal esophagitis, and recommended that antiretroviral therapy be continued.", "22. On 26 September 2012, on a recommendation of the medical staff of the AIDS Centre, the applicant was again admitted to the hospital. He underwent treatment for HIV and fungal esophagitis. On 8 October 2012 he returned to the detention facility.", "23. Throughout his detention the applicant was prescribed a special diet.", "24. According to a typed copy of the applicant’s medical file provided by the Government, on admission to detention facility no. 1 the applicant was examined by a doctor whom he informed that he was suffering from HIV.", "25. On 16 May 2012 medical staff from the AIDS Centre were allowed to see the applicant. The doctors noted that he was suffering from stage 4A HIV and recommended that his antiretroviral therapy be continued. On the same date the applicant received one month’s dose of antiretroviral drugs (Reyataz and Combivir).", "26. The applicant continued being monitored by the medical staff of the AIDS-Centre, who examined him again on 26 June 2012. Following their recommendations, and in response to the applicant’s complaint of fatigue and pain in the epigastrium (upper abdomen), on 12 July 2012 he was transferred to the hospital for an in-depth examination. On the same date it was noted in his medical file that he was receiving antiretroviral drugs. The entries dated 2 and 6 August 2012 indicated that he had been taking those drugs.", "27. While at the hospital, the applicant was monitored by an infectious diseases specialist, who examined him on twenty-four occasions. The applicant also underwent an ultrasound examination and a fibrogastroduodenoscopy. On 27 August 2012 he was examined by an urologist and a gastroenterologist in a civil hospital. He was also observed by an otolaryngologist and a neurologist. The final diagnosis was: HIV infection aggravated by secondary illnesses, chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, oesophageal candidiasis, hepatic hemangioma, chronic prostatitis, chronic cholecystitis, fungal esophagitis, and a duodenal bulb ulcer. The applicant received treatment for those illnesses.", "28. On 12 September 2012, having found that the applicant’s condition had improved, the hospital discharged him.", "29. On 20 September 2012 a doctor from the AIDS Centre examined the applicant at the detention facility. The doctor noted that the applicant was taking the antiretroviral drugs with strict adherence, and recommended virological and immunological testing, as well as another ultrasound examination and a fibrogastroduodenoscopy.", "30. On 26 September 2012 the applicant was admitted to the hospital for additional tests. On 8 October he was transferred back to the detention facility.", "31. On 18 October 2012 the applicant complained of fatigue, coughing and headaches. A doctor diagnosed chronic bronchitis and prescribed him anti-candidiasis and cough medication, as well as vitamins.", "32. On 4 November 2012 an entry made in the applicant’s medical file indicated that the “last” immunological test had shown the level of CD4 cells at 513 cells/mm3.", "33. On 13 November 2012 the applicant complained to a doctor of heaviness in his abdomen, dizziness and heartburn. The doctor noted that those were the effects of his not complying with the special diet and prescribed medication for his ulcer and gastroduodenitis.", "34. On 27 November 2012 the applicant was examined in response to his complaints of fatigue, pain in the abdomen, and pyrosis. The doctor noted that the applicant had been receiving antiretroviral therapy and recommended his transfer to hospital for an examination and another diagnosis.", "35. On the applicant’s admission to the hospital on 3 December 2012, his complaints of fatigue, heartburn and stomach aches were recorded. On the same date it was again noted that he was receiving antiretroviral drugs. At the hospital he was seen by an infections specialist several times a week, examined by a neurologist and an otolaryngologist, and underwent a fibrogastroduodenoscopy. In addition to his previously recorded illnesses, the applicant was diagnosed with a prostate adenoma. He received treatment for his non-communicable diseases, and was prescribed the same antiretroviral drugs as before.", "36. On 18 January 2013 the applicant was dismissed from the hospital “in a satisfactory condition”, with the proviso that he had to be actively supervised by the detention facility medical personnel. On the same date he was examined by a doctor at the detention facility. The doctor noted that the applicant needed “dynamic supervision” and prescribed medication for his pancreatitis and stomach ulcer.", "37. On 23 January 2013, in response to the applicant’s complaint of back pains, he was prescribed anti-inflammatory drugs.", "38. On 12 February 2013 the applicant complained to a psychiatrist of sleeping problems and irritability, and was prescribed antidepressants.", "39. On 20 March 2013 a doctor from the AIDS Centre paid the applicant a visit. Following the doctor’s recommendation, the applicant was yet again admitted to hospital. On arrival he complained of poor appetite, fatigue, heartburn, pains in his chest and stomach ache. He was then seen by an infectious diseases specialist, an ophthalmologist, an otolaryngologist, a cardiologist and a neurologist. They concluded that there was no change in his diagnosis and prescribed him treatment for the non-communicable infections. On 3 April 2013 it was noted that the applicant was regularly taking antiretroviral drugs. A week later, despite the lack of significant improvement in his condition, he was discharged from the hospital since he had to appear at a court hearing.", "40. On 19 June 2013 the applicant was re-admitted to the hospital. Under the supervision of the infectious diseases specialist he received treatment for cholecystitis and gastroduodenitis. He was also examined by a neurologist, an otolaryngologist and an ophthalmologist, and was diagnosed with cerebrovascular disease. An entry in the record of 19 June 2013 showed that the applicant had enough drugs to last until 23 June 2013. The entry dated 25 June 2013 mentioned that he had not complied with the special diet prescribed to him. On 9 July 2013 the applicant was discharged in “satisfactory condition”, having been provided with antiretroviral drugs until 23 July 2013.", "41. On the applicant’s admission to correctional colony no. 2 on 24 October 2013, he was examined by prison doctors, who noted that he was receiving antiretroviral therapy.", "42. On 20 November 2013, in response to the applicant’s complaints of pain in the abdomen, he was examined by a prison doctor. A fibrogastroduodenoscopy was carried out on 22 November 2013, and he was prescribed medication for gastroduodenitis.", "43. On 10 December 2013 the applicant was examined by an infectious diseases specialist from the AIDS Centre. The doctor observed the applicant’s complaints of pain in the oesophagus and the chest, and noted that he was receiving antiretroviral drugs, namely Reyataz and Combivir. The doctor recommended that the applicant continue with the therapy and undergo an immunological test. He also suggested that he be subjected to an in-patient examination. The applicant refused to be admitted to the hospital.", "44. On 12 and 16 November 2012 the applicant’s lawyer wrote to the administration of detention facility no. 1, drawing their attention to the applicant’s state of health and asking for his examination by a medical expert. On 13 November 2012 the facility director informed the lawyer that there was no evidence that the applicant was suffering from an illness preventing detention and that, accordingly, there were no grounds for a medical expert examination.", "45. On 4 February 2013 the applicant’s lawyer reiterated his request.", "46. On 10 December 2012 the applicant’s lawyer requested the investigator in charge of the applicant’s criminal case to order a medical examination of the applicant. On 13 December 2012 the request was refused. However, on 4 February 2014 that decision was revoked, and the applicant’s medical expert examination was authorised.", "47. On 17 January 2013 the applicant’s lawyer complained to the Kirovskiy District Court of Astrakhan of the correctional colony administration’s inaction and asked the court to authorise the applicant’s medical examination. On 1 April 2013 the court dismissed the complaint and refused the examination request." ]

[ 1, 2 ]

[ "5. The applicant was born in 1948 and lives in Vienna.", "6. At the time of the events the applicant worked for the association “Asyl in Not”, which offers legal and social support to asylum seekers and refugees.", "7. In 2005, an amendment to a number of laws concerning the status of foreigners and of asylum seekers and concerning relevant proceedings (Fremdenrechtspaket 2005) was drafted and adopted by Parliament. The amendments entered into force on 1 January 2006.", "8. On 31 December 2006 the then Federal Minister for Interior Affairs, L.P., died unexpectedly of an aneurysm at the age of 55.", "9. On 1 January 2007 the applicant published a statement on the association’s website entitled “One less. What’s coming now?” (“Eine weniger. Was kommt danach?”). It continued: “The good news for the New Year: L.P., Minister for torture and deportation, is dead.” (“Die gute Meldung zum Jahresbeginn: L.P., Bundesministerin für Folter und Deportation, ist tot”) After referring to some specific individual stories of asylum seekers, the text stated further that “Mrs P. was a desk war criminal just like many others there have been in the atrocious history of this country: completely desensitised, indifferent to the consequences of their laws and regulations, the compliant instrument of a bureaucracy contaminated with racism. No decent human is shedding tears over her death.” (“L.P. war eine Schreibtischtäterin, wie es viele gab in der grausamen Geschichte dieses Landes; völlig abgestumpft, gleichgültig gegen die Folgen ihrer Gesetze und Erlässe, ein willfähiges Werkzeug einer rassistisch verseuchten Beamtenschaft. Kein anständiger Mensch weint ihr eine Träne nach.”). The applicant concluded the text by suggesting that their goal for the New Year was to fight for a new minister who would make good the damage done by L.P. so that Austria could return to being a country welcoming asylum seekers and a place where human rights were respected.", "10. G.P., the late Minister’s husband, filed a private prosecution (Privatanklage) for defamation against the applicant and the association.", "11. On 19 September 2007 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of defamation in respect of the above-quoted passages of the statement and sentenced him to a fine in the amount of EUR 1,200. Half of the fine was suspended for three years. It dismissed G.P.’s request for recognition of the association’s liability for its employee’s actions.", "12. The court found that the average reader would understand the relevant passages of the statement to mean that L.P. had ordered or tolerated the torture pending expulsion or the deportation of detainees and had violated human rights. The word “torture”, in particular, implied the intentional infliction of physical or psychological suffering. An average reader would also place the word “deportation” (Deportation) in the context of the historical events under the national-socialist regime which forcefully deported segregated groups of people to ghettos and camps to subject them to forced labour or extermination. The statement in question suggested that L.P. exercised her political function in a particularly despicable way, that she was indifferent to officials’ criminal abuse of authority in relation to asylum seekers and that her actions were motivated by racist, sadistic, xenophobic and national-socialist attitudes. The publication of the statement had triggered considerable reaction from the media and the public. The applicant had been criticised as tactless and disrespectful. In response thereto, on 9 January 2007, the applicant published in a daily newspaper a reply in which he stated that his comments had been directed solely towards L.P. and he apologised to her family members, who were not responsible for the late Minister’s inhumane policies.", "13. The Regional Court acknowledged that a criminal charge of defamation was at odds with the right to freedom of expression as guaranteed by the Convention. It found that the voicing of opinions by refugee associations criticising politicians and their legislative projects represented an important corrective element and that the limits of acceptable criticism were particularly widely drawn in the context of the present case. However, in the court’s opinion, the published statement overstepped the limits of acceptable criticism. The legislative background to the amendment of the laws governing foreigners and asylum seekers and the fact that criticism was allowed to be shocking, still could not justify positioning L.P. in a national-socialist and racist context and suggesting that she had tolerated the intentional physical ill-treatment of detainees pending expulsion or “deportations”. Such accusations against the then only recently passed away L.P – together with the acclamation of her death and the call on “decent” people not to mourn her passing – clearly went beyond the limits of acceptable criticism in a democratic society. Moreover, the allegations made by the applicant had not been proven to be true, nor had he shown any journalistic diligence in that regard.", "14. The applicant filed an appeal on points of law and fact, and also appealed against the sentence.", "15. On 7 May 2008 the Vienna Court of Appeal (Oberlandesgericht Wien) dismissed his appeal. Referring to the reasoning of the first-instance court, it conceded that the word “deportation” nowadays had acquired the additional meaning of “expulsion or removal” and was not only used in the context of the national-socialist regime, but also in the context of the forced expulsion of foreigners. However, the context of the word in which it had been used (“a desk war criminal just like many others there have been in the atrocious history of this country”) acted as a reminder of the national-socialist history of the country. Therefore, even though the statements at issue were political value judgments (“politische Wertungen”), the applicant had not produced any proof of a factual basis for his allegations. The applicant had further argued that, following the case-law of the European Court of Human Rights and of the domestic courts with regard to Article 10, the impugned statement was covered by freedom of expression. The Court of Appeal, however, found that even such case-law did not provide carte blanche for the applicant to make comparisons with the national-socialist regime without any factual basis.", "16. That decision was served on the applicant’s counsel on 3 June 2008.", "17. On 7 November 2008 the applicant lodged a request for the renewal of the criminal proceedings (“Erneuerung des Strafverfahrens”) pursuant to Article 363a of the Code of Criminal Procedure with the aim of having the proceedings re-opened and the conviction set aside.", "18. On 14 October 2009 the Supreme Court dismissed the request. It stated that the admittedly broad limits of tolerable criticism in the political discourse did not cover excessive value judgments without any factual basis. Statements made in even heated political conflicts needed to respect a minimum of decency and moderation. In the present case the Supreme Court found that the evaluation by the courts had rightly led to the conclusion that the text in question justified the limitation of the applicant’s right to freedom of expression. The value judgment suggesting criminal behaviour on the part of L.P. had no factual basis. The courts had not misjudged the considerable public interest in the discussion concerning migration and asylum policy. However, the applicant’s statements had not contributed to that public discussion, since they were directed at defaming and discrediting the late Minister. The court further noted that the sanction imposed was, in view of the disrespectful statements and their temporal proximity to L.P.’s death, appropriate and even moderate.", "19. The Supreme Court’s decision was served on the applicant’s counsel on 10 November 2009." ]

[]

[ "5. The applicants are all Romanian nationals of Roma origin and heirs of I.B., who, together with some of the applicants, initiated the domestic proceedings. Those proceedings were still pending when I.B. died on 1 April 2010.", "6. I.B.’s heirs pursued the case before the domestic courts and lodged a complaint before the Court on his behalf and on their own behalf.", "7. On 30 March 2006 at around 5 p.m. A.N., I.B.’s daughter-in-law, was attacked near I.B.’s home. I.B.’s three sons (the applicants nos. (1)-(3) in the appendix) and C.G.M., the victim’s father, went to Clejani Police Station to report the assault.", "8. In front of the police station they were allegedly attacked by a group of fifty villagers. When I.B. arrived there, attracted by the noise, he saw C.G.M. injured, with his head covered with blood. His sons’ car was also damaged (the windows were broken and the car’s bonnet was concertinaed). I.B. also saw the villagers chasing his sons and attacking them with stones, bats and bricks.", "9. At around 6 p.m. police officers T.B. and M.N. from Clejani police station, accompanied by colleagues from the Giurgiu Rapid Intervention Squad (Detaşamentul Poliţiei pentru Intervenţie Rapidă) arrived at I.B.’s home to take him into custody. The police intervention team entered the yard and took him by force to the police car, while shouting abuse and calling him a gypsy (ţigan). To I.B.’s question whether they had a search warrant, T.B. pointed to the special squad and said “They are my search warrant!”. Then the police made two children from the household, one aged 13 and one 14, lie down on their stomachs and called them wretched disgraceful gypsies (ţigani borâţi). The sixth applicant, Marian Boacă, who was 13 at the time, and M.D., I.B.’s daughter-in-law, were taken to the police station in the same car.", "10. Later, the first three applicants, I.B.’s other sons, were apprehended on the street by ten masked police officers, who shouted at them to lie down and then kicked them in the stomach and face while shouting abuse and calling them “wretched disgraceful gypsies”. They were also taken to Clejani police station, where they found the sixth applicant and M.D. standing with their arms up, facing the wall.", "11. The interrogations took place in the chief of police’s office. I.B. was taken there first. He was beaten up first by police officer T.B. and two masked officers. Two more masked officers joined them later. They kicked I.B. in the ribs, on his right side; they punched him and beat him with their weapon butts and shouted abuse. I.B. lost consciousness. The first three applicants were brought to the same office and tripped over their father’s body, which was lying unattended on the floor. They were ordered to lie down and were hit and shouted at. T.B. called the chief of the Letca Noua Police Station and told him to come for “a match with the boys” (la o partidă cu băieţii). Some ten to fifteen minutes later officers from Letca Noua joined the interrogations and started hitting the applicants. According to the applicants, the police officers who beat them up had been drinking alcohol.", "12. At the applicant’s request, the officers eventually allowed I.B. to leave the police station, but told the first three applicants that they had to sign confessions concerning the rape of a foreign woman and the theft of pipes. The statements had been written by the police officers. The applicants were not allowed to read the contents of those confessions. They denied committing any crime, but eventually signed the confessions and were allowed to leave the police station.", "13. On 30 March 2006 an altercation broke out between the Boacă family and the G. family, both parties behaving aggressively towards each other and armed with dangerous objects. The altercation occurred in front of the Clejani police station, where the G. family (belonging to the Ursari Roma community – țigani ursari) was going to make a criminal complaint against the applicants’ family about a previous altercation that had occurred the same day. In their statements to the police, members of the G. family related that the third applicant had tried to hit them with the car and, driving dangerously, had managed instead to hit his father, I.B.", "14. In this context, at 6.30 p.m. the Giurgiu Rapid Intervention Squad was called to restore public order. A team of four officers and a driver was in place from 7 p.m. to 6 a.m. the next day. According to the police agents’ statements, there were no incidents during this operation, as the Boacă family members concerned willingly complied with the police orders given when they were apprehended. Four eyewitnesses, all proposed by I.B., declared they had seen him come out of the police station feeling ill, but with no apparent indications that he had been attacked.", "15. M.N., the head of Clejani police station, did not participate in the investigation out of fear of reprisals from the Boacă family.", "16. I.B. was taken by ambulance to Giurgiu County Hospital, where he underwent pulmonary X-ray investigations but received no treatment. He was then taken to Bucharest University Hospital, where he remained from 31 March to 4 April 2006.", "17. On 11 April 2006 a forensic doctor examined him. The medical certificate concluded that he had suffered a thoracic trauma inflicted by a “blow caused by a hard object or by body impact”. He needed fifteen to nineteen days to recover.", "18. Mihăileşti Police started investigating the events of 30 March 2006. The accusations were of theft of pipes by members of the Boacă family and of a brawl involving twenty-one people, mainly belonging to the two families (Boacă and G.). Statements were taken from all those involved in the altercation and from some eyewitnesses. In their various statements made during those investigations, I.B. and the applicants declared that they had been beaten up by police. Some members of the opposing family declared that I.B. had been hit by the car driven by his son, the third applicant.", "19. On 9 May 2007 the prosecutor’s office attached to Giurgiu County Court decided not to prosecute any of those involved in the incidents. He noted that the pipes had been returned to their rightful owner, who did not wish to seek damages from the applicants’ family; as for the brawl, the prosecutor noted that there had been “reciprocal violence” and therefore decided to impose administrative fines on all involved.", "20. It appears that the decision was not contested.", "21. On 1 June 2006 I.B. and the first three applicants lodged a criminal complaint with the prosecutor’s office attached to Giurgiu County Court against the police officers who had allegedly ill-treated them. In his complaint to the police, I.B. stated that the police chief was friendly with the Ursari Roma from Clejani, with whom the Boacă family were in conflict. They also complained of discrimination, arguing that because of their Roma origin the police officers had been aggressive towards them and had called them racist names.", "22. The prosecutor started the investigations. He took statements from the six police officers involved in the events, including T.B. and M.N. They all denied having harmed the plaintiffs in any way. The prosecutor examined the intervention squad’s official report from 30 March 2006 as well as the prosecution file concerning the accusations brought against the members of the two families involved in the fight on 30 March (see paragraph 18 above).", "23. On 18 December 2006 the prosecutor’s office dismissed the complaint on the ground that the police officers’ actions did not disclose any appearance of a criminal offence. The prosecutor noted that the rapid intervention squad was called to the scene of an altercation which the local police could no longer contain. In the squad’s official report it was explained that intervention was required “for an altercation between two Gypsy clans” (scandal între două grupuri de ţigani). The prosecutor considered that the plaintiffs had failed to provide medical evidence of the injuries they had sustained, or that injuries had been inflicted by police officers.", "24. The plaintiffs appealed against that decision to the prosecutor‑in‑chief, but their objection was dismissed on 29 January 2007. The applicants challenged that decision before the Giurgiu County Court, reiterating their complaints of ill-treatment and discrimination.", "25. On 16 April 2007 the Giurgiu County Court upheld the prosecutor’s decision, considering that the applicants had not provided proof of their allegations.", "26. The plaintiffs appealed, and on 27 June 2007 the Bucharest Court of Appeal quashed the above-mentioned decision and ordered the prosecutor to continue the investigation. It considered that the prosecutor had not taken into account the forensic medical certificate delivered to I.B., had not heard either the applicants or the eyewitnesses, and had not allowed the applicants to produce evidence (medical evidence or witnesses).", "27. On 29 August 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers. The prosecutor considered that the plaintiffs had not substantiated their allegations of ill-treatment and discrimination. It found that the police officers had acted lawfully and had been trying to counter the plaintiffs, who had used gas guns and sharp objects. One eyewitness was heard by the prosecutor.", "28. I.B. and the first three applicants appealed against the prosecutor’s decision, but on 21 October 2008 the prosecutor-in-chief dismissed their objections and thus upheld that decision. On 28 October 2008 I.B. and the first three applicants appealed once again before the Giurgiu County Court.", "29. On 3 February 2009 the Giurgiu County Court allowed the appeal lodged by the four plaintiffs, quashed the decisions of the prosecutor and of the prosecutor-in-chief, and sent the case back to the prosecutor, on the ground that the investigations ordered by the court had not been carried out by the prosecutor.", "30. The prosecutor’s office challenged that decision, and on 12 June 2009 the Bucharest Court of Appeal allowed the appeal on points of law in part. It found that the criminal investigation should be continued regarding I.B.’s injuries. As far as the first three applicants were concerned, it considered that the criminal investigation should be closed because, in failing to sign the appeal against the decisions of 29 August 2007 and of 21 October 2008, they had in fact not endorsed the application for an investigation. The court considered that by failing to sign the application for leave to appeal within the assigned deadline the applicants had lost the right to lodge that appeal.", "31. On 28 October 2009 the prosecutor’s office refused to institute criminal proceedings against the police officers, on the ground that their actions were consistent with their professional duties. He heard evidence from four eyewitnesses, who had seen I.B. being taken into the police station and then had seen him coming out. They reported that they could not see any signs of violence on him. One witness said that he could hear I.B. screaming and wailing in the police station, and that when he came out he had asked them to call an ambulance because he did not feel well.", "32. On 4 December 2009 the prosecutor-in-chief upheld that decision. I.B. appealed against both decisions before the Giurgiu County Court, which on 22 April 2010 dismissed his appeal. The court noted that the prosecutor heard I.B. and four villagers who were in front of the Clejani police station during the incidents. The four villagers declared that I.B. did not have any signs of violence on him when he left the police station. The court dismissed as unsubstantiated the allegations of discrimination made by I.B.", "33. On 1 April 2010 I.B. died of causes unrelated to the present case and the first six applicants continued the proceedings instituted before the domestic courts.", "34. On 14 December 2010 the Bucharest Court of Appeal upheld the decision delivered by the Giurgiu County Court and dismissed an appeal on points of law raised by I.B.’s heirs. It reiterated that the four witnesses had not seen the police officers beating the victims, and considered that the fact alone that there had been other witnesses who could have been heard by the prosecutor was irrelevant, given the evidence already gathered in the case.", "35. The United Nations Committee on Elimination of Racial Discrimination in its 2010 Annual Report held with respect to the situation of Roma people in Romania the following:\n“(15) The Committee notes with concern the excessive use of force, ill-treatment and abuse of authority by police and law enforcement officers against persons belonging to minority groups, and Roma in particular. It is also concerned about the use of racial profiling by police officers and judicial officials.”", "36. The Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities published an opinion on 23 February 2006 regarding Romania’s compliance with that Convention. The relevant parts of the opinion concerning respect of its Article 6 on tolerance and intercultural dialogue read as follows:\n“101. Although there has been significant improvement following the efforts made by the authorities, there continue to be reports of inappropriate behaviour by certain police members vis-à-vis persons belonging to the Roma community, in some cases involving violence, although such reports are now much less frequent. Non‑governmental sources also indicate that there are shortcomings in the judicial investigations and prosecution of such incidents. 102. Despite the fact that the Ministry of the Interior has special investigation procedures and a special body to deal with complaints of abuse by police members and to apply sanctions where appropriate, the Advisory Committee notes that there are concerns with regard to the impartiality of such investigations ... 104. The authorities should identify the most appropriate solutions to ensure efficient and impartial investigation of complaints against members of the police forces. Additional measures should be taken to train and inform members of the legal profession to ensure that legislation on discrimination and the provisions of the Criminal Code regarding the fight against racism and intolerance are fully applied.”", "37. The Council of Europe High Level Meeting on Roma in October 2010 adopted the “Strasbourg Declaration on Roma”. Under the heading “Access to justice”, the Declaration recommends that member States:\n“(27) Ensure timely and effective investigations and due legal process in cases of alleged racial violence or other offences against Roma.\n(28) Provide appropriate and targeted training to judicial and police services.”", "38. In a letter addressed to the Romanian Prime Minister on 17 November 2010 the Council of Europe’s Commissioner for Human Rights expressed particular concerns that Roma continue to face pervasive discrimination in Romania. The Commissioner also stated, inter alia, that:\n“anti-Roma rhetoric is present in domestic political discourse. Some politicians have made stigmatising statements, among others linking Roma with criminality, blaming this population for not trying to integrate, and referring to popular stereotypes.”", "39. On 1 February 2012 the Committee of Ministers of the Council of Europe adopted a Declaration on the rise of anti-Gypsyism and racist violence against Roma in Europe, in which deep concerns are expressed with respect to the fact that:\n“In many countries, Roma are subject to racist violence directed against their persons and property. These attacks have sometimes resulted in serious injuries and deaths. This violence is not a new phenomenon and has been prevalent in Europe for centuries. However, there has been a notable increase of serious incidents in a number of member States, including serious cases of racist violence, stigmatising anti-Roma rhetoric, and generalisations about criminal behaviour.”", "40. In his June 2014 report on Romania, CommDH(2014)14, the Commissioner for Human Rights stated as follows:\n“196. The Commissioner wishes to underline the view expressed by NGOs that Roma are confronted at present mainly with institutionalised racism combined with excessive use of force by law-enforcement authorities. Although such incidents are not frequently reported, they seem to be a current problem in Romania, with several of them resulting in deaths or serious injury. In 2013, NGOs reported two cases of excessive use of force by the police during searches carried out in Roma homes in Reghin, Mureș county. In the previous year, on 31 May, 10 June and 28 July 2012, members of the police and gendarmerie in different parts of the country killed three Roma men during pursuits.”\nHe further reiterated that the domestic authorities should display special diligence in investigating possible racist motives as the origin of violence inflicted on Roma:\n“197. In this context, the Commissioner notes the Court’s judgment in the case of Stoica v. Romania in which the Court found that the applicant’s ill-treatment by the police had been motivated by his ethnic origin (Roma). In Cobzaru v. Romania, concerning the beating of a Roma man while in police custody, the Court found that the circumstances in the case disclosed no prima facie indication of racist motives behind the applicant’s ill-treatment; however, the prosecuting authorities should have displayed special diligence in investigating possible racist motives at the origin of the violence inflicted on the applicant. Nevertheless, the authorities failed to investigate such motives and made racially biased remarks about the applicant’s ethnic origin during the investigation. These cases are part of the Barbu Anghelescu group of 21 cases, concerning primarily ill-treatment inflicted on the applicants while they were under the responsibility of law enforcement officers, and the ineffectiveness of the investigations into the allegations of ill-treatment. The execution by Romania of the judgments delivered in this group of cases is under the supervision of the Council of Europe Committee of Ministers since 2005.”" ]

[ 8, 1 ]

[ "5. The applicant was born in 1966 and lives in Panevėžys.", "6. The applicant was employed as the head of a municipal kindergarten in Panevėžys.", "7. On 11 December 2007 she was informed by the local office of the Special Investigation Service that, as a person of equivalent status to a civil servant, she was under investigation on suspicion of fraudulent management of accounts, abuse of office and forgery of documents. In May 2008 she was informed of additional suspicions against her concerning further acts of abuse of office, forgery of documents and misappropriation of property.", "8. In June 2008 the applicant submitted a request to the pre-trial judge to terminate the criminal investigation on the grounds that it had been excessively long. The judge refused the request, noting that the investigation had been completed earlier that month and the case was ready for trial.", "9. On 4 July 2008 the case was referred for judicial examination. On 13 July 2009 the Panevėžys District Court (hereinafter “the first-instance court”) found the applicant guilty on several of the charges against her. She was sentenced to a fine of 2,600 Lithuanian litai (LTL, approximately 753 euros (EUR)) and a prohibition on working for the civil service for two years and six months.", "10. The judgment was amended on appeal: on 19 February 2010 the Panevėžys Regional Court (hereinafter “the appellate court”) upheld the applicant’s conviction on some of the charges and acquitted her on several others. Her sentence was reduced to a fine of LTL 1,820 (EUR 527) and a prohibition on working for the civil service for one year and nine months. Soon afterwards the applicant was dismissed from her job by the Panevėžys City Municipality in line with the decision of the appellate court.", "11. By a final judgment of 16 November 2010 the Supreme Court of Lithuania upheld the reasoning of the appellate court but changed the applicant’s sentence. The Supreme Court found that when determining the length of the applicant’s prohibition on working for the civil service, it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation (see paragraphs 12-19 below). As a result, the period of prohibition was reduced to one year and three months.", "12. Immediately after the launch of the criminal investigation against the applicant (see paragraph 7 above), on 12 December 2007 the first-instance court granted the prosecutor’s request to have the applicant suspended from her job as the head of the kindergarten for three months. The court held that there were grounds to believe that the applicant, as a person of equivalent status to a civil servant, might use her official position to hinder the investigation by, for example, destroying or fabricating evidence, or attempting to influence the witnesses in the case, who were her subordinates.", "13. The applicant appealed against the decision, arguing that she could not be equated to a civil servant because she worked under an employment contract with the Panevėžys City Municipality. She further argued that all the important documents had already been collected from the kindergarten and all the relevant witnesses had been questioned, so there was no possibility for her to interfere with the investigation. The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer’s evaluation of her had always been positive; thus there were no grounds to believe that she would use her official position to hinder the investigation. Lastly, the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter, whom the applicant was raising alone. However, the appellate court dismissed the applicant’s appeal and upheld the reasoning of the first-instance court.", "14. Subsequently the first-instance court granted the prosecutor’s requests to extend the applicant’s suspension from her post by further periods of one to three months on essentially the same grounds. The applicant appealed against all the decisions, raising the same arguments as before, but her appeals were dismissed by the appellate court (on 27 December 2007, 21 March 2008, 26 May 2008, 18 June 2008 and 6 August 2008). On 6 August 2008 the appellate court noted, inter alia, that the applicant was only suspended from holding a specific post in a particular kindergarten, so the suspension did not affect her ability to take a different job and thus obtain a source of income.", "15. On each of the above-mentioned occasions the decision of the first-instance court was taken following a written procedure, while the appellate court held oral hearings (see paragraphs 23 and 25 below). Neither the applicant nor her representative was present at any of these hearings. The prosecutor was present at the hearing of 21 March 2008.", "16. After the criminal case was referred for judicial examination (see paragraph 9 above), in October 2008 the first-instance court held an oral hearing in which it extended the applicant’s suspension from her post by two months on the same grounds as before. The applicant and her representative were present at the hearing. The applicant’s appeal was subsequently dismissed by the appellate court.", "17. On 1 December 2008 the first-instance court in an oral hearing at which the applicant and her representative were present, terminated the applicant’s suspension from her post. The court found that almost all the witnesses had been questioned, so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation. The applicant returned to her job as the head of the kindergarten the following day.", "18. However, on 12 December 2008 the appellate court overturned the decision of the first-instance court, finding that the investigation had not been completed yet, so there was still a risk that the applicant may hinder it. Since the appellate court was not authorised by law to adopt a new decision extending the suspension, the prosecutor submitted a new request for an extension to the first-instance court. During this period the applicant continued working as the head of the kindergarten.", "19. On 16 January 2009 the first-instance court, in an oral hearing at which the applicant and her representative were present, renewed the applicant’s suspension from her post for a period of three months. However, on 12 February 2009 the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first-instance court. The applicant returned to her job and remained the head of the kindergarten until her dismissal in February 2010 (see paragraph 10 above).", "20. On 20 December 2007 the applicant submitted a complaint to the Inspector of Journalistic Ethics concerning several articles in the Panevėžio rytas newspaper. The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality. The applicant complained that these articles had been defamatory and insulting. She also complained about a comment posted by a user on the website of the Lietuvos rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother.", "21. On 9 June 2008 the Inspector of Journalistic Ethics partly satisfied the applicant’s complaint. The Inspector found that the comment on the website of Lietuvos rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website. With respect to the articles in Panevėžio rytas, the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism. The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals, so the newspaper could not be held accountable for their factual accuracy.", "22. The Inspector’s decision indicated that it could be appealed to the court within thirty days. The applicant did not appeal." ]

[ 3 ]

[ "5. The applicants were born in 1943, 1975 and 1969, respectively, and live in London, the United Kingdom.", "6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.", "7. On 5 November 1997 Croatia ratified the Convention.", "8. The documents submitted by the parties reveal the following facts.", "9. The applicants lived in Knin, within the territory of Krajina. During Operation Storm the town of Knin was shelled by the Croatian army. During the shelling the applicants hid in the basement of their building. J.T. was found dead near a petrol station in Knin after one of the shelling attacks. It appears that he was buried at a cemetery in Knin.", "10. On 25 April 2001, during the exhumations at the “New Cemetery” (Novo groblje) in Knin, the first applicant approached the police and said that her husband, J.T., had been buried at that cemetery. The Šibenik-Knin Police Department, Knin Police Station (Policijska uprava šibensko-kninska, Policijska postaja Knin), then interviewed the first applicant about the circumstances of the death of her husband. She stated that her husband had died on 5 August 1995 near a petrol station in Knin. Given that Knin had been under artillery attack, the first applicant assumed that her husband had been killed by a shell. She further stated that she had seen her husband’s dead body lying on the pavement near the above-mentioned petrol station. She gave a detailed description of his appearance and of the clothes he had been wearing. Members of the Croatian army appeared at the crime scene and took the first applicant to a UNPROFOR (United Nations Protection Force) camp in Knin. She had obtained no further knowledge of the whereabouts of her husband’s body. She assumed that he was buried at a cemetery in Knin.", "11. A number of remains were exhumed during May and June 2001 at the cemetery in Knin. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Šibenik (Županijsko državno odvjetništvo u Šibeniku). After they were exhumed, the remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) but J.T.’s remains were not identified at that time. On 20 June 2001 the International Criminal Tribunal for the former Yugoslavia issued an autopsy report which concluded that the probable cause of the death for the remains which were only in 2010 identified as being those of J.T., was a gunshot to the neck.", "12. On 26 November 2001 the Knin Police Station submitted to the Šibenik-Knin Criminal Police Department (Odjel kriminalističke policije, Policijska uprava šibensko-kninska) its official notes of the interviews which it had conducted with the families of the people killed during and after Operation Storm. The above-mentioned interview with the first applicant was also submitted.", "13. On 28 November 2003 the Institute for Forensic Medicine in Zagreb extracted a genotype from J.T.’s remains and compared it with DNA samples from its database. However, they failed to find a match and could not establish the identity of the remains.", "14. After the applicants on 26 February 2007 filed with the State Attorney’s Office a claim for damages in connection with the killing of J.T. (see paragraph 25 below), the Knin police opened an inquiry into the circumstances of his death.", "15. On 5 December 2007 the Knin Police Station interviewed M.T., who stated that the first applicant had told her about the events in Knin during Operation Storm and the death of her husband, J.T. She had no further useful information.", "16. On 13 February 2008 the Šibenik-Knin Criminal Police Department interviewed Lj.M. She described the events of 5 August 1995 as follows. During the artillery attack on Knin she and her family had hidden in a basement. After the attack they had left the basement. The Croatian army had led the civilians to a furniture shop, from where they had been taken to the barracks known as “southern camp” (južni logor). The first and the second applicants had also been in this group of civilians. As they had been passing through Knin, the witness had seen the dead body of J.T. He had been dressed in civilian clothes and had had no visible injuries. Lj.M indicated that she had no recollection of seeing J.T. wearing the military uniform of the Republic of Serbian Krajina (RSK: Republika Srpska Krajina). Lj.M’s statement was confirmed by her mother-in-law, Z.M.", "17. On 19 February 2008 the Šibenik-Knin Criminal Police Department interviewed I.M., a neighbour of the Treskavica family. She stated that J.T. had not been a member of the army or the police of the Republic of Serbian Krajina and that she had never seen him wearing a military uniform. During Operation Storm her family and the Treskavica family had been hiding in the basement of their residential building. J.T. had occasionally come to the basement, but he had not been present all the time. The last time that I.M. had seen him alive had been on 5 August 1995, between 10 and 11 a.m. After they had all left the basement, she had seen the dead body of J.T. lying on the street. She had no further information.", "18. On 20 February 2008 the Šibenik-Knin Criminal Police Department informed the County State Attorney’s Office in Šibenik that the case had not yet been registered and that it had failed to determine whether J.T. had been a member of the army or the police of the Republic of Serbian Krajina. The police indicated that they had conducted interviews with Lj.M. and I.M. However, it was not possible to conduct an interview with the first applicant, since she resided in England. The police indicated that J.T. had most likely been buried at the cemetery in Knin. His remains had been exhumed and transferred to the Institute for Forensic Medicine in Zagreb, where they were still being identified.", "19. On 13 November 2009 P.T., J.T.’s brother, provided information about J.T.’s ante-mortem physical features to the Red Cross of Serbia (Crveni Krst Srbije) in order that his post-mortem remains might be identified. On the same day P.T. requested that a search be undertaken for the post-mortem remains of J.T.", "20. On 14 February 2010 family members provided blood. After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 16 April 2010, which stated that the post-mortem remains were those of J.T.", "21. On 24 May 2010 the family of J.T. was invited to the final identification of the post-mortem remains. On 16 June 2010 the first applicant confirmed the preliminary identification of the remains.", "22. On 8 July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours. J.T. was listed as one of those missing persons.", "23. On 19 July 2010 the remains of J.T. were buried at the local cemetery in Knin, in accordance with the wishes of the applicants.", "24. On 10 August 2010 the Knin Police Station issued an official note about the inquiry into J.T.’s disappearance. After interviewing the first applicant, the police determined that J.T. had died on 5 August 1995 and had been buried on 19 July 2010 at the cemetery in Markovac. On 6 September 2010 the Knin Police Station notified the Šibenik-Knin Criminal Police Department of those findings.", "25. On 7 July 2014 the Ministry of War Veterans (Ministarstvo branitelja) replied to a request of the War Crimes Department of the Ministry of the Interior (Ministarstvo unutarnjih poslova, Služba ratnih zločina) concerning the case of J.T. The Ministry of the Interior notified the police of the exhumation and identification of J.T.’s remains.", "26. On 26 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of J.T. The request was refused.", "27. On 14 June 2007 the applicants brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking damages in respect of the death of J.T. under the 2003 Liability Act.", "28. On 17 December 2008 the municipal court dismissed the claim on the ground that there was “no evidence that J.T.’s death had been a result of terror or violence aimed at gravely disturbing public order.” That judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012.", "29. The applicants’ subsequent constitutional complaint was dismissed on 3 October 2012 by the Constitutional Court (Ustavni sud Republike Hrvatske)." ]

[]

[ "5. The applicant was born in 1966 and is detained in Stargard Szczeciński.", "6. The applicant is a habitual offender. He was arrested on an unspecified date on suspicion of uttering threats. He was subsequently convicted as charged and sentenced to three years and six months’ imprisonment. He was first detained in Nowogard Prison and subsequently in Goleniów Prison.", "7. On 7 September 2011 the applicant’s cell was searched. During the search the prison officers found a note entitled “Protest letter” signed by 135 prisoners. The prisoners stated their opposition to the forthcoming changes to the Code of Execution of Criminal Sentences affecting, in particular, the possibility of shopping during prison visits. The letter was confiscated by the authorities.", "8. On 8 September 2011 the Nowogard Prison Penitentiary Commission imposed on the applicant the so-called “dangerous detainee” regime. The commission held that the applicant was one of the organisers of a planned collective remonstrance in Nowogard Prison, and that it was therefore necessary to isolate him from other prisoners.", "9. The applicant appealed against that decision. He submitted that he was not the organiser of the protest but merely one of 140 prisoners who had signed the letter.", "10. On 29 November 2011 the Szczecin Regional Court dismissed the applicant’s appeal. The court held that the decision had been lawful.", "11. On an unknown date the applicant was transferred to Goleniów Prison.", "12. On 6 December 2011 the Goleniów Prison Penitentiary Commission extended the imposition of the “dangerous detainee” regime, holding that the applicant represented a serious threat to the community and should be kept in a solitary cell. The applicant appealed.", "13. On 31 January 2012 the Szczecin Regional Court quashed the decision and remitted the case to the commission. The court held that only the original decision to impose the regime of 8 September 2011 had been justified. The following one taken on 6 December 2011 had not indicated any new circumstances justifying the continuing application of the regime and its reasoning had been scarce. The court noted that several months had elapsed since the applicant had signed the protest letter and the suppositions regarding the allegedly planned collective remonstrance of the prisoners had been not confirmed.", "14. On 14 February 2012 the Goleniów Prison Penitentiary Commission decided to lift the “dangerous detainee” regime. The regime was imposed on the applicant for a total of five months and seven days." ]

[ 1 ]

[ "4. The applicant was born in 1977 and is serving a sentence in Diyarbakır prison.", "5. On 11 January 1996 the applicant was arrested and taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. On the same day he was examined by a doctor at the request of the police. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body.", "6. On 24 January 1996 the applicant’s statement was taken by the police. The applicant acknowledged being a member of Hizbullah and gave a detailed account of his activities within that illegal organisation. The applicant did not benefit from the assistance of a lawyer when he made that statement.", "7. On 2 February 1996 the applicant was once again examined by a doctor who, in a document issued by the police headquarters to which the applicant’s name was added, noted that there was no sign of physical violence on his body.", "8. On the same day the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he retracted the statements he had made to the police, claiming that he had signed them under duress. The judge remanded him in custody.", "9. On the same day the applicant was placed in detention.", "10. On 29 February 1996 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant and several other persons – pursuant to Article 125 of the former Criminal Code, in force at the material time – of carrying out activities with the aim of bringing about the secession of part of the national territory. The public prosecutor alleged that the applicant had taken part in the killing of eight persons and the wounding of four persons by Hizbullah.", "11. On 18 April 1996 the Diyarbakır State Security Court held the first hearing on the merits of the case (case no. 1996/113).", "12. On 8 May 1996 the applicant made a statement before the court in which he denied the charges brought against him, claiming that he had been coerced by the police into signing the document containing his statement.", "13. On 13 June 1996, at the end of the third hearing in the case, the applicant was released pending trial.", "14. On 18 June 1999 the Constitution was amended and the military judges on the bench of the state security courts were replaced by civilian judges.", "15. On 21 February 2002 – while case no. 1996/113 was still pending before the Diyarbakır State Security Court – the applicant was arrested once again, on suspicion of having been involved in certain armed acts undertaken by Hizbullah. According to the arrest report, which was signed by three police officers and the applicant, the police had had to use force in order to apprehend the applicant, since the latter had attempted to resist arrest and flee.", "16. On the same day the applicant was examined by a doctor at the Batman state hospital. The doctor noted, in a police document, that the applicant had signs of physical violence on six areas on his back, bruises on both wrists, two cuts on his left ear and an injury to his right eye.", "17. On 24 February 2002 the applicant gave a statement to the police in the absence of a lawyer, explaining in detail the structure of the illegal organisation and his role as a member. According to the police document, he acknowledged, inter alia, that he had been involved in a number of killings and abductions committed by Hizbullah.", "18. On 25 February 2002 the applicant was once again examined by a doctor at the Batman state hospital. In a document of the police directorate to which the applicant’s name was added, the doctor who examined the applicant noted that he had a cut on his left ear.", "19. On the same day the applicant was questioned by the Batman Magistrates’ Court. During that questioning, the applicant, without any legal assistance, retracted the statement he had made to the police. He alleged that he had been blindfolded while in police custody and coerced into signing that document. The Batman Magistrates’ Court remanded the applicant in custody.", "20. On 27 February 2002 the applicant lodged an objection with the Batman Criminal Court against the decision of 25 February 2002 remanding him in custody. In his petition, the applicant denied the charges against him and submitted that he had been subjected to ill-treatment while in police custody. In particular, he had been stripped naked, blindfolded, given electric shocks to his genitals, subjected to “Palestinian hanging”, threatened with the rape of his wife, and insulted.", "21. On 13 March 2002 the public prosecutor at the Diyarbakır State Security Court lodged a new indictment with that court under Article 146 of the then applicable Criminal Code, accusing the applicant of having attempted to undermine the constitutional order by force. According to the bill of indictment, the applicant had, acting within the hierarchy of Hizbullah, given instructions for the killing of three persons and the abduction of two others.", "22. On 16 May 2002 the Diyarbakır State Security Court held a hearing in the case initiated by the public prosecutor’s indictment dated 13 March 2002 (case no. 2002/81). During the hearing, the applicant made a statement and retracted the statement that he had given to the police and denied the charges against him. He further stated that he had not attempted to flee arrest and stated that the arrest report was untrue. He noted that police officers had been present during his medical examinations; therefore, he had not been able to inform the doctors that he had been ill-treated. At the end of the hearing, at the request of the public prosecutor, the first-instance court decided to join the case to case no. 1996/113.", "23. During the thirty-third hearing in case no. 1996/113, on 6 June 2002, the applicant made a statement before the first-instance court and once again stated that the various police documents contained untruths.", "24. On 16 January 2004 the applicant filed a request with the Diyarbakır State Security Court to be allowed to benefit from the Reintegration of Offenders into Society Act (“Law no. 4959”).", "25. At a hearing held on 8 April 2004, the applicant confirmed the accuracy of his statement to the police and stated that he had been a member of Hizbullah. He maintained, however, that he had never been involved in any armed acts but had only provided intelligence to other members of Hizbullah. He reiterated his request to benefit from Law no. 4959 during eight other hearings and in his petitions dated 8 April and 24 November 2004, 3 March 2005, 13 April 2006, and 22 February 2007 and submitted to the first-instance court, noting that he had no negative comments to make in respect of the police or the other State authorities.", "26. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, the State Security Courts were abolished. The case against the applicant was accordingly transferred to the Diyarbakır Assize Court.", "27. On 10 June 2008 the Diyarbakır Assize Court delivered its judgment in the case.", "28. The Diyarbakır Assize Court acquitted the applicant of (i) all the charges against him brought under the public prosecutor’s indictment of 29 February 1996 (see paragraph 10 above), (ii) the charge of involvement in the killing of one of the three persons noted in the indictment of 13 March 2002, and (iii) the charge of involvement in the alleged abduction of two other persons (see paragraph 21 above). In acquitting the applicant of those charges, the first-instance court noted that there was no evidence against the applicant other than the statements he had made to the police, which had allegedly been taken under duress.", "29. On the other hand, the Diyarbakır Assize Court found that the applicant had been a member of Hizbullah and had ordered two other members of Hizbullah to kill two persons in furtherance of Hizbullah’s aims and that his order had been executed by those two members. In its judgment the court relied on (i) the applicant’s statement to the police made on 24 February 2002 (see paragraph 17 above), (ii) the statement that he had made on 8 April 2004 during the trial (see paragraph 25 above), (iii) the statements to the police of the two gunmen who had allegedly carried out the killings upon the instructions of the applicant, and (iv) the statements of those gunmen before the public prosecutors and investigating judges after they had been arrested. The Diyarbakır Assize Court considered that the aforementioned statements by the applicant and the gunmen were consistent with each other and proved that the applicant had instructed the gunmen to kill the two persons mentioned in the bill of indictment. The court accordingly convicted the applicant of attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code and sentenced him to life imprisonment. It further rejected his request to benefit from Law no. 4959, as he had not provided information which could have contributed to the dissolution of an illegal organisation or brought to light any facts unknown to the authorities.", "30. In its judgment, the Diyarbakır Assize Court also referred to four medical reports drawn up in respect of the applicant, but did not refer to the applicant’s allegations of ill-treatment. The court noted that the first two reports, which had been issued in 1996, had not indicated any sign of ill‑treatment, whereas the others, drawn up on 21 and 25 February 2002 respectively (before and after the applicant’s detention in police custody) referred, respectively, to trauma and cuts on the applicant’s body and a cut on his left ear.", "31. On 12 June 2008 the applicant’s lawyer appealed against the judgment, arguing that the applicant had been convicted on the basis of statements taken under duress.", "32. On the same day the applicant made another application to benefit from Law no. 4959 and requested a reduction in his sentence in view of the fact that he had been a minor at the time of the offence.", "33. On 8 October 2009 the Court of Cassation dismissed the applicant’s requests and upheld the judgment of the first-instance court." ]

[ 3 ]

[ "5. The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest.", "6. In a dispute concerning a construction project envisaged in public procurement, in January 2012 the applicant company brought an action in damages against a university.", "7. The President of the territorially competent Budapest High Court requested the National Judicial Office (“NJO”) to reassign the case to another court of the same jurisdictional level. In the request the President provided particulars about the case to be reassigned and indicated the data and the circumstances which prevented the adjudication, within a reasonable time, of this case, deemed to be of high importance, by relying on, in particular, the case-load of judges hearing civil cases, significantly exceeding the national average.", "8. The President of the NJO examined the case-load statistics of the Budapest High Court, including the volume of highly important and priority cases and the workload of judges hearing civil cases. She found that, in view of the short statutory time-limits, the adjudication of the case within a reasonable time could only be ensured by reassigning the case to another court.", "9. By requesting information from the President of the Zalaegerszeg High Court, the President of the NJO also examined the case-load and the operational conditions, including staff and facilities, of the Civil Division of the Zalaegerszeg High Court. On the basis of this information, the President of the NJO was satisfied that the reassignment of the case to the Zalaegerszeg High Court would not impose a disproportionate burden on that court.", "10. For the sake of judicial economy as appreciated above, on 16 February 2012 the President of the NJO case assigned the case to the Zalaegerszeg High Court (decision no. 29/2012. (II.16.) OBHE), acting within the powers conferred upon her by the law.", "11. The Zalaegerszeg High Court heard the case and dismissed the claim on 5 June 2012. That decision was confirmed by the Pécs Court of Appeal on 18 September 2012, a ruling served on 12 October 2012. The latter’s territorial competence to hear the appeal was a consequence of the case having been assigned to the Zalaegerszeg High Court.", "12. Meanwhile, on 17 September 2012 the National Judicial Council issued decision no. 58/2012 on “the guidelines to be observed in respect of case reassignment”.", "13. On 7 September 2013 the Kúria upheld the decisions of the High Court and the Court of Appeal in review proceedings.\nThe courts held in essence that the applicant company’s perception according to which the university had unlawfully backed out of the investment contract (namely, the construction of a dormitory) was nothing more than a misconception of the law and a tendentious interpretation of the circumstances, and that the facts of the case did not reveal any compensation liability on the respondent’s side, for want of unlawfulness.", "14. Meanwhile, on 13 December 2012 the applicant filed a constitutional complaint. It counted – and complied with – the statutory sixty-day time-limit to do so from the service of the final decision in the case, i.e. from 12 October 2012. It claimed firstly that the domestic courts had reached their decisions in an arbitrary manner and, secondly, that it was deprived of a “tribunal established by law”, since by decision no. 29/2012. (II.16.) OBHE the President of the NJO had reassigned the case from the originally competent court to the Zalaegerszeg High Court.", "15. The constitutional complaint was declared inadmissible on 10 June 2013 (decision no. 3123/2013. (VI. 24.) AB). The Constitutional Court held that the case as a whole did not reveal any arbitrariness or unfairness as such. As regards the specific complaint about the reassignment, it held that this issue was severable from the main procedure. It was of the view that the sixty-day statutory time-limit had run, in that respect, from the very reassignment decision of 16 February 2012 – rather than from 12 October 2012 as construed by the applicant – and for that reason this part of the motion was time-barred.", "16. On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB in the matter of reassignment, in pursuit of constitutional complaints originating in cases other than that of the applicant. It held that the regulations which entitled the President of the NJO to reassign cases among courts (notably, sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, see paragraph 20 below) had been unconstitutional and in violation of Article 6 of the Convention. According to the Constitutional Court, the right for one’s “natural” (lawful) judge flows from the right to have one’s case examined by a court “established by law” and requires that a case be heard by a judge belonging to the court with competence and territorial jurisdiction and designated by the pre-established objective rules of case assignment of that court. In the Constitutional Court’s view, the impugned regulations, which had conferred responsibility for the reassignment of cases, at least in the material period, entirely on the President of the NJO, had been in breach of those principles. Moreover, it had violated the requirement of the appearance of impartiality. The Constitutional Court also held that the lack of a remedy against the decision of the President of the NJO had violated the Fundamental Law, as well as Article 13 of the Convention.\nThe Constitutional Court did not prescribe any particular legal consequence of this decision for the ongoing procedures concerned by re-assignment. Consequently, the Constitutional Court’s decision did not invalidate any reassignment decisions taken previously (see paragraphs 19 and 24 below)." ]

[ 3 ]

[ "5. The first and second applicants are a married couple who were born in 1959 and 1966. The third, fourth and fifth applicants are their children, a daughter and two sons who were born in 1991, 1996 and 2007.", "6. The first four applicants entered the Netherlands on 7 April 1999 and applied for asylum. In the course of the proceedings on this asylum application, the first and second applicants were both interviewed by the Netherlands immigration authorities on, inter alia, their reasons for seeking asylum.", "7. The first applicant gave the following account to the immigration authorities. He had become a member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) in 1978. During his studies he had volunteered for guard duties at the PDPA headquarters in Kabul’s fifth district. He had been charged with guarding homes against possible mujahideen attacks and checking traffic at intersections for illegal weapons.", "8. In order to avoid being sent to the front during his compulsory military service the first applicant had, upon graduating as a construction engineer from the University of Kabul, voluntarily reported for duty in 1982 to the security battalion of the Council of Ministers in Shar-e-Now, a neighbourhood in Kabul. After working there for three days, the first applicant had requested a transfer to Kabul’s Pol-e-Charki prison, where working conditions were better as they were indoors. The first applicant had been stationed in block 3, where political prisoners were detained. With fifteen other colleagues he had been responsible for guarding the block. He had had no contact with the 150 to 200 prisoners for whom he had been responsible. His tasks had comprised cell patrol and occasional transport to hospital of prisoners who had fallen ill. He had never witnessed any ill‑treatment or torture by the Afghan authorities of prisoners in that period. He had only once witnessed the ill-treatment of a prisoner, by a “bashi” (leader).", "9. After six months the first applicant had applied for a transfer, which had been granted by the deputy head of the Afghan security service Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”)[1]. At the end of July 1982 the first applicant had started as a construction engineer within the ranks of KhAD, which position he had held until April 1992, when the mujahideen ended the PDPA’s communist regime in Afghanistan. The first applicant had been employed in the buildings department of the Logistics Directorate of KHAD, which had been renamed Buildings Directorate in 1986. For this department/Directorate the first applicant and his team of 100-200 construction workers had constructed five buildings for KhAD, including an office building for KhAD’s Directorate 1. He had also been responsible for the construction of twenty ammunition depots.", "10. The first applicant had initially declared to the Netherlands authorities that the highest military rank he had attained was that of lieutenant-colonel, which he later changed to major. He further stated that he had been decorated three times for his achievements.", "11. The first applicant had also been involved in the distribution of party propaganda, delivered to him by the Political Affairs Department of his Directorate, with which he also had meetings twice a week. In addition, he had organised courses for illiterate labourers.", "12. After the fall of the PDPA regime in April 1992 the applicants had fled to Mazar-e-Sharif, where the first applicant had continued to work as a construction engineer for the municipality until 1998. On 10 August 1998 – one day after the Taliban had taken control of Mazar-e-Sharif – the applicants’ home had been raided and searched by eight armed Taliban fighters, who had found, inter alia, the first applicant’s PDPA identity card, some of his medals, and a bayonet. On the suspicion that the applicants had been keeping weapons in their home, the Taliban had arrested the first applicant and his brother.", "13. The first applicant had been incarcerated for about seven months and had been questioned several times, during which he had disclosed in detail his past career in the KhAD/WAD. A nephew or cousin of the first applicant had bribed the Taliban commander concerned in order to obtain the applicant’s release, which had been successful but on condition that the first applicant left Afghanistan immediately. On the evening of his release, he was supposed to be executed. A number of his fellow detainees had indeed been executed, and according to the records, so was he – it was only because of the deal that had been struck with the commander that he had been secretly led away.", "14. The first applicant further told the immigration authorities that he had heard from one of his relatives in Canada that another nephew or cousin, who had also been a member of the PDPA, had been killed in Kabul in 2005 by soldiers of the Ministry of the Interior who were mujahideen or Taliban.", "15. In support of her request for asylum, the second applicant submitted the following account. She had studied educational theory in Kabul, after which she had been employed as a teacher at a high school in Kabul from 1989 to 1991. She had joined the women’s organisation of the PDPA at the same time as taking up her duties as a teacher. She had stopped working when her first child was born. Out of fear of the mujahideen she had refrained from seeking employment during the time the family lived in Mazar-e-Sharif. She had once been beaten on the street for wearing a burka that was judged too short. This had occurred at the time her husband was incarcerated by the Taliban. According to the second applicant, her husband had been ill-treated and subjected to forced labour during his incarceration.", "16. After the first applicant had been interviewed on his asylum application, on 12 April and 25 November 1999 and 26 September 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) issued on 9 October 2001 a notice of her intention (voornemen) to reject the first applicant’s asylum application and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of, inter alia, an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, with the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD. In the notice of intent, the Deputy Minister analysed, on the basis of elaborate argumentation based on various international materials, the nature of the acts imputed to the first applicant in the framework of Article 1F of the 1951 Refugee Convention as well as his individual responsibility under that Convention.", "17. Having regard to the official country report of 29 February 2000 as well as documentation from public international sources such as the United Nations, Amnesty International and Human Rights Watch, the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society. The Deputy Minister considered that this “climate of terror” was also felt within the KhAD/WAD itself. Staff members needed to prove their loyalty to the organisation on an almost daily basis, and a failure to do so put them at risk of being removed from the KhAD/WAD; often this entailed death for the person concerned.", "18. The Deputy Minister was of the opinion that the first applicant must have known of the criminal nature of the methods employed by the organisation where he had made a career. Furthermore, relying on the official report of 29 February 2000, the Deputy Minister excluded the possibility that the first applicant had remained ignorant of the cruel working methods of the KhAD/WAD. She also did not attach credence to the first applicant’s statement that he had not known of any atrocities committed in Pol-e-Charki Prison, where he had performed guard duty for six months. On this point, the Deputy Minister referred to a 1979 report from Amnesty International as well as to reports drawn up by the United States Department of State on this prison, from which it was obvious that Pol-e-Charki was widely associated with heinous crimes.", "19. The Deputy Minister noted in this respect that the first applicant had initially declared that he had witnessed the ill-treatment of a prisoner by an assistant interrogator. No value was attached to the fact that the first applicant had subsequently corrected this initial statement and had submitted that this had concerned an incident amongst detainees. The Deputy Minister considered that the first applicant had had every reason to change his statements into more favourable ones once he learned of the investigation against him to assess whether Article 1F of the Refugee Convention applied to him. The Deputy Minister also noted that the first applicant’s initial statements had been very detailed.", "20. The Deputy Minister further noted that the first applicant had been granted permission, after six months of working as a guard in Pol-e-Charki Prison, to be transferred to a department more suited to his professional profile. According to the Deputy Minister, this meant that the first applicant’s loyalty must have been found proven beyond any doubt, considering that he had been given his position with the KhAD after only a relatively short time in Pol-e-Charki, that the new position opened up opportunities to be promoted to (senior) officer, and that it enabled the first applicant to enter and study several if not many of the KhAD’s buildings. The Deputy Minister concluded that there were serious reasons for considering that the first applicant had committed human rights violations, at least during his time in Pol-e-Charki Prison.", "21. Taking into account, inter alia, an anonymised official report drawn up by the Ministry of Foreign Affairs on 15 September 1999 (DPC/AM 648554), the Deputy Minister further found it highly implausible that during his ten years of experience as a construction engineer for the KhAD/WAD the first applicant would not have become aware of certain uses for which KhAD/WAD’s buildings had been designed, or at least of to what use they had de facto been put. As torture was systemic in KhAD/WAD interrogation centres, it should be considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in this or would have been unaware of it. By reaching the rank of lieutenant-colonel the first applicant had entered the higher echelons of the KhAD/WAD. Further taking into account that the first applicant had been decorated for his achievements and that he had continued performing his duties until the fall of the communist regime, the Deputy Minister reached the conclusion that the first applicant’s competence and loyalty must have been beyond doubt. Furthermore, due to the applicant’s involvement with the Political Affairs Department, the Deputy Minister concluded that the first applicant must have been aware of human rights violations being committed. With reference to anonymised official reports of 15 December 2000 (DPC/AM 635082) and 20 February 2001 (DPC/AM 699244) drawn up by the Ministry of Foreign Affairs, the Deputy Minister considered as regards the political affairs departments that, in the relevant part, their main task had been to guarantee continued loyalty to the Afghan communist regime by means of the reporting of dubious behaviour of individuals to the KhAD/WAD. Political affairs departments cooperated closely with the KhAD/WAD in providing them with information.", "22. These considerations led the Deputy Minister to conclude that the first applicant’s personal participation in the human rights violations attributed to KhAD was an established fact. Considering the reputation of Pol-e-Charki Prison and the first applicant’s denial of any human rights violations, the Deputy Minister could not attach any credence to the first applicant’s statements. She found that the first applicant had failed in making plausible (aannemelijk maken) – on the basis of objective sources or any other means – his stated ignorance of human rights violations by the KhAD/WAD. In terms of the first applicant’s activities for the KhAD/WAD, the Deputy Minister considered that the first applicant had, for a long time, been of service, albeit in an accessory capacity, to the KhAD/WAD, and that it would thus not have been able to perform its tasks without the first applicant’s efforts. The Deputy Minister also found that the first applicant had supported the activities of the Political Affairs Department; although this department had not committed any atrocities itself, it had been an important element in the State apparatus.", "23. The first applicant submitted written comments (zienswijze) on the notice of intent on 7 and 20 November 2001.", "24. On 20 February 2002, the Deputy Minister rejected the first applicant’s asylum application, confirming the reasoning as set out in her notice of intention of 9 October 2001 and rebutting the first applicant’s written comments. Disagreeing with the first applicant, she considered that the official report of 29 February 2000 (see paragraph 17 above) which to a great extent lay at the basis of her decision, could not be seen as an isolated document, but rather as the product of thorough research based on objective sources. The Deputy Minister attached more credence to the report than the first applicant’s unfounded rebuttals.", "25. The Deputy Minister further dismissed the first applicant’s argument that he had been too remotely connected to the human rights violations attributed to specific departments of the KhAD/WAD during his time as an engineer in that organisation. Relying on UNHCR’s “The Exclusion Clauses: Guidelines on their Application” of December 1996 (see paragraph 71 below) and the official report of 29 February 2000, it was held in this respect that merely supporting an organisation like the KhAD/WAD may in itself suffice to render applicable Article 1F of the Refugee Convention.", "26. The first applicant’s appeal to the Regional Court (rechtbank) of The Hague sitting in Alkmaar was rejected on 26 February 2004. The Regional Court analysed the first applicant’s accountability for the impugned human rights violations on the basis of the prescribed and so-called “personal and knowing participation” test.", "27. As regards the “knowing” element, the Regional Court held that the Deputy Minister had not erred in imputing knowledge of the human rights violations committed by KhAD/WAD to the first applicant in the way she had. In this context the Regional Court found that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decision, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and therefore that the Minister had been entitled to rely on them. It further found that the first applicant had failed to furnish adequate evidence in support of his allegation that the official report of 29 February 2000 was inaccurate and that it could not be assumed that he had knowledge of the human rights violations committed in Pol-e-Charki Prison.", "28. As regards the first applicant’s personal participation in human rights violations attributed to the KhAD/WAD, the Regional Court reiterated that according to codified policy – the Aliens Act Implementation Guidelines (Vreemdelingencirculaire 2000) – this notion included, besides personal commission of the impugned human rights violations by the person concerned, the facilitation of the said crimes. Facilitation was defined as a substantial positive effect by means of the person’s conduct on how these crimes had been committed, or a lack of such conduct in preventing these crimes from being committed. The Regional Court found that the first applicant had facilitated the human rights violations committed by the KhAD/WAD by having voluntarily chosen to work as a guard in Pol‑e‑Charki Prison and his subsequent request – also made voluntarily – to start working for the KhAD/WAD. In these circumstances the Regional Court concluded that the first applicant had facilitated – and thus personally participated in – the human rights violations attributed to the KhAD/WAD, despite his having been stationed in Pol-e-Charki Prison as a conscript rather than as a professional soldier.", "29. Considering that Article 3 of the Convention did not guarantee a right of residence, the Regional Court also dismissed the first applicant’s argument that the Deputy Minister had erred by not examining his asylum account under that provision.", "30. The first applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), which quashed the Regional Court’s judgment on 26 July 2004. As regards the Regional Court’s finding in relation to Article 3 of the Convention, the Administrative Jurisdiction Division held that the Deputy Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3. For that reason, the decision should demonstrate that the Deputy Minister had examined whether Article 3 would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Division found, the Deputy Minister had failed to do in the present case, for which reason it quashed the Regional Court’s judgment and remitted the case to the Deputy Minister’s successor, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) for a fresh decision.", "31. The first applicant was once more interviewed by the immigration authorities on 10 March 2005, after which, on 3 August 2005, the Minister issued the first applicant with a notice of her intention to reject his asylum application. The Minister reached the same conclusions, based in the relevant part on the same grounds, as the Deputy Minister had reached in her notice of intent of 9 October 2001 and subsequent decision of 20 February 2002 in relation to the first applicant’s knowing and personal participation in human rights violations attributed to his former employer – the KhAD/WAD – and consequent application of Article 1F of the Refugee Convention against him. The Minister to a large extent used as a basis for her notice a book by a Professor Dr. M. Osman Rostar entitled “The Pulicharki Prison. A Communist Inferno in Afghanistan”. Prof. Rostar had been detained in Pol-e-Charki Prison for a considerable time during the period between 1981 and 1986-87.", "32. As to Article 3 of the Convention, the Minister considered, in so far as relevant, that the first applicant had not furnished the required substantial grounds in support of a stated real risk of treatment contrary to Article 3 in case of his expulsion to Afghanistan. The first applicant’s fear of the mujahideen, the Taliban and/or other armed groups not belonging to the Government persecuting the intellectual classes in Afghanistan, based on the first applicant’s background as a former PDPA member and former employee of the KhAD/WAD, was dismissed by the Minister as based on mere suspicions. The Minister noted in this regard that the first applicant had declared, during the interview held with him on 10 March 2005, that he did not know of anyone specifically looking for him. It was further held that the killing of the first applicant’s nephew or cousin by Afghan State agents because of his past support of the communist regime did not constitute an individual fact or circumstance relevant to the first applicant’s claim under Article 3 and that, furthermore, the source of the said information – a relative of the first applicant residing in Canada – was unreliable.", "33. The Minister made reference to an official report drawn up by the Ministry of Foreign Affairs in January 2005, according to which former Afghan communists and those associated with the communist regime, including former KhAD/WAD personnel, possibly ran a risk of human rights violations in Afghanistan. She stressed, however, that this did not mean that every person meeting these criteria would run a risk of treatment contrary to Article 3 of the Convention upon his/her return to Afghanistan. The Minister underlined in this regard the fact that until 1998 the first applicant had not experienced any problems caused by his membership of the PDPA, his past activities for the KhAD/WAD, or his political convictions after the fall of the communist regime in 1992. The first applicant’s argument that he would run a greater risk of kidnappings and robberies due to his fellow countrymen’s perception of him as a rich person upon his return to Afghanistan was dismissed as unfounded.", "34. The first applicant submitted written comments on the notice of intent on 26 August 2005. By a decision of 2 December 2005, the Minister once more rejected his asylum application. The Minister fully endorsed the reasons for the rejection as set out in the notice of intent and, in addition thereto dismissing the first applicant’s written comments held, in the relevant part, the following.", "35. The first applicant had, inter alia, argued that block 3 of Pol‑e‑Charki Prison, where he had worked, had not fallen under the responsibility of the KhAD/WAD and had been located in a separate building, hence away from the human rights violations allegedly committed in blocks 1 and 2. The first applicant had relied on an Amnesty International report in this regard. The Minister held that no support for such a distinction between blocks 1 and 2 on the one hand and block 3 on the other in terms of the commission of human rights violations could be found in the literature and reports written about Pol-e-Charki Prison. The first applicant also, unsuccessfully, advanced a number of inconsistencies in the book by Prof. Rostar.", "36. With reference to the Ministry of Foreign Affairs official report of 29 February 2000, the Minister dismissed the first applicant’s claim that he had not been involved in human rights violations committed by the KhAD/WAD, having regard to his position as a construction engineer in the said organisation. It was found that all officers of the KhAD/WAD had been involved in its more sinister departments and hence were responsible for the interrogation, torture and execution of suspects. The Minister further considered that, pursuant to the case-law of the Administrative Jurisdiction Division, she was entitled to rely on the official report as accurate and complete, and that this was not altered by the fact that other reports did not confirm certain findings reached in the official report.", "37. As regards Article 3 of the Convention, the first applicant had argued that when the Minister had held that the applicants had not experienced any problems in Afghanistan between 1992 and 1998, she had failed to acknowledge that the applicants had been living in Mazar-e-Sharif, which had been a safe haven for former communists during that particular period of time. According to the first applicant, the Minister had also failed to acknowledge that he had experienced problems in 1998. He had further submitted that his brother had held a high position during the communist regime. The Minister, however, considered that none of these arguments constituted concrete and individual circumstances justifying the acceptance of the existence of a real risk of treatment contrary to Article 3 upon the first applicant’s return to Afghanistan.", "38. The first applicant’s appeal was rejected by the Regional Court of The Hague sitting in ‘s-Hertogenbosch by judgment of 19 October 2006. Limiting itself to an analysis of the matter under Article 3 of the Convention, the Regional Court held that the first applicant had not sufficiently established that as a result of his membership of the PDPA and past activities for KhAD/WAD he would run a real and serious risk of treatment contrary to the said provision upon his return to Afghanistan. The court underlined that the first applicant had declared, in an interview held with the immigration authorities on 10 March 2005, that nobody in Afghanistan was specifically looking for him. Although the first applicant claimed that he had been detained by the Taliban in the past, it had not been established that the Taliban would still be looking for him or that he had remained an object of the Taliban’s negative attention. The Regional Court emphasised in this regard that the first applicant’s detention had taken place during a different political situation.", "39. While the Regional Court accepted that, as set out in an official report of the Ministry of Foreign Affairs of January 2005, individuals associated with the former Afghan communist regime, including the KhAD/WAD, ran a possible risk of being subjected to treatment contrary to Article 3 of the Convention upon their return to that country, it held that this did not mean that everyone associated with the former regime ran a real and serious risk of that nature. The Regional Court noted that the first applicant’s former position in KhAD/WAD could not be regarded as one of the high posts mentioned in this official report. The killing of the first applicant’s nephew or cousin and that the second applicant would have had a western lifestyle did not alter the Regional Court’s finding either.", "40. The applicant’s further appeal was rejected on 27 April 2007 by the Administrative Jurisdiction Division on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling and that having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.", "41. On 27 August 2007 the Deputy Minister of Justice issued a notice of intention to declare the first applicant an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with article 67 § 1 (e) of the Aliens Act 2000, following the decision to hold Article 1F of the 1951 Convention against him in the asylum procedure. This intention was not followed by an actual decision to impose an exclusion order.", "42. The second applicant was interviewed by the immigration authorities on 12 April and 25 November 1999. On 10 October 2001 the Deputy Minister issued a notice of her intention to reject the second, third and fourth applicant’s asylum application. The latter two applicants, being minors, were included in the second applicant’s application for asylum throughout the proceedings. In so far as relevant, it was held that the second applicant’s motives for asylum were to a large extent dependent on the first applicant’s motives. The first applicant’s application having been rejected, the Deputy Minister considered that the second applicant’s asylum claims were to be assessed on their own merits.", "43. Referring to a Ministry of Foreign Affairs official report of 16 September 1999, the Deputy Minister held that there was no general rule for assessing the risk which family members of individuals sought by the Taliban might run in Afghanistan. As a rule of thumb, it could be assumed that such family members would only risk being detained by the Taliban as a means of forcing the person concerned to report to the authorities if that person was present in Afghanistan, or was at least suspected to be. Even if it was to be assumed that the first applicant was being sought by the Taliban, he had not been in Afghanistan since March 1999 and, by his own admission, was even believed by the Taliban to have been executed. It was unlikely, therefore, that the second applicant would attract the Taliban’s attention on account of her husband’s activities.", "44. As regards the second applicant’s claim that she had been threatened by the Taliban during the search of the family house in Mazar-e-Sharif, the Deputy Minister considered that any threats uttered had rather been directed at the two men – the first applicant and his brother – than at the women present. While it was regrettable that the second applicant had been subjected to ill-treatment after her burka had been judged to be of insufficient length, the Deputy Minister noted that this had been a single occurrence and that there were no indications that the Taliban continued to have an interest in her.", "45. As regards Article 3 of the Convention the Deputy Minister considered that the second applicant had not advanced the required substantial grounds for believing that she would run a foreseeable, real and personal risk of treatment contrary to said provision. The single incident about the burka was insufficient for the second applicant to be able to rely on Article 3 successfully. In this respect the Deputy Minister also had regard to the fact that the second applicant had lived under Taliban rule for a relatively long period of time, but other than the aforementioned incident she had not reported any further occurrences relevant in terms of Article 3 of the Convention.", "46. The Deputy Minister, furthermore, considered that the second applicant was to be excluded from the so-called “policy of protection for certain categories” (categoriaal beschermingsbeleid), in force for Afghan nationals at that time. The Deputy Minister considered in this regard that the rejection of the asylum application of the second applicant’s husband on the basis of Article 1F of the Refugee Convention gave rise to a contraindication against the issuing of residence permits to his relatives, since the admittance of the second applicant and the applicants’ children would in all likelihood bring about a protracted de facto stay in the Netherlands of the second applicant’s husband.", "47. The second applicant submitted written comments on the Deputy Minister’s notice of intent on 7 November 2001. She was once more interviewed by the immigration authorities on 13 December 2002.", "48. On 28 February 2003 the Minister for Immigration and Integration, the successor to the Deputy Minister, issued a fresh notice of his intention to reject the second applicant’s asylum application, due to a relevant change of circumstances in Afghanistan.", "49. While endorsing the Deputy Minister’s finding as to the existence of a contraindication against the second applicant, the Minister went on to consider that, pursuant to a Ministry of Foreign Affairs official report of 19 August 2002, the general situation in Afghanistan no longer required the keeping in place of a categorial protection policy. Moreover, after the fall of the Taliban regime, the second applicant no longer had a reason to fear persecution at their hands, and – as also appeared from the official report of 19 August 2002 – the position of women in Afghan society had greatly improved. In this latter context, the Minister considered that gender in itself was not a conclusive factor in an assessment of the risk of persecution in Afghanistan. It was for the second applicant to make a plausible case for believing that she had a well-founded fear of persecution on the basis of her personal circumstances, seen against the background of the general situation in Afghanistan. It was found that she had failed to do so. In this context, the Minister held that the second applicant had always lived in major cities in Afghanistan, where the situation for women had improved, as opposed to the situation in the countryside. The Minister saw no reason to assume that the second applicant, if expelled to Afghanistan, would not again settle in a major city.", "50. The Minister further considered that the second applicant’s membership of the women’s organisation of the PDPA, her husband’s membership of the PDPA, or his past activities for KhAD/WAD were not reason enough in themselves to grant the second applicant asylum, since according to the aforementioned official report there were no indications that people had to fear persecution in Afghanistan for the sole reason that they had previously had ties to the communist regime.", "51. After receiving the second applicant’s comments on this notice of intent, the Minister rejected the asylum application on 3 March 2004, adding that as the second applicant had not demonstrated that she was or had ever been the object of negative attention from the side of either the mujahideen or the Taliban, she had failed to establish that she would run a real risk of being subjected to treatment contrary to Article 3 of the Convention in Afghanistan.", "52. The second applicant’s appeal was rejected on 17 October 2006 by the Regional Court of the Hague sitting in ‘s-Hertogenbosch. It agreed with the Minister that the second applicant had failed to establish a real risk of being subjected to treatment contrary to Article 3 of the Convention if she was returned to Afghanistan. Her further appeal to the Administrative Jurisdiction Division was rejected on 27 April 2007 on summary reasoning. No further appeal lay against this ruling.", "53. On 26 July 2007 the fifth applicant was born in the Netherlands to the first and second applicant.", "54. On 24 April 2009, the first applicant submitted a fresh application for asylum and was interviewed on this new request on the same day. Following a notice of intention notified on 28 October 2009, this application was rejected by the Deputy Minister of Justice, again holding Article 1F of the 1951 Refugee Convention against the first applicant. This decision became final after the Regional Court of The Hague had rejected the first applicant’s appeal on 4 March 2011, entailing that the first applicant was under an obligation to leave the Netherlands.", "55. On 26 November 2012, the Deputy Minister for Security and Justice, noting that the first applicant had not left the Netherlands and cancelling the intention of 27 August 2007 (see paragraph 41 above), issued a notice of intention to impose an entry ban (inreisverbod) for ten years on the first applicant. No information has been submitted whether this intention has been followed by an actual decision to impose an entry ban.", "56. On 3 July 2009, also the second applicant had made a fresh asylum application, also on behalf of her minor children, namely the fourth and fifth applicants. Following a successful appeal to the Regional Court of The Hague against the initial refusal of this request and on the basis of a new policy having entered into force on 3 May 2011 (WBV 2011/5; see paragraph 64 below), the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie en Asiel) granted on 30 September 2011 the second, fourth and fifth applicant temporary residence permit for asylum purposes (verblijfsvergunning asiel voor bepaalde tijd), valid from 3 May 2011 until 3 May 2016. In the letter of 30 September 2011 notifying this decision, the Minister stated in respect of the adult son (the third applicant) that, in so far as he wished to apply for asylum in reliance on the new policy (WBV 2011/5) that there existed a contraindication, namely his criminal record in the Netherlands, which would be taken into account in the examination of a possible future application.", "57. Also on 3 July 2009, the third applicant, who had come of age, had made an asylum application on his own behalf which was rejected on 16 December 2009 by the Minister, who found that, given that he had been convicted twice in the Netherlands of acts of public violence, the third applicant presented a danger to public order. The Minister rejected the third applicant’s argument that, being a westernised young man and given the deteriorated general security situation in Afghanistan, he would be exposed to a risk of being subjected to treatment contrary to Article 3 of the Convention if removed to Afghanistan. In so far as the third applicant relied on Article 8 of the Convention, the Minister considered that it was open for the third applicant to apply for a residence permit on that basis. The third applicant’s appeal against this decision was rejected on 4 March 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. No information has been submitted as to whether he has sought to challenge the judgment of 4 March 2011 by lodging a further appeal with the Administrative Jurisdiction Division.", "58. On 5 December 2011, the third applicant made another asylum application, which was rejected by the Minister on 19 December 2011. The third applicant’s appeal and accompanying request for a provisional measure were rejected on 9 January 2012 by the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zutphen. To the extent that it was accepted that the fresh application was based on relevant newly emerged facts and circumstances (“nova”) warranting reconsideration of the initial rejection as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the provisional-measures judge did not find that the third applicant qualified for asylum on the basis of the alleged deterioration in the general security situation in Afghanistan or that, for this reason, he would be exposed to a real risk of treatment prohibited by Article 3 if he were removed to Afghanistan. The provisional-measures judge also accepted the Minister’s decision, given the third applicant’s criminal record, not to grant him a temporary residence permit for asylum purposes on the basis of the Minister’s decision of 30 September 2011 to grant such a permit to the second, fourth and fifth applicant under the new policy which had entered into force on 3 May 2011. In so far as the applicant relied on Article 8 of the Convention the judge considered that given the strict separation in the system under the Aliens Act 2000 between an asylum-based application for a residence permit and a regular application (reguliere aanvraag) for a residence permit, it was considered that, if the applicant wished to reside in the Netherlands on the basis of his family life within the meaning of Article 8 of the Convention, he should make a regular application for a residence permit based on his rights under Article 8. The provisional‑measures judge lastly noted that, in the event that the Netherlands authorities proceeded with the third applicant’s removal from the Netherlands, he could avail himself of legal remedies to challenge this. There is no indication in the case file that the third applicant availed himself of the opportunity to lodge a further appeal against this judgment with the Administrative Jurisdiction Division.", "59. On 15 February 2012, the third applicant made a regular application for a residence permit on the basis of his family life with his parents and siblings in the Netherlands. This application was rejected by the Minister on 28 September 2012. The Minister noted at the outset that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months. The Minister further noted that the third applicant did not fall within one of the defined categories of persons who are exempted from the obligation to hold a provisional residence visa. As to the third applicant’s reliance on Article 8 of the Convention, the Minister noted that his mother and two younger siblings held a temporary residence permit for asylum purposes and that his father held no residence permit. Although the Minister accepted that there was family life between the third applicant and each of his parents and his siblings, and that there were objective obstacles to the exercise of family life between the third applicant and his mother and siblings outside the Netherlands, the Minister did not find that there was a positive obligation under Article 8 to grant the third applicant a residence permit on that basis. In reaching this finding, the Minister considered that a balance had to be struck between, on the one hand, the applicant’s personal interests and, on the other, public interest considerations. The presence of an objective obstacle was a weighty but not necessarily a decisive factor in this balancing exercise, which also includes other factors such as the way in which family life was conducted in the country of origin, whether the minimum income requirements under the applicable immigration rules were met, public order considerations, and the situation in the country of origin. Noting that his father had been refused asylum because Article 1F of the 1951 Refugee Convention had been held against him, and that no obstacle based on Article 3 for his removal to Afghanistan had been found in the asylum proceedings, that the third applicant had been denied asylum on account of his criminal convictions in the Netherlands, that the third applicant was an adult, and that his submissions did not disclose that there would be “more than normal emotional ties” between his and his mother and siblings, that his mother and siblings lived separately from his father, and that the third applicant himself lived a wandering existence, staying occasionally with his mother and often with friends, and that also his ties with his father did not go beyond the normal ties between a parent and an adult son, the Minister concluded, in particular having regard to the third applicant’s criminal record in the Netherlands, that public interest considerations outweighed the third applicant’s personal interests. This decision also constituted a return decision (terugkeerbesluit). The third applicant was informed that he was now under the obligation to leave the Netherlands within twenty-four hours, failing which he would be eligible for removal, and that the submission of an objection (bezwaar) to the decision would not have any suspensive effect.", "60. The third applicant submitted an objection to this decision to the Minister and requested the Regional Court of The Hague to issue a provisional measure allowing him to await the outcome of the objection proceedings in the Netherlands.", "61. On 4 February 2012, the provisional-measures judge of the Regional Court of The Hague sitting in Utrecht granted the third applicant’s request for a provisional measure, finding that it did not appear that, in his assessment, the Minister had taken into account - given the “guiding principles” formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner - the duration of the third applicant’s stay in the Netherlands, the nature and seriousness of the criminal offences of which the third applicant had been convicted, the time that had elapsed since these offences were committed and the third applicant’s behaviour in that period, the social ties established by the third applicant in the Netherlands, and the possibility of return to Afghanistan. Considering that the Minister had attached decisive weight to the third applicant’s criminal record without looking into the nature and seriousness of the offences concerned and without indicating what weight had been given to the other relevant circumstances on the basis of the ‘guiding principles”, the provisional-measures judge concluded that it could not be said that the objection would not have a reasonable chance of success. Consequently, the provisional-measures judge granted the provisional measure and suspended the Minister’s decision of 28 September 2012 pending the outcome of the objection proceedings.", "62. No further information about these proceedings has been submitted." ]

[]

[ "4. The applicants was born in 1976 and lives in Porto.", "5. On 28 August 1996 the applicant instituted an action for the settlement of accounts in inventory proceedings (ação especial de prestação de contas em inventário) before the Penafiel Court.", "6. From 20 December 1996 to 24 April 1997 the administrator of the estate (cabeça de casal) was notified, challenged the action and submitted the relevant accounts, which were contested by the applicant.", "7. On 23 February 1998 the judge gave instructions setting out the matters that had already been established and those that remained outstanding (despacho saneador). On 17 June 1998 the evidence submitted by the parties was admitted by the Penafiel Court.", "8. On 17 September 1998 the applicant revoked the power of attorney given to her lawyer in the proceedings and on 6 November 1998 requested legal aid, which was granted by the State’s Attorney’s Office on 5 February 1999. On 22 February 1999 a lawyer was appointed to represent the applicant.", "9. On 19 March 1999, following a request of the applicant’s representative, the hearing scheduled to 24 March 1999 was adjourned.", "10. On 19 October 1999 the hearing was adjourned because the representative of the administrator of the estate failed to appear. The hearing was adjourned to 9 May 2000.", "11. On 2 May 2000 the applicant requested to represent herself in the proceedings.", "12. On 9 May 2000 the applicant’s request was granted and the first hearing was held. The hearing continued on 24 May 2000.", "13. On 5 June 2000 the Penafiel Court adopted a decision with regard to the factual basis (matéria de facto) and on 14 September 2000 it delivered its judgment in which it ruled against the applicant.", "14. On 25 September 2000 the applicant appealed against the decision before the Porto Court of Appeal, which delivered a decision remitting the case to the first-instance court on 5 June 2001.", "15. Between 5 June 2001 and 23 June 2010 the proceedings were again analysed by the first-instance court to which they were remitted twice. On 23 June 2010 the Penafiel Court adopted its fourth judgment in the proceedings.", "16. Between 7 July 2010 and March 2013 the applicant lodged different appeals before the Porto Court of Appeal, the Supreme Court of Justice and the Constitutional Court.", "17. On 10 May 2013 the Constitutional Court adopted the final decision in the proceedings.", "18. On 23 November 1995 the applicant instituted inventory proceedings (processo especial de inventário) before the Porto Court.", "19. Between 13 December 1995 and 14 November 1996 several procedural steps took place, namely, the appointment of the administrator of the estate (cabeça de casal) and declarations from the parties.", "20. On 23 May 1997 a conference between the parties (conferência de interessados) started. The conference was adjourned to 25 June 1997 at the request of the parties who argued they would try to reach an agreement.", "21. On 25 June 1997, at the request of the parties, the proceedings were stayed for ten days.", "22. On 8 September 1997 the applicant requested information to the administrator of the estate with regard to certain amounts which had allegedly been received by her. On 20 October 1997 the administrator of the estate replied.", "23. On 27 November 1997 the conference of the parties continued and the representative of administrator of the estate requested the suspension of the proceedings due to the death of the latter.", "24. Between 4 December 1997 and 23 June 1998 procedural steps were taken in view of the continuation of the proceedings against the heirs of the deceased administrator of the estate (incidente de habilitação de herdeiros). In this period a second administrator of the estate was appointed.", "25. Between 18 September 1998 and 7 January 1999 the applicant revoked the power of attorney given to her lawyer in the proceedings and requested legal aid, which was granted.", "26. On 19 March 1999 the conference of the parties was scheduled to 26 May 1999.", "27. On 21 April 1999 the administrator of the estate requested a second set of proceedings against the heirs of her father. On 10 December 1999 the Porto Court admitted the heirs as parties to the proceedings.", "28. Between 17 February 2000 and 21 June 2000 the Porto Court attempted to notify one of the heirs.", "29. On 14 December 2000 the conference of the parties was adjourned due to the death of a J.L.E, party to the proceedings. On 13 March 2001 proceedings were initiated against the heirs of J.L.E, seeking their intervention in the proceedings.", "30. On 13 December 2001 the conference of the parties was adjourned at the request of the parties who sought to reach an agreement. The agreement between the parties failed.", "31. Between 30 January 2002 and 5 June 2006 the parties lodged several requests with the Porto Court, to which it promptly replied.", "32. On 21 November 2002 a third set of proceedings against the heirs of M.P.E., party to the proceedings, was initiated; having ended on 16 January 2003.", "33. On 11 June 2003 the Porto Court adopted a decision with regard to the partition of the estate (sentença de partilha).", "34. On 29 September 2003 the applicant appealed against the decision before the Porto Court of Appeal. By a decision of 7 April 2004 the Porto Court of Appeal quashed the first-instance decision, annulled all the procedural steps taken and remitted the case to the Porto Court.", "35. Between 13 October 2004 and 5 January 2005 several procedural steps took place, in particular, notifications, a request made by the applicant and delivering of declarations.", "36. On 25 January 2005 the Porto Court ordered the suspension of the proceedings in order to determine the legal standing of one of the parties. Between 9 February 2005 and 22 November 2005, the applicant appealed against this decision before the Porto Court of Appeal – which was dismissed – and the administrator of the estate requested the continuing of the proceedings, which was determined by the Porto Court.", "37. On 31 January 2007 the conference of the parties was adjourned to 3 May 2007, which continued on 6 June 2007.", "38. Between 11 June 2007 and 14 June 2011 several applications were made and challenged by the parties, different appeals were lodged by the applicant and several notifications were made by the Porto Court, which promptly replied to all requests.", "39. On 14 June 2011 the Porto Court adopted a decision with regard to the partition of the estate. On 30 June 2011 the applicant appealed against the decision, which was dismissed by the Porto Court of Appeal on 24 April 2012.", "40. Between May 2012 and June 2013 the applicant lodged three appeals before the Supreme Court of Justice and two appeals before the Constitutional Court. The appeals were dismissed, the last decision being adopted by the Constitutional Court on 22 October 2013.", "41. On 2 February 2014 the applicant started proceedings seeking the enforcement of the decision with regard to the partition of the estate (processo especial de execução de inventário), which is still pending before the Porto Court." ]

[ 3 ]

[ "6. The applicants were born in 1976 and 1986 respectively and live in Budapest.", "7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation.", "8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“TEK”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”).", "9. Under this legislation, TEK’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.", "10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)).", "11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary’s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts.", "12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained.", "13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister’s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”.", "14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament’s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence.", "15. This decision was published in the Official Gazette on 22 November 2013." ]

[ 4 ]

[ "5. The applicant was born in 1960 and lives in Grozny, Chechnya.", "6. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic.", "7. On 14 December 1999, during an identity check, military servicemen seized a truck (and the registration papers) from the home of the applicant and his family at 90, Shkolnaya Street, in the town of Shali, Chechnya. The truck had the following vehicle details: model – “KAMAZ”-53212; year of manufacture – 1991; registration number – И 05-92 ЧИ; engine number ‑ 798859; chassis number – 071560; cab number – 1392122; colour – khaki. According to the applicant, the truck was in working order and in use. The servicemen failed to present any document authorising the seizure.", "8. On several occasions between December 1999 and February 2000 the applicant’s father, Mr Abu-Sultan Salamov, complained to various military and civilian authorities, as well as the local police and the prosecutor’s office, and requested the return of the truck.", "9. On an unspecified date Major-General V., the head of the “East” zone group of the joint forces of the internal troops of the Ministry of the Interior, wrote to the Shali district prosecutor’s office:\n“In reply to your written enquiry of 22 February 2000 concerning Mr A. A. Salamov’s complaint, I would like to confirm that vehicle “KAMAZ”-53212, made in 1991, engine number 798859, khaki colour, chassis number 071560, is indeed located at the base of military unit no. 3702.\nAt present the truck is not being used; it has been sealed and placed in the car park for seized and wanted cars.\nEnquiries about a car with the above vehicle details have been sent to units of the [Ministry of the] Interior and other armed forces in order to verify the ownership of the truck on the basis of the lists of vehicles seized (stolen or lost) during the anti‑terrorist operations in 1994-1995 and 1999-2000.\nUpon confirmation that the vehicle concerned does not belong to a unit of the [Ministry of the] Interior or other armed forces, the truck will be returned to its owner, Mr A. A. Salamov.”", "10. On 24 April 2000 the truck was returned to the applicant. On the same date Colonel K., Commander of the operative headquarters of the zone “East” of the counter-terrorist operation, issued the applicant with the following certificate:\n“The present document is given to Mr Aslambek A. Salamov, residing at ..., passport ..., to certify that on 14 December 1999, during an identity check, officers of the [Ministry of the] Interior seized his truck KAMAZ-53212, made in 1991, colour khaki, engine number 798859, chassis number 071560, registration no. Ч 05-92 Ш, and returned it to him on 24 April 2000. The vehicle’s registration document and number plates were lost while it was at the military unit.”", "11. On 27 April 2000 a commission consisting of a deputy head and two employees of Shali town council – in the presence of the applicant’s father – drew up an evaluation report to certify the damage caused to the truck. It stated that on 14 December 1999, during an identity check, officers of the Interior had seized the truck and on 24 April 2000 had returned it to the applicant’s father (referred to as the owner) without the vehicle registration documents and number plates. The commission prepared a list of parts missing from the vehicle (which amounted to 69 items) and estimated the total damage at 147,650 Russian roubles (RUB).", "12. On 26 May 2003 a forensic expert examined the truck and stated that its engine number had been erased, but that the cab number (1392122) remained intact.", "13. On an unspecified date the applicant brought an action in the Oktyabrskiy District Court of Grozny for his title to the truck to be recognised.", "14. On 21 August 2003 the District Court granted the action. It noted that the vehicle registration documents had been lost by military officers and that the state archives had been destroyed during the conflict. On the basis of statements given by the applicant and two witnesses, as well as the relevant documents submitted by the applicant, the court held that the applicant was the owner of a KAMAZ truck corresponding to the relevant vehicle details, with the registration number И 05-92 ЧИ, but without an identification number. On 1 September 2003 the judgment became final.", "15. The applicant attempted to obtain compensation from the military authorities and lodged complaints with various law-enforcement and administrative authorities in Chechnya, describing in detail the seizure of the vehicle on 14 December 1999, alleging that it had been used by the military unit stationed at the village of Avtury, in the Shali district, and referring to the damage inflicted. The applicant’s family had written, inter alia, to the head of the Chechnya Administration (on 28 January 2001), the Chechnya military prosecutor (on 3 January 2003), and the Shali district prosecutor’s office (on 3 January 2003). On 22 August 2003 the military prosecutor of military unit no. 20116 advised the applicant to seek damages in civil proceedings.", "16. On 17 May 2004 the applicant sued military unit no. 3702 in the Prikubanskiy District Court of Krasnodar for unlawful seizure of his truck. He also claimed compensation for the missing parts, the cost of repairs and the use of the truck by the military. The applicant also sought non-pecuniary damages. He referred to Articles 151 and 1064 of the Russian Civil Code (see “Relevant domestic law and practice” below), which set out the general principles of liability in respect of pecuniary and non-pecuniary damage.", "17. On 22 July 2004 the Prikubanskiy District Court of Krasnodar delivered its judgment. It examined the log book of the military unit for the period between 14 and 16 December 1999, but found no record of the seizure of the applicant’s truck. The court heard evidence from two servicemen who had served in unit no. 3702 at the relevant time and who denied the presence of any alien truck in the base of the unit. On this basis, the court doubted the veracity of the information contained in the letter from Major-General V. (see paragraph 9 above) which stated that the truck was being kept at the base of military unit no. 3702. It noted that the letter had not referred to the sources of such information and that, in any event, the ownership of the truck in question remained unclear at that time. The court declined to calculate the amount of damages on the basis of the evaluation report of 27 April 2000 because the commission consisting of the local council representatives had had no special knowledge or expertise enabling it accurately to assess the damage inflicted. The court examined the case with reference to Articles 1069 and 1070 of the Russian Civil Code (see “Relevant domestic law and practice” below). Under those provisions, damage caused by an unlawful act or a failure to act on the part of the State or municipal bodies, or their officials, is to be compensated at the expense of the federal, regional or municipal treasury, as appropriate. The court thus concluded that military unit no. 3702 was not the proper defendant in the case.", "18. On 14 September 2004 the Krasnodar Regional Court held an appeal hearing. It endorsed the reasoning of the first-instance court.", "19. The Government submitted that following the communication of the case, another check had been carried out by the military prosecutor for the North Caucasus Military Circuit (“the military prosecutor”). They submitted documents attesting to the following.", "20. On 13 January 2009 military unit no. 3702 informed the military prosecutor that although a number of military units of the Ministry of the Interior had been involved in special operations on 14 December 1999 in the town of Gudermes [in the Shali district], they had not conducted any operations in the town of Shali. Further details about the nature of operations in Gudermes could not be disclosed as such information was classified. The archive of the military unit contained no documents relevant to the alleged seizure of the KAMAZ truck and no record of any complaints by the applicant regarding the alleged seizure.", "21. On 22 January 2009 the chief of headquarters of the North Caucasus regional command centre of the joint forces of the internal troops of the Ministry of the Interior (“the regional command centre”) informed the military prosecutor by letter that military unit no. 3702 had not been involved in any special operations in the village of Avtury, in the Shali district, on 14 December 1999. The regional command centre had no information about the truck allegedly seized from the applicant or about his complaints to that effect. Finally, the letter stated that Major-General V. had not served in the regional command centre of the Ministry of the Interior.", "22. On 24 January 2009 military unit no. 3702 issued two notes, to the effect that on 14 December 1999 its servicemen had not carried out any operations in the village of Avtury and that they had not undertaken any actions there aimed at the identification of stolen vehicles and had not seized the applicant’s truck.", "23. In January 2009 four servicemen who had served in military unit no. 3702 signed affidavits concerning the events of December 1999. The servicemen confirmed that they had been serving in military unit no. 3702 in December 1999 and had been stationed in the village of Avtury, but could not recall the presence or use of any KAMAZ truck seized from a local inhabitant.", "24. On 2 February 2009 the head of military unit no. 3702 signed a report on an internal investigation into the alleged seizure and retention by the military unit of the applicant’s KAMAZ truck in December 1999. The investigation had begun in December 2008 following the communication of the applicant’s complaint to the Russian Government. The report referred to two documents produced in 2000 (see paragraphs 9 and 10 above) as the basis for the allegation. The report further noted that four officers who had served in the military unit during its mission to Chechnya in 1999-2000 – two colonels and two lieutenant-colonels – had stated in January 2000 that they had not been aware of any such seizure (see preceding paragraph). The report concluded that it could not be established that the KAMAZ truck had been kept at the base of military unit no. 3702 following its seizure on 14 December 1999." ]

[ 9 ]

[ "5. The applicant was born in 1987 and is detained in Lublin.", "6. On 1 December 2005 the applicant was arrested and remanded in custody. In 2006 he was convicted of three counts of battery and robbery and received prison sentences ranging from two to four years. On 28 November 2006 the Lublin Regional Court imposed a cumulative sentence for four criminal convictions.", "7. On 5 November 2010 the Opole Lubelskie Prison Penitentiary Commission imposed on the applicant the so-called “dangerous detainee” regime. The commission held that the applicant had been the leader of or an active participant in a planned collective remonstrance in Opole Lubelskie Prison (Article 88a § 2 (2a) of the Code of Execution of Criminal Sentences), as the detainees refused to accept food provided by the prison authorities. The authorities learned that the detainees were planning another collective protest for 11 November 2010. The commission also considered that the applicant was particularly depraved.", "8. On 18 January 2011 the Opole Lubelskie Prison Penitentiary Commission rejected an appeal lodged by the applicant and dismissed his request for leave to examine the appeal outside the statutory time-limit.", "9. Subsequently, the applicant was transferred to the Lublin Remand Centre.", "10. On 3 February 2011 the Lublin Remand Centre Penitentiary Commission reviewed and upheld the decision to apply the regime to the applicant, considering that he posed a serious threat to the security of the detention centre. The applicant appealed.", "11. On 4 April 2011 the Lublin Regional Court dismissed the appeal. The court referred to the reasons given in the decision of 5 November 2010, holding that the decision had been lawful and justified.", "12. On 3 March 2011 the applicant lodged a complaint with the Lublin Regional Inspectorate of Prisons. He complained that he was having difficulties in accessing educational activities in the Lublin Remand Centre. The authorities dismissed the complaint, holding that educational activities were not organised for dangerous prisoners.", "13. On an unspecified date in 2011 the applicant notified the police of his allegedly unlawful classification as a “dangerous detainee” on 5 November 2010. He claimed that the Opole Lubelskie Prison authorities had exceeded their powers in imposing the regime on him. On 29 April 2011 the Opole Lubelskie District Prosecutor refused to open an investigation in the case, holding that no offence had been committed.", "14. On 28 April 2011 the Lublin Remand Centre Penitentiary Commission revoked its decision to classify the applicant as a “dangerous detainee”. It considered that the applicant’s behaviour had improved and that he no longer posed a threat to the security of the remand centre." ]

[ 1 ]

[ "4. The applicant was born in 1996 and before his arrest lived in Zhovten village in the Odessa region.", "5. On 21 May 2012 the applicant and his cousin, M., travelled to Donetsk, approximately seven hundred kilometres from Zhovten.", "6. On 24 May 2012 they snatched a handbag from a lady sitting at a tramway stop in Donetsk.", "7. According to the applicant, on 24 May 2012, the police arrested him and M. at Donetsk bus station while they were trying to sell a mobile phone which they had found in the stolen bag.", "8. According to the detention order available to the Court, the police arrested the applicant and M. on 25 May 2012.", "9. On 25 May 2012 the police questioned the applicant who said that he lived in Zhovten with his mother, Vera Adajie, and two sisters and that he was not working or studying. The applicant also said that “presently he [was leading] a vagrant lifestyle”. The applicant also told the police that on 21 May 2012 he and M. had travelled from Zhovten to Donetsk to “earn some money”. On 22 May 2012 they had arrived in Donetsk and for the following three days had earned money by busking on trams. On 24 May 2012 they had stolen a handbag and had gone to Donetsk bus station because they had intended to return to their homes in Zhovten village. However, at the station they had been apprehended by the police.", "10. On 25 May 2012 the police assigned lawyer L. as the applicant’s defence counsel.", "11. On 26 May 2012 the applicant was sent to the Donetsk ITT (a detention facility).", "12. On 28 May 2012 the police charged the applicant with robbery. On the same day V., an investigator, asked the Kyivskyy District Court of Donetsk to order the applicant’s pre-trial detention. He noted that the applicant was charged with a serious offence punishable by up to seven years’ imprisonment, and that if at liberty he could hinder the investigation, flee or reoffend, because he came from a poor family and did not receive any financial support from it, and also because he was not living at his permanent place of residence but had been “leading a vagrant lifestyle all over the territory of Ukraine from an early age”. The investigator stated, without developing further, that if at liberty the applicant could influence the victim.", "13. On 31 May 2012 the police assigned lawyer P. as the applicant’s defence counsel instead of lawyer L.", "14. On 1 June 2012 the Kyivskyy District Court of Donetsk examined the investigator’s request in the presence of the applicant and his lawyer, who asked the court to choose a non-custodial preventive measure for the applicant. The applicant told the court that the police had not exerted any physical pressure on him.", "15. On the same day the court held that the investigator’s request was well-founded and ordered the applicant’s pre-trial detention. The court noted that, as the applicant did not live at his permanent place of residence and was charged with a serious offence punishable by up to seven years’ imprisonment, if at liberty he could hinder the investigation, flee or reoffend. The applicant was placed in the Donetsk SIZO (a pre-trial detention facility).", "16. Lawyer P. appealed against that decision and asked the Donetsk Regional Court of Appeal to release the applicant subject to an undertaking not to abscond.", "17. On 13 June 2012 the Donetsk Regional Court of Appeal upheld the decision of 1 June 2012. While stating that the applicant had a permanent place of residence in the Odessa region, it held that the fact that he led a vagrant lifestyle, came from a poor family and did not receive any financial support from it warranted his detention and proved that a non-custodial measure was “insufficient to make [him] comply with the procedural obligations of a criminal trial”.", "18. On 1 March 2013 the Kyivskyy District Court of Donetsk sentenced the applicant to one year of imprisonment for robbery.", "19. In his application form, the applicant submitted that on 24, 25 and 26 May 2012, by “depriving [him] of sleep” and “exerting [on him] physical pressure”, the police had forced him to sign documents which did not reflect the oral statements which he had actually made before the police.", "20. The relevant provisions of the Code of Criminal Procedure, as worded at the material time, read as follows:\nArticle 106: Arrest of a suspect by an investigating force\n“An investigating force shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 3. if clear traces of the offence are found either on the body of the suspect, or on his/her clothing, or with him/her, or in his/her home.\nIf there is other information giving grounds to suspect a person of a criminal offence, an investigating force may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.\nFor each incidence of a suspect being arrested, the investigating force shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanatory statements of the person detained and the recorded time that the suspect was informed of his right to meet with defence counsel and of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.\nA copy of the arrest order with a list of his/her rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the evidence which served as the grounds for the arrest shall be sent to him/her as well ...\nWithin seventy-two hours of the arrest, the investigating force shall:\n(1) release the detainee if the suspicion that he/she committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;\n(2) release the detainee and select a non-custodial preventive measure;\n(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him/her.\nIf the arrest is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to that court. The judge shall consider the complaint together with the request by the investigating force for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it.\nThe complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.\nThe ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.\nPreliminary detention of a suspect shall not last for more than seventy-two hours.\nIf, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”\nArticle 148: Purpose and grounds for the application of preventive measures\n“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him/her from attempting to abscond from justice, from obstructing the establishment of the truth in a criminal case, from pursuing criminal activities, and in order to ensure the execution of procedural decisions.\nPreventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person would attempt to abscond from justice, or if he/she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.”\nArticle 149: Preventive measures\n“The preventive measures are as follows:\n(1) a written undertaking not to abscond;\n(2) a personal guarantee;\n(3) the guarantee of a public organisation or labour collective;\n(3-1) bail;\n(4) detention;\n(5) supervision by the commander of a military unit.\n...”\nArticle 434: Detention and placement in custody of a minor\n“Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances, where this is warranted by the seriousness of the crime he/she is suspected of, with the grounds present and according to the procedures provided in Articles 106 and 148 of this Code.\nA minor’s parents or guardian must be immediately notified of his/her arrest and pre-trial detention.”\nArticle 436: Release of a minor under supervision of his parents, guardians or administration of a residential facility for children\n“Apart from the measures enumerated in Article 149 of this Code, a minor can be released under supervision of his/her parents, guardians or the administration of a residential facility for children. In such a case parents, guardians, or the facility’s administration gives a written undertaking stating that they will ensure the proper conduct of the minor and his/her appearance before an investigator, a prosecutor or a court.”", "21. The relevant international material is summarised in Korneykova v. Ukraine (no. 39884/05, §§ 25-27, 19 January 2012)." ]

[ 2 ]

[ "6. The applicant was born in 1967. He is currently serving a life sentence in Ladyzhynska Correctional Colony no. 39, Gubnyk (“the Ladyzhynska Colony”), in the Vinnytsia Region.", "7. On 14 October 2003 the applicant, with several other individuals, was arrested on suspicion of having formed a criminal association and committed several murders, robberies and other crimes.", "8. On 6 January 2005 the Dnipropetrovsk Regional Court of Appeal, acting as a court of first instance, convicted the applicant as charged and sentenced him to life imprisonment.", "9. On 4 October 2005 the Supreme Court of Ukraine dismissed the applicant’s appeal.", "10. In October 2003 the applicant was remanded in custody pending criminal proceedings against him and placed in the Dnipropetrovsk Pre-trial Detention Centre (SIZO) no. 3, where he remained in detention until April 2007.", "11. According to the applicant, the conditions of his detention in SIZO no. 3 were incompatible with human dignity. In particular, for some time he had to share a ten-bed cell with nineteen detainees. However, for most of his time as an inmate in SIZO no. 3 he shared a two-bunk cell with one other inmate. The applicant spent most of the day in the cell, which measured 1.9 by 3.7 metres. The cell was located in the basement and so was exposed to hardly any daylight or fresh air, while the electric light was dim and there was no artificial ventilation. The cell lacked basic furniture and appliances, such as cupboards, a mirror or a rubbish bin. The toilet was some 1.2 metres from the dining table and was not separated from the living quarters. It smelled of excrement and was frequently flooded. The premises were infested with rats and were never disinfected. The detainees had very limited access to news and information about the outside world, the only source being a radio, which was turned on by the guards for a limited part of each weekday and was turned off completely at weekends. The food was meagre and consisted mostly of bread and wheat cereal. On numerous occasions the applicant’s requests for medical treatment for the after-effects of a head injury he had sustained in 2001 and for elevated blood pressure were ignored or rejected. Likewise, a request by the applicant to be placed in a solitary cell on account of his unstable psychological state was refused.", "12. The applicant submitted to the Court copies of abundant correspondence that he and his mother had conducted throughout his stay in SIZO no. 3 with prosecutorial and other authorities relating to a variety of issues concerning the conditions of his detention. In their responses, the authorities had maintained that there had been no breaches of the law in respect of the applicant. According to the applicant, a number of his letters to various authorities had received no response at all.\n(b) The Government’s account", "13. The Government stated that the conditions of the applicant’s detention in SIZO no. 3 had been adequate. They submitted a certificate from the SIZO no. 3 authorities dated February 2010 attesting that an inspection that they had carried out on that date had determined that each cell in SIZO no. 3 comprised at least 3.5 square metres per detainee housed. The dimensions of the bunks used in SIZO no. 3 were 1.85 metres by 0.70 metres. The basement cells, where the life prisoners were held, had windows measuring 1.10 meters by 1 meter, which afforded sufficient access to daylight. In the evenings the cells were lit by 100-watt bulbs, which enabled the detainees to read and write without damaging their eyes. Each window had a special ventilation pane which could be opened to air the cells. In addition, an electric ventilator in the corridor ensured artificial ventilation of the cells. The cells had radiators to ensure a stable temperature of between 18C and 20C. Each cell was equipped with two metal bunks, a chair, a shelf for personal belongings, a table, two small cupboards (which could also be used as stools for sitting on), a clothes hanger, a tap with a sink, a mirror, and a toilet. The toilets had “U-bend” pipes to prevent unpleasant odours; they were separated from the living area by fixed partitions.", "14. The Government further submitted (without providing any documents) that, as regards sanitary arrangements, the SIZO no. 3 detainees had weekly access to bathing facilities, where they were also provided with razors and scissors. The cells and other premises were cleaned and disinfected regularly; twice a year (in spring and autumn) thorough measures against rats were implemented and the entire SIZO no. 3 facility was disinfected. The detainees were provided with meals three times a day, freshly cooked by the SIZO no. 3 cooks. The food was varied and in conformity with applicable regulations concerning nutrition.", "15. The applicant had been able to consult various doctors when he needed to and was monitored regularly on account of a neurasthenic condition from which he suffered.", "16. In May 2007 the applicant was moved to the Ladyzhynska Colony no. 39 (“the Ladyzhynska Colony”) to serve his sentence, where, according to the case-file, he has been accommodated until present. The present application covers the period of the applicant’s detention in the Ladyzhynska Colony from May 2007 until June 2010.", "17. Before the case was communicated to the respondent Government, the applicant submitted that he had effectively being denied any medical service in the Ladyzhynska Colony. Because the colony regulations only allowed inmates to lie on their beds between 10 p.m. and 6 a.m., the applicant had to lie on the floor during days when he felt unwell. Because of this, he had contracted a kidney condition, for which he was receiving no treatment.", "18. In his correspondence with the Court after the communication of the case to the Government on 25 November 2009, the applicant additionally notified the Court of other matters concerning his detention in the Ladyzhynska Colony which, according to him, constituted breaches of his rights. These matters included an alleged prolonged failure on the part of the administration to repair and clean the bathing facilities and to exterminate rats; the administration’s failure to renovate the applicant’s cell and to transfer him to the second floor, despite the fact that his parents had made donations towards the cost of renovating the prison; alleged instances of beating detainees by the guards and arbitrary orders of the administration that the detainees wear woollen hats in summer and assume unnatural positions when moving around the colony or when the doors to their cells were opened by guards. All of the applicant’s submissions were forwarded to the respondent Government.", "19. According to the Government, the conditions of the applicant’s detention in the Ladyzhynska Colony were fair and he was provided with prompt and sufficient medical attention when required. Upon his arrival, the applicant had been examined by the Ladyzhynska Colony’s doctors and found not to be suffering from any illness in an active phase. Subsequently, he had often consulted doctors and had been treated for various chronic conditions and contracted diseases, including hypertension, neurasthenia, intestinal dyskinesia, bladder infections, chronic haemorrhoids, and other complaints. The Government presented a detailed excerpt from the record of the applicant’s medical consultations (comprising over forty medical visits between summer 2007 and winter 2010). They also stated that there was no evidence to support the applicant’s complaints of ill-treatment by the Ladyzhynska Colony guards or administration.", "20. According to the applicant, on 24 August 2006 he was severely beaten by eight SIZO no. 3 guards in response to his request for the radio to be turned on. He further alleged that his request that a doctor examine and record his injuries had been refused and that he had only been given a painkiller by way of medical treatment. Subsequently (on 16 February 2007), during the applicant’s temporary stay in SIZO no. 15 in Simferopol, he had been X-rayed in the course of tuberculosis screening and told by a doctor that traces of a recent rib fracture could be observed on the X-ray. The applicant had been unable, however, to obtain a written record of that conversation.", "21. The applicant presented statements by two detainees, M. and Ch., who alleged that on 24 August 2006 they had heard the applicant crying out. In addition, Ch. stated that he had been the applicant’s cellmate and had seen him bruised and in pain. According to the applicant, both he and Ch. had complained about the incident to the SIZO no. 3 governor and to the prosecutor’s office, but those complaints had received no response. He presented to the Court copies of several handwritten letters that referred to the incident, but did not present any records confirming that those letters had actually been sent.", "22. According to the Government, the prosecutor’s office had never received any complaints concerning the applicant’s alleged beating on 24 August 2006.", "23. In 2008 the applicant lodged an administrative complaint against the governor of SIZO no. 3, claiming compensation for “moral damage” to his “honour and dignity” as a result of the governor’s alleged omissions, including the failure to investigate his complaint concerning the alleged beating on 24 August 2006. On 14 August 2008 the Kyiv District Administrative Court gave the applicant until 14 October 2008 to rectify procedural shortcomings in his submissions (in particular, his failure to pay the court fee). According to the case file, the applicant did not pay the fee and did not appeal against the aforementioned court decision.", "24. On 9 September 2010 the senior doctor at SIZO no. 15 issued a certificate attesting that on 16 February and 13 and 23 March 2007 the applicant had been X-rayed and found not to be suffering any pathological condition, and no traces of any rib fractures had been visible on the X-ray.", "25. From autumn 2005 the applicant filed numerous applications (specifically, on 3 and 11 November 2005, 28 February, 14 March, 6 and 26 July, 5 October, 27 November, and 11, 21 and 25 December 2006 and 10 January 2007) with the State Department for the Enforcement of Punishments (“the Prison Department”) and various other authorities requesting a transfer to a detention facility located closer to his hometown of Simferopol, in the Crimea, in order to facilitate visits by his parents and minor son. He noted, in particular, that his parents were pensioners (his mother was born in 1940 and his stepfather in 1925) who were unable to undertake long-distance travel for financial and health reasons (his step-father had a serious disability; his mother suffered from hypertension and other diseases and was his stepfather’s primary caregiver). On a number of occasions the applicant’s mother also sent similar requests to the Prison Department and other authorities.", "26. On several occasions (specifically, on 28 October 2005, 28 July and 18 October 2006 and 7 February, 13 March and 12 April 2007) the Prison Department responded to the applicant and his mother by promising to take their requests into account if space became available at an appropriate detention facility.", "27. On other occasions (in particular, on 13 December 2005 and 31 January, 19 August and 6 December 2006) the Prison Department informed them that it was not possible to accommodate their requests, as there were no penal institutions accommodating life prisoners in the Crimea.", "28. On 25 July 2007, following his transfer in May 2007 to the Ladyzhynska Colony, the applicant complained to the National Ombudsman that the Prison Department had transferred him to that facility without paying any regard whatsoever to his wish to maintain contact with his family. The applicant noted, in particular, that the Ladyzhynska Colony located in the village of Gubnyk, which had no train connection, was some 1,000 kilometres from his parents’ home in Simferopol. It took rides in two trains, followed by either an expensive private taxi or an infrequent bus, to travel from his parents’ home to Gubnyk. The journey took some twenty-four hours one way, which was impossible for his disabled stepfather and very difficult for his ailing mother, in addition to being financially burdensome. The applicant also noted that, to the best of his knowledge, Colony no. 55 in Volniansk, in the Zaporizhzhia Region, which could be accessed by direct train from Simferopol, was equipped for accommodating life prisoners, and asked the National Ombudsman to explore the possibility of transferring him to that establishment.", "29. On 29 August 2007 the Prison Department, to which the applicant’s complaint had been forwarded by the National Ombudsman’s office, responded that it was not possible to grant his request because under applicable law, a prisoner had, as a general rule, to serve his or her entire sentence in one establishment, save in exceptional circumstances preventing him or her from remaining there.", "30. On numerous occasions between 2007 and 2015 the applicant and his mother asked the Prison Department to review the decision concerning the applicant’s placement in the light of their personal situation and their mutual wish to maintain contact by means of regular visits. All those requests were turned down, either with reference to the aforementioned legal rule and the absence of any “exceptional circumstances” preventing the applicant from staying in the Ladyzhynska Colony (specifically, on 5 October and 8 November 2007, 23 January, 14 February, 30 October 2008, 23 June 2009, and 6 April 2010) or with reference to the unavailability of any space in other establishments (specifically, on 29 March, 3 June and 14 July 2010).", "31. In March 2011 the applicant brought an action in the Vinnytsia District Administrative Court seeking to oblige the State Prison Service (the successor of the State Department for the Enforcement of Punishments) (hereinafter also referred to as “Prison Department”) to transfer him to an establishment situated closer to his parents’ home – in particular, in Volniansk – reiterating his previous arguments concerning the difficulties faced by his parents in travelling to the Ladyzhynska Colony. He also noted that during his detention in the Ladyzhynska Colony, his mother had been able to visit him only three times (on 18 September 2007, 25 June 2008 and 18 June 2009), even though according to the applicable rules the applicant had been eligible to receive two four-hour visits a year (before January 2010) and was now (since January 2010) eligible to receive four such visits. One of the aforementioned visits had lasted only two hours instead of four, because the applicant’s mother had needed to catch a bus.", "32. On 20 May 2011 the court dismissed the applicant’s claims. It noted, in particular, that under the applicable law, unless a convicted prisoner was eligible for a transfer to an establishment with a more relaxed regime (which was not the applicant’s case), a transfer to a facility with an equivalent regime was possible only when there existed “exceptional circumstances” preventing him or her from remaining in his or her current establishment. The remoteness of a prison facility from the place of residence of a prisoner’s parents did not constitute such “exceptional circumstances”.", "33. On 27 September 2011 the Vinnytsia Administrative Court of Appeal dismissed the applicant’s appeal against the above judgment and endorsed the first-instance court’s reasoning.", "34. On 16 April 2014 the applicant’s stepfather died. According to the applicant, his mother, aged 75 and only able to walk with the aid of a cane, is unable at present to undertake a 1,000-kilometre journey by public transport to visit him." ]

[ 1, 4 ]

[ "4. The applicant was born in 1950 and lives in Kyiv.", "5. On 22 July 2006 the applicant’s son – a young man who was born in 1982 – left home and never returned.", "6. On that day a young man was found severely injured and unconscious, lying in a street in Kyiv. An ambulance and the police attended the scene of the incident. According to the report of a police officer of the Podilskyy District Police Department of Kyiv (“the Police Department”), a doctor explained to him that the man had fallen from a building with a height of approximately five metres; the doctor also specified the man’s surname, which was the same as that of the applicant’s son.", "7. The injured man was taken to hospital, where his surname was noted down slightly differently. On 29 July 2006 he died in hospital. According to the post-mortem examination, the man died from a serious craniocerebral injury; the injuries identified on the body (including the one which was fatal) could have been sustained as a result of his fall.", "8. On 31 July 2006 the applicant – who had no information concerning the whereabouts of her son – reported his disappearance to the Police Department.", "9. On 18 September 2006 the unclaimed body of the man found in the street was buried in a municipal cemetery.", "10. In March 2007 the applicant was invited by the police to look at a picture of the man found in the street. The applicant found that the man very closely resembled her son.", "11. Following the exhumation of the body of the man found in the street, forensic medical experts conducted two DNA examinations. On 14 July 2008 they concluded with 98.73% certainty that it was the body of the applicant’s son.", "12. On 16 October 2006 the Podilsky District Prosecutor’s Office of Kyiv (“the Prosecutor’s Office”), having conducted pre-investigation enquiries, refused to open a criminal investigation into the disappearance of the applicant’s son. The Prosecutor’s Office had regard to the unsuccessful searches carried out by the police and the statements of G., K., D. and L., who had been acquaintances of the applicant’s son but could not give any information as to his whereabouts.", "13. On 24 May 2007 the Prosecutor’s Office refused to open a criminal investigation into the incident regarding the man who had been found injured and unconscious in the street. According to that decision, the identity of the man had not been established. The Prosecutor’s Office had regard to the statements of G., K., L. and other people, who had submitted that they had known the man and that he had often talked about suicide.", "14. On 12 September 2007 the Podilskyy District Court of Kyiv quashed the decision of 16 October 2006 as unsubstantiated, and ordered further pre-investigation enquiries.", "15. On 25 March 2008 the Kyiv Prosecutor’s Office quashed the decision of 24 May 2007 as unsubstantiated, and ordered additional enquiries to establish the circumstances of the incident and the identity of the deceased.", "16. In addition to the above decisions refusing to open investigations, on more than ten occasions between 2007 and 2012 the Police Department and the Prosecutor’s Office (following the pre-investigation enquiries) refused to open criminal investigations into the disappearance and death of the applicant’s son. Those decisions were quashed as unsubstantiated by the supervising courts or prosecutors, and further pre-investigation enquiries were ordered. In particular, on 3 August 2011 the Podilskyy District Court of Kyiv ordered further pre-investigation enquiries, stating that it was necessary to carry out an inspection of the scene of the incident with a forensic medical expert. Among other things, the court also stated that detailed drawings and photographs of the site had to be prepared; the expert had to be questioned in order to establish whether the applicant’s son could have fallen from the building and, if so, whether he could have sustained the injuries found on his body; and additional steps had to be taken to identify potential witnesses.", "17. In the last decision of 9 August 2012, the Podilskyy District Prosecutor’s Office of Kyiv refused to open criminal proceedings in relation to the death of the applicant’s son. According to that decision, the man found in the street had been identified, with a high degree of certainty, as the applicant’s son. He could have sustained fatal injuries as a result of his fall; there had been no evidence of violence and the incident did not appear to have had any criminal element." ]

[ 0 ]

[ "4. The applicants are spouses who were born in 1960 and 1961 respectively and live in the village of Shchorsove, in the Odessa Region.", "5. Late in the evening of 18 June 1997 A., the applicants’ son (born in 1982), died in a traffic accident. According to the applicants, on that day D., the driver of the car, compelled A. to sit in the vehicle and travel with him. During the drive, D. exceeded the speed limit and the car turned over. The applicants’ son died from his injuries. The driver and other passengers survived.", "6. Between 00.40 a.m. and 1.55 a.m. on 19 June 1997 the police prepared a site inspection report. They also questioned witnesses on the same day.", "7. On 20 June 1997 the police instituted criminal proceedings related to the death of the applicants’ son.", "8. On 1 October 1997 D. was charged with violating traffic safety rules and causing the death of the applicant’s son. Given that D. had not appeared before the police and that his whereabouts were unknown, the investigator, following approval by the prosecutor of the Ivanivka District of Odessa Region (“the District Prosecutor”), on the same day ordered the placing of D. in custody as a preventive measure.", "9. On 11 November 1997 D. was placed on the list of wanted persons.", "10. On 14 April 1998 D. visited the police department in charge of the criminal case and stated that between August 1997 and February 1998 he had been undergoing medical treatment outside Ukraine. On the same day the investigator, following approval by the District Prosecutor, changed the preventive measure from pre-trial detention to a written undertaking not to abscond.", "11. On 24 June 1998 the first applicant brought civil claims for damages and requested that D.’s property be held as security for the claims. The claims were joined to the criminal case file.", "12. In July 1998 the case was referred to the Ivanivka District Court of Odessa Region (“the District Court”) for consideration on the merits.", "13. On 20 January 1999 the District Court put D. on the list of wanted persons, stating that he had failed to appear for court hearings on several occasions. The court ordered that he be placed in custody.", "14. On 29 March 2010 the police informed the president of the District Court that D. had been arrested and taken to the local pre-trial detention centre.", "15. On 20 April 2010 the applicants brought new civil claims, seeking damages within the criminal proceedings against D.", "16. On 14 May 2010 the District Court closed the criminal proceedings on the basis of an Amnesty Act passed in 1998, releasing D. from criminal liability and punishment. The District Court dismissed the civil claims without considering them on the merits.", "17. The applicants appealed.", "18. On 26 August 2010 the Odessa Court of Appeal upheld the District Court’s decision concerning the termination of the criminal case against D. As to the civil claims, it found that the District Court dismissed them unlawfully and ordered that they be considered further by the District Court in accordance with civil procedure.", "19. On 22 September 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal by the applicants on points of law as unsubstantiated.", "20. On 22 May 2013 the District Court partly allowed the applicants’ civil claims. Referring to the results of the criminal proceedings, the court found that D. had been responsible for the traffic accident, causing the death of the applicants’ son. It awarded each applicant 400,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage and a further UAH 16,050 to the first applicant in respect of pecuniary damage.", "21. On 1 October 2013 the Odessa Court of Appeal considered an appeal by D. and reduced the non-pecuniary damage award to UAH 50,000 for each applicant.", "22. On 24 October 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed an appeal on points of law by the applicants, who sought to increase the amount of damages.", "23. On 24 June 2014 the State Bailiffs Service returned letters of execution to the applicants, stating that no funds or property belonging to the debtor could be found." ]

[ 0 ]

[ "5. The applicant was born in 1943 and lives in Bucharest.", "6. At the relevant time the applicant was a member of the teaching staff, as associate professor (“conferenţiar universitar”), of the University of Agronomical Sciences and Veterinary Medicine (hereafter “the University”), which is a State university.", "7. Between 2002 and 2005 the applicant submitted many requests to the education authorities of the University and the Ministry of Education for the creation of a position of full professor in his department. He claimed that he met all the required professional criteria for occupying such a position. On 23 March 2005 the rector informed the applicant that for financial and other objective reasons, a new professor position could not be created.", "8. The applicant was also a member of a non-profit organisation called the European Association of University Teaching Staff in Romania (“the Association”). Its general aim was to stop the degradation of education and research standards by making known the abuses, unlawful acts and corruption in education.", "9. On 8 March 2005, a journalist, S.A., had an article published in the newspaper România liberă entitled “Corruption at university level”. The article stated that intellectual theft and plagiarism had been noted at the University of Agronomical Sciences and Veterinary Medicine. The journalist stated in this connection that O.A.A. had published a book, which was mostly (80%) a copy of another book. She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector, Professor N.C.I., who was also the scientific referent of the book.", "10. On 7 June 2005 S.A. had another article published in the same newspaper, entitled “University lecturer ostracised because he denounced university corruption”. The article referred to the applicant, who, having noted that his disclosure about O.A.A.’s plagiarism to the dean and the rector of the University had not been followed up by any measures, had informed the press. Instead of benefiting from the protection provided by Law no. 571/2004 for employees who revealed infringements of the law within public authorities and institutions, the applicant had been invited to a meeting organised by the rector on 14 March 2005 and asked why he had informed the press. On 19 April 2005 another meeting was organised by the deputy rector and the dean of the applicant’s faculty. On the pretext of redistribution of the faculty’s space, they cleared the laboratory used by the applicant for research and practical activities with his students.", "11. On 3 August 2005 the Association organised a press conference the main topic of which was corruption at university level. Seven cases of alleged corruption were presented. While other members of the Association referred to the corruption existent in other universities, the applicant, in his capacity as secretary-general of the Association, delivered a speech about corruption in his own university. He referred to the cases of O.A.A., a colleague, and of the deputy rector, N.C.I. The former had published a book called The Chemistry of Wine that according to him was mostly (80%) a copy of another book, Oenology, published in 1994 by another author. The applicant also mentioned that the book had been written under the direct supervision and guidance of N.C.I, who had written a eulogistic foreword to the book.", "12. The applicant criticised the way in which N.C.I. had managed the AGRAL programme concerning public funding of scientific research stations; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains.", "13. The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of the Romanian Communist Party. According to the applicant, N.C.I. was occupying too many positions to be able to handle them properly: professor at several different universities; deputy rector of the University of Agronomical Sciences and Veterinary Medicine; president of the National Office of Wine and Vineyards; and director of the AGRAL programme for public funding of research stations. He was also the head of the Department of Viticulture and Oenology.", "14. The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of Viticulture and Oenology led by N.C.I. there was a mafia-type organisation (“încregătură de tip mafiot”).", "15. Most of those statements were repeated in an article entitled “Professor at Piteşti University accused of corruption” published in the weekly newspaper Impact în Argeş of 26-30 September 2005.", "16. On 10 November 2005 N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation. He claimed that the newspaper Impact în Argeş had published an article containing the applicant’s views expressed at a press conference on 3 August 2005.", "17. The applicant adduced extensive documentary evidence before the Bucharest District Court. He submitted certificates from different universities at which N.C.I. had taught, the statute of the Association, different documents concerning the AGRAL programme, including the composition of the management of the programme, and a few letters issued by the Odobeşti research station at which O.A.A had performed research activity. He also submitted several newspaper articles containing criticism of N.C.I. and O.A.A.", "18. N.C.I. gave a statement before the court on 13 February 2006. He acknowledged that he was cumulatively occupying the positions of deputy rector of the University, president of the National Office of Wine and Vineyards and director of the AGRAL programme for public funding of research stations. He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of the University, the dean of the Faculty of Oenology and the Ministry of Education.", "19. On 13 March 2006 the court heard as a witness on behalf of the applicant S.A., one of the journalists who had written articles about the alleged corruption in the University (see paragraphs 9 and 10 above). He stated that he had attended the press conference of 3 August 2005. As regards the applicant’s allegation that N.C.I. was responsible for the incorrect manner in which public money had been allocated for scientific research, the journalist pointed out that on the basis of the documents he had seen on that occasion, such as salary slips and reports, it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and the University. The very high payments received by certain members of the University staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding. The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities. Lastly, the journalist stated that he had based his articles about the University not only on the material presented by the Association but also on documents from other sources, which he could not reveal.", "20. By a judgment of 17 April 2006, the Bucharest District Court dismissed the criminal complaint. It held that even though the applicant could not prove the veracity of his statements, one element of the crime of defamation was missing, namely an intent to damage the reputation of N.C.I. It also held that the applicant, convinced by the accuracy of his statements, had only intended to present a case of corruption at university level. The most relevant part of the judgment read as follows:\n“In the instant case, the defendant did not prove the accuracy of his statements despite the fact that on 13 February 2006 the court (taking into account that the morality and legality of the education system at university level is obviously a topic of public interest, and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with Article 207 of the Criminal Code and the Court’s case-law – the case of Castells v. Spain[1] and the case of Colombani v. France[2]) had admitted all the evidence proposed on his behalf.\n...\nMoreover, the documents submitted by the defendant (namely, the foreword of the book signed by the injured party (N.C.I.), copies of the book covers of The Chemistry of Wine and of the original Oenology, chapters from the two books) do not prove that the injured party encouraged plagiarism.\nSome resemblance in the form and contents of the two works that could be noted by reading in parallel certain chapters cannot lead to the conclusion that the injured party was liable for not denouncing plagiarism. Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works, noting some inconsistencies which he ignored ...\nHowever, the role of that foreword (and of any foreword in general) is to express a point of view about a work ... and does not represent an objective and critical opinion.”\n...\n“Moreover, the defendant did not prove that the injured party had blackmailed the research stations ...\nThe documents submitted by the defendant (copies of the pay slips of March 2005 issued by the Odobeşti research station, the records of the salaries paid by the same research station to several collaborators, and the report of an assessment performed at the research station by an authority of the Agriculture Minister on 20 July 2005) could not lead to the conclusion that the injured party had blackmailed the Odobeşti research station”.\n...\n“In addition, the defendant’s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true, as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices.\nAs regards the defendant’s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence.\nThe minute (“proces-verbal”) signed by the Faculty of Horticulture and a private company proved that the latter rented a building and the adjacent greenhouse, in which no plants were cultivated; moreover the minute was not signed by the injured party.\nUnder these circumstances, after the examination of all evidence, it cannot be concluded that the defendant has proved, beyond any reasonable doubt, that the aspects stated by him are true.”", "21. As regards the applicant’s intent to commit defamation, the first‑instance court stated the following:\n“The court notes that the defendant’s statements were made in the context of a press conference organised by the European Association of University Teaching Staff (of which the defendant is secretary-general), the main topic of which was the corruption and unlawful acts committed at university level, it being well known that the main object of the Association is the monitoring and disclosure of irregularities in the academic system.\nEven though the defendant’s speech was shocking and exaggerated, it should be regarded as part of a topic of public interest – namely, corruption among university teaching staff – and the legislative and moral reform of the teaching system, an objective desired by the whole of society.\nIt should be noted that before the press conference of 3 August 2005, the newspaper România Liberă had published an article concerning the plagiarism of The Chemistry of Wine, and the Association had drafted a report concerning the situation of teaching in Romania. The report denounced the fact that university teachers were simultaneously teaching at several universities (“cu normă întreagă”) and that teachers, guilty of plagiarism and scientific fraud, were maintained in their positions at universities (a report that should have been known by the defendant in his capacity as secretary-general of the Association). These aspects prove that the topic had been previously published and debated in a public context.\nAt the same time, another important aspect is the fact that at the conference the defendant submitted several documents, such as: time sheets (“fişe de pontaj”), reports, the foreword written by the injured party for The Chemistry of Wine and copies of the alleged plagiarised book ..., documents which the defendant considered as evidence of the alleged acts.\nNotwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused, they formed the basis of the defendant’s intimate conviction that the former was guilty of committing certain irregularities.\nIn this context, even though it is obvious that the honour and reputation of the injured party were objectively harmed, the court considers that this situation was the result of the speech and not an aim in itself, since the speaker had expressed his viewpoint in his capacity as a member of the Association and not as a private person, with the intention of contributing to informing on a topic of extreme public interest, that of corruption at university level, which had already been known by the press.\nConsequently, the court considers that the defendant did not act with intent to gratuitously harm the injured party’s reputation, but with the conviction that he was revealing a corruption case.”", "22. The court partially allowed the civil complaint, ordering the applicant to pay compensation for non-pecuniary damage amounting to 3,000 Romanian lei (RON) (approximately 860 euros (EUR)). It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault. Therefore, the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity.\nThe relevant passages of the decision read as follows:\n“The way in which the defendant brought this information to the journalists’ attention, without clear evidence, convinced them that the presented facts were plausible (see in this respect the statements of witness S.A., as well as the articles published in the daily newspapers Impact de Iaşi and Fortune).\nConsequently, the presentation of superficial information, with a high degree of suggestibility, constitutes an illicit act.\n...\nAs regards the defendant’s liability, it must be emphasised that the court’s finding concerning the defendant’s good faith has relevance only in connection with the criminal complaint, given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault.\nIt is true that according to the ECHR’s case-law, persons acting as whistleblowers can share information concerning topics of public interest, even if shocking and disturbing; however, they should also take into account the protection of the reputation of others, as provided for by Article 10 § 1 of the Convention (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999‑I).”", "23. Appeals on points of law lodged by the parties were allowed. By a decision delivered on 11 November 2006 the Bucharest County Court dismissed the criminal complaint, as a direct consequence of an amendment made to the Criminal Code regarding the decriminalisation of defamation. The civil complaint was left unresolved.", "24. On 13 December 2006 Professor N.C.I., brought a separate civil action for compensation against the applicant before the Bucharest Civil Court of First Instance. He claimed that certain remarks made by the applicant on 3 August 2005 and other occasions had constituted an attack on his reputation.", "25. The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements. He adduced copies of the books The Chemistry of Wine and Oenology, and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book The Chemistry of Wine, a “protégée” of N.C.I., was registered as an employee and received a salary from the Odobeşti research station, which benefited from funding granted by N.C.I., without ever turning up to work there. He tried to prove that despite the fact that under the applicable law, a professor does not have the right to teach at more than two universities, N.C.I was a professor at at least three universities.", "26. On 2 April 2007 the Bucharest Civil Court of First Instance allowed the action and the sum of RON 20,000 was awarded to N.C.I as compensation for non-pecuniary damage. It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists, who were convinced of the accuracy of his information and had published it in newspapers. The court endorsed the reasoning of the Bucharest District Court in its judgment of 17 April 2006 by copying most of the paragraphs from the latter judgment. Thus, it held among other things, that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion. The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions.\nThe applicant was also ordered to pay N.C.I.’s legal expenses.", "27. The applicant lodged an appeal on points of law against that judgment. He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “in the department of oenology there is a mafia‑type organisation (“încregătură de tip mafiot”) into the statement that N.C.I. “is involved in a mafia-type organisation”. On 30 October 2007 the Bucharest County Court dismissed the appeal, upholding the judgment of the first‑instance court. The applicant was ordered to pay the N.C.I.’s legal expenses.", "28. On 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant’s monthly salary up to RON 27,877 (approximately EUR 7,470), representing compensation for non-pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts.", "29. On an unspecified date the Association lodged a criminal complaint against O.A.A. accusing her of plagiarism. On 20 March 2007 the prosecutor’s office attached to the Bucharest County Court decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party. It noted, however, that a significant part of the two books, The Chemistry of Wine and Oenology, was similar.", "30. On 6 May 2009 the Association together with the author of the book Oenology lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A.’s plagiarism in his capacity as scientific coordinator of the book. On 17 November 2010 the prosecutor’s office attached to Bucharest County Court discontinued the investigation on the grounds that the statutory time-limit for prosecuting the offence of plagiarism had expired.", "31. On 3 October 2006 the applicant lodged a complaint against the University’s decision to decrease his salary of April and May 2006 on account of his unjustified absence from work. He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at the University until June 2006. Moreover, he adduced evidence according to which he had been at work on the days in question. Among other aspects, he pointed out that the actual reason for sanctioning him was his conflict with the management of the University because he had made public that the deputy rector had encouraged plagiarism.", "32. By a decision of 26 March 2007 the Bucharest County Court – Department of Labour Litigation – allowed the applicant’s complaint and ordered the University to pay him the amounts withdrawn from his salaries of April and May 2006. The court held that under Article 287 of the Labour Code the burden of proof lay with the applicant’s employer but that it had been unable to produce any legal documents which could prove the applicant’s unjustified absence from work.", "33. On 19 June 2006 the University issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension, for a period of two years, of his right to apply for a higher teaching position, to obtain a teaching degree or take up a management position. The reasons for the sanction were the following: (i) unjustified absences from several classes and teaching activities; (ii) non-compliance with the teaching curriculum; and (iii) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory.", "34. The applicant challenged the decision before the Bucharest County Court.", "35. On 25 May 2007 the county court noted that the applicant’s action remained without object as the University had decided to revoke its decision of 19 June 2006." ]

[ 6 ]

[ "5. The applicant was born in 1974. He is serving a life sentence in prison.", "6. On 21 July 2005 the applicant requested from the Governor of Pärnu Prison access to (i) the online version of Riigi Teataja (the State Gazette), (ii) the decisions of the Supreme Court and administrative courts, which are available on the Internet, and (iii) the HUDOC database of the judgments of the European Court of Human Rights. The Governor refused his request. The applicant’s subsequent complaint was dismissed by the Pärnu Administrative Court; the Tallinn Court of Appeal dismissed his further appeal. The applicant then appealed to the Supreme Court.", "7. The Administrative Law Chamber of the Supreme Court delivered its judgment on 31 May 2007 (case no. 3-3-1-20-07). In respect of Estonian legislation and the Supreme Court’s rulings, the Supreme Court noted that these were available in the paper version of Riigi Teataja; it considered access to the paper version sufficient and found that the prison’s refusal to grant the applicant access to the online version of Riigi Teataja had been lawful.", "8. However, the Supreme Court noted that from 1 January 2007 the primary official version of Riigi Teataja had been its online version and that since then only five “control copies” of each edition had been printed. Despite that fact, the prisons had a duty to ensure that detainees had a reasonable possibility of searching for and familiarising themselves with legal acts.", "9. Furthermore, the Supreme Court considered that the refusal of the prison administration to grant detainees access to the rulings of the administrative courts and of the European Court of Human Rights interfered with their right to freely obtain information disseminated for public use. Given that the legislature had not specified any restrictions in this regard in respect of prisoners, their right – enshrined in Article 44 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) – to obtain information had to be given an equal level of protection as that afforded to persons at liberty. Accordingly, the refusal of Pärnu Prison to grant the applicant access to the rulings of the Estonian administrative courts and the European Court of Human Rights had been unlawful.", "10. On 18 October 2007 Tartu Prison – to which the applicant had been transferred in the meantime – refused the applicant’s request to be granted access to the Internet sites www.coe.ee (the Council of Europe Information Office in Tallinn), www.oiguskantsler.ee (the Chancellor of Justice, or Õiguskantsler)) and www.riigikogu.ee (the Estonian Parliament, or Riigikogu). According to the applicant, he was involved in a number of legal disputes with the prison administration and needed access to those Internet sites in order to be able to defend his rights in court.", "11. On 23 November 2007 the applicant’s complaint was dismissed by the Ministry of Justice.", "12. By a judgment of 17 July 2008 the Tartu Administrative Court upheld the applicant’s complaint in respect of the Internet site www.coe.ee and ordered Tartu Prison to grant him supervised access to that site via a computer adapted for that purpose. The Administrative Court noted that Tartu Prison had afforded its detainees access to the online version of Riigi Teataja, the database of judicial decisions, and the Internet sites of the European Court of Human Rights and the Supreme Court. The Administrative Court further referred to the Supreme Court’s judgment of 31 May 2007 (see paragraphs 7 and 9 above) and to section 31-1 of the Imprisonment Act (Vangistusseadus) (see paragraph 21 below), which had entered into force on 1 June 2008. It noted that the Internet site of the European Court of Human Rights – to which detainees had been granted access – contained information only in English and French, whereas translations into Estonian of the rulings of the European Court of Human Rights were available on the Internet site of the Council of Europe Information Office in Tallinn. The Administrative Court considered that the burden of having the rulings of the European Court of Human Rights translated into Estonian could not be placed on the applicant and concluded that he also had to be granted access to the Internet site www.coe.ee. It considered that this Internet site was similar to the database of judicial decisions referred to in section 31-1 of the Imprisonment Act. In respect of the Internet sites www.oiguskantsler.ee and www.riigikogu.ee, the court found that access to these sites was not foreseen by section 31-1 of the Imprisonment Act; in any case, the applicant could request information directly from the institutions concerned or from Tartu Prison.", "13. Both parties appealed. On 31 October 2008 the Tartu Court of Appeal dismissed both appeals and upheld the first-instance court’s judgment.", "14. Both parties challenged the Appeal Court’s judgment before the Supreme Court. The Administrative Law Chamber of the Supreme Court referred the case to the Supreme Court’s plenary session on a point of constitutionality. By a judgment of 7 December 2009 the plenary session of the Supreme Court dismissed the applicant’s appeal and upheld Tartu Prison’s appeal. It quashed the lower courts’ judgments in so far as these granted the applicant access to the Internet site www.coe.ee.", "15. The Supreme Court found that the Internet sites in question did not fall under the exceptions provided for in section 31-1 of the Imprisonment Act (see paragraph 21 below). Thus, the Supreme Court had to determine whether that provision was in conformity with the Constitution. The Supreme Court found that section 31-1 of the Imprisonment Act interfered with the right – enshrined in Article 44 § 1 of the Constitution – to freely obtain information disseminated for public use. It noted that the aims of imprisonment included the protection of the legal order and steering detainees towards law-abiding behaviour. As the possibility could not be technically excluded that detainees might misuse the right to use the Internet, access to the Internet was prohibited to them by section 31-1 of the Imprisonment Act. The exception made in respect of the official databases of legislation and the database of judicial decisions was necessary in order to ensure that detainees were afforded an effective possibility to protect their own rights. It had to be taken into account that the official texts of legal acts were only accessible to detainees via the Internet.", "16. The Supreme Court observed that the prohibition of the use of the Internet was necessary primarily in order to restrict detainees’ ability to engage in communication for purposes that did not accord with those of their detention, such as obtaining information that could jeopardise the prison’s security or run counter to the directing of detainees towards law-abiding behaviour. Granting detainees access to any additional Internet site increased the security risk of their obtaining information running contrary to the aims of imprisonment. Moreover, this could create an opportunity for detainees to use the Internet for purposes other than that of freely obtaining information disseminated for public use. Thus, the Supreme Court concluded that the prohibition of detainees’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee was justified by the need to achieve the aims of imprisonment and in particular the need to secure public safety.", "17. In respect of the proportionality of the restriction the Supreme Court considered that the denial of detainees’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee prevented them from misusing the Internet via these sites and that public safety was thereby protected. Moreover, granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication; this in turn would necessitate increased levels of control (and therefore costs). Thus, there were no alternative, equally effective means – besides the prohibition imposed by section 31-1 of the Imprisonment Act – of achieving the legitimate aim in question. Lastly, the Supreme Court noted that detainees were able to contact the Riigikogu and the Chancellor of Justice by mail and make a request for information (teabenõue). Therefore, detainees’ access to the public information contained on the Internet sites in question was not unduly restricted. Detainees’ access to the Internet site of the European Court of Human Rights was guaranteed, pursuant to section 31-1 of the Imprisonment Act; those of the Council of Europe’s conventions and treaties that had been ratified by Estonia were accessible on the Internet site www.riigiteataja.ee. The Supreme Court noted that it did not doubt that the printed works of the Council of Europe were accessible through prison libraries, and nor were detainees prevented from contacting the Council of Europe by post. The Supreme Court concluded that the restriction preventing detainees from accessing the Internet sites www.oiguskantsler.ee, www.riigikogu.ee and www.coe.ee was one of “low intensity”; the Supreme Court gave more weight to the aim sought by that restriction. It considered that permitting detainees extensive use of the Internet would increase the likelihood of prison authorities losing control over detainees’ activities, as it could not be completely excluded that via the Internet sites in question detainees could use the Internet for other, unauthorised purposes. Accordingly, the impugned restriction was in conformity with the Constitution.", "18. Four judges out of eighteen delivered a dissenting opinion according to which the applicant should have been granted access to all three of the Internet sites in question. They considered that the use of the Internet sites in question did not generally pose a threat to public safety and was in conformity with the aims of imprisonment. It was unclear what additional costs the State would have to bear, since – in line with the applicable law – prisons were equipped with computers specially adapted to allow detainees access to the official databases of legislation and judicial decisions, and the prison service exercised supervision over the use of such resources. The information available on the Internet sites in question aided the exercising of the right of recourse to the courts. While it was true that detainees could also avail themselves of the right to make a request for information, this was a more time-consuming avenue and, particularly in the case of the Internet site of the Chancellor of Justice, required knowledge of which information was available on such Internet sites. No request for information under the Public Information Act (Avaliku teabe seadus) could be made to the Council of Europe Information Office in Tallinn. The rulings of the European Court of Human Rights available in the HUDOC database – which was accessible to detainees – were not in Estonian (unlike the unofficial translations published on the Internet site www.coe.ee), and it could not be presumed that detainees had sufficient command of English or French to be able to read them. The printed works of the Council of Europe that were available in prison libraries did not include all the information that was published on the Internet site of the Council of Europe Information Office in Tallinn. Thus, the four dissenting judges concluded that the restriction in question was unconstitutional." ]

[ 6 ]

[ "4. The applicant was born in 1992 and lives in Diyarbakır.", "5. On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation.", "6. According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published.", "7. The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK.", "8. According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai[1]” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan[2], to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı [3]” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”) , “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school.", "9. At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school.", "10. The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking.", "11. The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report.", "12. On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows:\n“...I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“Biji Serok Apo”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.”", "13. On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts.", "14. The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence.", "15. On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code.", "16. On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag.", "17. The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time.", "18. On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008[4] and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports.", "19. In its judgment, the Assize Court held as follows:\n“...\nTHE INCIDENT, EVIDENCE AND ASSESSMENT\nIn a declaration made on 11 July 2008 on the website of the Fırat News Agency, which is controlled by the terrorist organisation, the PKK, the Democratic People’s Initiative of Turkey and Kurdistan gave the following instructions:\n‘This year’s July 14 celebrations should be made on the basis of the approach of “live and make the leadership live”... in each town and city, a march should be held on 14th of July with a view to showing respect for our leader. This march should have the nature of Serhildan (rebellion); should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people’s leader ... in the form of vicious notification to the enemy that the approach to the people’s leader is the approach to the Kurdish people, and at the same time, a reason for war for the Kurdish people ... every city and district should determine the itinerary depending on the conditions and get prepared ... today, as well, there are attacks against our leadership and our people ... this march should be the victory of human dignity.’\nSimilarly, on the website entitled www.rojaciwan.com, which is also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement was published:\n“...while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.”\nAgainst this background, on 14 July 2008 at around 4.30 p.m. people began to gather in front of the local branch of the DTP. Among the crowd, there were Members of Parliament and mayors who were members of the DTP. At around 5.50 p.m. there were 3,000 persons gathered. At 5.50 p.m. the crowd started the march and arrived in Koşuyolu Park at around 6.30 p.m. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, the leader of the terrorist organisation, such as “Every Kurd is Öcalan’s fedai” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan, to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”), “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan, the leader of the terrorist organisation and flags of the so-called “Confederation”. At around 6 p.m. speeches began. At 7 p.m., while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones ... at the police officers and the cars parked in the neighbourhood. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the vicinity with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to interfere with the group who were holding an illegal demonstration. Some within the crowd took down the Turkish flag in the schoolyard of the Diyarbakır nursery school ...\nIn this connection, in the light of the indictment, the applicant’s indirect confessions, the incident report, the document containing the description of the events of 14 July 2008 prepared by the police, the arrest report, photographs showing the accused and the whole content of the case file, it has been established that the accused Ferit Gülcü actively took part in the illegal demonstrations held on 14 July 2008 in Diyarbakır in accordance with the instructions of the terrorist organisation PKK; that he chanted the slogan “Long live President Öcalan” (“Biji Serok Apo”) together with the crowd; that he attacked the police with stones; that he acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school; and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence.\nIn his defence submissions, the accused accepted that he had taken part in the illegal demonstration; that he had made propaganda in support of the terrorist organisation; and that he had resisted the police by way of throwing stones. He denied, however, the veracity of the allegation that he had participated in the taking down of the Turkish flag in the schoolyard of the Diyarbakır nursery school. Having regard to the documents and photographs in the case file, it has been understood that the accused acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence.\nAn accused should be convicted under Article 314 § 2 on the basis of Articles 314 § 3 and 220 § 6 of the Criminal Code if it is established that the offences in question were committed within the scope of an [illegal] organisation’s activities or if those offences serve as the evidence or basis of offences committed on behalf of an [illegal] organisation.\nIn the present case, it has been understood that on 14 July 2008 the accused took part in the meetings and demonstrations, which subsequently became illegal, held as a result of the general call made by the organisation and the calls disseminated by the media controlled by the organisation and in accordance with the organisation’s purposes and that, with that aim, he committed the following offences: dissemination of terrorist propaganda, breach of Law no. 2911, denigration of symbols of the sovereignty of the State. It has thus been concluded that these acts, which were committed within the knowledge and in line with the will of the organisation, were perpetrated on behalf of the organisation. Therefore, the accused should also be convicted under Article 314 § 2 with reference to Articles 314 § 3 and 220 § 6 of Law no. 5237 along with the convictions for his other acts...”", "20. Diyarbakır Assize Court then acquitted the applicant on the charge of denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code, noting that it was not established that the crime had been committed by the applicant.", "21. However, the Assize Court convicted the applicant under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 and sentenced him to a total of seven years and six months of imprisonment.", "22. The Assize Court first convicted him of membership of an illegal organisation pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code as it found it established that the applicant had taken part in the events of 14 July 2008 which had become propaganda in support of the illegal organisation, upon the call made by the PKK. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; increased it by one and a half times by virtue of section 5 of Law no. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account that the accused had been aged between 15 and 18 at the material time (five years); and, finally, reduced it by one sixth under Article 62 § 1 of the Criminal Code taking into account the accused’s “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of four years and two months of imprisonment).", "23. Diyarbakır Assize Court also convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law no. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); further reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account his “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days). The court decided not to commute the sentence to a fine under section 7(2) of Counter-Terrorism Law no. 3713, or to defer it pursuant to section 13 of Law No. 3713. It finally found Article 231 of the Code of Criminal Procedure governing the suspension of the pronouncement of a judgment inapplicable in the circumstances of the applicant’s case.", "24. The first-instance court finally convicted the applicant of resistance to security forces pursuant to sections 23(b) and 33(c) of Law no. 2911. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (three years and four months); reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account the accused’s “sincere confessions” as well as his attitude and behaviour during the proceedings (thus reaching a total of two years, nine months and ten days’ imprisonment). It decided not to commute the sentence to a fine, and not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would refrain from committing a crime.", "25. On 6 October 2009 the Court of Cassation upheld the judgment of 11 November 2008.", "26. On 16 December 2009 the final decision was deposited with the registry of the first-instance court.", "27. On 25 July 2010 Law no. 6008 entered into force.", "28. On 26 July 2010 the applicant’s representative lodged a petition with the Fifth Division of Diyarbakır Assize Court. Noting that Law no. 6008 had amended certain provisions of Laws nos. 2911 and 3713, the applicant’s representative requested that the court examine whether the amended versions of those provisions could be considered to be in favour of the applicant and, if so, whether the execution of the applicant’s sentence could be suspended.", "29. On the same day the Fifth Division of Diyarbakır Assize Court decided to suspend the execution of the applicant’s sentence in view of the fact that certain provisions of Laws no. 2911 and 3713 amended by Law no. 6008 were in favour of juvenile offenders. Subsequently, the applicant was released from prison and a new procedure was initiated in accordance with Article 7 § 2 of the Criminal Code, according to which in the case of a difference between the legal provisions in force on the date of commission of a crime and those in force after that date, the provision which is more favourable will be applied to the offender.", "30. On 3 December 2010 the Fifth Division of Diyarbakır Assize Court held that it no longer had jurisdiction over the applicant’s case in the light of a new paragraph added to Article 250 of the Code of Criminal Procedure by Law no. 6008. According to this new paragraph, minors could not be tried by assize courts which had special jurisdiction.", "31. On 20 January 2011 and 22 February 2011 Diyarbakır Juvenile Assize Court and Diyarbakır Juvenile Court decided, respectively, that they were not competent to examine the case.", "32. Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction. On 3 October 2012 the Court of Cassation decided that Diyarbakır Juvenile Court had jurisdiction over the case.", "33. Subsequently, Diyarbakır Juvenile Court started the re‑assessment of the applicant’s case with a view to determining the applicable legal provisions and the sentences in accordance with Article 7 § 2 of the Criminal Code (see paragraph 29 above) and in the light of the amendments made to Laws nos. 2911 and 3713 by Law no. 6008 (uyarlama yargılaması).", "34. On an unspecified date the applicant made statements before Diyarbakır Juvenile Court. He contended that he had already served his prison sentence and that he contested the new procedure.", "35. On 20 December 2012 Diyarbakır Juvenile Court rendered its judgment regarding the applicant. Having regard to the amendments made to Laws nos. 2911 and 3713 by Law no. 6008, the Juvenile Court revoked the applicant’s convictions contained in the judgment of 11 November 2008, holding that the amendments applied by Law no. 6008 were in favour of the applicant.", "36. The first-instance court then acquitted the applicant of the charge of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, having regard to section 34/A of Law no. 2911, which had entered into force on 25 July 2010 with Law no. 6008 (see paragraph 50 below).", "37. Diyarbakır Juvenile Court further convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law No. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395).", "38. The Juvenile Court further convicted the applicant of participation in a demonstration while in possession of prohibited materials pursuant to section 33(1) of Law no. 2911. Applying the minimum penalty, it sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Considering that the applicant would not commit any further crime and having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court decided to suspend the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395.", "39. Diyarbakır Juvenile Court also convicted the applicant of resistance to the security forces which had used force to disperse the demonstrators pursuant to section 32(1) of Law no. 2911. Applying the minimum penalty, the first-instance court sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395).", "40. Diyarbakır Juvenile Court finally convicted the applicant of obstructing the security forces in the execution of their duties by way of resistance together with other persons and using the influence of an organisation pursuant to section 32(2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. Applying the minimum penalty, the court sentenced the applicant to six months’ imprisonment under this head. It then increased the sentence by one third as the crime had been committed collectively (eight months); further increased it by one half pursuant to Article 265 § 4 of the Criminal Code as the crime had been committed using the influence of an organisation (twelve months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for a minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395.", "41. On 31 December 2012 the judgment of 20 December 2012 became final in the absence of any objection." ]

[ 7 ]

[ "5. The applicant was born in 1975. When introducing her application to the Court, she lived in Meckenheim, Germany, where the applicant continues to reside to this day.", "6. In 2001, in Germany, the applicant married E.B., a German citizen. Their marriage was registered in Lithuania in 2008. They have two daughters, who were born in 2002 and 2003. They all lived in Lithuania.", "7. In January 2010 the Lithuanian authorities granted the applicant legal aid in connection with her intent to start divorce and custody proceedings. The following month the applicant applied to the Marijampolė District Court to have her marriage dissolved. She also asked for permission for both daughters to reside with her permanently, and for child maintenance from E.B.", "8. In March 2010 Marijampolė Municipal Children’s Rights Protection Service (Vaiko teisių apsaugos tarnyba – hereinafter “the Marijampolė service”) informed the court in writing that the girls’ answers regarding who they would like to live with were unclear. They wished to live with both parents. Given the girls’ young age, and in the absence of information that the applicant was not performing her maternal duties properly, the service stated that residing with the applicant would not be against the children’s interests.", "9. The applicant’s husband E.B. then lodged a counterclaim, asking the court to make a residence order in his favour.", "10. The applicant then asked the court to grant a temporary protective measure – for the girls to temporarily reside with her until the case was decided on the merits. She submitted that the girls had no citizenship. Given the level of conflict between her and E.B., she feared that he might take the girls to Germany with him and she would then face obstacles in securing their return.", "11. On 12 April 2010 the Marijampolė District Court allowed the applicant’s request for a temporary protective measure. The girls were thus to stay with the applicant until the end of the custody proceedings. The ruling was upheld on 31 May 2010 by the Kaunas Regional Court. The latter court ruling, however, specified that the applicant’s husband retained the right to have contact with his daughters at their place of residence or educational institutions.", "12. On 19 April 2010 the Marijampolė service provided the court with conclusions indicating that the girls would not clearly state who they would like to live with. The father had suitable accommodation in which to raise them. The service concluded that the interests of the girls, “as future women (kaip būsimoms moterims)” would be better met if they lived together with the mother. Information obtained from doctors and educational institutions confirmed that the applicant took care of her daughters, who had (earlier) attended kindergarten and school in Marijampolė. The Marijampolė service nevertheless noted that its conclusions in the case could be revised if new circumstances emerged.\nOn 9 April 2010 the applicant also wrote to the Kaunas Municipal Children’s Rights Protection Service (hereinafter “the Kaunas service”) stating that on 6 April he tried to call his daughters on the telephone, but no one answered. The applicant, with whom the daughters had to be, did not answer her telephone either. The applicant noted that the older daughter attended school in Marijampolė, but she had not been seen at school as of 6 April. He went to the apartment which the applicant had been renting in Marijampolė, but found the doors locked. E.B. considered that the applicant abused her parental rights, obstructed him to communicate with his daughters even by telephone, and did not guarantee the girl’s right to attend school. E.B. suspected that the applicant could have taken their daughters to Kaunas. He asked the Kaunas service to investigate the situation and promised his full cooperation.\nIn reply, on 27 April 2010 the Kaunas service noted that since March 2010 the applicant had been living with her daughters in Kaunas. Between April and June 2010 one of the girls attended kindergarten, and the other attended school. Conditions at the flat where the applicant lived in Kaunas were appropriate for the girls.", "13. It transpires from a police report that on 4 June 2010 the applicant contacted Kaunas police to report that she had allowed E.B. to see their daughters in Kaunas that day but he had not returned them to her. The police established that the girls were with their father in Marijampolė. On 10 June 2010 a police officer visited E.B. and the girls in Marijampolė and found them to be safe. The officer telephoned the applicant and asked her to come and take the girls. She replied that she had already contacted a bailiff and would not be going to pick them up herself.", "14. On 8 June 2010 the applicant made a further application for protective measures, asking the Marijampolė District Court to restrict her husband’s right to see his daughters.", "15. The Marijampolė District Court then deemed it necessary to ask both the Kaunas and Marijampolė services to provide information, and decided to hold an oral hearing to better establish whether any circumstances had evolved.\nThe Kaunas service provided conclusions on 22 June 2010, stating that by agreement of the parents the girls had met their father on 4 June, but he had not yet returned them. Their colleagues, child care specialists from the Marijampolė service, had visited the girls at their father’s home. The girls explained that they liked and wished to be there; their interests or rights had not been compromised. The Kaunas service also noted that, in accordance with Article 3.164 of the Civil Code, a child who could express his or her views had to be heard and have his or her wishes taken into account, unless they were against his or her interests. For the Kaunas child care specialists, it was desirable to have an order in place setting out how the girls could have contact with their father pending the proceedings.\nOn 23 June 2010 the Marijampolė service informed the court in writing that earlier that month they had visited E.B.’s apartment twice, without prior notification, on 11 and 21 June. The girls had communicated with their father naturally and without tension. There was no reason to believe that they were physically or emotionally unsafe at their father’s home. E.B. explained that on 4 June 2010 he took the girls on common agreement with the applicant. A couple of hours later, when he wished to return their daughters, the applicant could not be reached on her telephone. The applicant therefore took the girls to Marijampolė. The service considered that the applicant’s suggestions that E.B. could kidnap the girls and take them to Germany were unfounded. The service also noted that it was unclear why the applicant would not call her daughters by telephone or come to Marijampolė and contact the service so that they could go and visit the girls together (a point remade in its separate letter to the applicant of the same date). The service also stressed that the manner in which both E.B. and the applicant chose to resolve their conflict – which, due to their complaints, required the girls to communicate with child care specialists and police officers – negatively affected the children.", "16. On 28 June 2010 the applicant declared her place of residence as Kaunas.\nThe same month the Kaunas and Marijampolė services exchanged a number of letters with the applicant, replying to various requests for information and assistance. It was noted, inter alia, that she had been asked to visit the Marijampolė service to resolve the matter of the girls’ return and to go to E.B.’s home with police officers to take the girls, but she had declined to do so. The child care specialists also noted having visited E.B.’s home, where the girls had been found. E.B. had explained to the child care specialists that his daughters did not wish to go to their mother’s and that he did not want to take them there by force. The Marijampolė service enquired with the applicant why she herself had not been calling her daughters and had not applied to the service for assistance in meeting them. For the child care specialists, the manner in which the applicant chose to solve her dispute with E.B. negatively affected the girls’ psychological well-being, because they had to communicate with various authorities often. The applicant was also informed that it was the bailiff who was competent to enforce court decisions.", "17. On 9 July 2010 the Marijampolė District Court decided the temporary protective measures application in the presence of the applicant, E.B., their lawyers and a child care specialist. Upon the recommendation of the latter, and given that the court hearing on the merits of the action was scheduled for 19 July, when deciding on the temporary protective measure the court also deemed it appropriate not to hear the children, to avoid causing them even more stress.\nThe court acknowledged that when the applicant had allowed her husband to see their daughters for three hours on 4 June 2010, he had not returned them to her home. It urged the parents to arrange the return of the girls to their mother and to reach an agreement on how E.B. would contact them until the final court decision in the divorce and custody proceedings. However, each parent had their own conflicting opinions, which only served to worsen the strained relations between them. The court noted that both parents had the right to raise their children and have contact with them, and there was no information to suggest that E.B.’s communication with his daughters would cause them harm. Nor was there any information that the applicant was failing in her duties as a mother. Accordingly, pursuant to Article 376 §§ 2 and 3 of the Code of Civil Procedure, which required the courts to aim to protect the interests and rights of minors (see paragraph 61 below), and taking into account the earlier court rulings that the girls should temporarily reside with the applicant (see paragraph 11 above), the court ordered E.B. to return his daughters to their mother. Should he fail to do so, the applicant could contact a bailiff, who would then take the girls and their documents and hand them over to the applicant. Until the end of the divorce and custody proceedings, the applicant’s husband was granted contact with his daughters every other weekend from Saturday morning until Sunday evening, when he could collect them from the applicant’s place of residence and spend time with them. He was forbidden only from travelling outside Lithuania with them.\nOn the same day, that is on 9 July 2010 the applicant was explained by the Marijampolė service that execution of court rulings belonged to the exclusive competence of a bailiff. Seven days later the court ruling became final and thus enforceable. Pursuant to the applicant’s request of 19 July 2010, the following day the Marijampolė District Court issued her a writ of execution, which the applicant then transmitted to the bailiff on 26 August 2010 (also see paragraph 46 below).", "18. Between July and September 2010 the applicant asked that E.B. be fined for non-compliance with a court order requiring him to hand the children over. She also asked the court to prohibit him from seeing his daughters. In turn, E.B. asked that they remain with him, arguing that they refused to live with their mother. The Marijampolė service informed the court that from 1 September 2010 the girls started attending school in Marijampolė, and that situation had been caused by E.B.’s refusal to hand them over to the applicant. In September 2010, on the recommendation of the Marijampolė service, one of its psychologists saw the girls twice. She observed that they were attached to their father and had a good emotional connection with him. They also stated that they wished to stay with their father. The psychologist could not assess the emotional connection they had with their mother, because she could not be contacted. On 13 September 2010 the Kaunas service informed the court in writing that because the girls did not live in Kaunas, it did not know all the relevant circumstances of the case to assist the court in answering the question whether there were grounds for limiting E.B.’s paternal rights, in accordance with Article 3.180 of the Civil Code.", "19. According to the Government, following complaints by the applicant alleging inactivity on the part of both the Kaunas and Marijampolė services, on 5 August 2010 the Ombudsperson for the Protection of Children’s Rights (Vaiko teisių apsaugos kontrolierius – hereinafter “the Ombudsperson”) issued a report. It noted that the relationship between the parents had broken down and that the applicant herself had been hostile. The report established that she instigated conflict, involved different State and municipal institutions in solving her relationship problems with her husband and gave little importance to her own personal responsibility, efforts and benevolence in looking for solutions in the best interests of her daughters. The report also indicated that she had applied to child care services and the police, submitted requests for assistance in taking the children, but as soon as they had provided her with opportunities she had refused them. It was recommended that she solve the questions of the girls’ place of residence and contact by mutual agreement with the father, and in the children’s best interests.", "20. On 20 September 2010 the Marijampolė District Court held an oral hearing with the applicant, E.B., their lawyers and representatives of the Marijampolė and Kaunas services. Over the days that followed two more hearings were held and the girls were questioned by the judge in the absence of their parents and their lawyers. One of the girls testified that she wished to live with her father. The other testified that she missed her mother and wished that both parents lived together. She also stated that she otherwise preferred living with her father.", "21. On 28 September 2010 the Marijampolė District Court dismissed E.B.’s request that the girls reside with him, and the applicant’s request to forbid him from seeing them. The decision was upheld by the Kaunas Regional Court on 22 November 2010. The courts acknowledged that E.B. had not avoided his duties as a father, but it had not been established that he could provide better living conditions for the girls or raise them better. Moreover, the girls’ place of residence had already been decided by an earlier court ruling and it was not in their best interests to change that place every couple of months. The girls were not yet mature enough for their wishes alone to suffice to change their place of temporary residence.", "22. On 23 of September 2010 the principal of the school the girls had been attending in Marijampolė since the beginning of that month informed the child care authorities that the applicant had been visiting the girls at school and communicating with them, their teachers, the school administration and social workers on a regular basis. On one occasion a social worker observed one of the applicant’s meetings with the girls. They had talked to their mother warmly and sincerely, and had stated that they wished to live with both parents. The principal noted having been asked by E.B. to restrict the girls’ contact with the applicant, but he had not acceded to that request because he considered that the girls should see and communicate with both parents.\nOn 3 February 2011, in reply to letters from the applicant asking for information about her daughters’ achievements at school and requesting that it arrange a meeting with her daughters on school premises, the principal informed the applicant that the school had always been open for parents. He noted having urged the applicant since autumn 2010 to come to school as often as possible, and to communicate with her daughters and their teachers. However, ‘the applicant had not heard that message (deja, Jūs šito raginimo neišgirdote)’. The principal stressed that the school was ready to help the applicant in every possible way if she showed initiative to see her daughters; no prior notification for her coming to school was necessary. For the school principal, the applicant’s pleas were particularly odd, because it was only because of her that the girls were not fully fledged members of the school as they were not on the list of pupils. The applicant was well aware of that but had not made any effort to settle the matter. The principal concluded that if the applicant was serious about her daughters’ future, he wanted her to think seriously and solve the problems which depended solely upon her.", "23. Between October 2010 and April 2011 the Marijampolė District Court held at least five oral hearings, in which the applicant, E.B., their lawyers and representatives of child care services participated. The court granted a request by the applicant for a psychological assessment of the girls (see paragraph 25 below), had regard to letters from the institutions where the girls attended after-school activities, and questioned the principal and psychologist of the school.", "24. At a court hearing on 29 April 2011 the principal testified to having admitted the girls to the school at E.B.’s request and in the girls’ best interests, and that they came to school ready for lessons and well-presented. They were well taken care of, felt well at school and wished to study there. The principal also stated that the applicant could have come to school and taken the girls with her at any time. However, the applicant came to school very seldom; the last time he had seen her there was in January 2011.\nThe school psychologist testified that she had told both parents that they could ask her for psychological assistance, but neither parent had followed up with such a request. Without parental agreement or a referral by child care specialists, no psychological assistance could be provided. The psychologist also testified that the girls’ teachers had not contacted her with any particular concerns about the girls’ well-being.", "25. In August 2011 experts from the Vilnius City Child and Adolescent Forensic Psychiatry Department (Vaikų ir paauglių teismo psichiatrijos skyrius) examined the girls. The experts found in respect of both girls that it was not possible to establish which parent’s place of residence would best meet the girls’ interests, because equal communication with both parents, who were important to the girls, was important to them both. When observed with their father, the girls were positive, active and laughed a lot. Both girls’ connection with their father was “positive, warm and strong”. Their relationship with the mother was ambivalent and their feelings were torn (dominuoja prieštaringi (ir teigiami, ir neigiami) jausmai). Even so, there was no doubt that the mother was an important person for the girls. Having regard to the girls’ age, maturity and psychological particularities, they were not yet able to formulate and express their own opinions and views as regards which parent they should live with. The girls’ wish to live with their father was determined by objective factors, namely them living with him for more than a year and communication with their mother being insufficient. Unnatural hostility towards the mother had only traumatised them and parental alienation syndrome, enhanced by their father’s influence, could be seen in their behaviour. Lastly, both girls were attached to each other, and separating them would be traumatic.", "26. In August 2011 the applicant declared her place of residence as Meckenheim, Germany.", "27. On 4 October 2011 the applicant asked the Marijampolė District Court to hear the case in her absence. She maintained all her civil claims. Moreover, in the applicant’s words, “the forensic expertise having been performed, [paragraph 25 above] I consider that all the evidence in the case has been collected and examined, and that the case should be terminated immediately, and I therefore ask for it to be terminated in my absence because I am ill.” The applicant agreed to her lawyer representing her interests from that point forward.", "28. On 5 October 2011 the Marijampolė District Court held an oral hearing with the applicant’s lawyer, E.B., his lawyer, and the child care authorities. During the hearing it came to light that the applicant had declared her place of residence as Germany, where she was expecting a child with another man. According to E.B.’s lawyer, those circumstances were relevant when deciding the girls’ place of residence, especially given the applicant’s initial accusation of the girls being taken to Germany by their father (see paragraph 10 above). The court deemed it appropriate to postpone the hearing, so that the applicant could be questioned.", "29. Later that month the applicant’s lawyer provided the court with a medicate certificate issued in Meckenheim, about her client being at risk of premature birth if she experienced physical or psychological stress. The lawyer asked the court to hear the case without her client present, or to suspend the proceedings, until after the applicant had given birth.", "30. On 24 October 2011 the court held an oral hearing without the applicant, but in the presence of her lawyer. She confirmed that her client had declared her place of residence as Germany, the father of her future child being a German national, but that she intended to return to Lithuania to live in Kaunas immediately after giving birth in Germany. The lawyer also confirmed that the applicant had not communicated with the girls during that school year. E.B.’s lawyer regretted that the applicant could not be questioned at the hearing.\nRelying on the forensic experts’ conclusions about parental alienation syndrome, heightened by E.B.’s attitude towards the applicant, the Kaunas service noted that it would be more in the girls’ interests to reside with their mother. It did not see the applicant’s pregnancy as a factor to be taken into account when deciding the girls’ place of residence. The service confirmed that the future child’s father was a German citizen, which suggested that the applicant would live in Germany. Even so, E.B. was a German citizen but lived in Lithuania. The Kaunas service also noted that the applicant had approached them for a referral to psychologists so that she could find contact with her daughters easier. A referral was given to her and, as far as the Kaunas service was aware, the applicant had visited the psychologists for assistance. The service was of the view that the applicant had tried to establish contact with her daughters, but had been unsuccessful. She had probably not visited them at school for a while to avoid traumatising them.", "31. At the same hearing the Marijampolė service representative noted that it had known the girls and their family history since 2008, when disagreements between the applicant and E.B. had started. The girls really thought clearly and their minds had developed in accordance with their ages. The representative thought that the girls’ behaviour had been conditioned by their mother’s actions as she did not visit them often at school or show interest in their lives, and therefore no emotional connection between them had been formed. The girls had been heard by the court about a year ago, where they had expressed their wishes (see paragraph 20 above) – the court had to remember that moment and have regard to the girls’ opinion. Indeed, in 2006 the United Nations Children Rights’ Committee had reproached Lithuania for not always hearing and paying attention to the child’s opinion (see paragraph 65 below). The representative noted that no one could ignore the fact that it was not known where the applicant, who was currently in Germany, was about to live. It was submitted that the psychologists’ conclusions were contradictory (yra prieštaringos). The conclusions noted that E.B. was important to the girls; they had a warm, positive and stable relationship with him. When communicating with their father, the girls felt safe and were actively involved in shared activities. They could easily approach their father, hug him and tell him about their achievements at school, where they took prized places in mathematics competitions. The child care specialist emphasised that a child who was psychologically distressed could not have such achievements at school.\nThe Marijampolė service underlined that the circumstances had changed and thus it would always inform the court that it would provide the last conclusion during the last court hearing. Having communicated with the school, the school administration and the teachers, the Marijampolė service was finally persuaded that it was better for the girls to stay in that environment, to attend school and have friends; at home they were also receiving all that was necessary. The applicant, however, did not approach the girls after certain court decisions but first ran to the institutions or called the police, thus traumatising the girls a lot. In the words of the child care specialist, the applicant had not attempted to first meet with the girls or establish contact with them, and had not put in any effort herself. It was odd that a mother would go without seeing her daughters for a couple of months and not ask if they were prepared for school.\nThe Marijampolė service thus submitted that, in the light of the above considerations, E.B. could take care of the girls the best and provide them what they needed. To pull the girls out of the environment they were familiar with and where they had spent most of their time would cause them significant psychological harm. The girls could always choose to tell to their father later that they wish to live with their mother. At the end the Marijampolė service representative noted that, in her view, the child care specialists from Marijampolė had observed the girls more than the representatives from the Kaunas service.", "32. On 8 November 2011 the Marijampolė District Court took a decision on the merits of the divorce and custody case. It observed that there was no information in the file to suggest that either parent was failing in their duties to raise their daughters or that their behaviour was immoral. Even so, they had not always acted with the children’s best interests in mind, because during the court proceedings neither parent had attempted to find a compromise as regards their daughters’ place of residence or their contact with them. The court emphasised that the children had to grow up in a safe environment they were used to. However, even though by a court order of 9 May 2010 the girls were to reside with their mother, the actual situation was that since 5 June 2010 they had been residing with their father. The girls themselves had expressed the wish to stay with him. The first-instance court thus held that although the father could have had some influence over the girls’ choice as to who they preferred to live with, it was not decisive. The girls had thus already stated on 11 June 2010 that they preferred living with their father (see paragraph 15 above). It was the court’s view that such a short time (seven days) between those two dates was not sufficient for the girls’ father to influence his daughters. It was thus clear that there was already then tension between the girls and their mother.", "33. Lastly, the Marijampolė District Court noted that even though the applicant had declared her place of residence as Kaunas, since August 2011 she was also registered as living in Germany. For the court, the question where the father or mother would live with the children was irrelevant in any event because the girls spoke German; they had previously lived in Germany and thus could adjust to living there easily. What was essential when deciding the question of the girls’ residence was to ascertain who the children were more attached to, and which parent devoted more attention to their interests. The children’s wishes as to where to live could be disregarded only if they were against their interests. Given that there was nothing to suggest that either parent was neglecting their parental duties, the Marijampolė District Court deemed it most suitable to take into account the girls’ wish to live with their father.", "34. The first-instance court also ordered the applicant to pay the girls’ father maintenance (60 euros (EUR) for each daughter per month) and set in place a contact order for the applicant to see her daughters. Even though both parents asked to see the children only two weekends per month and during the month of July, in accordance with Article 376 § 3 of the Code of Civil Procedure the court considered ex officio that such a time-frame would be too restrictive for the applicant to be able to build up contact with her daughters. A wider contact order, allowing the applicant contact not only during weekends but also State holidays and certain days during all school holidays was set in place. The court stressed to both parents their obligation to take care of the children and above all be an example to them.\nThe court also divorced the applicant and her husband.", "35. On 7 December 2011 the applicant appealed against the first-instance court’s decision. She contested the decision about the girls’ place of residence. Without explicitly asking that a hearing be held, she asked for a re-examination of the evidence and witnesses to be called and questioned.", "36. By a letter of 5 March 2012, the applicant also asked the Kaunas Regional Court to admit in evidence letters postmarked between November 2010 and January 2011 she had sent to her daughters in Lithuania from Germany, which had been returned to her in the post. The applicant claimed that E.B. had thus interfered with her right to be in contact with her children. She relied on Article 314 of the Code of Civil Procedure (see paragraph 59 below).", "37. By a ruling of 22 March 2012 made in written proceedings, the Kaunas Regional Court left the lower court’s decision unchanged. The court noted at the outset that pursuant to Articles 321 and 322 of the Code of Civil Procedure, appeals had to be heard in written proceedings unless the court deemed an oral hearing indispensable. As regards the applicant’s request to have witnesses questioned, the court established that the applicant had not specified in her appeal what new circumstances essential for the case the requested witnesses could confirm, some of them having already been questioned at first instance. Nor had she explained why she had not submitted the request to the first-instance court. The court concluded that an oral hearing was not necessary, because the applicant had had the opportunity to point out all the circumstances necessary for an examination of the case to the first-instance court and also in her appeal.\nThe appellate court also refused to admit documents related to the applicant’s correspondence with her daughters. According to it, those pieces of evidence had not been analysed in the first-instance court, which was a general requirement for evidence to be admitted in an appeal, or lodged with it.", "38. As to the girls’ place of residence, the Kaunas Regional Court dismissed as unfounded the applicant’s plea that the first-instance court did not properly examine the evidence, which included the explanations by the child care authorities, psychologists’ reports, witness testimony and the Ombudsperson’s conclusions. On this last point the court observed the Ombudsperson’s conclusion of 5 August 2010 stating that the applicant was conflictive and involved various authorities in her and E.B.’s conflict, without giving importance to her own responsibility and good-will in finding the best solutions for the children. It also observed that the first-instance court had examined the forensic expert reports about the girls’ psychological state, where it was noted that they both wished to stay with their father. In addition, psychologists from the girls’ school and the school principal were questioned. The applicant’s lawyer herself admitted agreeing with the forensic expert reports, and did not ask for another expert examination to be conducted.", "39. The Kaunas Regional Court also found that it was in the best interests of the children to stay with their father, who they had lived with since 5 June 2010. On that point it was also paramount that during the first-instance court hearing the girls had confirmed their wish to live with him. A fact on which the applicant had relied, that E.B. had prior convictions in Germany for sexual and drug-related offences committed in 1996 and 1998 did not have much significance for the case, because the convictions had expired in 2003. The applicant, for her part, had a criminal conviction in Lithuania for forgery of document and a criminal investigation against her for fraud had been terminated. What mattered was that she had left Lithuania for Germany; she had three addresses – in Kaunas, Marijampolė and in Germany, which she had indicated as places where she lived, which suggested that she in fact had no habitual place of residence. Moreover, the applicant’s contact with the girls was merely episodic, whereas the girls’ father took proper care of them and actively participated in raising them. The girls lived with their father, attended school and had suitable living conditions. The evidence as a whole allowed for the conclusion that there was a close connection between the girls and their father. There was no evidence in the case file to the effect that E.B. abused his parental rights, and it was for the applicant to prove the opposite, which she had not done. Moreover, under Article 9 of the United Nations Convention on the Rights of the Child, a child had the right to be heard in all matters affecting him, which had been done in the present case. The appellate court also observed that in accordance with Article 2 of the aforementioned Convention and Article 3.156 of the Civil Code, both parents had equal rights and obligations towards their children. Accordingly, and contrary to the applicant’s suggestion that she was closer to the girls because of their gender, the gender of a parent could not be a factor which determined who a child should reside with.", "40. As to temporary protective measures, the Kaunas Regional Court observed that, as a rule, they were aimed at guaranteeing compliance with a future court decision. Accordingly, the first-instance court, when adopting a decision after examining merits of the case, was not bound by earlier decisions on temporary protective measures.", "41. Following a complaint by the applicant, on 1 June 2012 the Ombudsperson issued a report dismissing allegations by the applicant about the partiality of the Marijampolė service because of its failure to provide her with information and consultations. The Ombudsperson relied on the Court’s judgment in Mihailova v. Bulgaria (no. 35978/02, § 97, 12 January 2006), where it did not find a violation of Article 8, having found that irrespective of obstructions by the applicant’s former husband, the applicant’s own lack of understanding of the need for careful preparation as a precondition to effective enforcement of her custody rights played a significant role in the events. In the instant case, attempts had been made more than once to hand the children over to the applicant and meetings had been organised with psychologists, child care specialists and representatives of educational institutions as to enforcement of the court decisions to transfer the children. Moreover, the Ombudsperson had already examined the Marijampolė service’s work in February 2010, and did not find that it did not take action to help the applicant to have contact with her children. The service also correctly placed the responsibility for the well-being of the children on both parents.", "42. On 5 September 2012 the principal of the girls’ school in Marijampolė issued a note stating that during the school year 2011/2012 the applicant had not visited the school. She did not come to school on 1 September 2012 either.", "43. On 18 October 2012 the Ombudsperson dismissed the applicant’s repeated complaint accusing the Marijampolė service of failing in its duties to provide assistance and organise contact with the children. The Ombudsperson established that even though the contact order between the mother and the girls had been set in place as early as 8 November 2011 by the Marijampolė District Court, she had not yet tried to make use of it. Furthermore, the Marijampolė service had asked the applicant’s lawyers to meet at its premises, offered to inform E.B. of that meeting and asked the applicant’s lawyers for that purpose to choose a suitable date, but the applicant had not responded. For its part, the Kaunas service had also invited the applicant for a conversation so that she could express her wishes and preferences as to her contact with the girls, and so that the service could assist her. It was only when the applicant had not shown up that the Kaunas child care specialists had suggested to her lawyers that she communicate with the girls by letters via the Marijampolė child care specialists. It had also been indicated to the applicant that she had the opportunity to directly communicate with her daughters in the presence of a psychologist, and that could be discussed with the Marijampolė service. The girls’ school in Marijampolė had also informed the Ombudsperson that the applicant had started communicating with the girls by letters since December 2011; between December 2011 and April 2012 three letters from her had been received, though the girls had refused to accept the last one. The school had thus suggested that the applicant choose another means of communicating with her daughters and asked the child care specialists to provide facilities for that purpose. Given the child care authorities and the school’s suggestions for the applicant to communicate with her daughters directly (tiesiogiai), which the applicant had disregarded, it was not clear to the Ombudsperson why the applicant preferred to communicate with her daughters by letters. On this point the Ombudsperson pointed out that under Article 3.170 of the Civil Code parents who lived separately had the right and an obligation to communicate with their children and be involved in their upbringing; children, for their part, had a right to regular and direct contact with both parents, irrespective of their place of residence.", "44. On 15 June 2012 the applicant lodged an appeal on points of law. Without arguing that the appellate court’s decisions not to summon witnesses for examination and not to hold a hearing had affected the outcome of the litigation, she primarily challenged the lower courts’ assessment of the evidence, insisting that they had erred in concluding that living with their father was in the best interests of the children. She also asserted that E.B.’s previous convictions in Germany for crimes of sexual violence and drug-related offences were significantly weightier in terms of his moral values than her conviction in Lithuania for forgery of documents. The applicant was further dissatisfied with the appellate court’s refusal to admit in evidence documents related to her correspondence with her daughters, which she obtained after she had already lodged her appeal.\nIn his written reply, E.B. argued that the lower courts had properly examined the entirety of the evidence. He submitted that the applicant had always known about his earlier convictions in Germany; however, they had expired a long time ago. It was unfair for her to bring up that issue now. E.B. also observed that the proceedings had been pending for more than two years. During that period the applicant had specified her claims and submitted requests to the court on more than one occasion. The Kaunas Regional Court’s acceptance to re-examine the evidence and question witnesses would have only delayed the proceedings. Given that the applicant had not asked for an oral hearing, the appellate court’s decision to pursue proceedings in writing had been reasonable.", "45. In a final ruling of 14 December 2012, adopted in written proceedings, the Supreme Court observed that the child’s interests were the primary consideration when examining custody cases. The cassation court also relied on the Court’s judgment in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, § 139, ECHR 2010), which said that an in-depth examination of the entire family situation was necessary to achieve the best result for the child. For the Supreme Court, such a result had been achieved in the present case. The lower courts had analysed the level of attachment to each parent and established that the girls, who lived with the father, were fond of him. Those courts had also noted psychologists’ reports that the girls could entirely independently form their own opinion about which parent to live with, and had held that the children’s opinion was one of the criteria when evaluating the entirety of evidence, and the girls had expressed such a wish during the court hearing. Even though the fact that the girls lived with their father could influence their formation of a negative opinion about their mother, it had not been established that the mother was barred from communicating with them; to be interested in their lives and visit them at school could thus form a positive opinion about her and make their emotional bond stronger. The first-instance court had also issued a contact order and thus the applicant’s contact rights with her daughters had not been restricted. Even though the applicant had stated that she lived in Lithuania, the evidence showed that she had declared place of residence as Germany, where she had taken part in court proceedings so that the name of her third child could be registered. As to E.B.’s convictions in Germany, those offences had been committed in 1996 and 1998 and his convictions had expired a long time ago. There was no proof that he could have a negative impact on the girls. On the contrary, the girls studied well at school and took part in extracurricular activities. It followed that the courts had been correct in not giving particular weight to those convictions. Overall, it was thus in the best interests of the girls to stay with their father.\nLastly, whilst noting that when refusing to admit in evidence new documents submitted by the applicant the appellate court had not explained whether they were relevant to the merits of the case, the Supreme Court held that this did not affect the overall lawfulness of the appellate court’s ruling.", "46. After the Marijampolė District Court’s decision of 9 July 2010 stating that the girls should reside with the applicant became final, and following the applicant’s request of 26 August 2010 transmitting her the writ of execution, the bailiff took measures to enforce it (also see paragraph 17 in fine). Meetings were organised with the child care specialists, representatives of the girls’ school and psychologists. Both parents were involved in that process.", "47. The first attempt to hand the girls over at their school in November 2010 failed because on that day the girls fell ill and did not go to school. The court then established that their absence was proved by medical certificates, and the court order for transfer did not specify where it would take place. Accordingly, the father could not be blamed for an unsuccessful transfer.", "48. The next attempt to transfer the girls was made in January 2011, when it was decided that the girls would be handed over at their home. This attempt did not produce results because on that date the applicant was arrested on charges of forgery of documents.", "49. The third attempt to hand over the girls was at their father’s home in February 2011. It failed because, even though the bailiff, child care specialists, police and both parents were present, neither girl wished to leave with their mother. During the transfer the applicant asked to be left alone in the room with the girls, and her wish was granted. However, even after that the girls expressed a clear wish not to leave with her. In the report about that attempted transfer the bailiff underlined that the transfer of a child could not be equated to the transfer of an object. Taking into account the clearly expressed wishes of the children, and to avoid psychological trauma and to protect the children’s interests, physical force could not be used in that situation. The child care authorities supported this argument. The bailiff’s recommendation, based on Article 771 of the Code of Civil Procedure, was that the manner of enforcing the court order for transfer should be changed to preserve the children’s interests. The bailiff’s letter specified that her findings could be appealed against to the Marijampolė District Court. The bailiff then also asked the Marijampolė District Court to examine how the court order for the girls’ transfer should be enforced without compromising their interests.", "50. Eventually, by a decision of 20 June 2012 the bailiff discontinued the enforcement proceedings, because it had been decided that the girls should reside with their father (see paragraphs 39 and 45 above).", "51. By a decision of 17 March 2011 in separate criminal proceedings, a court found E.B. guilty of failing to comply with the court order of 9 July 2010. He was fined approximately EUR 750 (2,600 Lithuanian litai). The court however dismissed a civil claim by the applicant for non-pecuniary damage, noting that the girls themselves had refused to go and reside with their mother. The court also noted that no evidence had been provided to prove the applicant’s contention that the children’s refusal to be handed over to their mother had been a direct consequence of E.B.’s actions.", "52. Alleging that the girls’ father had had a negative influence on their daughters, and relying on the psychologists’ reports about parental alienation syndrome (see paragraph 25 above), on 8 September 2011 the applicant asked the prosecutor to start criminal proceedings in respect of E.B. for abusing his rights and duties as a parent (Article 163 of the Criminal Code, see paragraph 63 below).", "53. By a decision of 16 September 2011, the prosecutor refused to initiate a pre-trial investigation. He noted that earlier that month Marijampolė child care specialists had visited E.B.’s home and the girls had eagerly communicated with them, without their father present. The girls felt comfortable and at ease; they had no demands. They had also explained that the applicant did not visit them or call. The prosecutor established that E.B. had not committed any unlawful acts in respect of his daughters. By a decision of 4 October 2011, the District Court upheld the prosecutor’s decision." ]

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[ "5. The applicant was born in 1962. According to the latest information, the applicant was released from prison in January 2015.", "6. On 26 May 1995 a businessman, R.G., was killed in the heart of Vilnius, near the building that houses the Lithuanian Government, when a bomb detonated under his car. The crime received much media coverage.", "7. On 15 October 1998, after being accused of having been involved in R.G.’s killing, a certain G.B. stated in his testimony that he had received the order to murder R.G. from a certain O.L., but he did not know whether it was O.L. who had wished to murder R.G., or whether the contract had been put out by someone else.\nOn 29 October 1998 G.B. changed his testimony, stating that the contract to murder R.G. had been put out by ‘Alius from Kaunas’.\nOn 9 November 1998 G.B. showed the investigators the place where he claimed to have met ‘Alius’ in May 1995. This was near the applicant’s home address in Kaunas.", "8. From this point in time, the prosecutor began to suspect that the applicant, who had a previous conviction dating from 1985, had been involved in R.G.’s murder. The prosecutor gathered information about the applicant’s property and obtained the applicant’s telephone number, which in turn linked him to one of the suspects in R.G.’s murder.", "9. By a judgment of 21 October 2001, the Vilnius Regional Court convicted twenty-one individuals who had acted together in an armed gang in Vilnius and its surroundings from 1990 to 1998. The members of this criminal organisation were convicted of 13 murders and 12 attempted murders that involved the use of firearms and explosives, as well as a number of robberies and kidnappings of businesspeople.\nBy the same judgment, three individuals belonging to that criminal association, G.B., I.M. and V.J., were convicted of R.G.s murder. The court established that it had been a contract killing, ordered because an unidentified person was unwilling to repay a considerable sum of money to R.G. The court also established that the unidentified person was known under the alias “Alius”. The fifth person involved in the murder, O.L., was in hiding. G.B. was sentenced to a total of 19 years’ imprisonment for all the crimes concerned.", "10. On 1 March 2002, on the basis of G.B.’s testimony, the prosecutor concluded that it was likely that “Alius” was in fact the applicant. G.B. also testified on unknown date that he would recognise “Alius” if he saw him. The same day the prosecutor ordered the Vilnius organised crime police to establish the applicant’s place of residence, to obtain his telephone records and to examine his links with R.G.", "11. On 19 March 2002 photographs of four individuals were shown to G.B., who at that time was already serving a prison sentence. G.B. identified the applicant as ‘Alius from Kaunas’ – the person who had put out the murder contract.", "12. On 2 September 2002 the Vilnius organised crime police informed the prosecutor in writing that the applicant was not living in the apartment where he was registered in Kaunas. The police admitted that they could not locate the applicant but undertook to notify the prosecutor of the applicant’s whereabouts as soon as they found him.", "13. On 2 September 2002 the prosecutor concluded that there was sufficient evidence to charge the applicant with having organised R.G.’s murder and issued a decision charging the applicant with that crime (nutarimas patraukti kaltinamuoju). The decision gave an account of the facts as construed by the prosecutor and contained a detailed description of the crime, including the time-frame, the links between the applicant, those convicted (G.B., I.M. and V.J.) and O.L., and the sums of money paid for its execution. The decision did not contain any references to evidence against the applicant.", "14. On the same day, the prosecutor instituted a search for the applicant and ordered Vilnius organised crime police to conduct it. The prosecutor also addressed a request to the Vilnius City First District Court that the applicant be detained once arrested. Taking into account the fact that the crime could attract a life sentence, and given that at that specific time the applicant could not be located, the prosecutor took the view that it was likely that the applicant had fled from justice. The evidence against the applicant was “his accomplices’ testimony and his being recognised as the organiser of the crime [by the accomplices]”. The same day, the Vilnius City First District Court authorised the applicant’s pre-trial detention in absentia.", "15. On 29 October 2002 the prosecutor asked Vilnius organised crime police whether the applicant had been found. From the documents before the Court it appears that the Kaunas organised crime police informed their colleagues in Vilnius on 10 December 2002 that the applicant’s place of residence was not known.", "16. Over two years later, on 17 January 2005, the prosecutor issued a European Arrest Warrant in respect of the applicant.", "17. On 24 May 2005 Vilnius organised crime police informed the prosecutor where the applicant could be found and the prosecutor ordered the applicant’s arrest.", "18. The applicant was arrested on 25 May 2005 in Kaunas. The applicant’s temporary arrest record (įtariamojo laikino sulaikymo protokolas) stated that the applicant had been arrested in the context of a criminal investigation on suspicion of having organised R.G.’s murder. The record referred to the court decision of 2 September 2002 ordering the applicant’s detention, to the European Arrest Warrant, and to the applicant’s prior conviction of 1985 for a property-related crime. The record also stated that the applicant had been hiding from the prosecutor for a long time. The applicant signed the record of his arrest and the prosecutor’s decision of 2 September 2002 charging him with having organised R.G.’s murder (see paragraph 13 above).", "19. The same day, that is to say on 25 May 2005, the prosecutor issued a notice of suspicion (pranešimas apie įtarimą) which repeated the prosecutor’s account of the facts surrounding R.G.’s murder, as described in the decision of 2 September 2002 charging him with the crime (see paragraph 13 above). No evidence was referred to in the notice of suspicion, which the applicant and his lawyer signed.\nLater that same day the applicant was shown the prosecutor’s decision charging him with R.G.’s murder of 2 September 2002 (see paragraph 13 above). The applicant was questioned. Of the four people convicted of R.G.’s murder, he admitted to knowing only O.L. The applicant denied any involvement in the car bombing and stated that he would not testify without his lawyer. The applicant then signed a record of questioning of a suspect (įtariamojo apklausos protokolas).", "20. According to the record of case file material shown to the lawyer (gynėjo supažindinimo su bylos medžiaga protokolas) dated 26 May 2005, the prosecutor provided the applicant’s lawyer, at his request, with the following documents from the case file:\n1) the applicant’s temporary arrest record of 25 May 2005 (see paragraph 18 above);\n2) the decision to charge the applicant of 2 September 2002 (see paragraph 13 above);\n3) the notice of suspicion of 25 May 2005 (see paragraph 19 above); and\n4) the record of questioning of a suspect of 25 May 2005 (see paragraph 19 above).", "21. On 26 May 2005, the prosecutor submitted to the Vilnius City Second District Court a written request for the applicant’s detention pending trial (pareiškimas skirti suėmimą). The request contained the prosecutor’s account of the crime, as described in the decision charging the applicant and the notice of suspicion (see paragraphs 13 and 19 above). It mentioned that the evidence linking the applicant to R.G.’s murder was witnesses’ and other individuals’ testimony, the records of the applicant’s identification (parodymų atpažinti protokolai), records of searches and other factual data. The document did not explain any particular piece of evidence against the applicant. As grounds for detention the prosecutor cited the fact that the applicant had been hiding from the prosecutor for two years, the European Arrest Warrant, the applicant’s prior conviction, the severity of the penalty that the crime of murder could attract ‒ which could in itself prompt the applicant to flee ‒ and the need to carry out more investigative steps. The request did not mention the risk that the applicant might try to influence witnesses as one of the grounds for his detention.", "22. On 26 May 2005, the Vilnius City Second District Court held a hearing in the presence of the prosecutor, the applicant and the applicant’s lawyer.\nAs the record of the hearing shows, at the start thereof the applicant’s lawyer asked the court to view the evidential material from the pre-trial investigation, on the basis of which his client was being detained. The lawyer admitted that he had been able to acquaint himself with the prosecutor’s request to the court for the applicant’s detention (see paragraph 21 above), the record of the applicant’s questioning and the notice of suspicion, but no other material had been made available to him, even though the Supreme Court’s guidelines require otherwise (see paragraph 52 below). The lawyer contended that the information shown to him was not sufficient to understand what basis there was, firstly, for suspecting the applicant of R.G.’s murder and, secondly, for detaining him. The lawyer insisted that he had a right to consult the material in the case file, which the prosecutor had provided to the court for the purposes of ascertaining whether it was reasonable to detain his client.", "23. In reply, the prosecutor submitted that “in this case the applicant’s lawyer had been shown what was necessary (šiuo atveju gynėjas supažindintas tiek, kiek reikia)”. Moreover, in accordance with Article 177 of the Code of Criminal Procedure, pre-trial investigation material was not to be made public. In the instant case, the applicant was not permitted to see the entire case file because doing so could have prejudiced the success of the pre-trial investigation. The grounds for detaining the applicant were that a search for him had been conducted [since 2002], and a European Arrest Warrant had been issued in respect of him. The record of the hearing also indicates that the prosecutor then submitted “to the court the pre-trial investigation file concerning the applicant and the reasonableness of his detention. The court examined the material provided by the prosecutor and, having evaluated it, decided that the lawyer’s request to see the said material was to be denied, since to disclose it could be detrimental to effective investigation”.", "24. When questioned at the court hearing, the applicant acknowledged that he knew O.L. However, he denied knowing G.B., I.M. and V.J., the people already convicted of R.G.’s murder. The applicant also maintained that he had never had the nickname “Alius”. He admitted that his wife lived in Ireland and that he was wealthy. The applicant and his lawyer contended that the applicant had never been summoned for questioning, nor had he been hiding from the investigators: after 1995 he had renewed his identity documents, had crossed the State border, had taken part in car rally competitions, winning the President’s cup in 2003, and had even been elected president of the Lithuanian rally committee.", "25. The Vilnius City Second District Court decided to grant the prosecutor’s request for the applicant’s detention. In the operative part of its ruling, having summarised the arguments put forward by the prosecutor and the defence, the court noted that the case file material showed that the applicant was suspected of a very serious crime for which life imprisonment could be imposed. The applicant’s wife was living abroad and this could prompt the applicant to flee from justice. It was also pertinent that there were discrepancies in the [witnesses’] testimony given to the investigators. There was thus reason to believe that “the applicant might attempt to influence participants in the criminal proceedings (those convicted, witnesses, others) and to destroy evidence” if left at liberty. A number of investigative steps still had to be carried out. Lastly, there was reason to believe that the applicant might commit new crimes.", "26. On 7 June 2005 G.B. attended an identity parade that included the suspect and, in a three-man line-up, identified the applicant as ‘Alius’, naming him as the person who had ordered R.G.’s murder. In accordance with the requirements of the Code of Criminal Procedure, the applicant’s lawyer was present when G.B. identified his client.", "27. G.B. was questioned by the prosecutor on 15 June 2005, and testified in writing that after he had identified the applicant, on 7 June 2005 he had been approached by another prisoner. Due to the relations prevailing in the prison, G.B. preferred not to name that other prisoner. G.B. stated that the other prisoner had told him that he had received a request from “the outside world (iš laisvės)” and from “the underworld of Kaunas (Kauno nusiklastamo pasaulio)” to ask G.B., in return for 200,000 Lithuanian litai (LTL), not to identify the applicant as the person who had put out the contract on R.G. To that G.B. replied that it was too late, because he had already identified the applicant. The other prisoner stated that in that case he would have to further consult those who had made the proposition.\nA couple of days later, on 8 or 9 June 2015, the same prisoner had made a new proposition: G.B. should write a statement to the effect that he had been mistaken when identifying the applicant on 7 June. G.B. also was told that the applicant’s lawyers were considering challenging the lawfulness of the identity parade procedure. The sum allegedly offered to the applicant for changing his prior testimony stayed the same. At that time G.B. also stated that he had not been the target of any threats for testifying against the applicant.", "28. On 13 June 2005 the applicant’s lawyer submitted an appeal to the Vilnius Regional Court against the court order of 26 May 2005 for the detention of his client. The lawyer complained that the judge had not allowed him to see the case file and maintained that the procedure had therefore not been adversarial. The lawyer acknowledged that the applicant had a prior conviction, but that had been years ago. The applicant’s lawyer also asked the court to view G.B.’s testimony in a critical light, given that the latter, as a convicted person, could have his own reasons for incriminating the applicant. Furthermore, the prosecutor had not provided any factual data endorsing his suspicion that the applicant might attempt to influence witnesses. As far as the lawyer understood it, all the witnesses with knowledge of R.G.’s murder had been isolated from society and there was no real possibility of influencing them. Furthermore, if anyone had wished to pervert the course of justice, he or she would have done it at some time during the ten years that had elapsed since the crime. Now there would be no sense in doing that. In support of his claims that it was safe to leave the applicant at liberty, his lawyer provided the court with documents about his client’s family and work situation.", "29. On 27 June 2005 the Vilnius Regional Court dismissed the applicant’s appeal. The prosecutor and the applicant’s lawyer were present at that hearing.\nThe court accepted that factual material incriminating the applicant existed in the form of G.B.’s testimony, the record showing that G.B. had recognised the applicant, both from photographs and in person. The court also noted that, according to the information which had been provided to it, the search for the applicant had gone on for a long time, that he had connections abroad, and that the European Arrest Warrant had been issued in his regard. The seriousness of the crime of which he was suspected was also a factor in the establishment of grounds for detaining him.\nHowever, the appellate court noted “the absence of any well-founded evidence (pagrįstų įrodymų) in the case file indicating that the applicant might attempt, either himself or through third parties, to influence witnesses, victims, people already convicted or other individuals, or that he would attempt to destroy evidence”. Keeping him detained merely because the pre-trial investigators had not yet collected all the material necessary to build the case did not constitute valid grounds for such detention either. The existence of discrepancies in the testimonies (byloje užfiksuotų parodymų nenuoseklumas) could not be blamed on the applicant.", "30. During a face-to-face confrontation (akistata) held on 24 August 2005, G.B. reaffirmed his testimony that it was the applicant who had put out the contract for R.G.’s murder.", "31. The applicant’s pre-trial detention was extended on 22 August 2005 and again on 20 September 2005. His lawyers and the prosecutor were present at those hearings. The courts noted that the grounds for detention were the search for the applicant, the European Arrest Warrant, his previous conviction and the fact that he had been charged with a serious crime for which a severe sentence could be imposed. In one of these two rulings the court also noted that G.B., who was one of those already convicted for the 1995 car bombing, had identified the applicant as the person who had put out the contract on R.G.", "32. On 20 October 2005 the prosecutor questioned G.B.’s wife. She testified that she had known that her husband was a witness in the criminal case concerning R.G.’s murder. She stated that her husband had told her that he had received threats directed at him and his family for having given evidence, and had warned his wife to be careful. She also stated that from the second half of June she and her daughter had received telephone calls from unknown men asking if they could meet and talk, which she had refused to do. She also testified that on 8 October she had found a funeral wreath in front of the entrance door to the café she owned. She understood this gesture to be a veiled threat to G.B.’s family should he not change his testimony.", "33. On 24 November 2005 the Vilnius Regional Court further extended the applicant’s detention pending trial. Having reaffirmed the aforementioned grounds for keeping the applicant detained, including the argument that he had been evading justice ever since 2002, the Vilnius Regional Court also noted evidence that the applicant had tried, through third parties, to influence the witness G.B. and his family so that G.B. would not testify against the applicant.", "34. By a judgment of 25 April 2006 the Vilnius Regional Court found the applicant guilty of having put out the contract for R.G.’s murder. In finding against the applicant, the trial court relied on the testimony of G.B. Even though the applicant denied his involvement in the crime and insisted that G.B. was slandering him, the trial court observed that G.B.’s testimony to the effect that the crime had been organised by a certain “Alius” had been consistent ever since G.B. was first questioned during the pre-trial investigation in 1998. Moreover, G.B. had recognised the applicant from photographs on 19 March 2002 and during a police identity line-up on 7 June 2005. Other evidence against the applicant also included the testimony of nine further witnesses – namely the applicant’s and R.G.’s former business partners, a police officer, and the brother of R.G.’s widow. Telephone records also showed that in April and May 1995 numerous conversations had taken place between the applicant, R.G., O.L. and G.B. In addition, extracts from the bank accounts of the applicant’s company, customs declarations, and documents from Kaunas municipality illustrated the financial dealings between the applicant and R.G.", "35. The Vilnius Regional Court noted that eleven years had passed since the crime was committed. The applicant had not been hiding during that time, even though a search for him “without reason (nepagrįsta)” had been called for. In all the years since 1995 the applicant had not once broken the law and there was no information in the case file indicating his involvement in organised crime. Moreover, the applicant had worked, supported his family, including two children who were minors, and had participated in public life. However, given the seriousness of the crime, the court held that the applicant still posed a danger to society. The court lastly found that because of the pre-trial investigation officers’ fault the applicant was being punished only after many years had passed since the crime. To impose a very severe sentence on him would therefore be unjust. Eight years’ deprivation of liberty in a correctional home would be appropriate. The time which the applicant had spent in pre-trial detention – from 25 May 2005 until 25 April 2006 was to be counted towards that period.", "36. An appeal having been lodged against this verdict, on 18 May 2007 the applicant was acquitted by the Court of Appeal. The court found the testimony of G.B. − who was the main witness for the prosecution − against the applicant, including testimony given on site in 1998, G.B.’s recognising the applicant in the police identity line-up and the testimony given the face-to-face confrontation to be inconsistent, not credible and contradictory of other evidence in the case (nelogiški, prieštaraujantys kitiems įrodymams ir nenuoseklūs). There was a real possibility that by giving such testimony G.B. had sought to improve his position. In this connection the Court of Appeal also noted that G.B. had attempted to diminish his own role in R.G.’s murder. It was for that reason that, on 19 June 2003, the Supreme Court had dismissed the prosecutor’s and G.B.’s plea for mitigation of G.B.’s sentence on the basis of Article 411 of the old Criminal Code (see paragraph 54 below). The Court of Appeal also emphasised that there was not sufficient additional evidence to link the applicant to crime.\nThe Court of Appeal ordered the applicant’s release from detention. He had to stay at his place of residence, and his travel documents were taken from him.", "37. The decision to acquit the applicant was later quashed by the Supreme Court, which remitted the case for fresh examination.", "38. Before the Court of Appeal the applicant reiterated his complaint that on 26 May 2005 the pre-trial investigation judge had not allowed him to see the material submitted by the prosecutor. He also noted that G.B. had not informed the prosecutor about alleged undue influence on him until a week after the alleged incident supposedly took place. In the view of the applicant, G.B. wished to incriminate him using any means possible.", "39. On 13 March 2009 the Court of Appeal again acquitted the applicant, upholding its earlier finding that G.B.’s testimony against the applicant was not consistent (nėra nuoseklūs). It also noted that the trial court had categorised the search for the applicant as unfounded (nepagrista), without elaborating much on that issue. The Court of Appeal emphasised that the applicant had never been in hiding from the authorities, even though the prosecutor had asked the appellate court to suppress that assessment, given by the trial court (also see paragraphs 40 and 41 below).\nThe applicant was released from the obligation not to leave his place of residence, and his travel documents were returned to him.", "40. The very same day, on the basis of Article 257 of the Code of Criminal Procedure (see paragraph 53 below), the Court of Appeal adopted a separate ruling, noting that a search for a suspect could be ordered if the suspect’s place of residence was unknown to the investigators, who, if that were the case, were obliged to take steps to find him or her. In the instant case, however, the applicant had never been in hiding from the investigators. On the contrary, he had lived in his apartment in Kaunas, had taken part in car rally competitions abroad, had won the President’s cup after participating in the car rally “Around Lithuania” in 2003, and in the same year had even been elected president of the car rally committee. The applicant had also crossed the Lithuanian State border both by car and as an airline passenger at least ten times, had worked at his private company and had paid social security contributions. All those events had taken place during the time when the search for the applicant, ordered on 2 September 2002, was being conducted. The applicant had at no time been called into the prosecutor’s office and none of the applicant’s family members had received any inquiries about the applicant’s whereabouts from the police or had ever been visited by police officers. As confirmed by the police in January 2006, no search file (paieškos byla) had ever been opened in respect of the applicant. Furthermore, in October 2003 he had been arrested (sulaikytas) in Šiauliai town for having insulted police officers but was later released.", "41. In the light of the above, the Court of Appeal concluded that the prosecutor had deliberately and unnecessarily (nepagrįstai) ordered a search for the applicant without first having called him in for questioning or having taken any real measures to establish his whereabouts. The appellate court also found that the prosecutor had deliberately misled the courts in 2005 by providing them with clearly untrue information at a time when those courts were making their decision as to whether or not to detain the applicant. This showed that the prosecutor had other goals in view, but it was not for the Court of Appeal to determine what those other goals might have been. Nevertheless, as a consequence it was possible for the applicant to have been unlawfully detained for almost two years – from 25 May 2005 until 18 May 2007. The Court of Appeal therefore asked the Attorney General’s Office to determine whether the prosecutor’s actions constituted abuse of office, which is a crime under Lithuanian law. The Court of Appeal also emphasised that ‒ as was apparent from the court decision approving the applicant’s detention, on 26 May 2005, and upholding his detention on remand by court rulings adopted between 27 June 2005 and 24 November 2005 ‒ in addition to the European Arrest Warrant issued in 2005, “the search for the applicant [announced in 2002], had been one of the main grounds for ordering his pre-trial detention and for prolonging it”.", "42. On 19 June 2009 the Deputy Attorney General concluded that the prosecutor had not committed any offence. On the contrary, it was the police officers who had not performed their duties properly by failing to locate the applicant (see paragraphs 10, 12 and 15 above), as a result of which it had not been possible for the prosecutor to call the applicant in for questioning. In any case, to call in for questioning a person whose accomplices had been sentenced to long years of imprisonment (see paragraph 9 above) was hardly a measure that would be considered justified in the interests of a successful pre-trial investigation. Once the police had informed the prosecutor of the applicant’s possible whereabouts, the prosecutor immediately ordered the police officers to search those places and to arrest the applicant, who was charged the following day (see paragraphs 17 and 18 above). The prosecutor’s actions had therefore been based on factual circumstances and were lawful. There was no reason to conclude that he had misled the courts when they were deciding whether or not to detain the applicant.", "43. In the view of the Deputy Attorney General, the fact that the prosecutor had referred to the search for the applicant and the European Arrest Warrant in his requests to the court for the applicant’s detention (see paragraphs 14 and 21 above) did not constitute significant grounds for keeping him detained. On the contrary, the courts noted the applicant’s connections abroad, the fact that he owned property abroad, his wealth and the gravity of the crime of which he was suspected. The applicant and his lawyer had, moreover, actively exercised their defence rights in challenging the argument that the applicant had been hiding from investigators. It followed that the applicant’s right to liberty had been restricted on a lawful basis.", "44. Lastly, the Deputy Attorney General established that the actions of a certain police investigator when executing the search for the applicant had been erratic. However, even though his actions could be deemed to constitute a disciplinary offence, the investigator no longer worked in the police force and could not therefore be punished.\nThe Deputy Attorney General therefore refused to open a pre-trial investigation on the basis of the facts mentioned in the Court of Appeal ruling of 13 March 2009. The decision was sent for inclusion in the applicant’s criminal case file.", "45. By a ruling of 3 November 2009 the Supreme Court again remitted the applicant’s criminal case to the appellate instance for a fresh examination of evidence. The cassation court noted that G.B.’s testimony did not automatically become less credible merely because he had cooperated with the authorities when telling them of R.G.’s assassination, and for that reason the prosecutor requested mitigation of G.B.’s sentence.", "46. On 25 October 2011 the Court of Appeal found the applicant guilty of having put out the contract for R.G.’s murder so that the applicant and others would not have to repay to R.G. debts amounting to between 200,000 and 280,000 US dollars (USD). The applicant was sentenced to five years’ deprivation of liberty.", "47. On 8 May 2012 the Supreme Court re-interpreted the domestic criminal law and upheld the trial court’s verdict, sentencing the applicant to eight years’ deprivation of liberty.\nAccording to the latest information from the applicant’s lawyer, in January 2015 the applicant was released from prison before time." ]

[ 2 ]

[ "5. The applicant was born in 1948 and lives in Yerevan. She is unemployed and receives state welfare benefit.", "6. On 10 October 1991 the Republic of Armenia Executive Committee of the Mashtots District Council of People’s Deputies decided to allocate a flat to the applicant in a building in Yerevan, which was to be constructed by Kanaz Aluminium Factory (hereafter - the Factory).", "7. It appears that the foundation of the future building was laid but, as the Soviet Union collapsed, the construction of the building was stopped.", "8. On an unspecified date the Factory went bankrupt and a liquidation commission (hereafter - the commission) was set up.", "9. It appears that on 8 May 2007 the applicant lodged a request with the commission seeking to be allocated a flat or to receive money equivalent to its value.", "10. On 10 May 2007 the head of the commission rejected the applicant’s request on the ground that the building, of which one flat was to be allocated to the applicant, had not been constructed due to the lack of financial means. He stated that the Factory had carried out construction activities with direct financial support from the Soviet Government and that after the Soviet Union collapsed it had to stop construction projects for lack of financial means.", "11. On 13 June 2007 the applicant, who was not represented by a lawyer, lodged a claim with the Arabkir and Kanaker-Zeytun District Court of Yerevan seeking to oblige the Factory to allocate a flat to her or provide her compensation equivalent to its value.", "12. On 19 July 2007 the District Court dismissed the applicant’s claim on the same grounds as those relied on by the head of the commission. It also found that the Factory had been declared bankrupt and had no legal successor as such.", "13. On 23 July 2007 the applicant, still unrepresented, lodged an appeal against this judgment.", "14. On 15 October 2007 the Civil Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the District Court.", "15. The applicant did not lodge an appeal on points of law with the Court of Cassation. She alleges that she was unable to do so as she could not afford to hire an advocate authorised to act before that court, whose services were costly. She further claims that she applied to many lawyers with a request to provide her with free legal services as regards her application to the Court of Cassation. However, her requests were turned down on the ground that the issue concerned an apartment and legal aid was not available for this type of a dispute." ]

[ 3 ]

[ "5. The applicant was born in 1986 and lives in Sofia.", "6. On 28 June 2008 a Gay Pride parade took place, for the first time in Bulgaria. The parade started at about 4.15 p.m. in the centre of Sofia, not far from the National Palace of Culture, and drew about two hundred and fifty to three hundred participants. It was covered by about hundred and forty journalists. It was conducted under heavy police protection, engaging almost one hundred and fifty officers, twenty of which wearing anti-riot gear, who were put in place to protect the parade from several extreme right and nationalist groups which had threatened to disrupt it. The parade was nevertheless accompanied by several violent incidents, and the police made more than eighty arrests.", "7. At about 4.30 p.m. that day, the applicant and six friends of his were crossing a public park behind the National Palace of Culture. They were carrying bottles of beer and were allegedly headed to meet friends of theirs. According to the applicant, they were not aggressive and had no intention of attacking participants in the parade or anyone else. According to operative police information submitted by the Government, the applicant was part of a group of about fifty to seventy persons bent on attacking participants in the parade.", "8. The group was intercepted by two police vans. The police came out of the vehicles and shouted at the group to “put down their bottles”, “fall to the ground”, put their “hands behind their heads”, and “disperse”. According to the applicant, the police forced everyone to lie down on the ground and hit them with truncheons and kicked them. The applicant was likewise forced to lie down on the ground, handcuffed, and kicked and hit with truncheons and fists on the back, shoulders and legs. He alleges that one police officer pressed his head against the ground with his boot, suffocating him, only reducing the pressure in response to the applicant’s protests. According to a written statement by the police officer who arrested the applicant, drawn up on 14 November 2014 for the purposes of the proceedings before this Court and submitted by the Government (the officer had before that remained unidentified), the applicant was among a group of visibly inebriated persons who were trying aggressively to attack the parade. The officer did not recall using force or a truncheon against the applicant, solely handcuffs, in view of the applicant’s unruly conduct.", "9. The applicant and the other members of the group remained pinned down to the ground for about half an hour, in front of many passers-by. A number of the journalists who were at the scene took pictures and videos. According to the applicant, on one photograph that he later found on the Internet one could see a police officer pressing his back against the ground with his boot. Pictures were apparently also taken by a service photographer of the Ministry of Internal Affairs.", "10. The applicant, together with about twenty-five to thirty other persons, was then put in a police bus and taken to a nearby police station. According to a detention log submitted by the Government, the applicant was brought to the station at 7.30 p.m. According to a record submitted by the Government, he was searched, but the search did not reveal any weapons or dangerous objects on him. The applicant alleged that together with some of the other arrestees he was at first left in the corridor of the station and made to face a wall with his hands up and his legs apart. He remained in that position for about two hours. During that time, police officers who passed behind him in the corridor occasionally kicked him in the ankles so that he would keep his legs apart. When he protested, he was hit with a truncheon on the back of his legs, behind the knees, allegedly because the police knew that blows in that spot did not leave lasting marks. He was then put, together with thirty-two other persons, in a very hot and stuffy cell measuring about nine or ten square metres. He was not given any food or drink, or allowed to go to the toilet. He was later questioned for about twenty minutes, and was allegedly not allowed to get in touch with a lawyer, a medical doctor or his family, although he had expressed the wish to do so in an official form that he filled in at 7.30 p.m.", "11. In the course of his stay in the police station, the applicant was served with a police order for his detention and a notice of an administrative offence, charging him with refusing to obey the police order to disperse. According to a note made on the police detention order, he was released at 3.25 a.m. on 29 June 2008.", "12. In support of his allegations in relation to the circumstances of his arrest and detention, the applicant submitted an affidavit drawn up by him on 14 September 2011 and three affidavits drawn up on 13 September 2011 by persons arrested and detained with him.", "13. At 1.30 p.m. on the day of his release, 29 June 2008, the applicant was examined by a medical doctor at the forensic medicine department of Sofia Medical University, who noted, in a certificate, the following injuries on him: (a) a double stripe-shaped intensely blueish-purple bruise measuring five by one and a half centimetres on the upper right shoulder; (b) several spotted intensely blueish-purple bruises measuring five by seven centimetres on the sides of the stripe-shaped one; (c) a double horizontal stripe-shaped purple bruise measuring twenty by two and a half centimetres in the middle of the back; (d) a spotted blueish bruise measuring six by five and a half centimetres on the left shoulder; (e) spotted blueish-purple bruises measuring nine by eight centimetres on the inside of the right arm, below the armpit, with three lighter zones inside them, measuring one centimetre in diameter; (f) a similar purple bruise measuring five by four centimetres on the upper third of the inner right forearm; (g) four similar bruises measuring one and a half by two centimetres on the inner left arm; and (h) a blueish bruise measuring six by eight centimetres on the outer right shank. The doctor was of the view that the bruises on the applicant’s right shoulder and back had been caused by blows with a hard blunt elongated and narrow object, those on the arms and the right forearm by a strong finger-grip, and those on the left shoulder and the right shank by blows by or against hard blunt objects or blows with fists and kicks. He went on to say that all bruises could have been inflicted in the manner alleged by the applicant, and had caused him pain and suffering.", "14. On 14 July 2008 the head of the police department gave the applicant an administrative fine for not obeying the police order to disperse. The applicant sought judicial review of this decision. On 30 September 2009 the Sofia District Court quashed the decision, finding that the facts set out in it were contradicted by the witness evidence given by the police officers and others in the course of the judicial review proceedings. It noted that this evidence showed that the police had ordered the members of the group intercepted by them to put down the objects that they were holding in their hands and lie down on the ground, which was incompatible with the order to disperse mentioned in the decision. It was not therefore established that the applicant had indeed refused to obey the police order to disperse.", "15. In the meantime, on 10 July 2008 the applicant complained to the Sofia Military Prosecutor’s Office of his alleged ill-treatment by the police at the time of his arrest. He asked it to inquire into the matter and open criminal proceedings against the officers concerned. He enclosed with his complaint the medical certificate that he had obtained on 29 June 2008 (see paragraph 13 above), photographs of his injuries, and photographs of the events that he had obtained from the Internet.", "16. On 14 July 2008 the Sofia Military Prosecutor’s Office found that the information supplied by the applicant was not sufficient to warrant the immediate institution of criminal proceedings, but called for a preliminary inquiry (see paragraph 35 below). It instructed a military investigator to look into the applicant’s allegations by gathering all available materials and taking statements by those concerned.", "17. The military investigator obtained written statements from some of the police officers who had taken part in the operation, the applicant, and witnesses suggested by the applicant. In his report to the prosecuting authorities, submitted on 22 August 2008, he said that, according to the officers’ statements, none of them had subjected civilians to “police violence”, and that neither the applicant nor his witnesses were able to identify the officers who had allegedly hit or kicked the applicant.", "18. On 12 September 2008 the Sofia Military Prosecutor’s Office, finding that the inquiry had not elucidated all relevant facts, instructed the complaints division of the Sofia Directorate of the Ministry of Internal Affairs to take written statements from all police officers involved in the operation, the applicant, and a witness suggested by the applicant.", "19. In its report on the additional inquiry, submitted to the Sofia Military Prosecutor’s Office on 17 October 2008, the Sofia Directorate of the Ministry of Internal Affairs said, based on written statements taken by a number of police officers, that none of these officers had used force against arrestees or seen colleagues of theirs do so. It added that the applicant and the witness had stated that they were not able to identify the officer who had allegedly ill-treated the applicant because all officers had been clad in identical uniforms and helmets.", "20. In a decision of 1 November 2008, the Sofia Military Prosecutor’s Office refused to open criminal proceedings pursuant to the applicant’s complaint. It noted that on the day of the incident considerable police forces had been mobilised to ensure the safety of the participants in the Sofia Gay Pride parade, in view of the risk of attacks by extreme right-wing groups. Two police patrols had arrived at the site of the incident after receiving information that a group of fifty to seventy persons was moving behind the National Palace of Culture, armed with knuckledusters, empty bottles and torches, and bent on carrying out acts of aggression against those taking part in the parade. The police had intercepted this group and ordered its members to drop the objects that they were holding and lie down on the ground. This order had been complied with without any need for the police to resort to the use of force. None of the witnesses had been able to identify the police officer who had allegedly hit the applicant. Moreover, the applicant’s account of the facts was not duly corroborated by the material in the file and more specifically the medical certificate submitted by him. The applicant alleged that he had been handcuffed, whereas none of the photographs of the scene showed handcuffs, and his wrists bore no traces of handcuffing. His neck and head, where he alleged to have received blows, bore no traces of injury either.", "21. The applicant’s appeal against this decision was dismissed by the Sofia Appellate Prosecutor’s Office on 29 January 2009 on the basis that the materials in the file did not equivocally suggest that the applicant had been subjected to “police violence”. However, following a further appeal by the applicant, on 6 April 2009 the Supreme Cassation Prosecutor’s Office quashed this decision on the basis that the Sofia Appellate Prosecutor’s Office was not competent to deal with the case, which had to be sent to the Military Appellate Prosecutor’s Office.", "22. On 28 April 2009 the Military Appellate Prosecutor’s Office quashed the refusal to open criminal proceedings and referred the case to the Sofia District Prosecutor’s Office. It said that the refusal did not make it clear whether it was based on a finding that the police had not used any force against the applicant or on a finding that any force that had been used had been lawful. If no force had been used, an explanation needed to be given for the injuries noted on the applicant on 29 June 2008; the refusal did not say anything about that. If force had on the contrary been used, it was necessary to determine whether this had been rendered necessary by the applicant’s conduct. There was however almost no evidence on this point in the file. The available material only showed that the police had lawfully used force against a group of persons trying to disrupt the Sofia Gay Pride parade, but there was no evidence on whether the police had in error and unjustifiably also used force against the applicant and his friends.", "23. On 28 May 2009 the Sofia District Prosecutor’s Office ordered additional inquiries with a view to elucidating the points noted by the Military Appellate Prosecutor’s Office. It instructed the Sofia Directorate of the Ministry of Internal Affairs to ascertain the identity of all police officers who had come into physical contact with the applicant and the origin of all of the injuries noted on him on 29 June 2008 (see paragraph 13 above).", "24. In its report on the additional inquiry, submitted to the Sofia District Prosecutor’s Office on 22 July 2009, the Sofia Directorate of the Ministry of Internal Affairs said it had taken a further statement from the applicant, who had not been able to provide more information. It had also taken statements from two police officers who had taken part in the operation on 28 June 2008. In the course of the operation the police had used force and “auxiliary means” in line with the requirements of section 72(1) of the Ministry of Internal Affairs Act 2006 (see paragraphs 30 and 31 below). The applicant had been asked to invite the witnesses suggested by him to get in touch with the inquiry, but none of them had done so.", "25. In a decision of 14 September 2009 the Sofia District Prosecutor’s Office also refused to open criminal proceedings pursuant to the applicant’s complaint. It repeated, verbatim, the reasons given by the Sofia Military Prosecutor’s Office in its decision of 1 November 2008 (see paragraph 20 above), only adding that all actions of the police in the course of the events of 28 June 2008 had been duly recorded in written statements by the officers concerned, police detention orders and reports.", "26. The applicant appealed against this decision, arguing that the general risk of violence during the course of the parade could not justify the use of force in the absence of concrete evidence in relation to his and his friends’ conduct. He said that neither he nor his friends had had any weapons or dangerous objects on them. He also complained of the ineffectiveness of the investigation, pointing out, inter alia, that the investigators had not interviewed the police officers who had been at the scene about the conduct of those of their colleagues who had been involved in the incident and had not attempted to explain the origin of his injuries.", "27. On 1 March 2010 the Sofia City Prosecutor’s Office dismissed the appeal. It said that the verbatim repetition by the Sofia District Prosecutor’s Office of the reasons given by the Sofia Military Prosecutor’s Office did not pose a problem. Since they had made identical findings of fact, they had given identical reasons. All arguments relating to the question whether force had been used and, if so, which officer had hit the applicant, were irrelevant. The lower prosecutor’s office had correctly found that the applicant had not been subjected to excessive police violence. It was true that he had suffered injuries, but the medical certificate submitted by him did not prove that these injuries had been caused by police officers. Even if officers had used force against the applicant, that force had not gone beyond what had been necessary to preserve public order and had not had a negative effect on the applicant’s health.", "28. The applicant appealed further, reiterating his arguments. On 20 September 2010 the Sofia Appellate Prosecutor’s Office likewise upheld the refusal to open criminal proceedings, fully agreeing with the reasons given by the lower prosecutor’s offices.", "29. The applicant then appealed to the Chief Prosecutor. In a final decision of 22 March 2011 the Supreme Cassation Prosecutor’s Office upheld the decision of the Sofia Appellate Prosecutor’s Office, saying that section 72(1)(5) of the 2006 Act (see paragraph 30 below) allowed the police to use force to prevent attacks against civilians, and that the lower prosecutor’s offices had fully elucidated the facts of the case." ]

[ 1 ]

[ "5. The applicant was born in 1964 and lives in Skopje.", "6. As established in the criminal proceedings described below (see paragraphs 8-18 below), on 6 June 2011 at about 12.20 a.m., I.S., a member of the Special Police Forces Unit (Единица за специјални задачи) of the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of the parliamentary elections that coincided with a local cultural event. The killing occurred after M.N. attempted to climb onto a podium in order to approach certain high-ranking politicians. After I.S. warned him to desist, M.N. ran away. I.S. followed him and hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N., despite M.N. shouting for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute (Институт за Судска Медицина), M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was a brain haemorrhage. M.N. died at 12.30 a.m. The courts established (contrary to I.S.’s testimony) that at the relevant time I.S. had not been on duty, but had attended the ceremony in a private capacity.", "7. According to the applicant, after Ministry officials had issued a number of conflicting statements regarding M.N.’s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to protest. After the Ministry’s spokesperson announced on 7 June 2011 that a police officer was suspected of having caused M.N.’s death, thousands of people took to the streets of Skopje to protest. Those protests lasted for forty days and turned into a movement called “Stop Police Brutality” (Стоп на полициската бруталност). On 14 June 2011 over six thousand people signed a petition containing several demands, namely that the relevant authorities establish the truth regarding M.N.’s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry’s officials.", "8. On 8 June 2011 the public prosecutor asked an investigating judge to open an investigation in respect of I.S. related to the death of M.N.", "9. In the course of this investigation, A.N. (M.N.’s brother) requested the Professional Standards Inspectorate (“the PSI”) of the Ministry of the Interior to investigate the circumstances surrounding M.N.’s death and the actions of the police officers concerned alleging that unidentified police officers had committed the crimes of “assisting an offender after the commission of a crime” and “failure to report an offence or perpetrator”, punishable under Articles 364 and 365 of the Criminal Code.", "10. On 28 June 2011 the PSI replied as follows:\n“... a police officer I.S., member of the Special Unit within the Ministry of the Interior, was on duty on 5 June 2011 between 8 a.m. and midnight on the basis of an operative plan prepared before. After the activities in the Special Unit had ended, at 12.10 a.m. [I.S.] left the Unit and went, in plain clothes and in a private car, to the centre of the city, where (a cultural event) and post-election celebrations were taking place.\nAt around 4 a.m. there was a verbal fight at the square ‘Macedonia’ between the suspect I.S. and M.N. After that, M.N. started to run ... after M.N. had fallen to the ground, I.S. punched and kicked him in the head and body. M.N. lost consciousness; I.S. pulled him up and placed him in a sitting position on a nearby bench. He took a bottle of water ... and poured it over [M.N.’s] head in order to resuscitate him. After that, I.S., together with other persons, pulled [M.N.] up and placed him in the greenery of the car park ... where again they were helping him, tried to revive him and in the meantime they informed the emergency unit.\nSoon after two uniformed police officers, who were employed to secure the celebration, arrived on the scene. I.S. left for an unknown destination ...\n(Police) inspectors from the police crime department (Одделение за крвни, сексуални и сообраќајни деликти) were informed about the event. After they had arrived on the scene, they informed a public prosecutor and an investigating judge of the incident. They (both) did not arrive on the scene, but delegated to the police investigation department (Одделение за истрага) responsibility for conducting an on-site inspection.\nThe police investigation department conducted the on-site inspection for which report was drawn up and photos were taken.\nOn the basis of an order by the investigating judge M.N.’s corpse was handed over to the Forensic Institute in order to establish the reasons for the death.\nAfter the (post mortem) examination had confirmed that M.N.’s death had been violent, the police crime department took measures to establish the facts, including interviewing eyewitnesses.\nAt around 2.30 p.m. on 7 June 2011 the suspect I.S. handed himself in to a police station (in Skopje). After an interview had been held, the investigating judge ordered that an identity parade with eyewitnesses be organised in the presence of the public prosecutor.\nThe police crime department submitted a criminal complaint of murder against I.S... The investigating judge remanded him in custody ...\nOn 9 June 2011 the Ministry established the identity of one of the persons who together with I.S. had moved M.N.’s corpse from the bench into the greenery of the car park for which a Special report was communicated to the public prosecutor.\n... On 15 June 2011 the Minister of the Interior terminated I.S.’s employment.”", "11. In a letter to A.N. of 15 September 2011 the Ombudsman noted that he had asked the relevant authorities to undertake immediate measures to establish the relevant facts and stated that the incident “was a result and a consequence of irresponsible and unprofessional conduct on the part of the police, which [the Ombudsman] had repeatedly pointed out.”", "12. On 3 October 2011 the public prosecutor brought an indictment against I.S., charging him with murder. In the indictment, the prosecutor requested that the trial judge examine I.S., the applicant, twenty-seven witnesses and four experts, and admit considerable material evidence.", "13. The trial against I.S. commenced in the Skopje Court of First Instance (“the trial court”). The trial court heard over thirty witnesses, and examined evidence and records of the identity parade; the evidence produced by medical experts; other expert evidence; photographs; and other documentary evidence.", "14. Z.J. and P.K., the uniformed police officers who had arrived at the scene after M.N.’s death, stated, in particular, that before the incident, I.S. had introduced himself as a member of the Prime Minister’s security service and had told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon afterwards, they had seen I.S. chasing M.N. and had heard people calling for police assistance. When they had arrived at the scene, they had seen M.N. lying on a bench unconscious. I.S. and others had been trying to resuscitate him with water. I.S. had told them that M.N. had fallen ill (му се слошило) and had asked that they call the emergency services. Soon afterwards, a third person, whom they did not know, had arrived. Z.J. had ordered that M.N.’s corpse be removed in order to enable the ambulance to access the scene more easily. I.S. and a person in plain clothes had pulled M.N. up from the bench and had placed him among nearby greenery. Then I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not realized that M.N. had been beaten, as he had not noticed any visible injuries on him.", "15. V.B., employed in a State-owned public utility (electricity) company, who witnessed the incident, confirmed, in particular, that I.S. had pursued M.N. and had hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact. I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had pulled M.N. up, placed him on a bench and tried to resuscitate him. After the police officers had arrived, V.B. and I.S. had pulled M.N. up from the bench and moved him so that the ambulance would have easier access to the scene. He had stayed next to M.N. until the ambulance came. He said that there had been no visible injuries on M.N.", "16. That M.N. had no visible injuries immediately after the incident was confirmed by L.K. and V.C. (the doctor and nurse respectively), who arrived at the scene in the ambulance soon after the incident.", "17. On 16 January 2012 the trial court delivered a judgment (of forty-three pages) in which it found I.S. guilty of murder and sentenced him to fourteen years’ imprisonment. The court further advised the applicant (who had joined the prosecution as the legal representative of the late M.N.) to pursue a compensation claim by means of a separate civil action for damages.", "18. On 9 July 2012, the Skopje Court of Appeal upheld the facts established by the lower court and I.S.’s conviction and sentence. On 7 May 2013 the Supreme Court dismissed a request by I.S. for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) and upheld the lower courts’ judgments.", "19. On 12 October 2011, while the criminal investigation concerning I.S. was underway, the applicant submitted a criminal complaint against Z.J., P.K., V.B. and an unidentified police officer. She alleged that Z.J. and P.K. had failed to determine the identity of I.S. and – instead of apprehending him – had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the crime by moving M.N.’s corpse to the nearby greenery and not reporting I.S. as the perpetrator of the offence. The applicant alleged that the unidentified police officer (who was later identified as D.I.) had wrongly told the public prosecutor and an investigating judge that M.N. had died as the result of a drug overdose. As a consequence, neither the prosecutor nor the investigating judge had made an on-site inspection after the incident. The applicant alleged an abuse of office in relation to the alleged crime of “assisting a perpetrator after the commission of a crime” (Article 365 of the Criminal Code).", "20. On 29 December 2011 the public prosecutor rejected the applicant’s complaint, finding no grounds to suggest that Z.J., P.K., V.B. and D.I. had committed the alleged crimes. The prosecutor found that, on the basis of all available evidence (including the available material in the case file against I.S.), Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later and had not determined the identity of I.S., who had told them that M.N. was feeling sick. They had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. to the nearby greenery in order to enable the ambulance to access the scene more easily. I.S. had left the scene, and Z.J., P.K. and V.B. had stayed at the scene until the ambulance arrived. A report (no. 025084 of 6 June 2011) by the medical staff who had responded to the emergency call noted that the staff had established M.N.’s death and had noticed no visible signs of violence on him.", "21. The prosecutor found that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional error caused by the urgency of the need to save the life of M.N. They had arrived at the scene after the incident and they had not known that a crime had been committed. As regards V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that a criminal offence had been committed. Consequently, it could not be established that he had intentionally assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his being placed amongst the nearby greenery had been aimed at facilitating the access of the ambulance. The police officers had called the emergency services and D.I. had informed the police control centre, as suggested by the medical staff, that the cause of death could not be established (незнаена смрт), but that it was possible that M.N. had been a drug addict. Given the circumstances, the prosecutor established that there was no evidence that the accused officers had taken any actions with the intention of obstructing the investigation or preventing the identity of the perpetrator from being discovered, or that they had concealed any evidence. On the contrary, they had taken all necessary measures to facilitate the determination of the perpetrator’s identity. The incident had been reported to the local police station and the police control centre. The inspection unit of the Ministry of the Interior (увидна група) had arrived at the scene.", "22. On 12 March 2012 the higher public prosecutor’s office found that this decision had been lawful and correct and based on all available material.", "23. In the meantime, on 18 January 2012, the applicant took over the prosecution as a subsidiary prosecutor and lodged an indictment against Z.J., P.K., V.B. and D.I. before the trial court on the same counts (abuse of office, assisting a perpetrator after the commission of a crime and failure to report a crime or the offender).", "24. At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation of 20 April 2012 by the president of an adjudicating panel of the trial court that the applicant’s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant’s complaint, finding no grounds to depart from the public prosecutor’s decision of 29 December 2011.", "25. The applicant appealed against that decision, arguing that no procedural steps or hearing had taken place before the panel. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision. The applicant was served with this decision on 20 March 2013.", "26. On 15 June 2015 the applicant submitted in evidence a CD-ROM with audio material and a transcript (in English) of taped telephone conversations which involved, allegedly, high-ranking public officials. The material concerned conversations regarding the possible direct perpetrator, which apparently took place soon after the incident. As stated by the applicant, on 5 May 2015 the audio material was revealed in public by the political opposition in the respondent State and was also made available on-line." ]

[]

[ "5. The applicants are the son (the first applicant), the daughter-in-law (the second applicant) and the wife (the third applicant) of the late Garegin Ghuyumchyan. They were born in 1965, 1973 and 1947 respectively and live in Vanadzor, Armenia. The first and the third applicants are also Garegin Ghuyumchyan’s first heirs, according to the Armenian civil law.", "6. The third applicant and Garegin Ghuyumchyan ran a printing house and a small spirit factory as a family business.", "7. On 19 July 2002 Garegin Ghuyumchyan was charged with bribe‑taking and made an undertaking not to leave his residence. A truck and a television set belonging to him were seized. It appears that he then hired a defence lawyer.", "8. On 25 September 2002 the investigating authority decided to dismiss the charge against Garegin Ghuyumchyan for lack of evidence, lifted the seizure and cancelled the undertaking. It appears that after the dismissal of the charge, Garegin Ghuyumchyan’s advocate refused to work with him any longer.", "9. In 2004 Garegin Ghuyumchyan and the third applicant sold the family business to a private person.", "10. On 29 October 2004 Garegin Ghuyumchyan instituted proceedings seeking compensation for wrongful prosecution. In particular, he claimed reimbursement for legal and transport costs. He also claimed compensation for the loss of his family business, alleging that as a result of the prosecution he could not run it and had to sell it at a low price.", "11. On 9 January 2006 Garegin Ghuyumchyan supplemented his claim, alleging that as a result of the prosecution the first and the second applicants had had to leave their jobs. The first and the second applicants also joined the proceedings as third parties having additional claims.", "12. On 18 May 2006 the Lori Regional Court granted the claim in part, ordering reimbursement of legal costs and part of the transport costs. As for the rest of the claim, the Regional Court dismissed it on the ground that there was no causal link between the sale of the business and Garegin Ghuyumchyan’s prosecution or between the first and the second applicants’ leaving their jobs and the prosecution.", "13. It appears that on 26 July 2006 Garegin Ghuyumchyan lodged a request with the Chamber of Advocates of Armenia, seeking to receive legal aid.", "14. On 27 July 2006 the Chairman of the Chamber of Advocates of Armenia informed him in a letter that the Advocacy Act did not provide for legal aid for the type of proceedings in which he was involved.", "15. On 17 November 2006 Garegin Ghuyumchyan lodged a complaint with the Lori Regional Prosecutor’s Office alleging that on 4 October 2006 he had been beaten by the Head of the Lori Region of Armenia. The outcome of this complaint is unclear.", "16. On an unspecified date Garegin Ghuyumchyan and the first applicant lodged an appeal against the judgment of the Regional Court.", "17. On 26 January 2007 the Civil Court of Appeal delivered its judgment upholding the judgment of the Regional Court in respect of the reimbursement of part of the travel costs as well as legal fees, but dismissing the rest of the claim.", "18. On 22 June 2007 Garegin Ghuyumchyan lodged an appeal with the Court of Cassation against the judgment of the Court of Appeal.", "19. By a letter of 28 June 2007 the Chief Registrar of the Court of Cassation returned the appeal, informing him that it had not been admitted for examination as it had not been lodged by an advocate licensed to act before the Court of Cassation, pursuant to Article 223 of the Code of Civil Procedure. The applicants alleged before the Court that their family could not afford the services of such an advocate.", "20. On 29 October 2007 Garegin Ghuyumchyan and also the first and the second applicants lodged an introductory letter with the Court in which they complained under Article 6 § 1 that Garegin Ghuyumchyan had been denied access to the Court of Cassation, under Article 6 § 3 (c) that Garegin Ghuyumchyan’s defence lawyer had refused to represent him in the compensatory proceedings and that his request for legal aid had been rejected by the Chamber of Advocates. They also complained under Article 1 of Protocol No. 1 that the domestic courts had failed to grant the compensatory claim in full.", "21. On 3 November 2007 Garegin Ghuyumchyan died of a heart attack.", "22. On 10 May 2008 the applicants lodged their completed application with the Court." ]

[ 3 ]

[ "6. The applicant was born on 14 July 1946 and lives in Skopje.", "7. On 22 January 2008 the Parliament of the respondent State passed the Additional Requirement for Public Office Act (Закон за определување дополнителен услов за вршење на јавна функција – hereafter “the Lustration Act”), which entered into force eight days later.", "8. The Lustration Act introduced non-collaboration with the State security services in the period between 2 August 1944 and 30 January 2008, the date of the Act’s coming into force (hereafter “the screening period”), as an additional requirement for the holding of public office. In other words, collaboration with the State security services in that period became an impediment to holding public office.", "9. All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the State security services in the above screening period (hereafter “the declaration”). The Lustration Act was to apply for five years from its entry into force (hereafter “the temporal scope”).", "10. The Lustration Act also provided for the establishment of a Facts Verification Commission (Комисија за верификација на факти – hereafter “the Lustration Commission” or “the Commission”), which had to be set up within sixty days of the Act’s entry into force. Its task was to examine the veracity of the public officials’ declarations. The members of the Commission were elected by Parliament on 15 January 2009. The Commission became operational in late March 2009.", "11. On 22 May 2009 amendments to the Lustration Act entered into force, adding several provisions primarily in respect of the functioning of the Lustration Commission and the status of its members. Also, the temporal scope of the Lustration Act was extended, from the five years initially envisaged following the Act’s entry into force, to ten years following the election of the Commission.", "12. On 27 January 2010, following petitions for abstract constitutional review, the Constitutional Court accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of the Lustration Act, including the one extending the screening period (see paragraph 8 above) beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also suspended application of those provisions until it had decided on their compatibility with the Constitution.", "13. Fierce debate ensued, in which a number of politicians severely criticised the Constitutional Court’s decision in the media (see the European Commission’s Progress Report of 9 November 2010 in paragraph 109 below). For example, on 29 January 2010 the coordinator of the ruling party’s Parliamentary group made the following statement:\n“Having in mind that the Constitutional Court’s current composition was appointed during the political zenith [of the former President of the Republic], [the ruling party] believes that cancelling lustration’s scope of application after 1991 has one goal only: to prevent the Lustration Commission and the citizens of Macedonia from learning whether [the former President of the Republic and his party] officials, who controlled the secret services, actually used those structures against their political opponents.”", "14. On 4 March 2010 the same MP stated:\n“We are convinced that the Constitutional Court wants to harness Macedonian democracy and keep it hostage [bound up] in the web woven by secret service collaborators. People from the secret services are striking back, together with their collaborators who continued to ‘snitch’, violate human rights, destroy people’s lives and wage war against political opponents, even after 1991.”", "15. By a decision of 24 March 2010 the Constitutional Court invalidated certain provisions of the Lustration Act as unconstitutional. In particular, that court held that to extend the screening period beyond 17 November 1991, the date of adoption of the present Constitution, was unconstitutional. In other words, it was incompatible with the Constitution to provide collaboration with the State security services after that date as an impediment to the holding of public office.", "16. Some other provisions were also held contrary to the Constitution, namely those providing for the publication of collaborators’ names in the Official Gazette, automatic lustration in cases where no declaration had been submitted, and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties, civic organisations and religious communities by internal regulations of such non-State entities (see paragraphs 69-71, 78 and 81 below).", "17. On the same date, 24 March 2010, the applicant, as the President of the Constitutional Court at the time, made the following statement to the media, in which he, inter alia, commented on the Parliament’s written response to the petitions for constitutional review in the proceedings before the court:\n“The response is seventeen pages long and provides arguments on the necessity to pursue lustration, motives behind the [Lustration] Act’s adoption, implementation procedure and the like, but my impression is that no legal arguments were presented ... I believe that the response should be made public. For example, Parliament, in its response, states ‘in constitutional and legal terms, one cannot contest the Act’s temporal scope’.... That cannot be considered a legal argument.”", "18. By a decision of 29 September 2010 the Lustration Commission established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office (the course of the proceedings in the applicant’s case and the surrounding circumstances are described in detail in paragraphs 24-58 below).", "19. On 25 February 2011 the Lustration Act was amended for the second time, and certain provisions that were similar to the invalidated ones were reintroduced. The provision delimiting the screening period in which the collaboration with the State security services was an impediment to the holding of public office was re-worded in such a way that the end-date remained open. The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non-collaboration.", "20. On 28 March 2012 the Constitutional Court again invalidated several provisions of the Lustration Act, as amended by the 2011 Amendments (see the preceding paragraph 19 above). In so doing, the Constitutional Court held that its earlier decision (see paragraph 15 above) had been circumvented in view of the content of those amendments.", "21. On 17 July 2012 the Lustration Act was repealed by the entry into force of the new Lustration Act (Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност). In 2014 the Constitutional Court refused to institute proceedings for abstract constitutional review of the new legislation.", "22. While the 2008 Lustration Act was in force the Lustration Commission established in a total of eleven cases that the declarations on non-collaboration were false, and that therefore the person who had submitted them did not meet the additional requirement for public office. Apart from the applicant, who was the only incumbent official whose declaration was found to be false, those cases concerned eight former officials and two journalists.", "23. On 1 September 2015 the Act Repealing the 2012 Lustration Act (Закон за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција) entered into force. According to the Act the Lustration Commission is allowed to complete, within two years, any ongoing proceedings in which a decision has already been issued, but may no longer institute new ones. Pending lustration proceedings in which the Commission has not issued a decision must be discontinued. Section 3 of the Act provides that a person in respect of whom the Commission has established that he or she has collaborated with the State security services is banned from holding public office for the period of five years from the time the Commission’s decision to that effect becomes final.", "24. The applicant was a judge of the Constitutional Court between 2003 and 2011, when he was dismissed as a result of the lustration proceedings described below (see paragraphs 25-58). The applicant’s case was the first lustration case in the respondent State. During the lustration proceedings and at the time of his removal from office (see paragraph 56 below) the applicant was also the President of the Constitutional Court.", "25. On 3 September 2009, the applicant, as a public official, submitted to the Lustration Commission a declaration of non-collaboration with the security services, as prescribed by section 6 of the Lustration Act (see paragraph 67 below).", "26. On 5 July 2010 the Commission, by a letter classified as confidential, requested the State Archive to provide it with direct access to all the data, files and documents available in respect of the applicant.", "27. On 12 and 22 July 2010 the State Archive informed the Commission that a personal record of the local branch of the secret police of the former Yugoslavia (hereafter “SFRY”) existed in respect of the applicant, and invited the Commission to consult the documentation.", "28. On and around 15 September 2010, various media, despite the confidential nature of the proceedings before the Lustration Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator with the State security services. In the following days the media continued to speculate that the identified collaborator was actually the President of the Constitutional Court.", "29. During its deliberations held in private on 16 September 2010, the Lustration Commission found that the applicant’s declaration had not been in conformity with the evidence at its disposal. The applicant was notified of the Commission’s findings on 21 September 2010 with a note classified as “strictly confidential” (строго доверливо). He was also instructed that, under the Lustration Act, he could, within five days, submit oral or written observations to the Commission’s findings. The applicant replied and requested a public session on 24 September 2010.", "30. On 22 September 2010 the daily Utrinski vesnik published an article entitled ‘Judge asks to speak publicly about being a ‘snitch’’. The relevant part of the article reads as follows:\n“Utrinski ‘unofficially’ learns that a Constitutional Court judge allegedly sinned during his high-school days, in the capacity of a member of a branch of an organisation called ‘United for Macedonia’ that was advocating unification of ethnic Macedonian territories. Once discovered, under pressure from the police, he was forced to disclose the names of the organisers.”", "31. On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “when classified information was not being used” and that he could access the entirety of the classified documentation at the Commission’s disposal for one hour before the session.", "32. On 24 September 2010, in an open letter broadcast in the media and addressed to “opponents of the lustration”, the Prime Minister of the respondent State (signed in his capacity as president of the governing party) stated, inter alia, that the Commission had publicly revealed that a member of the Constitutional Court had been a collaborator with the State security services and that it was now crystal clear that the collaborator sitting in the Constitutional Court, nominated by the former president of the Republic, and controlled by other centres of power, had invalidated a number of the legislative reforms of his Government. The letter was a response to his political opponents, who claimed that he was hindering the lustration process. The Prime Minister described their strategy in the following terms:\n“Attack the [ruling party] to [protect] the Constitutional Court, whose member the [Lustration] Commission had publicly declared a collaborator with the secret services. Accuse [the Prime Minister] of hindering the lustration [process] so that [he] would not accuse you of it becoming crystal clear that the secret services’ collaborator in the Constitutional Court scrapped a whole range of [the Prime Minister’s] reforms, and that [the Prime Minister] would not pose a question why [the former President of the Republic] nominated as judge of the Constitutional Court that person who was a collaborator with the [secret] services, and what is that centre of power which still controls the ‘collaborator’.”\n“Нападни го ВМРО-ДПМНЕ, за да го затскриеш Уставниот суд за чиј член Комисијата јавно се изјасни дека бил соработник на тајните служби. Обвини го Груевски дека ја кочи лустрацијата, за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од Уставниот суд му сруши цела палета на реформи и за да не постави прашање зошто Бранко Црвенковски го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘соработникот’.”", "33. On 24 September 2010 the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission (see paragraph 31 above). The Commission, in its turn, immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at the State Archive as well as the documents at the disposal of the Commission, in the coming days until the session. The applicant consulted the documents at the Commission on the same day.", "34. Those were the documents forming the applicant’s personal record compiled by the local branch of the SFRY secret police. The record contains around fifty pages of typed reports and forms. It appears from the record that the applicant was on 27 and 28 March 1964 interrogated by the secret police in connection with his involvement in a high-school nationalist group, and was registered as a collaborator under the pseudonym “Lambe”. The “proposal for registration” of 19 May 1964, signed by an inspector, I.K., states that the applicant was approached about collaboration with the secret police and that “he gladly agreed to it, [saying] that he would do anything for the [security] service, as long as his father and the school do not find out”. A “questionnaire” with a handwritten date of 10 February 1965, states, inter alia, that the applicant was recruited on the ground of “compromising material” and that he had not received any material benefit in exchange for his collaboration. That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of 10 January 1968 where, next to the pseudonym “Lambe”, there is a handwritten note “and Lamda”. The record contains a number of reports of various dates between 1964 and 1966, composed mostly by the inspector who relied on “Lambe” as a source of information, about conversations and statements of some high-school and university students on certain political and social issues at the time. “Lambe” provided the information mostly verbally; only a few reports in the file are based on his letters (which were not in the file). There are also copies of two payment receipts dated May and December 1965 and a proposal of 1983 for deregistration of the collaborator “Lamda”. The deregistration referred to a person with the applicant’s name but who in the 1970s was a student at the Technical Faculty, and who in 1983 was working in the municipal branch of the Communist Party.", "35. On 27 September 2010 the Commission held a public session on its premises, in a meeting room of around twenty square metres. A large number of media representatives were present.", "36. During the session, the applicant denied the Commission’s initial findings, calling into question the veracity of his declaration. He disputed the authenticity of the documents the Commission relied on, as he had neither composed nor signed them, and claimed that the reports contained therein had been forged, or taken from others’ and added to his personal record. He further denied the authenticity of the signatures on the two payment receipts, which indicated that he had received money for his collaboration. He alleged a confusion regarding the two different collaboration pseudonyms (“Lambe” and “Lamda”) appearing in the file, and the identity behind them. He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police, due to his involvement with a high-school nationalist group, had been misused.", "37. On 28 September 2010 the Constitutional Court responded to the Prime Minister’s statement of 24 September 2010 (see paragraph 32 above) by means of an open letter. The relevant part of that letter reads as follows:\n“The Constitutional Court finds that this attack is the culmination of the continual attacks on the Constitutional Court. The court therefore points out that the Prime Minister went beyond powers conferred on him by the Constitution, because he has no right to assess the legitimacy of decisions taken by the Constitutional Court, but rather [was obliged] to ensure their unhindered implementation. The court considers that his actions indicate [either] profound ignorance, or total disrespect for the constitutional order, to the point of undermining it.\nUsing a single [pending] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a democratic society.”", "38. By a decision of 29 September 2010 the Commission held that the applicant’s objection to its initial findings of 16 September 2010 (see paragraph 29 above) was not in accordance with the information available, and that consequently he did not fulfil the additional requirement for holding public office. The decision was based on the applicant’s personal record, and contains a list of twenty-two documents. It summarised the contents of the documents and stated that the applicant had begun collaborating in 1964 and had been deregistered in 1983, that he had provided information on students whose activities were monitored by the security service for political reasons and that, as evident from the two payment receipts, he had in 1965 been paid for the collaboration. The relevant part of the Commission’s decision reads as follows:\n“... From the data available in the personal record compiled by the [secret police of the SFRY] it was established that in the rubric ‘collaboration relationship’ it is stated that [the applicant] is a collaborator of the [secret police] recruited on the ground of compromising material. It was further established that [the applicant] started his collaboration with the [secret police] as early as 1964 as a high-school student who, when it was proposed to him that he be registered in the collaborators’ network, stated that ‘he gladly accepted the collaboration and would do anything for the service’, and that he was allocated a pseudonym under which he later delivered all the information to the [secret police]. In 1965 he officially became a collaborator of the [secret police]. In the documentation, in ten reports drafted by the Internal Affairs Unit in Strumica, on a number of pages, [the applicant] under his pseudonym appears as a source giving information about his schoolmates, which [information] was used by the [secret police] as operational material on the activities of high-school youth in Strumica. From four reports, it is apparent that also later on, as a student in Skopje, he gave information about students of various faculties, of which in the personal record there are five reports concerning a number of individuals whom the [secret police] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the Macedonians in the Aegean [in Greece] and Pirin [in Bulgaria] Macedonia, as well as for various wrongs committed against Macedonians in the western part of Macedonia. From the personal record it was also established that in 1965 the sums of 10,000 and 20,000 [Yugoslav] dinars had been paid to him. His collaboration officially ended in 1983 when he was employed in the Municipality of Karpoš and was deregistered from the active collaboration network.\nThe Commission took into account the oral observations provided by [the applicant], in which he expressed his disagreement with the Commission’s findings.\nThe Commission considers all this information and the files and documents contained in the [applicant’s] record relevant. [It further] considers that that the [applicant’s] declaration [of non-collaboration] submitted to the Commission is not in line therewith [the information, files and documents] and that therefore [the applicant] does not meet the additional requirement for public office in accordance with section 2(1) [and] section 4(4) of the [Lustration] Act.”", "39. The Commission’s decision was served on the applicant on 30 September 2010 and classified as “strictly confidential”.", "40. In an exchange of correspondence on 1 October 2010 the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision. The Commission informed him that they only had copies (препис), but that the originals were available in the State Archive; they advised him to look for them there. Upon the applicant’s request of the same day, the State Archive, either on the same day or on 4 October 2010, provided him with a copy of his personal record.", "41. On 5 October 2010 the applicant pointed out inconsistencies between the files provided to him by the State Archive, the inventory of the documents contained in his record, and the documentation the Commission relied on in its decision. The State Archive responded that they had simply received the personal record as it was, and had listed the documents therein by title without inspecting their contents, as they had not been authorised to do so. Finally, they invited the applicant to consult the contents of his personal record under their supervision.", "42. On 8 October 2010 the applicant brought an action for judicial review in the Administrative Court against the Commission’s decision. He complained that the proceedings before the Commission had been unfair and of errors of fact and law. In particular, he complained that the session before the Commission had been held without Rules of Procedure having been adopted, which the Commission should have done ex lege before commencing the proceedings. The public session had not been, as initially planned, followed by proceedings in camera (see paragraphs 31 and 35-36 above), and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file.", "43. The applicant further objected that the time-limit for the preparation of his appeal had been effectively reduced, since he had received the copies of the documents from the State Archive only on 5 October 2010 (see paragraphs 40-41 above), and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology (графолошко вештачење) as regards the signatures on the two payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police, to which letters reference was made in the record but which were not available in the file. He also submitted that his identity had been confused with that of the person behind the pseudonym “Lamda”, given that in 1983 he was already a law graduate and was working for the Skopje City administration and thus was not working at the municipal branch of the Communist Party, nor had he ever studied at the Technical Faculty as the record indicated (see paragraph 34 above). He proposed additional evidence, asked that a public hearing be held, and requested leave to invite an expert assistant (стручен помагач), in particular, a certain Mr I.B., a university professor of State security and intelligence and retired staff member of the SFRY secret police, with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records.", "44. In its reply, the Commission firstly listed and made reference to twenty-two documents, and then also mentioned “forty-seven written documents”, on which it based its decision. The Commission’s reply was classified as “strictly confidential”.", "45. On 26 October 2010 the Administrative Court held a public hearing in the presence of the applicant and the President of the Commission. The Commission lodged an objection about the Administrative Court’s competence ratione materiae to examine the case.", "46. On 2 November 2010 the court held another hearing, at which the Commission withdrew its objection regarding the court’s jurisdiction (see the preceding paragraph 44 above), the expert assistant I.B. (see paragraph 43 above) gave his testimony and the evidence was examined. The public was excluded from the part of the hearing in which confidential material (the applicant’s personal record) was under consideration.", "47. By a judgment of 8 November 2010 the Administrative Court dismissed the applicant’s action. In its judgment, this court listed twenty-seven documents, and found the Commission’s files identical to the originals received from the State Archive. The Administrative Court held that the Commission had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion (вештачења) in criminal proceedings. It also held that the Commission did not conduct any adversarial proceedings and could admit as fact only the records compiled by the State security services. The applicant’s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected. The Administrative Court concluded that it had been immaterial (беспредметно) to determine whether the payments had been received by the applicant, as other (non-pecuniary) benefits could suffice for someone to be deemed a collaborator in terms of the Lustration Act. The judgment also took into account the testimony of the expert assistant I.B. Parts of the judgment were classified as “strictly confidential”.", "48. The presiding judge was a certain Ms L.K., who was shortly afterwards, in March 2011, promoted to the newly established High Administrative Court.", "49. The relevant part of the Administrative Court’s judgment reads as follows:\n“... The plaintiff’s [the applicant’s] representative reiterated the arguments advanced in his action for judicial review, and expanded on them by stating that the Commission’s decision was ill-founded ... [He argued that] the Commission had not assessed the written evidence, because there was none. [In particular,] there was no statement from the plaintiff that he had agreed to collaborate with the [secret police], there was no written consent from him in this regard, and there was no written decision of the [secret police] in which the plaintiff’s consent to collaboration was accepted. Moreover, the Commission had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no. 12736 and on that basis had reached the wrong conclusion, failing to establish the facts ...\nIn view of the complexity of the case and for the purposes of clarification, the [Administrative] court, upon a proposal of the plaintiff, heard I.B. from Skopje in the capacity of an expert assistant (стручен помагач). The court also consulted (изврши увид) and compared the plaintiff’s personal record available in the State Archive with the copy of the same record delivered to the plaintiff.\nThe court, having assessed the [plaintiff’s] arguments in the statement of claim, the [Commission’s] reply [thereto], and the submissions made by the expert assistant I.B., [and] having examined the impugned decision within the scope of the action and in terms of section 37 of the Administrative Disputes Act, found:\nThe action is ill-founded ...\nAccording to section 10 of the [Administrative Disputes] Act, the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure, and in particular, if the facts were not established correctly, or if the facts were established correctly but assessed wrongly ...\nAccording to section 4(4) of the [Lustration] Act, collaboration, within the meaning of that Act, is conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written document, in the a capacity of a secret collaborator or secret informant (hereafter ‘secret collaborator’) with a view to collecting information ... regarding certain persons, in violation of [their] basic rights and freedom on ideological-political grounds, as a result of which a material gain or other benefits in employment or career advancement had been obtained [by the collaborator] ...\nRelying on the above, the court found that the Commission, acting within its competence ... and after having correctly conducted the fact-verification proceedings, made a lawful decision ...\nIt appears from the files that the plaintiff, on the basis of a written document, consciously, secretly, continuously and in organised way collaborated with the [secret police], which collected information that were subject to processing, storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at the State Archive. Having in mind that the Commission only checks the facts concerning collaboration or non-collaboration with the State security services, and given that this [fact-verification procedure] is not an adversarial procedure, the records created by the services and their legal predecessors are to be accepted as facts [thus as reliable evidence] ...\nIn this court’s assessment, the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill-founded, since the Commission provided him with access to all the evidence.\nRegarding [the plaintiff’s] argument that ... the Commission’s session had been held without Rules of Procedure [having been adopted beforehand] ... this court finds it irrelevant ... The Rules are an internal regulation of the Commission and [thus only] regulate its internal functioning ... and not the fact-verification procedure [which] is prescribed by the [Lustration] Act.\nThis court finds ill-founded [the plaintiff’s] complaint that he had not been given an opportunity to contest the [factual findings of the Commission]. [He argued in particular that] ... the [Commission’s] session had ended after its first part, at the moment when he had expressed his disagreement with the ‘facts’ [underlying] the [Commission’s] findings ... in respect of which he had [also] made written submissions. [In his view] the Commission was obliged to hold a hearing, and not to treat the case as if no observations had been provided in accordance with section 29. [Such complaints] have no support in the evidence available in the file. As evident from the file, the Commission on 27 September 2010 held a public session in the part in which no classified information was under consideration. Having in mind that earlier, on 24 September 2010, the plaintiff had consulted the files and familiarised himself with their content, he had had the opportunity to provide his own observations at the session.\nThe court also finds ill-founded the plaintiff’s argument that the reports [contained in his personal record], in legal terms, could not be relied on to establish the facts, since they had many shortcomings, both formal and substantive, in particular none of the ten reports had been signed by an authorised person of the [secret police], no letter allegedly sent by the plaintiff had been appended to the reports, ... none of these reports had been entered in the official records of the [secret police], and all reports quote ‘Lambe’ as a source of information, while the Commission [cites] another pseudonym, ‘Lamda’. [The court finds that argument by the plaintiff ill-founded because] the operation of the [secret police] was clarified by the expert assistant at the public hearing, who explained that it had had its own operational methodology for the purpose of gathering information, that was then subject to further processing, collection and use ... The court finds that assessment of the methodology of the [former secret police] is not in the competence of the Commission.\nThe court did not accept the plaintiff’s complaints that he was recruited as a collaborator while still a minor, because it is apparent from the evidence that he entered into collaboration and gave reports as an adult.\nThe court finds ill-founded the [plaintiff’s] arguments about errors of fact, [in particular those where he complains] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff’s signature, which could have been easily established by obtaining an opinion from an expert in graphology, those whereby he calls into question the authenticity of the reports he received from the State Archive and [the veracity of] of their content, those [where he argues] that ... the [secret police] registered him as a collaborator on the basis of bogus (спакувани) reports which were planted (подметнати) in his file and that he was not aware of nor had he consented to that [registration], as well as that there were obvious misinterpretation of the facts, since the file on a minor oppressed for his Macedonian nationalism had been transformed into the personal record of a secret collaborator. This [the court’s dismissal of these complaints] comes as a result of the fact that the Commission, after checking and verifying the data that was made available to it, correctly established that the plaintiff ... had been registered as a secret collaborator ... The Commission was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings. ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [, meaning as reliable] evidence. The plaintiff in his submissions pointed to possible criminal offences which, in addition to the Criminal Code, are also sanctioned by sections 36 and 37 of the [Lustration] Act. The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations.\nOn the other hand, after checking the plaintiff’s personal record, the court established that only a few reports were delivered in writing, and that most of the reports were provided through direct contacts.\nIn view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [some] reports drafted by the inspector of the State security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts.\nIt is also immaterial whether payments were made or not, since this is only one of the conditions for establishing that collaboration took place, bearing in mind that section 4(4) of the [Lustration] Act, when stipulating what is considered collaboration, states that [not only] material gain [but also] other benefits or career advancement [may suffice].”", "50. In his appeal of 25 November 2010 to the Supreme Court, the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the State authorities had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by the expert assistant, and annexed an additional written statement by I.B. He also objected to the Administrative Court’s finding on the Commission’s powers, and complained that the Administrative Court had therefore failed to fully establish the facts, and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant’s appeal, whereupon the applicant provided a response to the Commission’s reply.", "51. By a judgment of 2 March 2011 the Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Administrative Court. The Supreme Court stated, inter alia, that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant’s remaining complaints, and concluded that they were of no relevance and could not produce a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court dismissed the applicant’s arguments, finding that no formal procedures existed at the time when these documents were produced.", "52. Judge V.S. – who would later be appointed a judge of the Constitutional Court to fill the vacancy caused by the applicant’s dismissal (see paragraph 57 below) – sat in the panel and, according to the applicant, also acted as a rapporteur (известител) in the case.", "53. The relevant part of the Supreme Court’s judgment reads as follows:\n... From the evidence taken during the proceedings, primarily the reports in the personal record established in respect of the appellant, it can be indisputably concluded that he, on the basis of a written document, consciously, secretly, continuously and in an organised manner collaborated with the [former secret police]. Relying on the statements of the secret collaborator – the appellant – the [secret police] gathered information that was processed, stored and used by the [secret police] ... In such a way, the human rights of those people [who were then followed by the State security service] were violated on political or ideological grounds.\nBearing in mind the definition of collaboration contained in the [Lustration] Act, the Administrative Court correctly concluded that the appellant had at the material time the status of a secret collaborator or informant.\nThe arguments adduced in the appeal regarding discrepancies between the data obtained from the State Archive and those relied on by the Commission, whereby the appellant disputes the authenticity of the evidence, are ill-founded.\nIn the Supreme Court’s opinion, the facts established by the first-instance court are correct and complete, as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts, the Supreme Court also checked the original documentation and finds these complaints ill-founded, since the appellant did not submit any evidence that could call into question the facts as established by the first-instance court.\nThe Supreme Court finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had, as a minor during high-school days, on the independence of the Macedonian people.\nSpecifically, the appellant was as a high-school student initially registered by the [secret police] for hostile activities and Macedonian nationalism. However, he continued to collaborate with the service and was approached about being registered in the network of collaborators. In 1965 the appellant was officially registered as a collaborator, when he had already reached the age of eighteen. From the documents available it is apparent that the applicant collaborated with the State security services as an adult.\nThe appellant’s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration, could not lead to factual findings different from those already established by the first-instance court.\nAccording to the expert assistant’s statement at the public hearing before the Administrative Court, the consent of the collaborator was in no way needed, given the secrecy of the procedure. The proposal for deregistration is in the name of Trendafil Ivanovski, with an identical file number to that under which he had been registered as collaborator. These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant. According to the Supreme Court, these data could not be disregarded just because the pseudonyms do not match.\nThe complaints that the reports composed by the [secret police], based on the information provided by the appellant, could not be regarded as [reliable evidence], are ill-founded. The Supreme Court finds that the procedure for receiving information was not strictly formalised. The reports were, as clarified by the expert assistant, usually given verbally. From the above, it is apparent that to be considered as genuine, it was not necessary that the content of the record, or of the report composed by an authorised person of the [secret police], be supported by a written statement by the collaborator.\nThe appellant denies the authenticity of his signature on the payment receipts.\nThe Supreme Court finds that, in a situation in which no rules (правилник) for payment existed, given that, as stated by the expert assistant, the payments were usually made in cash, it would suffice to have the name of the collaborator mentioned as a recipient [of the money], to conclude that material gain was obtained.\nAs the first-instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant’s action.”", "54. The applicant was served with the Supreme Court’s judgment on 9 March 2011.", "55. On 11 March 2011, the Commission concluded that its decision of 29 September 2010 had become final.", "56. On 11 April 2011, relying on the Lustration Act and the Commission’s conclusion of 11 March 2011, the Parliament acknowledged that the applicant had not fulfilled the additional requirement, and accordingly dismissed him from the office of judge of the Constitutional Court, despite the experts’ debates about the constitutionality of such an action. On the same day, the Parliament’s decision was published in the Official Gazette.", "57. On 14 April 2011, during its last session before early elections, the Parliament appointed Judge V.S. (see paragraph 52 above) as a judge of the Constitutional Court to the position vacated by the applicant’s dismissal.", "58. The proceedings were closely followed by the international community present in the respondent State, and were referred to in various reports, most notably the European Commission’s Progress Report of 9 November 2010, which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 below). The United States Department of State Human Rights reports of 2010 and 2011 also made references to the applicant’s case and the tensions between the Government and the Constitutional Court.", "59. Meanwhile, on 8 March 2011 the Commission filed a criminal complaint with the Skopje Public Prosecution Office against the applicant alleging that by submitting a false declaration of non-collaboration with the State security services he had committed the criminal offence of submitting false evidence defined in Article 366a of the Criminal Code (see paragraphs 79 and 97 below).", "60. On 29 April 2011 the public prosecutor dismissed the criminal complaint, finding no elements of the offence in question. In her reasoning, the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy, as only the official records of the State security services were used as relevant for the outcome of the proceedings. The applicant’s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings." ]

[ 3, 4 ]

[ "5. The applicant was born in 1949 and lives in Lviv.", "6. In the 1990s a group of scholars, including the applicant, who was a history professor at the Lviv Institute of Internal Affairs at the relevant time, conducted research and a series of field studies, resulting in a manuscript on the history and archaeology of the Kosiv area between the ninth and eighteenth centuries.", "7. In July 1997 L., a private publishing house based in Ivano-Frankivsk (“the publishing house”), published five hundred copies of the book following a private donation from a local business, apparently solicited with the assistance of the Kosivskyy District Administration (“the District Administration”). The book was published under the title The Kosiv Area Antiquities (“Cтарожитності Косівщини”). The cover pages of the book stated that it was an “academic edition” containing “essays about history” published under the aegis of the Lviv Institute of Internal Affairs and intended “for scholars, students, teachers, ethnographers, and all those interested in the history of the Kosiv area”.", "8. Pages 12-13 of the book featuring the applicant’s essay entitled “From the Past of the Kosiv Area” described the economic hardships faced by the local inhabitants in the seventeenth and eighteenth centuries. In between two paragraphs concerning the above period of time, the applicant included the following text:\n“Today, as in the old days, complaints are the only means of protest available to villagers and townsfolk against the arbitrariness of the local administration ... M.L. [full name given], the mayor of the village of Kosmach, behaves like an omnipotent feudal prince. Before the last elections he disbanded the village election committee, selected people loyal to him as new members and submitted the list for approval to the district authorities five days after the legal deadline had passed. This election committee took an extra day for ‘the counting’ of the votes cast for M.L. and his chosen deputies. Subsequently he acted outrageously towards L.V. [full name given], a category one disabled citizen. Following a decision by the village council, his plot of land was taken away from him and ownership transferred to the carpenter who had constructed M.L.’s summer kitchen. The Kosivskyy District Council (headed by M.Kh. [full name given]) knows about these shocking examples of corruption; however, it has never found the time to redress them. Meanwhile, it wasted no time in agreeing on the restitution to M.L. of a house which had been confiscated from his father-in-law (who had once committed aggravated embezzlement of State property) and of which ownership had since been transferred to the Yablunivka village hospital. It is such a shame that some of the officials in the Kosivskyy District are not true servants of the people, but leeches and traitors of their countrymen, consciously undermining the authority of the young State in the eyes of the population. As in the olden days with respect to the feudal lords, today there is no redress against them; that is why they act so daringly and with impunity. It is because of such fortuitous and corrupt ‘rulers’ that the independent Ukraine cannot rise on its feet.”", "9. On 12 December 1997 M.L. drafted a statement of claim against the applicant and the publishing house, seeking the retraction of the above passage, republication of the applicant’s essay with the relevant passage removed, and compensation in respect of non-pecuniary damage. M.L. alleged that the applicant had received fifty copies of the book personally. The other four hundred and fifty copies had, at the material time, been in the hands of the District Administration, who as patron and sponsor of the field studies and the publication, had intended to distribute the books to libraries and local schools. M.L. also maintained that the applicant’s statements about him had been unsubstantiated, insulting and defamatory. In addition, the statements in question appeared in the context of a passage about the seventeenth and eighteenth centuries, which made them grossly irrelevant to the purpose of the publication.", "10. On 30 April 1998 M.L.’s claim form was stamped as “received” by the Kosivskyy District Court.", "11. On 29 May 1998 that court transferred the case for consideration to the Ivano-Frankivsk City Court (“the City Court”) in the same town as the publishing house. On various dates the applicant unsuccessfully challenged the territorial jurisdiction of the court, seeking a transfer of the case to his local court in Lviv.", "12. On 3 March 1999 the City Court commenced its examination of the case.", "13. Between March 1999 and January 2000 the City Court scheduled and adjourned four hearings. Two of them were adjourned owing to financial constraints precluding the court from sending out correspondence in good time, the third on account of the judge having a scheduling conflict and the fourth as a representative of the publishing house was absent.", "14. On 18 February 2000 the court held a hearing and admitted the District Administration as a third party in the proceedings. At the applicant’s request the court adjourned the hearing to order archive material which, according to him, would prove the veracity of some of his statements.", "15. Between February and October 2000 the court scheduled four more hearings, which were adjourned as one or two parties failed to appear.", "16. On 5 October 2000 the City Court held a hearing where the applicant, M.L. and a representative of the publishing house confirmed that the applicant had received fifty copies of the book and the remaining four hundred and fifty copies had been placed at the disposal of the District Administration.", "17. On the same date the City Court delivered its judgment. It found that the disputed statements were false and defamatory and ordered the District Administration to return the four hundred and fifty copies of the book in its possession to the publishing house. It further obliged the latter to reprint the book at the applicant’s expense after having removed the disputed passage from it. Lastly, the court awarded M.L. 5,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage, to be paid by the applicant.", "18. On 13 October 2000 the applicant lodged a “cassation appeal” against this judgment. He noted, in particular, that there was no evidence whatsoever that the disputed statements had been “disseminated”, and that any person other than M.L. himself had read them. He also submitted that he had personally received one hundred copies of the book, which he had destroyed after the action had been lodged against him. The remaining copies having been at the disposal of the District Administration, the book could not have been deemed “disseminated”.", "19. M.L. filed an objection in which he submitted, in particular, that a number of officials of the District Administration had read the disputed statements, that some copies of the book had already been distributed to the school libraries, and that the applicant himself had earlier claimed that he had distributed fifty copies of the book. He also submitted letters from the Head and Deputy Head of the District Administration in which they expressed indignation with the fact that the applicant had published a gratuitous attack on M.L.’s reputation and suggested that he may have done so in revenge for M.L.’s refusal to allot a plot of land to the applicant’s mother.", "20. On 31 October 2000 the Ivano-Frankivsk Regional Court (“the Regional Court”) dismissed the applicant’s cassation appeal and the judgment of 5 October 2000 became final.", "21. The District Administration did not return its copies of the book to the publishing house. According to the applicant, it instead distributed a number of books to various recipients, having cut out the pages which contained the disputed text.", "22. On 11 May 2001 the Presidium of the Regional Court quashed the judgments of 5 and 31 October 2000 following a request by the applicant for a supervisory review (протест) and remitted the case to the City Court for fresh examination.", "23. In summer 2001 the applicant lodged a counterclaim against M.L. within the framework of the initial defamation proceedings. He referred to a number of purported shortcomings in M.L.’s official conduct as mayor, and submitted that by complaining to the authorities about the publication, the mayor had simply sought to compromise the applicant’s reputation among his colleagues and the general public. The applicant further complained that M.L. had published a disparaging article about him in a local newspaper, and sought compensation for non-pecuniary damage and the retraction of several purportedly defamatory statements made in the article at issue. This counter-claim was joined by the City Court for examination together with the defamation claim brought against the applicant.", "24. On 5 September 2001 the City Court transferred the case to the Kosivskyy District Court for examination. The applicant appealed against that decision, seeking a transfer of the case to his local court.", "25. On 30 October 2001 the Ivano-Frankivsk Regional Court of Appeal (the former Ivano-Frankivsk Regional Court) ordered the case to be remitted to the City Court, having noted that that court had already started examining the case, and that there were no grounds for the case to be transferred to another court. On several further occasions the City Court rejected requests by the applicant for the case to be transferred to his local court and for the presiding judge of the City Court to be removed from the case.", "26. Between October 2001 and October 2002 some five hearings were adjourned on account of the applicant’s failure to appear.", "27. On 11 October 2002 the City Court heard the case and delivered its judgment, allowing M.L.’s claim in part and dismissing the applicant’s counterclaim. The legal part of the judgment concerning M.L.’s claim stated as follows:\n“Having heard the parties [and] having examined the materials in the case file, the court considers that the claim should be allowed in part on the following grounds.\nStatements that the mayor [M.L.], ‘an omnipotent feudal prince’, had brutally breached the election legislation ... are rebutted by the decisions of the Kosivskyy District Court of 13 June 1994 and the civil division of the Ivano-Frankivsk Regional Court of 19 July 1994 ... from which it follows that the claimant had not breached the election law, as the claim made by the group of deputies ... seeking an annulment of the lists of the district election committees was dismissed. Statements that [M.L.] had acted outrageously towards [L.V.] ... are rebutted by the decision of the Kosmach Village Council of 14 March 1994 to grant ownership of a plot of land to [L.V.]; and also the statements concerning the settlement of the matter ... concerning restitution of the ... house ... are rebutted by the decision of the Kosivskyy District Court of 12 October 1994 in respect of the claim by [O.L. (M.L.’s spouse)] against Y.S. ... concerning the annulment of the privatisation certificate issued in Y.S.’s name ... .\nThe court considers that ... the applicant arbitrarily used the aegis of the Lviv Institute of Internal Affairs ... in publishing the work... [and] inserted on pages 12-13 statements unsubstantiated by evidence.\nRegard being had to the liability of the [applicant], the gravity of the harm inflicted on the plaintiff as a public official ..., the fact that the publication of the false statements negatively affected his image in the eyes of the ... district administration ..., his acquaintances and his fellow villagers; ... the fact that 450 copies of the publication had been widely read ([by] libraries, schools and the district administration) and the fact that fifty copies had been taken by [the applicant], some of them already having been disseminated, and regard also being had to the time invested by the plaintiff in the judicial examination of his case, the direct liability of [the applicant] in inflicting harm, the court considers that some compensation in respect of non-pecuniary damage should be awarded”.", "28. The City Court next awarded M.L. UAH 5,000 in respect of non-pecuniary damage, to be paid by the applicant, and ordered that the disputed statements be retracted. The relevant passage of the operative part of the judgment read as follows:\n“the publishing house L. shall publish erratum sheets (додатки) to the book The Kosiv Area Antiquities, retracting the statements (mentioned above) that do not reflect reality, to be paid for by [the applicant].”", "29. The applicant appealed. He challenged, in particular, the court’s findings that the impugned information in the book had been disseminated widely, claiming that the court had not established who had disseminated his book and exactly who had read it.", "30. On 12 February 2003 the Regional Court upheld the findings of the City Court with respect to M.L.’s claim, endorsing its reasoning as relevant and sufficient. At the same time, the court found that no sufficient reasons had been stated for rejecting the applicant’s counterclaim and remitted it to the City Court for fresh examination.", "31. The applicant lodged a cassation appeal, in which he referred to Article 10 of the Convention and the provisions of national law guaranteeing freedom of speech, alleging that the judgments against him were indicative of political repression and seeking to have the findings of the lower courts with respect to M.L.’s claim overturned. The applicant maintained, in particular, that the final three sentences challenged by the mayor had been his value judgments concerning unnamed public officials and could not have been deemed defamatory to the mayor. He further maintained that he could not afford to pay the damages. Moreover, whether M.L. had actually suffered any damage had never been established. In particular, the District Administration had received four hundred and fifty out of five hundred copies of the book, which had been in its possession since the day the action had been lodged. The District Administration had later distributed some of those books to the public, in breach of the court order of 5 October 2000 requiring it to return them to the publishing house for reprinting. Nevertheless, the disputed statements had not reached the public, as employees of the District Administration had cut out the controversial pages, in breach of the authors’ copyright. What had become of the other fifty copies of the book had never been established. Even if members of the public had obtained access to the disputed statements, this could not have affected the mayor’s reputation in any significant way, since the applicant had only recapitulated and reported information that had already been common public knowledge. In support of this allegation, the applicant submitted copies of numerous newspaper articles criticising the mayor and statements by individuals claiming that they had been offended by him in various ways. The applicant maintained that these documents served as sufficient evidence that his statements had been true, and that he could not understand how to draft a retraction of the true statements.", "32. The District Administration filed objections to the applicant’s cassation appeal. It contended, in particular, that they had not cut out any pages from the disputed book before distributing it.", "33. M.L. also filed objections to the applicant’s cassation appeal. He noted, in particular, that the applicant’s allegations that the non-pecuniary damage award was disproportionate with respect to his income were speculative, since he had never disclosed his income.", "34. On 18 March 2003 the City Court stayed the examination of the applicant’s counterclaim against M.L. pending consideration of the cassation appeal.", "35. On 1 June 2004 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.", "36. The Bailiff Service instituted enforcement proceedings against the applicant, in the course of which he was bound to pay the judgment debt in instalments of 20% of his main income (retirement pension). It appears that the debt was paid in full by June 2007.", "37. Between July 2004 and April 2005 the City Court adjourned some seven hearings in the case concerning the applicant’s counterclaim against M.L., either on account of the parties’ absence or the unavailability of recording equipment.", "38. On 18 April 2005 the Ivano-Frankivsk Regional Department of Education and Science informed the applicant that it had received fifty copies of the book from the District Administration in 1998, thirty-five of which had been distributed to local schools, others remaining in the Department’s library. None of the copies received had pages missing. The Department also noted that M.L., acting as a private person, had distributed erratum sheets to the book recepients, notifying them that the statements criticising him had been deemed false and defamatory by the courts.", "39. On 16 November 2005 the City Court rejected the applicant’s defamation claim against M.L. as unsubstantiated and vexatious.", "40. On 13 January 2006 the Regional Court upheld that judgment, and on 21 January 2008 the Rivne Regional Court of Appeal, acting as a court of cassation, rejected a request by the applicant for leave to appeal in cassation.", "41. On 23 April 2007 the City Court rejected a claim made by the applicant against the bailiffs who had enforced the judgment of 11 October 2002. It appears from the case file that he did not pursue that claim any further.", "42. On 25 April 2007 the City Court rejected a claim made by the applicant against the publishing house for its alleged failure to comply with the judgment of 11 October 2002. It appears from the case file that the applicant did not pursue that claim any further either.", "43. In May 2015 the applicant instituted proceedings against M.L. in the City Court. He claimed, in particular, that he had unlawfully published a “pseudo-retraction” of the applicant’s statements found defamatory, which resulted in the breach of the applicant’s copyright and denigration of his dignity. It appears that the proceedings are currently pending." ]

[ 3 ]

[ "5. The applicant was born in 1934 and lives in Yerevan.", "6. She owned a plot of land which measured 815 sq. m. and was situated in the centre of Yerevan. She also owned two houses and a garage situated on the plot. It appears that the applicant shared her household with her four children.", "7. Before 1993 the applicant, without permission, built on her plot of land a pavilion (շվաքարան) measuring about 230 sq. m which she used as a venue for trade. The pavilion featured in the ownership certificate issued to the applicant on 30 November 1998 as a “half-ruined construction”.", "8. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs, having a total area of 345,000 sq. m. It appears that the applicant’s plot of land fell within one such zone.", "9. On 7 May 2004 the applicant applied to a notary office with a request to donate her property to her four children and seeking to make that transaction official.", "10. The notary office refused this request, with reference to Government Decree no. 1151-N, stating that the applicant’s property was situated in an expropriation zone.", "11. The applicant contested this refusal before the courts. It appears that on 14 June 2004 the Kentron and Nork-Marash District Court of Yerevan dismissed her claim. The applicant lodged an appeal.", "12. On 28 July 2004 the Civil Court of Appeal granted the applicant’s claim and ordered the notary office to formalise the transaction. It found that the refusal was in violation of the law since the applicant’s request derived from Article 163 of the Civil Code. Besides, Government Decree no. 1151-N did not envisage any limitations on the type of transaction that the applicant sought to conclude. No appeal was lodged against this judgment, which entered into force.", "13. On an unspecified date the applicant applied to the State Real Estate Registry (“SRER”), seeking to divide her property into four parts and to transfer ownership to her children. She also requested that her title be registered in respect of the pavilion.", "14. It appears that on 23 February 2004 the SRER refused both requests. As regards the refusal of the second request, it appears that the SRER referred to Article 221 of the Civil Code and Government Decree no. 1748‑N.", "15. The applicant contested this refusal before the courts.", "16. In the proceedings before the Kentron and Nork-Marash District Court of Yerevan the representative of the SRER submitted that the applicant’s request had been refused because her property was situated in an expropriation zone and included unauthorised constructions. Its division would be contrary to Government Decrees nos. 1151-N and 2020‑N.", "17. On 20 May 2004 the District Court decided to dismiss the applicant’s claim. It found that the applicant was the sole owner of the property in question and it was groundless to seek its division or sever any part of it. As regards the registration of ownership in respect of the pavilion, this claim was similarly groundless since the applicant’s plot of land was situated in an expropriation zone, while the procedure prescribed by Government Decree no. 1748-N, pursuant to its paragraph 3, did not apply to unauthorised constructions built on plots of land falling within such expropriation zones.", "18. On 28 May 2004 the applicant lodged an appeal.", "19. On 29 April 2005 the Civil Court of Appeal upheld the judgment of the District Court. The Court of Appeal found that the applicant had applied to the SRER with a request to have her property divided into four parts, which had been refused because the property was situated in an expropriation zone and included unauthorised constructions. Its division into four parts would be contrary to Government Decrees nos. 1151-N and 2020-N. As regards the refusal to register her title in respect of the pavilion, the Court of Appeal recapitulated the findings of the District Court.", "20. On 12 May 2005 the applicant lodged an appeal on points of law. In her appeal she argued that the Court of Appeal had ignored the findings made in its final judgment of 28 July 2004. Furthermore, the fact that the plot of land was situated in an expropriation zone could not serve as a basis for restricting her rights as an owner which she enjoyed under Article 163 of the Civil Code. She further argued that the pavilion in question was immovable property and the refusal to register her title in its respect deprived her of the right to receive compensation at the time of expropriation.", "21. On 17 June 2005 the Court of Cassation dismissed the applicant’s appeal on the same grounds." ]

[ 9 ]

[ "5. The applicant was born in 1962 and lives in Chişinău.", "6. On 21 August 2009 the applicant was arrested and charged with the offence of producing and putting into circulation counterfeit money. Since then he has remained remanded in custody pending criminal investigation and trial. The detention warrants were prolonged every month initially and every three months once the case had reached the Ialoveni District Court. Each time the reasons given for the detention were that the applicant had been accused of a serious offence punishable with imprisonment of up to fifteen years, that the criminal case was complex and that, if released, he might interfere with the investigation or collude with other co-accused, or abscond or re-offend.", "7. The last two extensions of the applicant’s detention before the lodging of the present application took place on unspecified dates in May and August 2011. The applicant argued that there was no risk of his interfering with the investigation since all the witnesses and the parties to the proceedings had already been heard and all the evidence had been examined by the court. He also submitted that there were no reasons to believe that he would abscond or re-offend and he agreed to be placed under house arrest if he could not be released. The applicant also argued that according to Article 186 § 8 of the Code of Criminal Procedure, once the case had been referred to a court, the detention could not last longer than six months, other than in exceptional cases.", "8. The Ialoveni District Court dismissed the applicant’s arguments and, relying on the same grounds as before, extended his detention for a further three months. The court stated that the case was exceptional within the meaning of Article 186 § 9 of the Code of Criminal Procedure. The decisions of May and August 2011 contain similar wording. The applicant’s appeals against them were rejected by the Court of Appeal.", "9. On 30 January 2012 the applicant was convicted and sentenced to seven years’ imprisonment. The Court has not been informed about the final outcome of the criminal proceedings." ]

[ 2 ]

[ "6. The applicant was born in 1991. He is currently detained in a special facility for temporary detention of foreign nationals in Moscow.", "7. The applicant is an ethnic Uzbek who lived in Jalal-Abad Region, Kyrgyzstan. In June 2010 the region was a scene of mass disorders and inter-ethnic clashes between ethnic Uzbeks and Kyrgyz.", "8. In June 2010 the applicant was present at the barricades raised by ethnic Uzbeks near Suzak village. On 12 June 2010 he was wounded by a Molotov cocktail and was admitted to hospital on account of severe burns. He was released from hospital on 24 June 2010.", "9. Eventually the applicant fled Kyrgyzstan to Russia, together with many other ethnic Uzbeks, to avoid ethnically motivated violence.", "10. In 2012 the Kyrgyz authorities opened a criminal case against the applicant charging him with a number of violent crimes allegedly committed in the course of the riots of June 2010. On 26 June 2012 the Suzak District Court in the Jalal-Abad region ordered in absentia the applicant’s detention.", "11. On 27 January 2015 the applicant was arrested in Moscow because he was not carrying an identity document. He was placed in the Special Facility for the Temporary Detention of Foreign Nationals, Moscow (“the detention centre for aliens”), run by the Russian Federal Migration Authority (“the FMS”).", "12. On 28 January 2015 the Gagarinskiy District Court, Moscow (“the district court”) found the applicant guilty of an administrative offence punishable under Article 18.8 § 3 (“breach of rules on entry and stay of foreign nationals in Moscow, St Petersburg, the Moscow Region and the Leningrad Region”) of the Russian Code of Administrative Offences (“the CAO”) and sentenced him as follows: “[...] a punishment in the form of an administrative fine in the amount of 5,000 Russian roubles (RUB) [combined] with administrative removal and placement in the centre for detention of foreign nationals, [where he will remain] until the entry into force of that decision and until administrative removal from the Russian Federation under Article 32.10 of the Code of Administrative Offences”.", "13. On 4 February 2015 the applicant appealed against the District Court’s decision arguing that in Kyrgyzstan he would be subjected to ill‑treatment like many other ethnic Uzbeks. It appears that the appeal documentation reached the District Court on 12 February 2015. The appeal hearing was scheduled for 10 March 2015 but was then postponed until 20 March 2015.", "14. On 10 March 2015 the Court granted the applicant’s request for interim measures and indicated to the Government that the applicant should not be expelled or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.", "15. On 12 March 2015 the applicant’s relatives were told by the officials of the detention centre for aliens that the applicant would be expelled from Russia on that day. At about 8.30 p.m. the applicant contacted his lawyer stating that he was in Sheremetyevo Airport in Moscow. At 9.30 p.m. the lawyer arrived at the airport and was informed by the border control personnel that the applicant had not boarded the plane scheduled for Bishkek, Kyrgyzstan. State bailiffs informed the lawyer that the applicant had been brought to Sheremetyevo but had later been returned to the detention centre for aliens. At 10 p.m. a duty officer of the detention centre confirmed to the lawyer that the applicant was back in the facility.", "16. On 20 March 2015 the Moscow City Court (“the Appeal Court”) upheld the District Court’s decision of 28 January 2015 on appeal. The Appeal Court dismissed the applicant’s allegations of the risk of ill‑treatment stating that “the documents submitted by the [applicant’s] defence d[id] not demonstrate a breach of rights and freedoms of the person in question” and reasoned that “[a]ssessment of actions by law-enforcement agencies of a foreign State, as well as of [legal] acts carried out by them f[ell] outside the subject-matter jurisdiction of a court examining a case concerning an administrative offence committed in the Russian Federation by a foreign national”.", "17. On 10 April 2015 the Government informed the Court that “the proceedings on the administrative removal of the applicant have been suspended” and that the applicant “continues to be held in the detention centre for foreign nationals of the Moscow department of the Federal Migration Service” (“the Moscow FMS”).", "18. On 4 February 2015 the applicant applied for refugee status arguing that in Kyrgyzstan he would face persecution based on his ethnic origin.", "19. On 12 March 2015 the Moscow FMS dismissed the applicant’s request for refugee status. The parties have not provided the Court with a copy of the decision.", "20. The applicant challenged the decision before the Basmannyy District Court, Moscow. The proceedings are pending.", "21. According to the applicant, on 24 February 2015 he was severely beaten by officers of a special police squad in the detention centre for aliens. He received rubber-truncheon blows to his back, buttocks and heels.", "22. The applicant notified his lawyer accordingly and provided mobile phone photos of his injured back.", "23. On 25 February 2015 two lawyers visited the applicant along with several other persons awaiting expulsion in the detention centre for aliens. The applicant and other detainees informed them that regular beatings of detainees had begun on 17 February 2015 following unsuccessful suicide attempts by several inmates. The applicant claimed that the officers of the special police squad had beaten him on 24 February 2015 with rubber truncheons on his back, heels and buttocks.", "24. On 26 February 2015 the lawyers reported the beatings to the main investigative department of the Moscow Investigative Committee. They emphasised that the medical staff of the detention centre had refused to enter the detainees’ injuries into the medical logs. The lawyers requested that the beatings of the detainees, including the applicant, be investigated. In support of their request they enclosed, among other things, the applicant’s photos showing injuries to his back.", "25. On 19 March 2015 the lawyers’ complaint was forwarded to the Troitskiy district investigation department of the Moscow Investigative Committee.", "26. It appears that no investigation into the applicant’s alleged beatings in the detention centre for aliens has been instituted." ]

[ 1, 2 ]

[ "5. The applicants were born in 1962 and 1994 respectively and live in Makhachkala, Republic of Dagestan, Russia. They are the mother and the wife of Mr Sakhrab Abakargadzhiyev, who was born in 1990.", "6. At the material time Mr Sakhrab Abakargadzhiyev and the applicants, along with other relatives, lived together at 115A Magomed Dalgata Street, Makhachkala, Dagestan. According to the applicants for about eighteen months prior to the events in question Mr Sakhrab Abakargadzhiyev had been suspected of illegal activities and had been followed by Dagestani law enforcement agencies, in particular by the Centre against Extremism of the Dagestan Ministry of the Interior (“the CPE”) (Центр по Борьбе с Экстремизмом МВД по Республике Дагестан (ЦПЭ)).", "7. At about 6 p.m. on 20 May 2013 Mr Sakhrab Abakargadzhiyev drove in his white GAZ Volga-3110 car along Engelsa Street to visit his relatives, who lived about a ten-minute drive from his house in Makhachkala. At about 6.45 p.m. his car was stopped and he was abducted by a group of eight armed men who were driving two civilian vehicles: a silver-coloured VAZ-21014, which had a registration number which partially read “A067”, and a black VAZ-21099. The men were dressed in civilian clothing and were masked. The applicants’ relative, Mr Ub.Ub., called Mr Sakhrab Abakargadzhiyev during the abduction and upon hearing him screaming immediately informed the applicants that there was a problem. Directly after that Mr Ub.Ub., together with the first applicant, went along Mr Sakhrab Abakargadzhiyev’s route and found his car in the street with two police vehicles and officers from the Sovetskiy district police station in Makhachkala (“the Sovetskiy ROVD”) (Советский районный отдел внутренних дел (РОВД)) next to it. The police told the first applicant and Mr Ub.Ub. that they had arrived a couple of minutes ago and that a few minutes prior to their arrival a man had been abducted. They told the applicant and Mr Ub.Ub. to wait at home for a telephone call from the police and took Mr Sakhrab Abakargadzhiyev’s car to the premises of the Sovetskiy ROVD.", "8. Approximately twenty days after the abduction, that is to say between 9 and 12 June 2013, police officers from the CPE searched the applicants’ house.", "9. About a month after the events, on or around 20 June 2013, the applicants obtained video footage of the abduction from a local resident (see paragraph 23 below). They recognised one of the abductors by his voice as the CPE officer named “Shakir” and informed the authorities of this.", "10. On 1 July 2013 a burnt male corpse was found five kilometres from Gurbuki village in the Karabudakhkenstrkiy district in Dagestan.", "11. On 23 December 2013 the body was identified by the authorities as that of Mr Sakhrab Abakargadzhiyev (see paragraph 53 below). The applicants and their relatives disagreed with that conclusion (see paragraphs 54-55 below).", "12. According to the applicants, they have had no news of Mr Sakhrab Abakargadzhiyev since his abduction.\n(b) The Government’s submission", "13. The Government did not dispute the facts as presented by the applicants, but denied any involvement of State agents in the incident.", "14. In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided ninety-eight copied pages of documents from it reflecting steps taken by the authorities between 14 June and 26 October 2013.", "15. In reply to the Court’s further request for a copy of the contents of the investigation file, the Government submitted 372 copied pages of the relevant documents, some of which were illegible. The contents of the legible documents can be summarised as follows.", "16. Immediately after the incident the applicants went to the Sovetskiy ROVD, informed the police of the abduction and gave statements to the police investigator. They also conducted their own search for eye witnesses to the incident and found several of them in nearby shops and blocks of flats. The applicants informed the investigators of their findings (see, for example, paragraph 23 below).", "17. On 20 May and then on 24 May 2013 the applicants complained of the abduction to the Sovetskiy district investigations department (“the investigations department”). In their second complaint they stated that, in their opinion, the police were wilfully postponing steps in the investigation of the incident.", "18. On 3 June 2013 the investigators examined the crime scene. No evidence was collected.", "19. On 6 June 2013 the investigators examined the car from which Mr Sakhrab Abakargadzhiyev had been abducted; two fingerprints were collected from the chassis of the vehicle. On the same date a forensic examination of the fingerprints was ordered.", "20. On 14 June 2013 the investigations department opened criminal case no. 302564 into the abduction. The applicants were informed thereof.", "21. On 18 June 2013 the investigators granted Mr Sakhrab Abakargadzhiyev’s father, Mr A.A., victim status in the criminal case and questioned him. His statement was similar to the applicants’ account submitted to the Court. The witness stated, amongst other things, that he had not witnessed the abduction and had learnt of it from his relatives. According to the witness, his son had no unpaid debts or personal enemies and had the mobile telephone number 8-903-481-61-47.", "22. On 18 June 2013 the investigators questioned Mr Ub.Ub. whose statement concerning the incident was similar to the applicants’ account before the Court.", "23. According to the applicants, shortly after their initial complaint to the authorities they identified witnesses to the incident and informed the investigators accordingly. As a result, on 21 June 2013 the investigators questioned Mr Ma.Ma. who stated that at about 6.45 p.m. on 20 May 2013 he had been smoking on his balcony at 3 Engelsa Street when he had heard men arguing. He had looked out and seen a group of six or seven masked men with pistols in their hands. Four of those men had been trying to pull the driver out of a white GAZ Volga-3110 car but the latter had been resisting. Then the men had started beating him and had somehow managed to pull him from his seat into the back seat of the car. Three of them had got inside the vehicle. In about two or three minutes the masked men had carried the immobilised driver out of the car and put him in a silver‑coloured VAZ-2114. Then all of the masked men had driven off in that car and a black VAZ-21099 car. Immediately afterwards the witness had gone outside and asked a passerby to call the police. In about five minutes the police had arrived at the scene. According to the witness, he had recorded the abduction on his mobile telephone camera and then copied it to a CD.", "24. On the same date, 21 June 2013, the investigators seized the abduction footage made by Mr Ma.Ma. On 25 June 2013 they examined the video, the contents of which were similar to the applicants’ account of the abduction submitted to the Court.", "25. On 25 June 2013 the investigators questioned the second applicant’s mother, Ms G.G., whose statement concerning the abduction was similar to the applicants’ account before the Court. She had not witnessed the incident and had learnt of it from her relatives.", "26. On the same date, 25 June 2013, the investigators questioned the first applicant, whose statement was similar to the applicants’ submission before the Court. In addition the investigators obtained samples of the first applicant’s saliva for DNA testing and for its database.", "27. On 20 August 2013 the investigators ordered a comparison of the first applicant’s DNA samples with those from the DNA database.", "28. On 30 August 2013 the investigators again questioned the first applicant who stated that in June and July 2013 she had received text messages on her telephone from two unknown numbers. The first message contained the following:\n“Congratulations, your son became a shahid on the path of jihad in the Karabudakhkenstrkiy district ... May Allah accept his shahada and take him to the gardens of Firdous. Allahu Akbar!”\nThe second message contained the following:\n“...Your son and son-in-law were set up by your neighbour Makhmud who worked for the 7th department [of the police]. If you don’t believe it, have your men follow him. I could not do nothing about it as I have got nobody who could help me eliminate him. This beast spares no one. I hope you will believe me as I have got no other way out. My brother was the only tower of strength in my life. Friend.”", "29. On the same date, 30 August 2013, the investigators seized the first applicant’s mobile telephone to examine the above messages. It was established that the first message had been received on 15 June 2013 from a mobile telephone located that day in Popovicha Street in Makhachkala; the second message – received on 20 July 2013 – came from a different telephone number.", "30. On 5 September 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain from the relevant mobile phone operator the call logs of Mr Sakhrab Abakargadzhiyev’s telephone number (8-903-481-61-47) between 20 April and 1 September 2013.", "31. On 9 September 2013 the investigators received the court’s permission and examined the call logs of Mr Sakhrab Abakargadzhiyev’s telephone calls. According to the logs, at about 6.35 p.m. on 20 May 2013 he had received a telephone call from Mr Ub.Ub and after that the handset had been switched off. On 16 August 2013 a five-second call had been received on Mr Sakhrab Abakargadzhiyev’s number; the caller had been located in the area of Dachi in Makhachkala.", "32. On 9 September 2013 the investigators again questioned the first applicant who stated that on the morning of 5 September 2013 she had received a call on her mobile telephone from a man who had not introduced himself but had stated that he was an officer of the Federal Security Service (“the FSB”) (Федеральная Служба Безопасности (ФСБ)) and that he was holding Mr Sakhrab Abakargadzhiyev. The man, who had called from 8‑988-059-41-98, had told her that he would release her son in one day in exchange for 250,000 Russian roubles (RUB). The applicant had passed the telephone to her husband who had told the man they had had only RUB 150,000 and that they would pay RUB 50,000 at once and then RUB 100,000 after their son’s release. The man had told them that Mr Sakhrab Abakargadzhiyev was being held about a ten to twelve hour drive from Makhachkala and that he was in a bad state of health. Between 10 a.m. and 3 p.m. on that date (5 September 2013) the first applicant’s husband and the man had called each other several times. The applicant’s husband had been ordered to deposit RUB 50,000 in the account of mobile telephone number 8-964-519-62-69, which he had done on the same day. The man had confirmed receipt of the money and told the applicant and her husband to wait for his call. But he had not called back and his telephone number had been disconnected since 5 September 2013.", "33. On 25 September 2013 the forensic experts informed the investigators that the fingerprints collected from Mr Sakhrab Abakargadzhiyev’s car (see paragraph 19 above) were not fit for identification. The applicants were informed thereof on 21 December 2013.", "34. On 30 September 2013 the investigators requested that the Sovetskiy District Court in Makhachkala grant them permission to obtain the call logs of telephone number 8-988-059-41-98 (used by the alleged FSB officer on 5 September 2013) between 1 August and 30 September 2013. Permission was received on 4 October 2013.", "35. On 7 October 2013 the investigators searched Mr Sakhrab Abakargadzhiyev’s house. No evidence was collected.", "36. On 7 October 2013 the investigators questioned the second applicant whose statement concerning the abduction was similar to that submitted by the applicants to the Court. She had not witnessed the incident but had learnt of it from her relatives.", "37. On 9 October 2013 the investigators received the call logs of the telephone number 8-988-059-41-98. According to these logs, the caller who had contacted the first applicant and her husband on 5 September 2013 (see paragraph 32 above) had been located in Volgograd.", "38. On 10 October 2013 the first applicant requested the investigators to order an expert analysis of the voice of one of the abductors from the video footage of the incident (see paragraph 23 above); according to her, Mr Ub.Ub. had identified that voice as belonging to a Dagestan CPE officer named Shakir whom he would be able to identify if necessary. The applicant requested that the investigators examine the video and compare the abductor’s voice to that of Shakir.", "39. On 16 October 2013 the investigators granted the first applicant’s request and ordered that steps be taken to identify the CPE officer Shakir and to analyse the voice on the video. The applicants were informed thereof.", "40. On 26 October 2013 the investigators questioned Mr T.G. who stated that he lived next to the scene of the abduction but had not witnessed it and learnt of it from his neighbours.", "41. On 28 October 2013 the investigators questioned police officer A.A. who stated that on 20 May 2013 he had been on duty at the Sovetskiy ROVD and had been called to the abduction scene. According to the witness, the investigators had examined the crime scene and had towed away the white GAZ Volga-3110 car left behind after the abduction to their police station. After about a month the car had been picked up by an unnamed individual.", "42. On 1 November 2013 the investigators questioned Shakir N., an officer with the Dagestan CPE, who stated that he did not have information pertaining to the abduction, but that he had participated in the search of the applicants’ house in June 2013 (see paragraph 8 above). The witness also confirmed that in June 2013, about two days after the search, he had spoken with Mr Ub.Ub. who had visited the CPE with his son Mr A.Ub., who had been suspected of involvement in illegal armed groups. Mr Ub.Ub. had requested his assistance in the criminal case against his son Mr A.Ub. but the witness had refused to help him. Due to the passage of time the witness could not recall where he had been on the evening of 20 May 2013 but stated that he had not met Mr Sakhrab Abakargadzhiyev and had not participated in a special operation against him. The witness’ mobile telephone number was 8-967-395-69-75 and he had been using that number since June 2012.", "43. On 3 November 2013 the investigators again questioned the first applicant who stated that, in her opinion, her son had been abducted by special forces servicemen or law-enforcement officers as they had suspected Mr Sakhrab Abakargadzhiyev of aiding members of illegal armed groups. Twenty-four days after the abduction the CPE officers had searched her house (see paragraph 8 above). According to the applicant, Mr Ub.Ub. had met officer Shakir in the middle of June when he had gone to the CPE with his son.", "44. On 5 November 2013 the investigators received the call logs of the telephone number used for the deposit of RUB 50,000 (see paragaph 32 above). According to the list, on 5 September 2013 the caller had been located in Volgograd, Russia.", "45. On 19 November 2013 the investigators ordered an expert analysis of the voices in the abduction video (see paragraph 23 above). It can be seen from the documents submitted that on an unspecified date between 19 and 28 November 2013 the experts concluded that the voice on the footage was not fit for identification (see paragraph 47 below).", "46. On 24 or 25 November 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain the call logs for between 10 a.m. and 11 p.m. on 20 May 2013 from the telephone number belonging to officer Shakir N. (see paragraph 42 above). This was granted on 28 November 2013.", "47. On 28 November 2013 the Dagestan Ministry of the Interior conducted an internal inquiry into the applicants’ allegations of the involvement of the CPE officers in the abduction and concluded, amongst other things, the following:\n“... On 20 May 2013 A.A. complained of the abduction of his son Mr Sakhrab Abakargadzhiyev to the Investigations Department ...\n... According to the witness statements of the first applicant, Mr R.M., Mr Ub.Ub. and Mr A.Ub., enclosed with the complaint, officers of the CPE were involved in the abduction ... In their statements Mr Ub.Ub. and Mr A.A. directly indicate the CPE officers Ra.M. and Shakir; the latter they had been able to identify from the video posted on Youtube under the title “Abduction of Mr S. Abakargadzhiyev”.\nAccording to the statement of the CPE operational search officer Shakir N. given to the inquiry, ... in June 2013 he had participated with his colleagues from the CPE in the search of Mr Sakhrab Abakargadzhiyev’s home ... After the search, prior to the departure, he and his colleagues had asked Mr Sakhrab Abakargadzhiyev’s relatives to ensure that Mr A.Ub. would appear at the CPE. The latter, who had been related to Mr Sakhrab Abakargadzhiyev, had been listed in the CPE’s database as a supporter of terrorist groups, had been told to report to the CPE to help with enquiries ... several days later Mr A.Ub. had been arrested and charged with the same crimes for which he had been investigated. After the arrest, the father of Mr A.Ub., Mr Ub.Ub., had asked the witness and Captain Ra.M. to assist him in persuading the authorities to be lenient towards his son, but his requests had been refused by the officers ... On the date of Mr Sakhrab Abakargadzhiyev’s abduction the witness had taken a detainee, Mr M.D., to the court ... he had had nothing to do with the abduction. In addition, the witness explained that Mr Sakhrab Abakargadzhiyev had been an ardent supporter of Wahabiism and on several occasions had aided members of Dagestani terrorist groups, in particular, Mr S.Gu., and had participated in the attack on Dagestan traffic police officers near Agachul in February 2013 ...\nWhen questioned, the head of the operational search divison of the Dagestan CPE, Captain Ra.M., confirmed the above statement and explained that neither he nor his subordinate officers had had anything to do with the abduction. Mr Ub.Ub. had told lies about them as he and the servicemen of his department had arrested his son Mr A.Ub. in connection with the investigation of criminal case no. 30284.\nAccording to the evidence submitted by the CPE, they had obtained information concerning planned attempts on the lives of law-enforcement officers committed by Mr S.G., Mr A.Kh., Mr G.A. and Mr Sakhrab Abakargadzhiyev on 6 February 2013. The CPE officers did not arrest or detain Mr Sakhrab Abakargadzhiyev and no operational measures were taken against him...\n... It can be seen from the case file that according to the expert analysis of the video “Abduction of S. Abakargadzhiyev” it was imposssible to analyse and identify the voices therein ...\nThus, the internal inquiry was not able to verify the first applicant’s complaints concerning the unlawful actions of the CPE officers owing to significant discrepancies between the statements of those questioned during the inquiry; those discrepancies could be resolved only within the framework of a criminal case ...”", "48. On 4 December 2013 the investigators received the call logs of officer Shakir N.’s mobile telephone for 20 May 2013, according to which on that date his telephone had been located in Makhachkala.", "49. On 12 December 2013 the investigators questioned forensic expert Mr M.U., who had fingerprinted the white GAZ Volga-3110 car (see paragraphs 19 and 33 above). According to the witness, nobody else had touched the vehicle until after the examination.", "50. On 30 December 2013 the investigation was suspended. The applicants were informed thereof.", "51. On 28 January 2014 the investigation was resumed and the applicants were informed accordingly. The decision stated, amongst other things, the following:\n“... the investigation established that Mr Sakhrab Abakargadzhiyev’s corpse had been found five kilometres north-west of Gurbuki village ... In connection with this, on 1 July 2013 the Kaspiysk Investigations Department opened criminal case no. 329105 ...”", "52. On 29 January 2014 the investigators examined the contents of criminal case file no. 329105. According to the contents, there was a 99.93% DNA match between the DNA of the burnt corpse and that of the first applicant taken from the DNA database, as shown by the results of a forensic examination of 23 December 2013.", "53. On 3 February 2014, having established that the burnt body found on 1 July 2013 had been that of Mr Sakhrab Abakargadzhiyev, the investigations in criminal cases nos. 302564 and 329105 were joined by the investigators under the number 302564. The decision stated that the body had been found in a VAZ-2107 vehicle in which a home-made explosive device had been detonated.", "54. On an unspecified date between February and March 2014 the investigators asked the first applicant to identify the body found on 1 July 2013. According to the applicant, she was not shown the actual corpse, but a photograph of it. She was able to tell from the photograph that it was not the body of her son Mr Sakhrab Abakargadzhiyev: according to the police, the corpse had at least five gold teeth; Mr Sakhrab Abakargadzhiyev did not have any.", "55. On 12 March 2014 the first applicant’s husband asked the investigators to question him and the first applicant again about the circumstances of the abduction, to order another expert forensic examination of the corpse and to further examine and identify the voice of Shakir N. recorded by Mr Ub.Ub. The outcome of this request is unknown.", "56. It appears from the documents submitted that the proceedings are still pending." ]

[ 0 ]

[ "5. The applicant party was founded in 2007 and is based in Aurich. It claims to represent the interests of the Frisian minority in Germany but limits its political activities to the Land of Lower Saxony (Niedersachsen) where the East Frisians traditionally settle. The applicant party estimates the number of people of Frisian origin within the territory of Lower Saxony at about 100,000 out of the total population of approximately 7,900,000. The Frisians have their own language and cultural identity which is similar among the West Frisians in the Netherlands and the North Frisians in the Land of Schleswig-Holstein, while the East Frisians in Lower Saxony have mainly stopped speaking their language.", "6. Under the Electoral Law of Lower Saxony (Niedersächsisches Landeswahlgesetz, see relevant domestic law, paragraph 16 below), parliamentary seats – apart from those seats attributed to the candidates obtaining the majority of the votes in their constituency – are allocated under the D’Hondt system of proportional representation. Under section 33 § 3 of the Electoral Law, seats are attributed only to parties which obtain a minimum threshold of 5% of the total of votes validly cast. This threshold is also included in Article 8 § 3 of the Lower Saxonian Constitution (see relevant domestic law, paragraph 15 below).", "7. By letter of 27 September 2007 to the Prime Minister of Lower Saxony and by letter of 17 December 2007 to the President of the Lower Saxony Parliament, the applicant party asked to be granted an exemption from the minimum threshold for the upcoming elections. The request was refused.", "8. In the elections of 27 January 2008, the applicant party attained an overall total of 10,069 votes, amounting to approximately 0.3% of all votes validly cast. Irrespective of the minimum threshold, the number of votes received would not have been sufficient to obtain a parliamentary mandate.", "9. On 6 March 2008 the applicant party lodged an objection against the validity of the election result. The applicant party submitted, in particular, that it represented the interests of the Frisian people residing in Lower Saxony. The Frisian people formed a national minority within the meaning of the Framework Convention for the Protection of National Minorities (“the Framework Convention”, ETS No. 157, see Council of Europe documents, paragraphs 20-23 below). The applicant party complained, in particular, that the minimum threshold resulted in their factual exclusion from participating in the parliamentary elections and amounted to discriminatory treatment vis‑à‑vis other small political parties which were, at least theoretically, capable of reaching that threshold. The applicant party further relied on Article 14 in conjunction with Article 3 of Protocol No. 1 to the Convention.", "10. On 9 May 2008, the Election Supervisor of Lower Saxony (Landeswahlleiter), jointly with the Ministry of the Interior, submitted written comments on the objection. They considered, firstly, that it was doubtful whether the group of Frisians qualified as a national minority. Under the declaration submitted by the German Government when signing the Framework Convention, only the Danes of German citizenship and members of the Sorbian people with German citizenship were recognised as national minorities in the Federal Republic of Germany. Conversely, the declaration merely stated that the Framework Convention also applied to the ethnic group of Frisians with German citizenship. It was thus clear from the wording of the declaration that the Frisians did not qualify as a national minority. Even assuming that the ethnic group of Frisians had the status of a national minority, this did not necessarily entail the obligation to exempt the applicant party from obtaining the minimum threshold of 5% of the votes. There was no such obligation under the Basic Law or under the constitution of the Land of Lower Saxony or under the Framework Convention. Neither could such an obligation be derived from section 6 § 6 of the Federal Electoral Law (Bundeswahlgesetz), as the Länder were competent to pass their own electoral laws without being bound by the Federal Law. The privileges enjoyed by the Danish Minority Party in the Land of Schleswig-Holstein did not allow any further conclusions, as the protection and promotion of the Danish minority was prescribed by the constitution of the respective Land. Finally, and again assuming the minority status of the ethnic group of Frisians, it was questionable whether the applicant party would qualify as the party of the Frisian national minority. The assessment of this question did not only depend on the party’s vision of itself, but on an overall assessment of all factual and legal circumstances.", "11. On 2 February 2009 the Parliamentary Committee on the Scrutiny of Elections (Wahlprüfungsausschuss) held a public hearing on the applicant party’s objection.", "12. On 19 February 2009 the Lower Saxony Parliament rejected the applicant party’s objection as being unfounded. Relying on the submissions made by the Election Supervisor jointly with the Ministry of the Interior, the Parliament considered that an obligation to exempt the applicant party from the minimum threshold could neither be derived from the Constitution of Lower Saxony, nor from Federal or International Law. It followed that the applicant’s objection was unfounded.", "13. On 6 April 2009 the applicant lodged a complaint with the Constitutional Court of Lower Saxony (Niedersächsischer Staatsgerichtshof). The applicant party requested the Constitutional Court to quash the parliamentary decision of 19 February 2009 and to declare the result of the elections held on 27 January 2008 invalid; or, alternatively, to declare section 33 § 3 of the Electoral Law unconstitutional.", "14. On 30 April 2010 the Constitutional Court of Lower Saxony rejected the applicant party’s complaint as being unfounded. The Constitutional Court observed, at the outset, that the relevant provisions did not allow for an exemption from the minimum threshold for national minorities. The Constitutional Court further considered that the minimum threshold interfered with the principle of equality of the vote. This interference was justified because it pursued the legitimate aim of safeguarding the functioning of the elected parliament. Parliamentary work within a democracy necessitated that the parliaments remain able to take decisions and that they were not inhibited in their work by the participation of splinter parties. The Constitutional Court further referred to the case-law of the Federal Constitutional Court regarding the 5% minimum threshold. There was no obligation under the Basic Law to exempt parties of national minorities from the 5% threshold. It was true that certain electoral laws provided for such exemptions. This was, in particular, the case with the Federal Electoral Law, which provided an exemption for parties of national minorities, and with the Electoral Laws of the Länder of Brandenburg and Schleswig-Holstein, providing for exemptions for the parties of the Sorbian and the Danish minorities, respectively. However, both Länder provided special rights for national minorities in their respective constitutions. No such provisions could be found in the Constitution of the Land of Lower Saxony. The Federal Constitutional Court had declared the respective provision in the Federal Electoral Law constitutional, even though the Basic Law did not contain special rights for national minorities. However, the Federal Constitutional Court had also emphasised that the legislator enjoyed a margin of appreciation in this respect. The Lower Saxony Constitutional Court finally considered that the alleged right could be derived neither from the European Convention on Human Rights nor from the Framework Convention. The European Convention on Human Rights did not contain any special rights for national minorities. Relying on the wording of Article 15 of the Framework Convention, the court considered that this provision did not contain any obligation to exempt national minorities from the minimum threshold, but left the question undecided as to how to create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs. It followed that the contracting parties enjoyed a wide margin of appreciation in this respect. In Germany, participation of national minorities in public life was already guaranteed by the constitutional system. By including the 5% threshold in the Constitution of the Land of Lower Saxony without providing for an exemption, the Constitutional Assembly had given precedence to the functioning of the parliament over granting privileges to national minorities. Accordingly, the Lower Saxony Constitutional Court did not find it necessary to determine whether the Frisians qualified as a national minority and whether the applicant party qualified as the political party of this national minority." ]

[]

[ "5. The applicant was born in 1980 and lives in Pleven.", "6. On 25 April 2012 he was arrested in Sofia and subsequently charged with the unlawful possession of firearms and ammunition. He remained in detention on remand throughout the pre-trial proceedings. Eventually he entered into a plea agreement with the prosecution, acknowledging that he had committed the offence he had been charged with and accepting a suspended sentence of two years’ imprisonment.", "7. The plea agreement was approved at a court hearing before the Sofia District Court on 7 June 2012. The court’s decision was final. At the end of the hearing, at 5.16 p.m., the court ordered the discontinuation of the applicant’s pre-trial detention.", "8. After the hearing the applicant was brought to the Sofia Investigative Service, where his pre-trial detention was formally discontinued at about 7 p.m. However, he was not released but was instead taken to a police station, where he remained throughout the night and the next day. On the morning of 9 June 2012 he was transferred to the city of Pleven where, by an order issued at 12.10 p.m., he was once again formally placed in police custody. That measure was taken in the context of another set of criminal proceedings against the applicant which had been instigated in April 2012. On 10 June 2012 the investigator in charge of that case brought charges against the applicant in connection with another count of unlawful possession of firearms.", "9. In the proceedings before the Court, the Government submitted an order dated 8 June 2012, issued by the investigator in charge of the case in Pleven and requiring that the applicant be taken by the police to appear before her in order to have charges brought against him. The order referred, in particular, to Article 71 §§ 1, 2 and 3 of the Code of Criminal Procedure (see paragraph 12 below) and, by way of justifying the need to bring the applicant by force, stated that there was a risk of his absconding. The Government explained that by the time that order had been received by the police in Sofia, it had become impossible to organise the applicant’s transfer to Pleven the same day. That is why the applicant had been kept in the police station overnight and was only transported to Pleven the next day, 9 June 2012." ]

[ 2 ]

[ "4. The applicant was born in 1967 and lives in Kalush.", "5. On 4 November 2006 the applicant’s daughter, Ms S.V., born in 1997, and two other individuals, Ms L.M. and Ms V.K., stayed overnight at a private house. On the morning of 5 November 2006 S.V., L.M. and V.K. were found dead in the room where they had been sleeping.", "6. On an unspecified date after the incident a committee composed of five employees of the gas company conducted an inquiry into the incident and drew up a report (“the internal inquiry report”). According to the report, gas company employees visited the scene on the morning of 5 November 2006 and observed that the room where the accident had occurred had a window with a vent for ventilation, but that it was closed at the time of examination. All the gas equipment in the house was in good working order and the heater’s flue had adequate draught. The report went on to note that on the night of the incident Mrs M.T. had turned on the gas heater in the room where S.V., L.M. and V.K. were sleeping, closed the door and left the room and the gas heater unsupervised. The committee took the view that the incident had been caused by a strong wind on the night of the incident and M.T.’s failure to check the heater.", "7. Between 14 November 2006 and 24 May 2012 the prosecutor’s office refused eleven times to institute criminal proceedings in respect of the death. All those decisions were overruled by supervising prosecutors or the courts as being premature owing to the incompleteness of the investigation and the need to conduct additional investigative measures.", "8. On 25 January 2013, following the entry into force in November 2012 of the new Code of Criminal Procedure (see paragraph 11 below), a criminal investigation was initiated into the actions of the employees of the gas company on suspicion of neglect of official duties in connection with the death of the applicant’s daughter. An entry to that effect was made in the Unified Register of Pre-Trial Investigations.", "9. Thereafter the police twice discontinued the criminal investigation, on 21 December 2013 and on 15 December 2014, for lack of corpus delicti in the actions of the gas company’s employees. Those decisions were overruled on 3 February 2014 and 19 August 2015 respectively." ]

[ 0 ]

[ "5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members.\nThe second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary.", "6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants.", "7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of comments were responsible for their contents.", "8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary.", "9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites.", "10. Index’s “Principles of moderation” contained the following:\n“I. Deletion of comments 1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act... 3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic...”", "11. On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading.", "12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following:\n“They have talked about these two rubbish real estate websites (“két szemét ingatlanos oldalról”) a thousand times already.”\n“Is this not that Benkő-Sándor-sort-of sly, rubbish, mug company (“benkősándoros sunyi szemét lehúzó cég”) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That’s it.”", "13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”.", "14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows:\n“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.” (“Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek.”)", "15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation.\nOnce learning of the impending court action, the applicants removed the impugned comments at once.", "16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company.", "17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff’s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies.\nThe Court found that the comments (see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them.\nAs regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.", "18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff’s action. They also argued that users’ comments were to be distinguished from readers’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage.", "19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee.", "20. The Court of Appeal held that – as opposed to readers’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court’s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘hosting service providers’ and ‘intermediaries’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation.", "21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites.", "22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2(lc) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication.\nThe Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff’s legal representation.\nThis decision was served on 2 October 2012.", "23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression.", "24. On 11 March 2013 the Constitutional Court declared the complaint admissible.", "25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, (decision no. 19/2014. (V.30.) AB). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows.\n“[43] In the case concerned by the Kúria’s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage.\n[44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press.\n[50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law.\n[59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet.\n[63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate?\n[65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.”" ]

[ 6 ]

[ "5. Ms N.Ts., is a Georgian national who was born in 1976 and lives in Tbilisi. Her three nephews ‒ N.B., and twin boys, S.B. and L.B. – were born in 2002 and 2006 respectively. The facts of the case, as submitted by the applicants, may be summarised as follows.", "6. Ms N.Ts.’s sister started a relationship with G.B. in 2000 and the couple moved in together. They had three children, N.B., S.B. and L.B.", "7. In 2006 G.B. was convicted of drug abuse and given a five-year suspended sentence. In 2008 he was diagnosed with psychiatric and behavioural disorders. The same year he started methadone substitution treatment (as part of a specialised drug treatment programme). In 2009 G.B. was fined under the Code of Administrative offences for two additional incidents of drug abuse.", "8. On 26 November 2009, the mother of the boys died in unrelated circumstances. The boys started living with their aunts and their maternal grandparents. At the end of December 2009 G.B. requested the return of the boys but the maternal family refused his request.", "9. According to his medical file, in February 2010 G.B.’s addiction went into remission; no signs of disintegration of personality were observed and he was considered to be reacting appropriately vis-à-vis his surroundings. On 10 February 2010 he was diagnosed with an early remission stage. According to the medical report, he did not pose any threat either to himself or to the people surrounding him and was motivated to start a healthy life. According to another medical certificate dated 26 February 2010, G.B.’s central nervous system was not damaged and he was not suffering from any psychiatric pathology.", "10. On 5 January 2010 G.B. asked the Tbilisi City Court under Article 1204 of the Civil Code to order the return of his sons. On 12 January 2010 the first instance court judge decided to involve the Social Service Agency (“the SSA”) in the proceedings. The court ordered that the case file be forwarded to the SSA, that the latter appoint a representative to protect the boys’ interests, and that the SSA conduct an assessment of the social environment and living conditions of the father and the maternal family.", "11. The assessment was conducted by the Vake-Saburtalo regional branch of the SSA. Their representative visited the places of residence of G.B. and the maternal family and conducted conversations with G.B., the paternal grandparents, several of their neighbours, the maternal family and also a former babysitter of the boys. The social worker concerned concluded that the living conditions were satisfactory at both locations. As for the boys themselves, she noted the following:\n“As regards the children’s interests, they are in need of a caring and safe environment ... Both families should consider the needs of the children and how they can help them with a concerted mutual effort to most easily overcome the psychological trauma they have suffered because of the loss of their mother ...”", "12. In parallel, the SSA’s Vake-Saburtalo regional branch arranged for a psychological examination of the boys. The psychologist involved managed to see only the twins in the presence of their father and a family friend. She concluded that they both had a twofold attitude towards their father, with warm feelings and love on the one hand and fear on the other hand. She further observed that certain emotional and behavioural problems of the boys were predetermined by their subconscious protest against the lack of a healthy relationship with both families and the incomprehensible situation in which they were living. In conclusion, the psychologist noted that the boys’ stressful situation was being further aggravated through having a negative image of their father imposed on them, which could in itself pose a threat to their psychological health and life (“the psychological report of 3 March 2010”).", "13. In the interim, the Tbilisi City Court issued an interlocutory order allowing G.B. to see his children in the presence of two family friends. It is apparent from the case file that after just a few meetings, the third persons refused to participate in further meetings.", "14. On 23 April 2010 the boys were taken to a paediatric hospital where, following psychological examination, all three were diagnosed with separation anxiety disorder. It was noted that all three children had a negative attitude towards their father and a range of fears with respect to him. According to the medical report, they also displayed severe anxiety as a result of the death of their mother. It was recommended that no change be made to their living environment in order to avoid causing further stress to them.", "15. In addition, on 26 April 2010 specialists from an Institute of Psychology concluded, on the basis of the material in the case file, that ‒ in view of the emotional stress the boys had suffered as a result of the death of their mother and the fact that their habitual place of residence was that of their maternal grandparents and aunts ‒ it was not advisable for them to return to their father. The questions put to the specialists had been prepared by the lawyer acting on behalf of the maternal family. The specialists also examined the older boy in person and observed the following:\n“... [N. B.] feels frustrated because of the situation he is in and gets easily irritated ... the child is sensitive and seeks relief in a safe environment and in a fantasy world ... he escapes everything that is undesirable for him in order to avoid additional trauma ...\nWe consider that at this stage a drastic change in [N.B.’s] situation is not advisable, in order to avoid additional irritation and traumatisation of the boy and to allow him rehabilitation in a calm environment. Obviously, it would be useful if he could develop a close relationship with his father and could perceive him as a guardian and protector, but in order to achieve that, in our view, some more time will be needed. The father should gain his confidence and the child should gradually feel the need to communicate with his father again ...\nFor the psychological wellbeing of the children ... we consider it necessary to facilitate an appropriate process of readjustment between the father and his children, i.e. for a certain period of time (a minimum of one year) the father should communicate with the children within a stable regime and a formally accepted format, to regain their trust.”", "16. On 30 April 2010 the SSA scheduled another psychological examination of the boys. But it turned out to be impossible to conduct as the father had only agreed to their check-up on condition that it would be conducted in his presence and in a neutral place. However, according to the maternal family, the boys refused to see him.", "17. On 18 May 2010 the Tbilisi City Court ordered that the three boys be returned to their father. Taking into account G.B.’s latest medical record, the court concluded that he was fit to resume his parental responsibilities. At the same time, the competent judge dismissed the medical report on the children’s mental state as unreliable; she concluded that the experts’ conclusions contradicted the factual circumstances and were based on facts which had not been derived from the case file. She further observed that from a psychological point of view the twin boys were ready to be reunited with their father; they were traumatised as a result of the death of their mother and were in need of a relationship with their father. As for the older boy, the judge observed − referring to the psychologists’ reports ‒ that he had had pre-prepared answers.", "18. In conclusion the court noted:\n“In view of all the above and having regard to the fact that the children’s mother has passed away, the separation of the children from their father and their family environment breaches their right to be raised in a family and runs contrary to their interests ...\nIn the current case it has been established that the respondents do not have any legal right to keep the children with them. The applicant [G.B.]’s parental rights have not been restricted ...\nIt has been established that the return of the children to their father would not be against their interests but, on the contrary, would be beneficial and is necessary. ... With the children’s best interests in mind, [G.B.’s] request is hereby granted, since bringing the children up in a family environment will have a positive effect on their physical and intellectual development”.", "19. According to the case file, representatives from the SSA were not involved in the above proceedings.", "20. The maternal family filed an appeal. They claimed inter alia that the court of first instance had assessed the available psychological evidence in a one-sided manner; in particular, it had relied on the SSA’s conclusion ‒ which was unreliable ‒ while rejecting the other medical reports in an unsubstantiated manner. They also criticised the fact that the court had put the father’s rights at the centre of its decision instead of being guided by the best interests of the children.", "21. On 24 February 2011 the Tbilisi Court of Appeal quashed the first-instance court’s decision and ruled that the children should stay with their maternal family. The appeal court referred to the psychological reports, according to which the boys were in need of a stable and safe environment and any forceful change in this respect could aggravate their already stressful situation. The panel of three judges concluded as follows:\n“... At this stage, the return of the children to G.B. before some more time has passed and his recovery is officially confirmed by specialists, ... thereby putting the children at risk, is considered inappropriate by the chamber [from the point of view of the children’s] own safety. The chamber considers that not only should G.B. demonstrate that he has recovered but should, at the same time, prepare the children psychologically for a change in [their] situation, in order to facilitate their subsequent adjustment.”", "22. The panel further noted that they shared the views of the specialists, according to which the process of the boys’ adjustment to their father should happen naturally. Given that for various objective and subjective reasons the boys remained stressed in their relationship with their biological father, their removal from their habitual environment could, in the view of the judges, have adverse effects on them.", "23. According to the court record, the representatives of the SSA and their district branch were involved in the appeal proceedings with the status of an “interested party”.", "24. On 11 October 2011 the Supreme Court of Georgia remitted the case to the appeal court for re-examination. The court noted the following gaps in the decision of the Tbilisi Court of Appeal:\n“In view of the specific circumstances of the case, and having regard to the interests of the children, who are minors, the court of cassation has examined in detail the material on the case file concerning the determination of the children’s place of residence and concludes that the decision in question fails to establish beyond any doubt the necessity of separating the parent and the children ...\nIt is indisputable that drug addiction has a negative influence on the state of mind of a person. However, bearing in mind that G.B. is being treated, and that according to the evidential material his treatment has brought positive results, [his drug addiction] does not provide a basis for drawing the unambiguous conclusion that living with their father would be insecure and dangerous for the children. At the same time, the cassation court observes that in such circumstances, when there is a suspicion of creating an unhealthy environment for minors, a court may ‒ according to the civil procedural law ‒ at its own initiative involve custody and guardianship authorities in order to monitor the children’s upbringing ...\nThe cassation court would like to emphasise that although the opinion of a child concerning the determination of his or her place of residence is very important, it may be disregarded if it does not correspond to his or her interests ...\nThe cassation court particularly notes that whenever there is a doubt ‒ requiring urgent reaction ‒ as to whether a parental right is being properly exercised, or whether questions concerning a child’s upbringing have been properly decided, all the bodies concerned, and above all the court ‒ which has inquisitorial power to establish and examine factual circumstances ‒ is obliged to take all measures provided for by law to protect the children’s rights and to actively involve the competent authorities to redress the situation. When considering the current case, reference must be made to Article 11981 of the Civil Code, which obliges the custody and guardianship body to engage actively in protecting the rights of minors, including their right to education, rather than simply limiting itself to making general observations and assessing their living conditions.\nThe cassation court observes from the material on the case file that there is a clear violation of the children’s rights from the perspective of their physical, mental, emotional, and social development and upbringing, since their legal representative – their father ‒ is not able to take the requisite steps as regards the children’s education ...”", "25. Lastly, the court noted ‒ along the same line of reasoning as the appeal court ‒ the importance of the psychological preparation of the children for a change in their situation. It observed, however, that despite the interlocutory measure ordered by the first-instance court, no meetings between the children and their father were being organised, since the family friends had refused to take part in those meetings. In such circumstances, it was unclear how a natural adjustment process with the father could be expected.", "26. In November 2011 the proceedings recommenced at the Tbilisi Court of Appeal. The maternal family members alleged that G.B. was not interested in seeing his boys and re-establishing contact and a relationship with them. They claimed that the last time he had seen the boys had been in April 2010. They also criticised the fact that G.B. had spoken openly about the contentious situation concerning the boys on a TV show, following which the children had allegedly been further traumatised. The older one was ashamed of going to school because everyone knew his family situation and, according to the maternal family, would ask him questions about his “drug-addicted” father. The maternal family members also claimed that the SSA had shown absolutely no interest in the children, not checking on them for more than a year. The father, for his part, stated that he would not want his children to go with him unless they changed their mind.\nOn 24 November 2011, acting at the request of G.B., the court issued an interlocutory measure under which the latter was allowed to see his children in the presence of a representative of the SSA. The appeal court also asked the SSA to report on the progress of those meetings.", "27. On 11 and 18 December 2012 three social workers went to see the boys at their maternal family’s apartment. According to the report drawn up thereafter (“the report of 4 January 2012”), during both of the visits the members of the maternal family reacted negatively. The boys refused to stay and talk to the social workers alone on 11 December 2012, and at the second meeting only the older boy spoke with the social workers. The social workers concluded that the psycho-emotional condition of the children had deteriorated. Furthermore, according to the report, N. explicitly expressed a negative attitude towards his father and the social workers. In this regard the social workers observed:\n“The child was clearly nervous, the situation in which he found himself influenced him significantly and he was hysterically repeating that he did not want to live with his father, that “his father had killed his mother and he was a monster”, that “the appearance of the father had brought him trouble and that he was ashamed of his father in the eyes of his friends”. In view of the emotional state of mind of the child we were forced to stop the conversation.”", "28. The report concluded the following:\n“... the psycho-emotional condition of the children ‒ nine-year-old N. and six-year-old L. and S. ‒ is very serious. The children do not have a mother and are being raised in the absence of the only parent in an environment hostile towards their father ... We consider that the biological father of the children, G.B. has the human and material resources to take care of his children and create for them appropriate conditions for their development. We also consider that a relationship between the children and their father is necessary for the children’s future, so that they develop into fully-fledged members of society”.", "29. In January 2012 the older boy was taken for psychological examination to a paediatric hospital, where he was diagnosed with anxiety phobia disorders. It was recommended that he undergo a psychotherapy course and live in a stable, calm and safe environment.", "30. By a decision of 2 February 2012 the Tbilisi Court of Appeal reversed its decision of 24 February 2011, concluding that the children should live with their father. The court referred to the report of 4 January 2012 concluding that the children had been negatively influenced by their maternal family and that their attitude towards their father had been shaped accordingly. In particular, the court stated:\n“The chamber notes that since 2009 the attitude of the children towards their father has worsened and that this has happened despite the fact that the father has not in fact been given an opportunity to communicate with his children. Accordingly, the father could not have negatively influenced his children.\nThe chamber considers that the children’s negative attitude towards [their father] is a result of powerful, unhealthy psychological influence and inappropriate educational methods [used] by the persons providing for their upbringing”.", "31. And,\n“... [T]he return of the children to their father would be beneficial and is necessary for them. In view of the factual circumstances established in the case, the court considers that for the children to stay with the respondents would breach the father’s parental rights as well as the children’s interests, since in such a case the children will be separated from their father and the family environment. This in itself is a violation of the fundamental principle enshrined in the Convention on the Rights of a Child – that for the purposes of a comprehensive and harmonious development children should live in a family environment, in an atmosphere of happiness, love and mutual understanding. This is particularly relevant in view of the fact that the attitude of the children towards their father, under the influence of those with whom they are living, is becoming more negative than positive, a fact which, in the opinion of the chamber, runs contrary to their interests. The children are being raised with a hostile attitude towards their father, which is totally unacceptable ...”", "32. Relying on Article 3 of the Convention on the Rights of the Chid, and Articles 1197-1199 and Article 1204 of the Civil Code, the Tbilisi Court of Appeal concluded that there was no legal basis for the boys to stay with their maternal grandparents and aunts, and that it was in their best interests to be reunited with their father.", "33. The aunts and the maternal grandparents filed an appeal on points of law, which was rejected by the Supreme Court of Georgia on 3 May 2012.", "34. On 4 June 2012 the Tbilisi City Court issued an execution order for enforcement of the decision concerning the return of the boys to the father. The handover which was due to take place on 25 June 2012 in the presence of a social worker failed, however, since the boys refused to go with their father. A psychologist who was there at the invitation of the maternal family noted in the subsequent report that the boys had been afraid of being taken by force by their father; they had cried as they had not want to go with him. She concluded that G.B. should look for other ways of regaining their trust and re-establishing a relationship with his children. On 14 September 2012 a further attempt to enforce the court decision was likewise unsuccessful. According to the report drawn up thereafter, the children had refused to move in with their father.", "35. According to the case file, the domestic courts’ decision has not been enforced to date. Neither the SSA nor the father has taken any additional measures for that purpose. The boys are currently living with their maternal grandparents and aunts." ]

[ 4 ]

[ "6. The applicant was born in 1964.", "7. In 1993 the applicant was convicted of murder and sentenced to twenty four years’ imprisonment.", "8. On 8 March 2002 the applicant was conditionally released from prison.", "9. On 23 March 2002 at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son, H.H. He was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate.", "10. On 24 March 2002 at 8 p.m. the applicant and six other persons were examined at the Haseki Hospital, in Istanbul, by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons.", "11. On the same day at 10.30 p.m. the applicant was once again examined at the Haseki Hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor, a general practitioner, observed the following injuries on the applicant’s body: a swelling on the left side of the forehead and a headache, a hyperaemia of 0.5 cm in width around both wrists and a hyperaemia of 2 cm on the right side of the neck. The doctor considered that the applicant should also be examined by a neurosurgeon, who subsequently carried out a number of tests on the applicant and concluded that the applicant did not show any signs of pathology.", "12. On 25 March 2002 at 9.10 p.m. the applicant underwent a further medical examination at the Haseki Hospital by a doctor who noted in a medical report the same injuries as those mentioned in the medical report of 24 March 2002.", "13. On 26 March 2002 at 7 p.m. the applicant was once again taken to the Haseki Hospital for an examination. The medical expert noted that there was an erythema of 3 cm in diameter on the right side of the applicant’s forehead, scabbed wounds of 3 cm on the underside of his wrists and a hyperaemia of 2 cm on the right side of his neck.", "14. On 27 March 2002 the applicant underwent two medical examinations. The first examination took place at the Haseki Hospital at 9.30 a.m. The doctor observed scabbed wounds on the underside of the wrists, a recovering hyperaemia of 2 cm on the right side of the neck and an erythema of 2 cm in diameter on the right side of the forehead. The second medical examination was carried out by a medical expert at the Forensic Medicine Institute branch responsible for the Istanbul State Security Court at 11 a.m. The doctor who examined the applicant observed the following injuries on his body: a scabbed abrasion of 3 cm on the underside of the left wrist, a scabbed abrasion of 1 cm on the underside of the right wrist, a scabbed abrasion of 0.5 cm on the back of the right wrist, two thin abrasions of 1 cm and 3 cm on the right side of the forehead. The doctor concluded that these injuries did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days.", "15. According to the applicant, he was subjected to ill-treatment throughout his detention in police custody. In particular, he was kept blindfolded and handcuffed to an iron bar for five days. He was beaten, given electric shocks and made to lie on a bed over which his arms and legs were stretched, and his genitals were squeezed.", "16. According to the Government, the applicant sustained his injuries as a result of his own conduct. The scratches and traces on his body were a result of having attempted to break his handcuffs, and he had hit his head on the floor. In support of their submissions, the Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002 (see paragraph 21 below).", "17. On 24 March 2002 at 9.20 p.m. eight police officers and the applicant signed an incident report according to which the applicant was kept attached to a bed in order to prevent him from harming himself. The report states that at around 9.10 p.m., he managed to break one of his handcuffs and hit his head on the floor. The officers recorded that they had used force to handcuff the applicant and that the applicant had sustained injuries on his wrists as a result. According to the report, the injuries on the applicant’s head had occurred when he hit his head on the floor.", "18. On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27 March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt.", "19. On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. He alleged that he had been beaten, given electric shocks and stretched by his arms and legs, had his testicles squeezed, and been handcuffed to an iron bar for five days. On the same day he was remanded in detention by a judge.", "20. Between 23 and 27 March 2002 the six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given instructions for the abduction of Ş.H. These persons were also medically examined during and after their detention in police custody. Some of them were found to have sustained injuries to various parts of their bodies.", "21. During the proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM contains images of a room. The part which concerns the applicant was recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002. It shows that the applicant was kept in a room on a mattress, the top of which is placed on two chairs. The applicant is seen lying down on the mattress with his arms straight out to the sides and attached to the chair legs. He is also blindfolded with a piece of black cloth. On the other side of the room, there are four or five plainclothes police officers standing around a desk and a chair. The applicant begins moving with a view to standing up. Four officers approach the applicant, detach him from the chairs, put him on the floor, kneel around him and for about one and a half minutes keep the applicant under physical restraint on the floor. During this period, the applicant cannot be seen by the camera. Thereafter, another plainclothes officer arrives in the room and instructs the other officers to arrange the mattress and the chairs in a certain way. Subsequently, the applicant is seen without the blindfold and with his arms held behind his back by two officers who are also holding him around his neck. They make the applicant stand in front of the newly-arrived officer, who douses the applicant’s face with water from a plastic bottle. He then hits the applicant on the head with the same bottle. Afterwards, six officers place the top of the mattress on the chairs, force the applicant to lie down on the mattress on his back, handcuff him to the chair legs and blindfold him.", "22. On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody.", "23. On 22 May 2002 the applicant made statements to the Fatih public prosecutor in which he complained about his alleged ill-treatment while in police custody. He claimed that he had been insulted, threatened, beaten, stripped naked, stretched by his arms and legs, blindfolded, given electric shocks and had his genitals squeezed. The applicant submitted that there were a superintendent, A.İ., and the director of the Department of Organised Crime of the Istanbul Security Directorate, A.S.S., among those who had tortured him. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses.", "24. On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment.", "25. On 17 October 2002 the Fatih public prosecutor further obtained statements from A.İ., who submitted that the applicant had hit his head on the floor. On 20 January 2003 A.S.S. also made statements to the Fatih public prosecutor and maintained that he had not been involved in the applicant’s questioning.", "26. On 21 January 2003 the Fatih public prosecutor requested the Department of Organised Crime of the Istanbul Security Directorate to submit any video recording demonstrating that the applicant had resisted the officers, if such recording existed.", "27. On 25 February 2003 A.S.S., in his capacity as the director of the Department of Organised Crime, sent the video recording of 24 March 2002 (see paragraph 21 above) along with a letter to the Fatih public prosecutor’s office. In his letter, A.S.S. noted that the applicant had resisted the police officers while in police custody.", "28. On 20 June 2003 the Fatih public prosecutor sent the video recording to the Forensic Medicine Institute and requested that a report clarifying whether the applicant could have sustained the injuries noted in the medical reports as a result of his own conduct be drafted. The public prosecutor also submitted the medical reports concerning the applicant to the Institute.", "29. On 13 August 2003 six medical experts from the Forensic Medicine Institute, including the president, drafted a report after examining the medical reports issued during the applicant’s police custody and the photographs and video footage submitted to them by the Fatih public prosecutor. In their report, the doctors concluded that the applicant’s injuries had occurred as a result of his own conduct. They considered that, following the applicant’s agitation, the police officers had struggled to lay him down on a camp bed and had handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant’s injuries on his body, they concluded that the injuries must have been caused by the applicant’s own conduct.", "30. On 15 October 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court accusing six police officers, A.İ, A.S.S., İ.E, N.K., S.G. and M.G., of inflicting ill-treatment on the applicant and one of his co-accused, Ö.Ç.", "31. On 8 December 2003 the applicant testified before the Bolu Criminal Court, acting on letters rogatory. The applicant contended that he had been kept blindfolded throughout his detention, stretched by his arms and legs, given electric shocks, hosed with cold water, stripped naked and had his genitals squeezed.", "32. On 12 February 2004 the Fatih Criminal Court held the first hearing on the merits of the case and heard evidence from the accused police officers, except one officer, A.S.S., who did not participate in the hearing. They all maintained that they had not ill-treated the applicant or Ö.Ç. As regards the applicant, they contended that they had handcuffed him upon the instructions of a public prosecutor and subsequently used force with a view to preventing him from harming himself. One of the officers, İ.E., maintained that the applicant had sustained injuries to his head as he had hit his head against the wall. They referred to the video footage recorded on 24 March 2002. During the same hearing, C.A., one of the applicant’s lawyers who represented him along with A.K. Özcan, requested that the applicant be allowed to join the proceedings as an intervening party. His request was granted. The applicant’s representative further requested the court to obtain the entire video recording of the places where the applicant had been held throughout his detention in police custody. The court decided to consider this request subsequently, after obtaining the statements of all accused police officers.", "33. Between 12 February 2004 and 5 October 2004 the trial court adjourned the hearings as A.S.S. could not be located.", "34. On 5 October 2004 A.S.S. made statements before the Fatih Criminal Court and denied the veracity of the applicant’s allegations. He reiterated that he had not been involved in the questioning of the applicant and Ö.Ç. On the same day the Fatih Criminal Court ordered the Security Directorate to send it the video recordings concerning the applicant’s police custody.", "35. On 2 February 2005 the first-instance court adjourned the hearing as the video footage requested during the previous hearing had not been received. One of the applicant’s lawyers, C.A., was present during this hearing.", "36. Upon receipt of the video footage of 24 March 2002, during the hearing of 3 March 2005 the Fatih Criminal Court viewed the recording and observed that one person had suddenly bent forwards and the police officers had immediately intervened. The court noted that the video footage was very short, lasting a few seconds, and the people in the images were not identifiable. At the same hearing, one of the accused police officers, İ.E., contended that the person in the footage was the applicant himself, who had hit his head on the floor in order to be able to lodge a complaint against them for ill-treatment in police custody, and that they had intervened to stop him.", "37. On 14 June 2005 the Fatih Criminal Court referred the case to the Istanbul Assize Court on account of lack of jurisdiction, pursuant to Article 94 of the new Criminal Code (Law no. 5237), which defined ill-treatment by public servants as torture, an offence that should be tried by assize courts.", "38. On 3 October 2005 the Istanbul Assize Court issued a summons requiring the applicant and the accused police officers to attend the hearing to be held on 29 November 2005. The summons issued in respect of the applicant was served on A.K. Özcan. On 29 November and 27 December 2005 the Istanbul Assize Court held two hearings and heard evidence from the accused police officers, who reiterated the statements they had made before the Fatih Criminal Court. Neither the applicant nor his representatives participated in these hearings.", "39. During the hearing held on 27 December 2005 the public prosecutor requested that the police officers be acquitted of the charges against them. At the end of the same hearing the Istanbul Assize Court acquitted the accused police officers of the charges of torture. On the basis of the evidence before it, namely the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the aforementioned video footage, the Istanbul Assize Court found that the applicant had been agitated and the police officers had handcuffed him to a camp bed with a view to preventing him from injuring himself. The court noted that the injuries observed on the applicant’s wrists and other parts of his body had thus occurred as a result of his agitation. The assize court considered that the applicant had not been subjected to beatings. It concluded that the accused officers had not tortured the applicant.", "40. On 20 January 2006 the judgment of 27 December 2005 was served on lawyer C.A. As C.A. could not be found in his office, the notification document was left with the mayor of the neighbourhood, in accordance with the provisions of the Law on Notifications.", "41. On 21 January 2011 A.K. Özcan, acting on behalf of the applicant, submitted a petition to the Istanbul Assize Court. He maintained that the judgment of 27 December 2005 had been served on a lawyer who had not been involved in the case and asked to be officially served with the judgment in question.", "42. On 14 February 2011 another lawyer lodged an appeal with the Istanbul Assize Court, to be submitted to the Court of Cassation, against the judgment of 27 December 2005 on behalf of the applicant, claiming that the judgment of 27 December 2005 had erroneously been served on C.A.", "43. On 28 February 2011 the Istanbul Assize Court rejected the petition, holding that C.A. had represented the applicant during the proceedings and his power of attorney was in the case file. It further noted that the judgment had already been served on him and that notification to one of the applicant’s representatives had been sufficient for the judgment to become final. The assize court therefore considered that the appeal dated 14 February 2011 had been submitted outside the time-limit laid down for submission of appeals in Article 310 of the Code of Criminal Procedure.", "44. The applicant appealed against the decision of the Istanbul Assize Court.", "45. On 22 May 2013 the Court of Cassation upheld the decision of 28 February 2011.", "46. According to the documents in the case file, on 18 March 2003 A.S.S. and on an unspecified date A.İ. were dismissed from duty respectively on account of some other criminal convictions. According to the judgment of 27 December 2005 one of the police officers, İ.E., was promoted and became a superintendent during the criminal proceedings brought against him.", "47. On 30 April 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and fifteen other individuals. The applicant was charged with leading a criminal organisation and the attempted abduction of Ş.H. and H.H. in order to obtain a ransom. The charges were brought under Article 1 of Law no. 4422 on the Struggle against Profit-oriented Criminal Organisations and Article 499 of the former Criminal Code. The public prosecutor claimed that the applicant had been in possession of a mobile phone while he was in prison, that his conversations had been intercepted by the police following a court decision and that he had given instructions by phone to two of his co-accused for the abduction attempt. In this connection, the public prosecutor referred to the transcripts of the telephone conversations which were included in the investigation file. The public prosecutor further claimed that the applicant had expanded the criminal organisation subsequent to his release from prison and his co‑accused had either become members of this organisation or had aided it. In the indictment, the public prosecutor had explained the details of the abduction attempt regarding Ş.H. and H.H., specifying the role of each accused. The applicant was identified as the person who had given the order for this offence to be committed.", "48. On 23 July 2002 the Istanbul State Security Court held the first hearing on the merits of the case. During this hearing, the applicant made statements before the court and maintained that he had been tortured while in police custody. He maintained that he had been made to listen to a recording of a telephone conversation by the police and that as he had denied that he had held the conversation in question, he had been tortured. He described the treatment he had allegedly been subjected to in detail and denied the veracity of his police statements. He further submitted that he had not made any phone calls or given instructions when he had been in prison and that these allegations had been invented by the police. He contended that he knew neither his co-accused nor Ş.H. or H.H. During the hearing of 23 July 2002 the applicant’s co-accused also denied the veracity of their police statements, claiming that they had been forced to sign those statements by the police and that they had been ill-treated whilst in police custody. During the hearing, the medical report of 27 March 2002 issued by the Forensic Medicine Institute in respect of the applicant was read out. At the end of the hearing, noting that the applicant had lodged a formal complaint with the Fatih public prosecutor’s office requesting that his allegations of ill‑treatment be investigated, the Istanbul State Security Court decided to request information from the Fatih public prosecutor as to the outcome of the investigation.", "49. During the second hearing in the case, held on 24 September 2002, the applicant once again denied that he had made telephone calls while in prison. One of his lawyers contended that the police reports according to which the applicant had made telephone calls did not reflect the truth and requested his client’s release. At the end of the hearing, as the Fatih public prosecutor’s office had not sent the information requested on 23 July 2002, the first-instance court reiterated its request for information regarding the investigation into the applicant’s allegations of ill-treatment.", "50. During the third hearing on 12 December 2002 one of the applicant’s lawyers maintained that it would have been impossible for the applicant to possess a mobile phone whilst detained in an F-type prison. At the end of the hearing, the Istanbul State Security Court once again decided to request information from the Fatih public prosecutor’s office.", "51. On 11 March 2003 the fourth hearing in the case was held. During the hearing one of the applicant’s lawyers stated that the information requested from the Fatih public prosecutor’s office had been submitted and the investigation into the applicant’s allegations of ill-treatment was pending. However, the first-instance court neither noted that this document had been submitted nor read it out.", "52. During the same hearing, H.H., the son of the person whose abduction had allegedly been ordered by the applicant, made a statement before the trial court and submitted that neither of the accused had been involved in the attempted abduction. During the same hearing, the applicant’s lawyers contended that the only evidence against the applicant was the police statements of his co-accused, which had been obtained through ill‑treatment and the veracity of which had been denied by each of the accused.", "53. On 29 May 2003 the fifth hearing was held, during which the public prosecutor submitted his opinion on the merits of the case and the accused were asked to provide their observations on the public prosecutor’s opinion by the next hearing. During the hearing, the applicant submitted a petition to the first-instance court in which he submitted that he did not have a good relationship with his brother and claimed that he had been the victim of a conspiracy organised by a senior police director who was a friend of his brother. Finally, one of the applicant’s lawyers maintained that the investigation into the applicant’s allegations of ill-treatment was still pending.", "54. During the sixth and last hearing in the case, held on 18 July 2003, one of the applicant’s lawyers maintained that there was no evidence against the applicant in the case file other than the statements obtained under torture and that an investigation had been launched into the applicant’s allegations of torture by the Fatih public prosecutor. Another lawyer representing the applicant also made defence statements. He contended that the telephone tapping in question had been illegal and that there had not been a court order authorising it. He further noted that the police statements obtained from the applicant under torture could not be used as evidence.", "55. On the same day the Istanbul State Security Court rendered its judgment in the case. The applicant was convicted of leading an armed criminal organisation and of the abduction of Ş.H. and H.H. in order to obtain a ransom as charged and was sentenced to nine years, five months and ten days’ imprisonment. His conditional release in respect of his previous sentence was also revoked.", "56. In its judgment, the first-instance court found it established, in the light of the content of the case file as a whole, to which the court repeatedly referred in its reasoning, and the evidence in its possession (which included, inter alia, the following evidence: transcripts of telephone conversations allegedly held by the applicant, material evidence collected where the attempted abduction of Ş.H. and H.H. had occurred, witness statements, the applicant’s and the co-accuseds’ police statements, and statements made to the public prosecutor and a judge at the State Security Court on 27 March 2002), that the applicant had planned the attempted abduction of Ş.H. and had given instructions to two of his co-accused to carry out the abduction in telephone calls he had made using a mobile phone when he was in prison. This telephone had originally been used by other inmates in prison and had been tapped by the police. The police had found out that the applicant had also used it in order to give instructions to the members of his criminal organisation and had subsequently conducted an investigation into the applicant and his co‑accused. The first-instance court further noted that, after having assessed all the evidence in the case file, taking into account the legislation and the Court of Cassation’s case-law, it had come to the conclusion that the applicant and his co-accused had already formed a criminal organisation prior to the attempted abduction. The State Security Court therefore found, once again referring to the content of the case file, which included the applicant’s police statements, that the applicant was the leader of the criminal organisation in question and six other co-accused were members of that organisation.", "57. On 26 May 2004 the Court of Cassation upheld the judgment.", "58. Following the entry into force of the new Criminal Code in 2005, the Istanbul Assize Court reviewed the applicant’s conviction of 18 July 2003 and his sentence in the light of the provisions of the new Code. On 6 April 2006 the assize court amended the applicant’s sentence and imposed on him four years and three months’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. One of the applicant’s lawyers, A.K. Özcan, was present when the assize court pronounced its judgment.", "59. On 20 February 2007 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of 6 April 2006." ]

[ 3 ]

[ "5. The applicant was born in 1956 and is currently detained in Giurgiu Prison.", "6. For the last nine years the applicant had been convicted several times and he had been detained in various prisons. For certain periods of time he had been held in the Jilava and Rahova prison hospitals.", "7. On 1 November 2007 the applicant was convicted by the Arad County Court on two counts of robbery and theft and was sentenced to seven years’ imprisonment. The court also ordered the applicant’s committal to the psychiatric section of the Bucharest Jilava Prison Hospital until his recovery.", "8. In his application forms and letters sent to the Court since 2009, the applicant complained of the severe overcrowding he had had to endure in Galaţi Prison, where thirteen to fifteen detainees were held in a cell of between 20 and 24 sq. m, as well as in Rahova and Jilava Prisons.", "9. The applicant also alleged that the quality of food and drinking water had been very poor in these prisons, that he had not always been served a diet in accordance with his Muslim religious beliefs and that most of the time he had been starving as the portions had not been sufficient.", "10. In all three prisons hot water had only been provided for short periods of time in which there had not been enough time to brush his teeth. Furthermore, in Jilava Prison there had not been enough cold water provided.", "11. The applicant further alleged that, although he had no financial resources and had had no family to help him, the prison authorities in all three prisons had failed to provide him with the necessary clothes, toilet paper, soap or toiletries to brush his teeth.", "12. In Galaţi Prison the applicant was held for almost eight months in six different cells including in the infirmary and the “hunger strike” (refuz de hrană) cell. The cells in this prison are approximately 24 sq. m with a maximum of fifteen beds. The applicant shared the cells with a maximum of eleven other prisoners (2.1 sq. m of space per person, including the space occupied by beds and other furniture).", "13. Cold water was available at various intervals for a total of seven hours per day and was not available between 9 p.m. and 6:30 a.m. The quality of the drinking water was certified by the Galaţi Public Health Authority.", "14. The applicant received a diet in accordance with his religious beliefs and the composition of the daily menu was in line with the regulations.", "15. Toiletries were provided as the budget allowed. During the period of almost eight months that the applicant spent in Galaţi Prison he received the following: two tubes of toothpaste, six razors, four tubes of shaving cream, nine bars of poor quality soap, six rolls of toilet paper, two toothbrushes and washing powder.", "16. Throughout his detention in Galaţi Prison the applicant received no visits and was considered unfit for work. He did not have any income.\n(b) Rahova Prison", "17. The applicant was held in Rahova Prison for six months and four days. He was placed in cells measuring 21 sq. m which he shared with nine other prisoners (2.1 sq. m of space per person including beds and other furniture). The cells had bathrooms equipped with two sinks, a shower and a toilet. Cold water was constantly available and hot water was twice per week following a schedule.", "18. Food was prepared in accordance with the standards and regulations. Renovation of the food preparation and storage areas were under way when the Government’s observations were being submitted.", "19. The Government submitted that upon their placement in a detention facility, prisoners received one set of bed linen.", "20. Throughout his detention in Rahova Prison the applicant received no visits, was considered unfit for work and did not have any income.\n(c) Jilava Prison", "21. The applicant was detained in Jilava Prison for twenty-two days. For a few days he shared a cell measuring 40.28 sq. m with twenty-seven prisoners; there were thirty beds as well as other items of furniture (1.43 sq. m of space per person including beds and other furniture). This cell was equipped with two toilets and two sinks where cold water was constantly available. The rest of the time he was held in the infirmary where he had approximately 6 sq. m of personal space.", "22. Hot water was provided in common shower facilities according to a pre-established schedule for two hours on Mondays and Fridays for half of the prison and Tuesdays and Saturdays for the other half. In one of the infirmary wards, where the applicant spent fourteen days, two showers with hot water were available for up to seven prisoners, for the same periods as the general schedule (two hours per week).", "23. During the twenty-two days he spent in this prison, the applicant received one roll of toilet paper, a razor and one tube of shaving cream.", "24. The Government alleged that on 17 May 2013 the applicant also received clothing that he could use during his stay in this prison but they submitted no documents in support of this claim.", "25. The applicant received the “Muslim menu” in accordance with the internal regulations.", "26. The applicant had access to the exercise yard for six hours per day.", "27. Throughout his detention in Jilava Prison the applicant received no visits and did not have any income.", "28. On 11 June 2013 the applicant was transferred to Giurgiu Prison.", "29. The applicant lodged numerous complaints with the prison authorities or the post-sentencing judge outlining his dissatisfaction with the overcrowding, the poor quality of the drinking water or the quality and quantity of the food he received. He asked on several occasions to be placed in a single occupancy cell and to be given certain foods such as fried eggs or fried potatoes.", "30. These complaints were always rejected as being ill-founded.", "31. On 30 September 2009, the Bucharest District Court rejected with final effect the applicant’s complaint concerning the lack of adequate provision of drinking water in Jilava Prison, reasoning that this situation was a result of budgetary constraints. Another complaint lodged with the delegate judge while the applicant was being held in Rahova Prison has on its reverse side the note “Transferred”.", "32. The complaints about overcrowding were always solved with the conclusion that the assignment of detainees to sections and cells was a function of the prison’s administration and placement in individual cells was not possible and was not allowed by law.", "33. On several occasions the applicant complained to the post-sentencing judge that the food served in prison was of very poor quality and the portions were not adequate. All his complaints were rejected as ill-founded as the post-sentencing judge considered that the applicant’s allegations had been contradicted by the information submitted by the authorities of the prisons concerned.", "34. On 7 March 2013 while he was held in Rahova Prison the applicant requested one pair of shoes, two pairs of socks and one tracksuit. A note on the request says that it shall be examined depending on stocks, but there is no subsequent mention of whether the applicant received any of the items requested.", "35. On July 2009, following a dental examination in Rahova Prison Hospital, the applicant was diagnosed with periodontitis (I and II degree) and frontal, lateral and terminal edentulism. The doctor prescribed specific periodontitis treatment, a mobile prosthesis and a liquid or semi-liquid diet until the installation of the prosthesis.", "36. Since then, the applicant had been taken to see a dentist on numerous occasions upon his requests following bouts of inflammation of the gums or pain. He was consistently prescribed symptomatic treatment with antibiotic or anti-inflammatory drugs. On these occasions the doctors would repeat the prescription for a liquid or semi-liquid diet.", "37. In November 2009 the applicant was diagnosed with chronic generalised marginal periodontitis and was prescribed antibiotics, anti-inflammatory drugs and hygienisation of the oral cavity by a dentist within the prison system. On the same occasion he was also diagnosed with inflammation of the salivary glands and surgery was prescribed, which was performed on 28 March 2013.", "38. On 11 May 2010 the applicant was diagnosed with a duodenal ulcer and on 11 August 2011 with chronic gastroduodenitis.", "39. On 21 July 2011 during a medical examination in Galaţi Prison the applicant, who had been previously diagnosed with several personality disorders, was diagnosed as showing symptoms of paranoia; it was recommended that he be committed to the psychiatric section of the Poarta Albă Prison Hospital.", "40. Between 15 and 19 October 2012 the applicant was hospitalised for an acute inflammation of the salivary glands and generalised stomatitis. He was released with a prescription to eat liquid and semi-liquid food, to brush his teeth three times per day, to take antibiotics and to use mouthwash.", "41. The applicant had one tooth extracted on 29 November 2012.", "42. On 24 February 2014 the applicant was taken to the prison hospital with congestion and swelling of the gums. He was diagnosed with, among other conditions, chronic acute otitis, generalised stomatitis, chronic apical periodontitis, neurovegetative disorders, conjunctivitis and spondylosis.", "43. On several occasions the applicant was taken to prison hospitals or to the emergency unit of public hospitals with a broken nose or ribs after having been assaulted by other prisoners.", "44. Throughout his detention the applicant refused treatment with drugs or, on a few occasions, to be transported to Rahova Prison Hospital for conditions not related to his dental problems. In November 2011 the applicant, who was in a nervous state, refused to be seen by the prison dentist. On 3 February 2014 the applicant refused to have a tooth extracted.", "45. On 15 October 2009 the applicant complained before the prison authorities and the post-sentencing judge that he was not receiving the liquid and semi-liquid diet prescribed by the doctor. On 3 November 2009 the post-sentencing judge in Rahova Prison rejected the complaint, agreeing with the prison authorities that there was no prescription from a doctor for such a diet in the applicant’s medical file. Another similar complaint lodged by the applicant in January 2013 had been rejected by the post-sentencing judge for the same reason.", "46. On 21 May 2012, in August 2012 and on 10 September 2012 the applicant complained to the prison administration that he had toothache and that he could not eat as he had not been given a liquid diet, as requested. No replies to these complaints could be found in the applicant’s prison file submitted by the Government.", "47. In January 2013 the applicant complained before the post-sentencing judge of the poor quality of the food served in prison; the vegetables were undercooked; he received bones without meat. He further complained that he had not been given the liquid diet prescribed by the doctors and that he had thus constantly received food that he could not chew and eat. The prison administration averred before the judge that no special diet had been prescribed to the applicant by a doctor and that the food served in prison was in accordance with the regulations and within the limits of the budget of 4.06 Romanian lei per prisoner per day (approximately 1 euro). On 8 January 2013 the post-sentencing judge rejected the applicant’s complaint as ill-founded, considering that the food received by the applicant had been in accordance with the regulations and the budget.", "48. In March 2013 the applicant complained again before the post-sentencing judge. He alleged that, due to his dental problems, he could not eat the food served in prison. He mentioned that the meat was not cooked through and very often during transport he had received raw, unsliced bacon and biscuits that he could not eat. On 21 March 2013 the post-sentencing judge rejected the applicant’s complaint because the facts described by him had been refuted by the prison authorities. At that time, no doctor had prescribed that the applicant be given a liquid or semi-liquid diet. On 14 May 2013 the Bucharest District Court rejected this complaint with final effect holding that the prison menus were prepared and administered in accordance with the internal regulations and within the limits of the budget.", "49. On 16 and 25 June, 23 December 2013 and 12 and 24 March 2014 the applicant complained to the prison administration of toothache and requested treatment for his periodontitis. The authorities replied to these complaints that the doctor was on holiday and that an appointment would be scheduled in the future.", "50. According to the applicant, on 14 February 2013 when he was being transported to an infirmary outside the prison, he was ill-treated by a prison guard escorting him.", "51. Immediately after the incident the applicant lodged a criminal complaint against the prison guard for ill-treatment and abusive behaviour.", "52. On 27 November 2013 the Prosecutor’s Office of the Bucharest District Court issued a decision not to commence criminal proceedings in the case. According to a copy of the prison’s correspondence logbook, as submitted by the Government, the applicant received a copy of the decision on 12 December 2013.", "53. The applicant did not contest this decision before the superior prosecutor as provided for by the Criminal Procedure Code." ]

[ 1 ]

[ "7. The facts of the case, as submitted by the parties, may be summarised as follows.", "8. The applicant was born in 1977 in Uznach and lives in Rapperswil‑Jona, in the Canton of St Gallen.", "9. After originally training to be a hairdresser the applicant took up full‑time work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble.", "10. On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain.", "11. On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy.", "12. On 15 March 2005 the Office carried out a household assessment (Abklärung im Haushalt) at the applicant’s home, during which the applicant stated\n(i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children;\n(ii) that she would have to work half-time for financial reasons since her husband’s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR)).\nThe report on the assessment concluded that the applicant’s capacity to perform household tasks was reduced by 44.6%.\nIn its report dated 2 May 2005 the Office found that the applicant should be classified\n(i) as a person in full-time paid employment (Vollerwerbstätige) up to the end of 2003;\n(ii) as a housewife (Hausfrau) between January and May 2004;\n(iii) as a person theoretically capable of working 50% (zu 50 % hypothetisch Erwerbstätige) as of June 2004.", "13. On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half-time in a suitable occupation and that any increase in her working hours appeared to be ruled out.", "14. In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards.\nThe Office arrived at this result by the following means.\nWith regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant’s degree of disability at 50% on the basis of a calculation of her income.\nAs to the subsequent period, the Office considered that the so‑called combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant’s assertion that she felt able to work only half-time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant’s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit:\n50 % (paid employment): no loss of earnings0.5 x 0 % = 0 %\n50 % (household tasks and childcare): 0.5 x 44 % = 22 %\nTotal[1] = 22 %", "15. The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit.\nThis figure was obtained by applying the combined method, using the following parameters:\n50 % (paid employment): 0.5 x 10 % = 5 %\n 50 % (household tasks and childcare): 0.5 x 44 % = 22 %\nTotal[2] = 27 %\nIn completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socio‑professional category to which the applicant, as an auxiliary worker (Hilfsarbeiterin), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty (Valideneinkommen). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 (Invalideneinkommen). It therefore assessed the applicant’s degree of disability in respect of the “paid employment” component at 10%.", "16. On 14 September 2006 the applicant appealed against that decision.\nRelying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that\n(i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit;\n(ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay (Wechselwirkungen) between the “household” and “paid employment” components;\n(iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result.", "17. In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%.", "18. In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant’s appeal in part.\nIn a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court’s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems.\nThe Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court’s case‑law, did not take sufficient account of the person’s disability.\nAccording to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day.\nInstead of taking as a basis the household assessment – which, in the Insurance Court’s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant’s actual capacity to perform household tasks, which had been established by a doctor.\nThe court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children (Betreuungsaufwand) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant’s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only half‑time if she had been in good health, given her husband’s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also.\nConsequently, the Insurance Court remitted the case to the Office for further investigation.", "19. The Office lodged an appeal against the Insurance Court judgment.", "20. In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office’s appeal, finding that the applicant was not eligible for a benefit.\nIn its reasoning the Federal Court began by describing the context in which it viewed the case, stating that\n(i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred;\n(ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health;\n(iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health.", "21. Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows:\n“3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person’s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.”\nNevertheless, the Federal Court conceded that the interplay between the “household” and “paid employment” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found\n(i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%;\n(ii) that, accordingly, even taking the interplay in question into account, the applicant’s degree of disability did not reach the 40% minimum required in order to qualify for a benefit:\n50 % (paid employment): 0.5 x 10 % = 5 %\n 50 % (household tasks): 0.5 x (44 + 15 %) = 29.5 %\nTotal[3] = 34.5 %\nThe argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated.\nHowever, the Federal Court granted the applicant legal aid in view of her lack of means.\n..." ]

[ 8, 4 ]

[ "4. The applicants were born in 1975 and 1976 respectively and are currently serving their prison sentence in the Tekirdağ Prison.", "5. On 13 April 1998 the applicants were arrested on suspicion of membership of an illegal organisation. On 14 and 16 April 1998 respectively, the first applicant gave detailed police statements in the absence of a lawyer. On 15 April 1998, the second applicant was also interrogated by the police in the absence of a lawyer, and he used his right to remain silent.", "6. On 19 April 1998 both applicants were examined at the Istanbul Forensic Medicine Institute. According to the medical report, there was no trace of ill-treatment on their bodies.", "7. On the same day, still in the absence of a lawyer, the applicants were brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor and the investigating judge, both applicants gave statements, and the second applicant complained that he had been ill-treated in police custody. The investigating judge remanded the applicants in custody.", "8. On 30 April 1998 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.", "9. On 4 May 1998 the Istanbul State Security Court held a preparatory hearing. It decided that the applicants’ detention on remand should be continued. Between 6 July 1998 and 26 May 1999 the Istanbul State Security Court, composed of two civilian judges and a military judge, held seven more hearings. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge. Thereafter, the court held twenty more hearings. During the hearings, the applicants alleged that they were ill-treated under police custody.", "10. On 24 September 2003 the Istanbul State Security Court, which was composed of three civilian judges, found the applicants guilty as charged and sentenced them to life imprisonment under Article 125 of the Criminal Code. In convicting the applicants, the State Security Court had regard to the applicants’ statements to the police, the public prosecutor and the investigating judge respectively.", "11. On 24 March 2004 the Court of Cassation upheld the judgment of the Istanbul State Security Court. This decision was deposited with the Registry of the first instance court on 22 April 2004." ]

[ 3 ]

[ "4. The applicant was born in 1950 and lives in Vienna.", "5. On 29 January 2004 the applicant applied for rent allowance (Mietbeihilfe) under the Vienna Social Welfare Act (Wiener Sozialhilfegesetz).", "6. On 13 July 2004 the Vienna Municipal Authority (Magistrat der Stadt Wien) dismissed the applicant’s request, holding that the applicant was not eligible for rent allowance as his income exceeded the statutory limit (Richtsatzüberschreitung).", "7. The applicant appealed and complained that the Municipal Authority had failed to take into account his maintenance obligations towards his two sons.", "8. On 10 August 2004 the Vienna Regional Government (Amt der Wiener Landesregierung) dismissed the appeal, holding that maintenance obligations were, according to the Administrative Court’s case-law, not to be considered as income-reducing, as long as no enforcement proceedings were instituted against the applicant’s income.", "9. On 6 October 2004 the Constitutional Court granted the applicant’s request for legal aid in order to file a complaint against the Regional Government’s decision.", "10. On 8 November 2004 the applicant filed a complaint with the Constitutional Court, claiming in essence that the Regional Government had wrongly interpreted the Administrative Court’s case-law as regards the non‑consideration of the applicant’s maintenance obligations.", "11. On 1 March 2005 the Constitutional Court declined to deal with the applicant’s complaint, holding that it did not raise any questions of constitutional law and transferred the case to the Administrative Court.", "12. On 11 May 2005 the applicant submitted his amended complaint to the Administrative Court.", "13. On 23 February 2009 the Administrative Court dismissed the applicant’s complaint as unfounded. Referring to its case-law, it held that the applicant had failed to argue that he was in a state of emergency due to enforcement proceedings being conducted in connection to his maintenance obligations. It was therefore not unlawful that the Regional Government had refrained from taking into account the applicant’s maintenance payments when assessing his eligibility for rent allowance.", "14. This decision was served on the applicant’s counsel on 13 March 2009." ]

[ 3 ]

[ "4. The applicant company is a limited liability company which is registered in Austria and has its seat in Vienna.", "5. In 1998 the Federal Finance Minister made a public call for tenders concerning flight services for delegations of the Federal Government. The applicant company submitted an offer, but simultaneously complained that the public tender was tailored towards one specific tenderer, namely the L. company. It was therefore revoked.", "6. On 28 July 1998 an amended public call for tenders was issued. The applicant company did not submit an offer.", "7. Upon request, the applicant company was informed that the Federal Government decided on 8 October 1998 to award the contract to the L. company. The respective contract was concluded on 29 October 1998.", "8. On 19 October 1998, received by the Federal Procurement Authority (Bundesvergabeamt) on 27 October 1998, the applicant company requested to initiate review proceedings concerning the public call for tenders and to declare the awarding of the contract to the L. company null and void.", "9. On 4 January 1999 the Federal Procurement Authority rejected the applicant company’s request, holding that it had failed to show its legal interest in the public tender.", "10. On 2 March 1999 the applicant company filed a complaint with the Constitutional Court and asked it to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) on the question of the existence of a legal interest.", "11. On 10 December 2001 the Constitutional Court set aside the Federal Procurement Authority’s decision and held that it should have requested a preliminary ruling.", "12. On 14 May 2002 the Federal Procurement Authority therefore requested a preliminary ruling from the CJEU.", "13. On 12 February 2004 the CJEU issued a preliminary ruling, holding in essence that a person who did not participate in the public tendering proceedings due to an allegedly discriminatory call may still request their review.", "14. On 30 November 2004 the Federal Procurement Authority again rejected the applicant company’s request.", "15. On 10 January 2005 the applicant company filed a complaint with the Constitutional Court.", "16. On 26 September 2005 the Constitutional Court declined to deal with the applicant company’s complaint, holding that it did not raise any questions of constitutional law, and transferred the case to the Administrative Court.", "17. On 5 December 2005 the applicant company submitted its amended complaint to the Administrative Court.", "18. On 29 October 2008 the Administrative Court set aside the Federal Procurement Authority’s decision, holding that the applicant company had been eligible to file a request for review proceedings.", "19. On 2 July 2009 the applicant company filed a letter to the Auditor‑General’s Department (Finanzprokuratur), asking whether the Republic of Austria would be interested in reaching a settlement in this case, referring to the Federal Procurement Authority’s inactivity after the Administrative Court’s last decision and the fact that the proceedings have already lasted for over ten years.", "20. On 13 July 2009 the Auditor-General’s Department replied and requested the applicant company to specify their claims for compensation. It further stated that the applicant company could file an application against the Federal Procurement Authority’s failure to decide.", "21. On 22 September 2009 the applicant company filed an application with the Administrative Court against the Federal Procurement Authority’s failure to decide (Säumnisbeschwerde).", "22. On 30 September 2009 the Administrative Court requested the Federal Procurement Authority to issue, within three months, either a decision or to explain why it did not violate its duty to decide.", "23. On 8 October 2009 a meeting took place between the parties, but no settlement could be reached.", "24. On 22 December 2009 the Federal Procurement Authority issued its decision, finding that awarding the contract to the L. company in the public tender proceedings had not been unlawful.", "25. On 24 February 2010 the Administrative Court discontinued the proceedings concerning the applicant company’s application filed against the Federal Procurement Authority’s failure to decide as the latter had issued its decision on 22 December 2009, but awarded the applicant company the legal costs.", "26. On 1 February 2010 the applicant company filed a complaint with the Administrative Court.", "27. On 25 March 2010 the Administrative Court declined to deal with the complaint. It held that the impugned decision had not deviated from the Administrative Court’s case-law and that the complaint did not raise any legal questions of fundamental significance.", "28. This decision was served on the applicant company’s counsel on 8 April 2010." ]

[ 3 ]

[ "5. The applicant was born in 1959 and lives in Baku.", "6. The applicant is a mathematician and physicist who worked at the Academy of Sciences of the Republic of Azerbaijan from 1981 to 1993. He then became involved in the political and social life of the country. He also worked as editor-in-chief of the Talishi Sedo, a bilingual Azerbaijani-Talish newspaper, and was chairman of the Talish Cultural Centre. He has been chairman of the Committee for Rehabilitation of Detainees since 2009.", "7. At around noon on 21 June 2012, when the applicant was on his way home, six or seven plain-clothes police officers assaulted him near the Neftchilar metro station in Baku. Without showing their official identification, they restrained the applicant’s arms and began to hit him below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They handcuffed him and dragged him into their car, where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.", "8. The police officers did not inform the applicant of the reasons for his arrest. Indeed, the applicant did not even realise that he had been arrested by the police until he was taken to the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”).", "9. A search of the applicant was conducted at the NDMIA. According to the record (no. 7/32-130 dated 21 June 2012) of operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol) drawn up by a police investigator, the search was carried out from 1.45 to 2 p.m. on 21 June 2012 in the presence of the applicant, three police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 5 grams of a substance similar to heroin was found in his right trouser pocket.", "10. At 2 p.m. on 21 June 2012 a police investigator drew up a record of the applicant’s arrest.", "11. On the same day a search was carried out in the applicant’s flat without a court order. According to the search record, it was conducted from 6.10 to 7.55 p.m. on 21 June 2012 in the presence of the applicant, six police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer and the two attesting witnesses were the same persons who had previously participated in the search at the NDMIA. During the search, narcotic substances similar to heroin were found. The applicant made a written comment in the record that the narcotic substances did not belong to him.", "12. According to the applicant, on 21 and 22 June 2012 he was detained in handcuffs and was deprived of food and water.", "13. The Government submitted that on 21 June 2012, during the applicant’s arrest and afterwards at the police station, he was not subjected to torture or inhuman or degrading treatment by the police.", "14. On 22 June 2012 the applicant was charged under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code.", "15. On the same day the Nizami District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered the applicant’s detention for a period of three months. The court justified the applicant’s detention pending trial by the gravity of the charge, the fact that the applicant was charged with a criminal offence punishable by more than five years’ imprisonment, and the likelihood that if released he might abscond from the investigation.", "16. On 14 August 2012 the Baku Court of Appeal upheld the detention order of 22 June 2012.", "17. In the meantime, on 3 July 2012 the applicant was charged with new criminal offences under Articles 274 (high treason) and 283.2.2 (incitement to ethnic, racial, social or religious hatred and hostility) of the Criminal Code.", "18. On 17 August 2012 the applicant applied to the Nasimi District Court to be placed under house arrest instead of pre-trial detention. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention.", "19. On 1 September 2012 the Nasimi District Court dismissed the application as unsubstantiated.", "20. On 10 September 2012 the Baku Court of Appeal dismissed an appeal lodged by the applicant. It found that if he was placed under house arrest, the applicant might abscond from the investigation and obstruct the investigation by influencing those involved in the proceedings.", "21. On 15 September 2012 the Nasimi District Court extended the applicant’s pre-trial detention for a period of four months.", "22. On 20 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 15 September 2012.", "23. On 27 September 2013 the Baku Assize Court found the applicant guilty on all counts and sentenced him to five years’ imprisonment.", "24. On 25 December 2013 the Baku Court of Appeal upheld this judgment. It was further upheld on 25 June 2014 by the Supreme Court.", "25. At 8.30 p.m. on 21 June 2012 an investigator at the Nizami District Police Office questioned the applicant as a suspect. It appears from the record of the questioning that the applicant complained of ill-treatment during his arrest by the police. He stated in this connection that on his way home at around noon on 21 June 2012 near the Neftchilar metro station in Baku, two cars stopped next to him and six or seven plain-clothes police officers assaulted him. They dragged him into one of the cars without showing their official identification and began to beat him up. He did not realise that he had been arrested by the police until he was taken to the NDMIA. The applicant further stated that the narcotic substances found on him and in his flat had been planted by the police. He pointed out that his arrest was related to his political and social activities, as he was editor‑in‑chief of the Talishi Sedo newspaper and was involved in defending political prisoners’ human rights.", "26. On the same day the investigator ordered a forensic examination of the applicant.", "27. On 22 June 2012 the applicant was examined by a forensic expert. His report (no. 554 dated 23 June 2012) stated that the applicant had complained of having been beaten up by the police during his arrest on 21 June 2012. The expert noticed abrasions on the applicant’s left calf and right thigh, and concluded that they could have been inflicted on 21 June 2012. The relevant part of the forensic report reads as follows:\n“Questions addressed to the forensic expert: 3. On which part of the body, in which circumstances and with which instrument were the injuries inflicted? Could these injuries have been sustained as a result of an assault? 2. There are two abrasions (sıyrıq), measuring 1.7x0.5 cm and 1.8x0.2 cm, 4 cm apart, on the middle of the outer side of the left calf (baldır). The surface of the abrasions is covered with a red scab and is situated below the level of healthy skin tissue. There is an analogical abrasion, measuring 1.0x0.1 cm, on the middle of the outer side of the right thigh (bud). No other injuries were noticed on the body.\n Conclusion\nRelying on the forensic examination of H. Mammadov, born in 1959 and the initial information, and in reply to the questions addressed in the decision, I conclude as follows: 2. The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted in the circumstances and at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.”", "28. The applicant was not provided with a copy of the forensic report.", "29. It appears from the case file that on 22 June 2012 the applicant’s complaint of ill-treatment was transferred to the Nizami District Prosecutor’s Office.", "30. On 29 June 2012 an investigator at the Nizami District Prosecutor’s Office questioned the applicant about his ill-treatment by the police. The applicant reiterated his previous statement, pointing out that at around noon on 21 June 2012 he had been beaten up during his arrest by six or seven plain-clothes police officers. He further stated that these police officers had also participated in the search at the NDMIA on 21 June 2012 and that the name of one of them was Q.", "31. It appears from the documents submitted by the Government that on 31 July 2012 the Head of the Serious Crimes Department of the Prosecutor General’s Office asked the Deputy Prosecutor General to order the examination of the applicant’s complaint of ill-treatment received by the Nizami District Prosecutor’s Office.", "32. On 6 and 9 August 2012 an investigator at the Prosecutor General’s Office separately questioned four police officers, including Q., who had participated in the arrest and search. The wording of their statements was identical. They each claimed that they had not used physical force against the applicant during his arrest.", "33. On 13 and 14 August 2012 the investigator separately questioned three police officers who had been on guard duty at the temporary detention centre when the applicant had been taken there following his arrest. Their statements were also identical, each claiming that, when the applicant had been taken to the temporary detention centre, he had not complained of ill‑treatment.", "34. On 15 August 2012 the applicant was questioned by the investigator and reiterated that he had been beaten up during his arrest. In reply to the investigator’s question concerning the fact that the police officers who had participated in his arrest had denied the allegation of ill-treatment, the applicant stated that they had lied in their statements.", "35. On the same day the investigator examined the clothes that the applicant had been wearing on the day of his arrest. The investigator found that the clothes were not damaged.", "36. On 17 August 2012 the investigator ordered an additional examination of the applicant by a forensic commission. In particular, he asked the experts to establish whether the injuries found on the applicant’s body could have resulted from his body coming into contact with “sharp parts of the vehicle” (avtomobilin çıxıntı hissələri) during his arrest.", "37. On 23 August 2012 the applicant was examined by two experts who issued forensic report no. 213 on 24 August 2012. According to the forensic report, the applicant complained of having been beaten up during his arrest on 21 June 2012. The experts confirmed the existence of injuries on the applicant’s body, but concluded that they had resulted from the applicant’s body coming into contact with “angular protruding parts of the vehicle” (avtomobilin qabarıq tinli hissələri) during his arrest. The relevant part of the forensic report reads as follows:\n“Information about the case:\n... 2. There is brown-grey pigmentation in the shape of a strip, measuring 1.4x0.3 cm, on the middle of his outer left calf. No injury or trace of injury was noticed on other parts of his body.\nConclusion\nRelying on the forensic examination of H. Mammadov, born in 1959, the facts indicated in the descriptive part of the decision, the observations indicated in forensic report no. 554 in respect of him and in reply to the questions addressed in the decision, the commission of experts concludes as follows: 1. There are two abrasions on the middle of the outer side of his left calf and one abrasion on the middle outer side of his right thigh. 2. The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health. 3. Taking into consideration the characteristics (morphological particularities) and location of the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov, and the fact that such injuries could not have been inflicted by another person or other persons in the passenger compartment of a car, it is refuted that these injuries could have been inflicted in the circumstances described in the statement of H. Mammadov. 3.1. It therefore results from the above-mentioned observations that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. 4. No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s explanation and statements that he was beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.”", "38. The applicant was not provided with a copy of forensic report no. 213.", "39. On 27 August 2012 the Deputy Prosecutor General refused to institute criminal proceedings in connection with the applicant’s complaint of ill-treatment. The prosecutor concluded that it had not been established that the applicant had been beaten up during his arrest. In this connection, he relied on the conclusions of the forensic report of 24 August 2012, the statements from four police officers who had participated in the applicant’s arrest and from three police officers who had been on guard duty at the temporary detention centre on 21 June 2012. The relevant part of the decision reads as follows:\n“Q. also stated that when they arrested H. Mammadov on the territory of the Nizami District they had shown their official identification and had not used any violence against him.\nThe police officers of the NDMIA (A.X., C.M. and Q.H.) who had been questioned during the inquiry made statements similar to that of Q., pointing out that H. Mammadov had not been subjected to violence during his arrest and search.\n...\nIt appears from forensic report no. 554 dated 23 June 2012 issued by ... that H. Mammadov sustained abrasions on his left calf and right thigh. Their degree of gravity has not been determined because they are not injuries causing harm to health.\nOn 17 August 2012 a decision ordering an additional commission forensic examination was adopted. It appears from forensic report no. 213 dated 24 August 2012 in respect of H. Mammadov issued by ... that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s statement that he had been beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.\n...\nAfter having comparatively analysed the facts of the case with the material collected during the inquiry, I therefore conclude that the allegations of H. Mammadov ... that the injuries found on his body were caused on 21 June 2012 when he was beaten up and was subjected to physical force during his arrest by police officers are not proven.\nAccordingly, as the allegations that H. Mammadov was beaten up and subjected to physical force during his arrest by police officers of the NDMIA are not proven, no criminal act was committed. In accordance with Article 39.1 of the Code of Criminal Procedure, institution of criminal proceedings should be refused.”", "40. It appears from the document submitted by the Government that the investigator in charge of the case sent a copy of the prosecutor’s decision of 27 August 2012 to the detention centre where the applicant was detained at that time. Although the document was signed by the investigator, it was not dated. Moreover, the date on which it was sent was not indicated on the document.", "41. In the meantime, on 6 July 2012, having received no response from the investigating authorities concerning his complaint of ill-treatment, the applicant lodged a complaint with the Nasimi District Court concerning the investigating authorities’ failure to investigate his complaint of ill-treatment. The applicant asked the court to find a violation of his right protected under Article 3 of the Convention.", "42. In support of his complaint, he submitted that on 21 June 2012, without showing their official identification, six or seven plain-clothes police officers had assaulted him near the Neftchilar metro station in Baku. They restrained his arms and began to strike him in below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They then dragged him into their car where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.", "43. On 29 August 2012 the Nasimi District Court dismissed the applicant’s complaint. The court held that a criminal inquiry had already been carried out in respect of the applicant’s complaint of ill-treatment and by a decision of 27 August 2012 the Deputy Prosecutor General had refused to institute criminal proceedings. The court further held that as the prosecutor’s decision was still in force, it could not deliver a new decision in this connection. The applicant could, however, lodge a complaint against the prosecutor’s decision of 27 August 2012.", "44. Following the delivery of the Nasimi District Court’s decision of 29 August 2012, the applicant learned about the existence of the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings in respect of his complaint of ill-treatment. The court also provided him for the first time with copies of the forensic reports of 23 June 2012 and of 24 August 2012.", "45. On 14 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 29 August 2012.", "46. On an unspecified date in October 2012 the applicant lodged a complaint with the court against the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings. He reiterated his previous complaints concerning his ill-treatment by the police during his arrest and complained about the ineffectiveness of the criminal inquiry. In this connection, he disputed the conclusions of the additional forensic report of 24 August 2012. He asked the court to quash the prosecutor’s decision and declare it unlawful. He also asked the court to hear the experts who had conducted his forensic examinations and the police officers who had participated in his arrest.", "47. On 8 November 2012 the Sabail District Court dismissed the applicant’s complaint, finding the prosecutor’s decision justified. The court, however, made no mention of the applicant’s particular requests that it hear the experts and the police officers. The relevant part of the decision reads as follows:\n“Having examined the allegations that the complainant H. Mammadov was subjected to ill-treatment by police officers during his arrest and that he was beaten up and subjected to degrading treatment when he was taken to the NDMIA, the court considers that a thorough investigation in this respect was conducted by the Prosecutor General’s Office of the Republic of Azerbaijan in accordance with the current legislation and the requirements of the international treaties. All possible measures were taken during this investigation; the persons who had been involved in the complainant’s arrest and had been in contact with him immediately after his arrest were questioned; a forensic examination and an additional commission forensic examination were carried out; however, the collected material did not prove the allegations indicated in the complaint.\nIn these circumstances, the court considers that it was not possible to collect sufficient evidence which could constitute the basis for instituting criminal proceedings in connection with the injuries sustained by H. Mammadov on 21 June 2012.\nTherefore, taking into consideration the collected material and the evidence examined at the court hearing, the court considers that the decision of 27 August 2012 refusing to institute criminal proceedings adopted within his competence by the Deputy Prosecutor General of the Republic of Azerbaijan ... was justified and H. Mamadov’s application for its quashing should be dismissed.”", "48. On an unspecified date the applicant appealed against that decision, reiterating his previous complaints.", "49. On 19 November 2012 the Baku Court of Appeal upheld the first‑instance court’s decision. The appellate court’s decision was identical in its wording to the Sabail District Court’s decision of 8 November 2012.", "50. It appears from the applicant’s observations submitted to the Court in reply to the Government’s observations that the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations (“the Working Group on Arbitrary Detention”) delivered its opinion no. 59/2013 concerning the applicant’s pre-trial detention on 22 November 2013. The relevant part of the opinion reads as follows:\n“2. The Working Group regards deprivation of liberty as arbitrary in the following cases:\n(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to the detainee) (category I);\n(b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);\n(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);\n(d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV);\n(e) When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).\nSubmissions\nCommunication from the source 4. Hilal Mammadov, born in XXXX in Astara Rayon, Azerbaijan, is an Azerbaijani journalist and a defender of minority rights. Since 9 June 2012, he has been the editor‑in-chief of the Baku-based newspaper Tolishi Sado (The Voice of Talysh), the only newspaper printed in the minority Talysh language. 6. On 21 June 2012, Mr. Mammadov was arrested by the Nasimi District Police pursuant to article 234.4.3 of the Criminal Code of Azerbaijan in relation to illegal manufacture, purchase, storage, transfer, transport or sale of drugs in a large quantity. According to the source, the authorities alleged that they had seized five grams of heroin from his person, and approximately 30 grams from his place of residence. 7. On 22 June 2012, the Nasimi District Court (Baku City) sentenced Mr. Mammadov to three months’ detention. Mr. Mammadov appealed the sentence and requested to be permitted to serve the term under house arrest. On 10 September 2012, the Baku Appeal Court upheld the original decision, denying him provisional release. Mr. Mammadov remains in detention to this day.\n... 17. On 28 November 2012, Mr. Mammadov’s lawyers reported that, following the completion of the investigation into the criminal charges against him, Mr. Mammadov was charged under article 274 (high treason), article 283.2.2 (incitement to national, racial or religious hostility) and articles 234.4.3 (illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics and psychotropic substances) of the Criminal Code. 18. On 21 December 2012, the hearing of Mr. Mammadov’s criminal charges was reportedly transferred to the Baku Grave Crimes Court. A preparatory session defining the procedural issues of the case took place on 9 January 2013. On that date, Mr. Mammadov’s lawyer reportedly submitted two motions: one requesting an audio‑visual recording of the hearing; and another requesting that his client be allowed to sit beside his lawyer rather than behind secure bars. The source informs the Working Group that both motions were rejected. 19. The source was informed by the Human Rights Centre of Azerbaijan that Mr. Mammadov had been beaten and injured by his cellmate in a Kurdakhani prison on 26, 28 and 29 November 2012. The source reports that Mr. Mammadov was placed in the cell two weeks prior to the attacks. Mr. Mammadov’s lawyers had requested on several occasions that he be removed from the cell as his cellmate’s behaviour was aggressive to the point of preventing him from sleeping at night. Those requests were all ignored. On 29 November 2012, his cellmate was transferred to the medical unit of the prison hospital for treatment of his reportedly severe mental illness. 20. The source considers the ongoing harassment of Mr. Mammadov as an attempt to silence his efforts to report on human rights violations. The source points out that Mr. Mammadov’s arrest came shortly before the first edition of the Tolishi Sado newspaper under his authority as editor-in-chief was due to be published (at the end of June 2012). He was arrested after posting music and a video clip on the Internet which attracted attention to the Talysh culture. 21. The source submits that Mr. Mammadov faces imprisonment sentences ranging up to life for trumped-up charges brought against him successively in June and July 2012, and most recently in November 2012. 22. The source signals its concern with regard to Mr. Mammadov’s conditions of detention in the light of the fate that befell Novruzali Mammadov, the former editor‑in-chief of the Tolishi Sado newspaper, who was allegedly subjected to similar acts of harassment and arbitrary detention in 2007, and who died in custody on 17 August 2009. 23. The source concludes that the detention of Hilal Mammadov is arbitrary and considers it an obvious attempt to silence his efforts to report on human rights violations. Furthermore, his rights to legal protection have been violated. 24. The source further expresses its fears for the physical and psychological integrity of Mr. Mammadov.\nResponse from the Government\n...\nDiscussion 61. The Working Group was informed that Mr. Mammadov has been sentenced to five years in prison for criminal offences relating to “illegal selling of drugs”, “high treason” and “incitement to national, racial, social and religious hatred and hostility” under articles 234.4.3, 274 and 283 respectively of the Criminal Code of the Republic of Azerbaijan. 62. The source alleged that the authorities fabricated the case against Mr. Mammadov due to his human rights work and support for the minority Talysh population. 63. The source informed the Working Group that Mr. Mammadov was a consultant with the Institute for Democracy and Peace and editor-in-chief of Tolishi Sado, the only newspaper in the minority Talysh language in Azerbaijan. Mr. Mammadov was also head of the Committee for the Defence of Novruzali Mammadov, a prominent Talysh scientist and human rights activist and former editor-in-chief of Tolishi Sado, who was charged in June 2008 with espionage, subsequently sentenced to 10 years of imprisonment, and who died in prison in 2009. 64. Hilal Mammadov was arrested on 21 June 2012 for alleged possession of heroin. On 3 July 2012 and 23 November 2012, he was also charged with treason and incitement of national, racial, social and religious hatred and hostility. His hearing in the Baku Grave Crimes Court began on 29 January 2013; he was convicted of the charges brought against him and sentenced on 27 September 2013. 65. In its response, the Government set out the case for the prosecution and the court’s judgment. However, the Working Group is of the view that the Government did not provide a satisfactory explanation as to the allegations put forward by the source concerning the arbitrary character of the charges against Mr. Mammadov and his subsequent conviction. 66. The information provided by the source and the Government to the Working Group indicates that the charges of treason and incitement of national, racial, social and religious hatred and hostility are based on Mr. Mammadov’s legitimate exercise of the right of freedom of expression under article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights. As such, the Working Group considers that the deprivation of liberty of Hilal Mammadov falls within category II of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it. 67. Furthermore, the Working Group is of the view that the response from the Government does not adequately address the source’s allegations of ill-treatment to which Mr. Mammadov has been subjected in detention, its concerns for his health, nor the groundless rejection of his application for an audio-visual recording of the hearing. 68. The Working Group finds that these violations of international law relating to the right of a fair trial are of such gravity as to give the deprivation of liberty of Hilal Mammadov an arbitrary character. As such, the Working Group considers that Mr. Mammadov’s detention falls within category III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.\nDisposition 69. In the light of the foregoing, the Working Group on Arbitrary Detention renders the following opinion:\nThe detention of Hilal Mammadov is arbitrary, being in contravention of articles 9, 11 and 19 of the Universal Declaration of Human Rights and articles 9, 12 and 19 of the International Covenant on Civil and Political Rights. It falls within categories II and III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it. 70. Consequent upon the opinion rendered, the Working Group requests the Government of Azerbaijan to remedy the situation of Mr. Mammadov and bring it into conformity with the standards and principles set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 71. Taking into account all the circumstances of the case, the Working Group is of the view that the adequate remedy would be to immediately release Mr. Mammadov and accord him an enforceable right to compensation in accordance with article 9, paragraph 5, of the International Covenant on Civil and Political Rights.”", "51. The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated to Law Office no. 6 in Baku.", "52. In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at the court hearings held in September 2014 before the Shaki Court of Appeal within the criminal proceedings against I.M.", "53. On 10 December 2014 the Collegium of the ABA held a meeting at which it examined the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system: “Like State, like court ... If there were justice in Azerbaijan, Judge R.H. would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim R.H. ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi”). On the same day the Collegium of the ABA decided to refer Mr Bagirov’s case to a court with a view to his disbarment. It also decided to suspend his activity as an advocate (vəkillik fəaliyyəti) pending a decision by the court.", "54. It appears from documents submitted to the Court that, following the suspension of Mr Bagirov’s activity as an advocate, the domestic authorities no longer allowed him to meet the applicant in the prison.", "55. On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with his six clients held in detention, including the applicant. He specified in his letter that he was the representative of those individuals before the Court and requested a meeting with them in connection with their pending cases before the Court. The relevant part of the letter reads as follows:\n“I am writing to inform you that I represent before the European Court of Human Rights the following persons who are detained in the penal facilities and temporary detention centres under your authority.\nI ask you to allow a meeting with these persons in connection with the progress of their cases based on their applications (the numbers of the applications are mentioned below) lodged with the European Court. 1. Mammadov Hilal Alif oglu (penal facility no. 17; application no. 81553/12)\n...\nAttachment: Copies of the letters from the European Court and the Azerbaijani Government concerning these persons.”", "56. A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office.", "57. By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in the prison. The relevant part of the letter reads as follows:\n“Your request for the organisation of a meeting in the penal facilities and detention centres with the persons detained in the penal facilities and the convicted inmates in order to provide them with advocacy services has been examined.\nIt is explained that, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and that you can no longer practise as an advocate in court and investigation proceedings from that date, it is impossible to grant you access to the penal establishments as counsel.”" ]

[ 1 ]

[ "5. The applicant was born in 1960 and lives in the village of Karakert, Armenia.", "6. The applicant has been a member of an opposition political party, the National Democratic Union, since 1995. Since 1997 he has headed the party’s local offices in the Baghramyan area.", "7. In March and April 2004 a series of protest rallies were organised in Yerevan by the opposition parties who voiced their criticism of the alleged irregularities which had taken place during the presidential election of February-March 2003 and challenged the legitimacy of the re-elected President. It appears that the applicant participated in these rallies. He alleged that the authorities retaliated by arresting, harassing and searching opposition supporters.", "8. On 10 April 2004 at 5.10 p.m. the applicant was arrested and taken to a police station where an administrative case was initiated against him for disobeying the lawful orders of police officers.", "9. On the same date the Armavir Regional Court sentenced the applicant to ten days’ administrative detention.", "10. The running of the ten-day administrative sentence was to be calculated from 10 April 2004 at 5.10 p.m. The applicant was taken to a detention facility in the town of Ejmiatsin where he served his sentence.", "11. On 20 April 2004 at an unspecified hour, the Armavir Regional Court examined and granted an investigator’s motion, which had apparently been lodged on the same date, seeking to have the applicant’s home searched. The judicial warrant stated:\n“The investigating authority has found it substantiated that on 27 March 2004 at around 12 noon the residents of the village of Myasnikyan of the Armavir Region [K.K. and B.K.] inflicted violence dangerous for health in the pasture located in the administrative area of Lernagogh village in the Armavir Region on representatives of the authorities performing their official duties, [namely] the head of Lernagogh village [S.M.] and head of staff of the Village Council [A.M.]. According to operative information, [B.K. and K.K.] had a weapon during the incident[. F]or the purpose of hiding the mentioned weapon, they gave it to the resident of Karakert village, member of the Union of Yezidis of the Baghramyan area, [the applicant], who may have hidden the mentioned weapon in one of his homes in Karakert village.\nOn 27 March 2004 the Armavir Regional Prosecutor’s Office instituted criminal proceedings no. 65200604 ... concerning this fact.\nIn view of the fact that the facts of the criminal case provide sufficient grounds to believe that an illegally possessed weapon and ammunition may be found in [the applicant’s] home situated in Karakert village in the Armavir Region, as well as other objects and valuables having significance for the criminal case, the court therefore finds that the motion is well-founded and must be granted.”", "12. It was stated in the warrant that it could be contested within 15 days before the Criminal and Military Court of Appeal.", "13. The applicant alleged that on that day, several hours before the expiry of his administrative sentence, he was taken from the Ejmiatsin detention facility to the Baghramyan Police Department. From there he was escorted home by at least ten police officers.", "14. According to the search record, the search was conducted from 5.10 p.m. to 6.55 p.m. by seven police officers of the Baghramyan Police Department, E.M., B.M., M.G., A.Ge., S.M., G.E. and A.Ga. Two neighbours, G.G. and M.S., were asked by the head of the police team to participate in the search as attesting witnesses. The applicant was asked to surrender the illegal weapon allegedly hidden in his house. The applicant stated that he had no illegal objects at home. As a result of the search, a plastic bag containing a cannabis-like herb was found in the boiler situated in the hallway. The applicant stated that he did not know what it was and who it belonged to. It was mentioned at the end of the record that the applicant had refused to sign the record without providing any reasons.", "15. According to the applicant and the statements of the two attesting witnesses which were appended to the application form, the search was conducted in the following manner. Upon his return home, accompanied by police officers, the applicant found his pregnant wife in a critical condition, apparently suffering a miscarriage, and his one-year-old son crying beside her. On seeing him, the applicant’s wife fainted. A doctor was called and a number of female neighbours came to help. At that point the head of the police team informed the applicant that his house was to be searched, briefly showing him the relevant search warrant. The applicant alleged that attesting witnesses G.G. and M.S. were asked to participate only after the search had already begun. It appears that G.G. was a war veteran who had suffered concussion and was seriously disabled, while M.S. was seventy‑four years old. The search was conducted by more than ten police officers who also used two specially trained dogs. Having searched the house and not found anything, the police officers started searching the yard and the adjacent buildings. The applicant alleged that during the search of the outside premises, the front door of his house was left open and people, including police officers, were coming and going. Moreover, a group of police officers was standing by the front door while the others continued the search. Having found nothing outside the house, the head of the police team announced that they would again search inside the house, to which attesting witness G.G. objected. Following the additional search the police officers found the above-mentioned plastic bag. The attesting witnesses submitted that their objections were not recorded. Moreover, they were persuaded and bullied by the police officers to sign the search record.", "16. The applicant alleged that he was taken back to the police station where the chief of police promised that, if he renounced his political convictions and resigned from the party, no further action would be taken in relation to the cannabis. The applicant refused to make such a deal.", "17. The applicant further alleged that he was kept at the police station overnight. There he was given a meal, including a hamburger. About 15 to 20 minutes after having eaten the meal he felt sick, started vomiting and lost consciousness. An ambulance was called and some injections were administered. According to the applicant, his meal had been laced with a drug.", "18. On 21 April 2004 criminal proceedings were instituted against the applicant under Article 268 § 2 of the Criminal Code on account of illegal drug possession. On the same date at 11.18 p.m. the applicant was formally arrested.", "19. On the same date the investigator decided to subject the applicant to a forensic toxicological examination. The applicant alleged that he did not receive a copy of this decision. He was taken to the Republican Centre for Narcotics where a urine sample was taken.", "20. It appears that on the same date, a lawyer was engaged in the case. It further appears that the applicant was questioned and denied the drug possession allegations.", "21. On an unspecified date the plastic bag and the herbal substance, weighing approximately 59 grams, were examined by a forensic expert and the substance was found to be cannabis.", "22. On 23 April 2004 the applicant was formally charged with illegal drug possession and detained by a court order.", "23. On the same date, a toxicological expert opinion was produced, according to which the applicant’s urine sample contained traces indicating cannabis consumption.", "24. On the same date the lawyer filed a motion with the Armavir Regional Prosecutor seeking to stop the prosecution on the ground that, inter alia, the search had been conducted with numerous procedural violations. A similar complaint was lodged on 27 April 2004.", "25. According to the applicant, on an unspecified date his lawyer requested a further examination of the cannabis and the plastic bag by a forensic expert. This request was rejected. He further alleged that, during the investigation, the police officers put pressure on the two attesting witnesses not to attend confrontations which had apparently been requested by the applicant.", "26. On 7 May 2004 the applicant’s lawyer applied to the Armavir Regional Prosecutor, challenging the investigator’s impartiality and complaining in detail about the unlawful manner in which the search had been executed, alleging, inter alia, that the bag containing cannabis had been planted by the police officers conducting the search.", "27. On 9 June 2004 the applicant’s lawyer complained to the Armavir Regional Prosecutor that the search warrant had lacked proper grounds and that the search had been conducted with numerous procedural violations. The lawyer argued that the investigator had failed to obtain any evidence when investigating his allegations of irregularities. Such evidence could have been obtained by questioning the applicant’s neighbours and the doctor who had provided first aid to his wife, who had been present during the search, and by holding confrontations between the applicant and the attesting witnesses.", "28. On an unspecified date the applicant’s criminal case was brought before the Armavir Regional Court.", "29. It appears that, in the proceedings before the Regional Court, the applicant’s lawyer filed a motion seeking to exclude the results of the search as unlawfully obtained evidence. It further appears that the Regional Court did not take any decision on this motion.", "30. Attesting witnesses M.S. and G.G. both testified before the trial court. In reply to the questions put by the applicant’s lawyer M.S. stated, inter alia, that he and G.G. were watching the police officers as much as they could while entering and going out of the rooms together with the police officers. When giving his account of the events G.G. stated among other things that he helped one of the police officers to reach the water boiler from which a plastic bag and a plate were taken out. He further stated that both the plastic bag and the plate were covered with dust. However, the plate was dustier compared to the plastic bag. Both M.S. and G.G. stated that they did not remember whether they were informed of their right to have the objections that they might have included in the search record and that the applicant refused to sign it stating that the discovered bag did not belong to him.", "31. On 22 June 2004 the Armavir Regional Court found the applicant guilty as charged and sentenced him to one and a half years’ imprisonment. In doing so, the Regional Court relied on, inter alia, the witness testimony of the police officers who had conducted the search, including E.M., A.Gh., M.G., M.M., L.F. and A.Ga., and of the two attesting witnesses, as well as the results of the analysis of the applicant’s urine sample.", "32. On 29 June 2004 the applicant’s lawyer lodged an appeal. The lawyer argued, inter alia, that the search of the applicant’s home had been conducted with a number of procedural violations and therefore its results could not be used as evidence. In particular, he claimed that the search warrant was not presented to the applicant to get acquainted with it, no signature was obtained from him in this respect and that his objections were not included into the record of the search. He further argued that the search had been authorised by the court on the basis of fabricated police materials and therefore lacked any valid grounds. He also submitted that, according to the Code of Criminal Procedure, the Regional Court should not have relied on the testimony of the police officers, since they had been summoned and examined solely in connection with the performance of their procedural duties and not in connection with the irregularities alleged by the applicant. Furthermore, the Regional Court had failed to take into account the submissions of the attesting witnesses which confirmed the applicant’s allegations of irregularities.", "33. On 10 August 2004 the Criminal and Military Court of Appeal upheld the applicant’s conviction finding, inter alia, that no significant procedural violations had taken place during the investigation of the case. The Court of Appeal relied on the same evidence, except for the testimony of the police officers.", "34. No appeal was lodged against this judgment within the ten-day statutory time-limit, so it became final.", "35. On 6 September 2004 the applicant was released on parole.", "36. On 15 November 2004 an advocate holding a special licence lodged an appeal on points of law on behalf of the applicant against the final judgment of the Court of Appeal. He requested that the judgment of the Court of Appeal be quashed and the case be remitted for further investigation due to the procedural violations taken place during the investigation, including the execution of the search.", "37. On 10 December 2004 the Court of Cassation examined the appeal on the merits and decided to dismiss it finding that, inter alia, no significant violations of the procedural law had taken place which required the case being remitted for further investigation." ]

[]

[ "5. The applicant was born in 1946 and is currently in detention in Regensdorf.", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. By a judgment of 4 July 2003, the Court of Appeal (Obergericht) of the Canton of Zürich sentenced the applicant to four years and four months’ imprisonment for multiple sexual acts with minors and multiple acts of sexual coercion.", "8. On 1 March 2010 the Court of Appeal suspended the execution of the custodial sentence, replacing it with preventive detention (Verwahrung) designed to prevent the applicant from reoffending.", "9. On 6 December 2011 the applicant requested exemption from the requirement to work in the context of custodial sentences and measures. On 19 March 2012 the Judicial Enforcements Office of the Canton of Zürich refused his request.", "10. By a decision of 29 May 2012, the competent authority of Pöschwies Prison placed the applicant under a stricter prison regime, confining him to his cell, and confiscated his television and computer for fourteen days on account of his refusal to work. That decision was revoked on 31 July 2012 by the Directorate of Justice and Internal Affairs following an appeal by the applicant.", "11. By a decision of 20 June 2012, the Directorate of Justice and Internal Affairs of the Canton of Zürich dismissed an appeal by the applicant against the decision of 19 March 2012.", "12. On 10 January 2013 the Administrative Court of the Canton of Zürich dismissed an appeal by the applicant against the decision of 20 June 2012.", "13. On 15 February 2013 the applicant appealed to the Federal Court, arguing in particular that Articles 74, 75 and 81 of the Criminal Code had been wrongly applied, and alleging a violation of his human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution (see paragraphs 15-17 below).", "14. In judgment 6B_182/2013 of 18 July 2013 (ATF 139 I 180), which was notified to the applicant on 31 July 2013, the Federal Court dismissed the applicant’s appeal.\nThe Federal Court found that the requirement for prisoners to work was not in itself in breach of human rights, and specifically of Article 4 of the Convention (point 1.5 of the reasoning).\nHence, the purpose of compulsory work in the context of the execution of custodial sentences and measures was to develop, maintain or promote prisoners’ capacity to resume working life after their release. In the Federal Court’s view, the requirement to work contributed to the execution of sentences and fostered appropriate social behaviour and the capacity to avoid reoffending. It was also designed to occupy prisoners, give structure to their daily lives and maintain order in the institution (point 1.6).\nThe Federal Court added that, as prisoners got older, greater emphasis was placed on the obligation to provide them with the necessary support (necessary-support principle) and on reducing the negative impact of detention (principle of least possible harm). In the case of prisoners over the age of 65, the requirement to work served the purpose of avoiding the harmful effects of detention, for instance the isolation of persons who had reached retirement age, and preventing mental and physical deterioration. The work had to be tailored to the prisoner’s abilities, training and interests, and it was therefore necessary to avoid placing an excessive burden on prisoners over the age of 65. Lastly, in the case of persons who were less physically and mentally able, the occupation could take the form of therapeutic activity (point 1.6).\nThe Federal Court further held that the Old-Age and Survivors’ Insurance Act was designed to guarantee a living income to persons who were no longer able to work because of their age. However, work performed in connection with the execution of a custodial sentence or measure was not comparable to an employment contract on the competitive labour market, but rather should be regarded as an occupation within a closed system. The Federal Court therefore held that the rules governing persons of pensionable age did not apply to prisoners (point 1.8).\nThe Federal Court also found that an occupation carried out on a voluntary basis was not apt to fulfil the aims pursued by the requirement to work in prison (point 2.6.2)." ]

[]

[ "5. The applicants are Russian nationals who, at the material time, lived in various districts of the Chechen Republic. They are close relatives of individuals who disappeared after being unlawfully detained by servicemen during special operations. In each of the applications, the events concerned took place in areas under the full control of the Russian federal forces. The applicants have had no news of their missing relatives since the alleged arrests.", "6. The applicants reported the abductions to law‑enforcement bodies and official investigations were opened; however, the proceedings were repeatedly suspended and resumed, and have remained pending for several years without achieving any tangible results. The investigations have consisted mainly of requests for information and formal requests for operational-search measures to be carried out by counterparts in various parts of Chechnya and other regions of the North Caucasus. The requests received either negative responses or none at all.", "7. From the documents submitted, it appears that the relevant State authorities were unable to identify the State servicemen allegedly involved in the arrests or abductions.", "8. In their observations, the Government did not challenge the description of the circumstances of the abductions as presented by the applicants; however, they stated that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the incidents.", "9. Summaries of the facts in respect of each individual application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and domestic investigative authorities. The personal details of the applicants and their missing relatives, and some other key facts, are summarised in the Appendix I.", "10. The applicant, Ms Maret Nazyrova, was born in 1968 and lives in Gekhi in the Urus-Martan district of the Chechen Republic. She is the sister of Mr Badrudi Nazyrov, who was born in 1973.", "11. On 20 April 2000, during the daytime, Mr Nazyrov and his friend, Mr Said-Selim Aguyev, were at the applicant’s house in Gekhi when a group of about thirty to forty armed servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) (hereinafter “the OMON”) comprised of servicemen from the Perm Region arrived at the settlement in several vehicles. Some of them were wearing balaclavas. They cordoned off the area and ordered the residents to stay inside. About fifteen servicemen broke into the applicant’s house and searched it. Then they beat up the applicant’s brother and his friend, pulled their T-shirts over their heads, put them into UAZ-type minivans and took them to the Urus‑Martan military commander’s office. The applicant and a number of local residents witnessed the events.", "12. The Perm OMON unit was stationed on the premises of an orphanage in the vicinity of the applicant’s house. At the material time, two brothers of the Kuznetsov family were in charge of the OMON unit. It appears that they were involved in the abduction as they were not wearing masks and could therefore be identified by the applicant. The following day the military commander’s office accepted a food package for Mr Nazyrov, but the next day the servicemen denied that he had ever been detained on their premises.", "13. The applicant has not seen Mr Nazyrov since the abduction on 20 April 2000.", "14. The above account is based on witness statements provided by the applicant and copies of documents from the investigation file furnished by the Government.", "15. From the documents furnished by the applicant and six pages of documents from criminal case no. 24074 submitted by the Government, information about the ensuing official investigation can be summarised as follows.", "16. On 4 May 2000 Mr Nazyrov’s father, Mr Sh.N., reported the abduction to the Urus-Martan military commander’s office and the Urus‑Martan military prosecutor’s office, stating that his son had allegedly been taken to the Urus-Martan military commander’s office with Mr Aguyev, and that the two men had been detained as the latter had had no identity documents on him.", "17. On or around 14 May 2000 the abduction report was forwarded to the Urus-Martan temporary police department (Временный отдел внутренних дел (ВОВД)) (hereinafter “VOVD”) and from there to the Urus-Martan district prosecutor’s office.", "18. On 16 May 2000 the Urus-Martan district prosecutor’s office returned the complaint to the VOVD stating that it had been submitted “prematurely”.", "19. On 17 May 2000 investigators from the VOVD refused to initiate criminal proceedings into the abduction.", "20. On 25 November 2000 the Urus-Martan district prosecutor’s office overruled the refusal and opened criminal case no. 24074. The decision stated that the applicant’s brother had been detained “during a special operation, the lawfulness of which has not been confirmed”.", "21. From the documents submitted, it appears that between November 2000 and January 2007 the investigation was suspended and no investigative steps were taken. The applicant was not informed thereof.", "22. It appears that on an unspecified date in January or February 2007 the investigation was resumed at the request of the applicant and on 2 February 2007 she was granted victim status in the criminal case.", "23. On 1 March 2007 the investigation was suspended. The applicant was informed thereof.", "24. On 21 August 2008 the applicant complained to the Urus-Martan Town Court that the investigation into the abduction was protracted and asked for it to be resumed.", "25. On 9 September 2008 the court rejected the applicant’s complaint, as the investigation had been resumed on 1 September 2008.", "26. On 30 September 2008 the investigation was again suspended. The applicant was informed thereof.", "27. From the documents submitted, it appears that the investigation is still pending.", "28. The applicant, Ms Satsita Babuyeva, was born in 1958 and lives in Grozny, the Chechen Republic. She is the wife of Mr Muma Babuyev, who was born in 1958.", "29. At the material time, Mr Babuyev worked as a driver for the Department of Technological Equipment (Управление производственно-технологической комплектации (УПТК)) based on the premises of the main military base of the Russian federal troops in Khankala, Chechnya. On the morning of 30 August 2002, on his last day of work, he went there with the applicant to the military base to collect a year’s salary arrears. The couple arrived at the checkpoint at the entrance to the base at about 10 a.m. The applicant’s husband went inside, while she was told to wait for him at the entrance.", "30. The applicant spent the entire day waiting for her husband but he never came out. In the evening she had to return home. She spent the next two days at the checkpoint waiting for him but to no avail. On 2 September 2002 she managed to speak to a woman from the admissions office who issued entrance passes to the military base. She confirmed that on 30 September she had issued a pass for Mr Babuyev. She had also made one for him for 1 September 2002 but he had not picked it up, which meant that he must have remained inside and not left the premises. The applicant’s husband has been missing ever since.", "31. The above account is based on statements provided by the applicant and copies of documents from the investigation file.", "32. The Government submitted copies of a small number of documents from criminal case file no. 52112 opened into the disappearance of Mr Babuyev, covering the period between September and November 2002. The relevant information may be summarised as follows.", "33. On 22 September 2002 the applicant reported her husband’s disappearance at the military base to various authorities. Her statements concerning the circumstances of the incident were similar to the account she submitted to the Court.", "34. On the same date the Grozny city prosecutor’s office initiated a criminal investigation into the events, under Article 126 § 1 of the Criminal Code (kidnapping). The case file was given the number 52112. The relevant parts of the decision read as follows:\n“...On 30 August 2002 [Muma Babuyev] went to the military settlement of Khankala in Grozny to collect his salary arrears; other employees of [the department] saw [him] on the premises... [He] did not exit the premises and did not return home...”", "35. On 16 October 2002 the applicant was granted victim status in the criminal case.", "36. On 21 October 2003 the military prosecutor’s office of military unit no. 20102 informed the applicant that further to her complaints, they had conducted a prosecutor’s inquiry into her husband’s disappearance which had not established the involvement of military servicemen in the incident.", "37. On 22 November 2002 the investigation was suspended. The applicant was not informed thereof.", "38. On an unspecified date in April and on 18 May 2003 the applicant reported her husband’s unlawful arrest and subsequent disappearance to the Chechnya Prosecutor’s office and requested its assistance in the search for him.", "39. On 2 October 2003 the Main Military Prosecutor’s office informed the applicant that their inquiry had not established the involvement of military servicemen in her husband’s disappearance.", "40. On 2 November 2004 the Staropromyslovskiy District Court of Grozny declared Mr Babuyev missing at the request of the applicant.", "41. On an unspecified date between 2004 and 2009 investigators replied to requests by the applicant for information by providing her with a statement to the effect that the investigation into her husband’s abduction was in progress but his whereabouts had not yet been established.", "42. On 10 September and then on 3 November 2009 the applicant asked the investigators to inform her of the progress of the investigation and for access the case file. No replies were given to these requests.", "43. On 4 August 2011 the investigation was resumed at the request of the applicant. From the documents submitted, it appears that it is still pending.", "44. The applicants are Mr Adam Kagermanov, who was born in 1971 (“the first applicant”) and Ms Zura Yakhayeva (also spelled Yakhyayeva), who was born in 1977 (“the second applicant”). The applicants, who live in Gekhi in the Urus-Martan district of the Chechen Republic, are the brother and niece of Mr Ruslan Kagermanov (“Mr Kagermanov ”), who was born in 1963.", "45. The applicants’ family home consisted of four dwellings with a shared courtyard. Mr Kagermanov lived alone in a separate dwelling. At the material time, Gekhi was under curfew. At around 4 a.m. on 4 February 2002 the first applicant learnt from a family member that Mr Kagermanov had been abducted earlier that night by a group of armed servicemen, who had arrived at his home in a Ural lorry and broken down the door. The neighbours had heard the abductors driving off in the direction of Urus‑Martan. The applicant thought that his brother had been taken by State servicemen, as at the time many young men had been abducted in a similar manner during curfew hours. In addition, local residents had seen servicemen driving armoured personnel carriers (APCs) in the vicinity that night.", "46. Later that morning the applicants found Ural lorry tyre tracks and footprints of military boots in the snow next to Mr Ruslan Kagermanov’s dwelling.", "47. At around 10 a.m. about fifty to sixty Russian servicemen in several APCs and Ural lorries arrived at the Kagermanov family home. They blew up Mr Kagermanov’s household small oil refinery in his backyard and searched the premises. According to the applicants, the servicemen had carried out a sweeping-up operation in the area and had searched other houses with oil refineries.", "48. The applicants have not seen Mr Kagermanov since 4 February 2002.", "49. The Government did not furnish any documents from the investigation file. From the documents submitted by the applicants, the steps taken by the investigative authorities may be summarised as follows.", "50. On 4 February 2002 Mr Kagermanov’s mother, Ms P.K., reported her son’s abduction by military servicemen to the Urus-Martan district prosecutor’s office.", "51. On 18 February 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 61023.", "52. On unspecified dates in February 2002 investigators questioned the applicants, who both stated they had discovered that Mr Kagermanov had disappeared at about 3.20 a.m. on 4 February 2002. They had found the entrance to his home broken down, footprints of military boots, his belongings scattered around and his broken watch indicating 3.10 a.m. on the floor. The applicants further stated that at about 10 a.m. the same morning a group of fifty to sixty Russian military servicemen in several APCs and Ural lorries had arrived at their house, searched it and destroyed Mr Kagermanov’s oil refinery.", "53. In February and March 2002 investigators questioned the applicants and their family members. The statements received were similar to the account furnished by the applicants to the Court.", "54. On 18 April 2002 the investigation was suspended. The applicants were not informed thereof.", "55. On 4 May 2009 the second applicant requested access to the investigation file. Her request was refused by the investigators on 9 June 2009.", "56. On an unspecified date between June and August 2009 she requested victim status in the criminal case. On 11 August 2009 the investigators granted this request and questioned her. Her statement was similar to the account she submitted to the Court.", "57. On 18 August 2009 the investigators questioned the first applicant, whose statement was similar to the account he submitted to the Court.", "58. On various dates in August 2009 the investigators also questioned the applicants’ relatives and neighbours, Mr Z.K., Ms R.G., Mr M.I. and Ms P.K., whose statements were similar to those of the applicants. No new information was obtained.", "59. On 25 August 2009 the investigators examined the crime scene. No evidence was collected.", "60. On 11 September 2009 the investigation was suspended. The applicants were informed thereof.", "61. On 15 September 2009 the second applicant complained to the Achkhoy-Martan District Court that the investigation had been ineffective and requested access to the investigation file.", "62. On 12 October 2009 the second applicant’s complaint was partially allowed by the Achkhoy-Martan District Court. It noted, inter alia, that for seven years, between 2002 and 2009, the proceedings had been dormant and no tangible steps had been taken by the investigators. The court instructed the investigators to provide her with access to the case file.", "63. From the documents submitted, it appears that the investigation is still pending.", "64. The applicant, Ms Khedi Tchapanova, who was born in 1974, lives in Nice, France. She is the wife of Mr Eduard Zaynadinov (also spelled Zainadinov), who was born in 1974.", "65. According to the applicant, her husband was an active member of illegal armed groups between 1994 and 1996 and then between 1999 and 2000. During the more recent period, the applicant and her two children lived in Shali. In January and February 2000 Russian servicemen regularly visited their dwelling. They searched for firearms and asked the applicant questions concerning her husband’s whereabouts. Fearing for her family’s safety, the applicant moved to the “Kavkaz” neighbourhood in Shali. In June 2002 her husband joined them there. On 24 June 2002 servicemen in APCs took him from his home. He was released a week later.", "66. Between 3 and 4 a.m. on 30 July 2002 a group of armed servicemen in balaclavas broke into the applicant’s flat in Shali. They pulled a plastic bag over Mr Zaynadinov’s head and took him to an unknown destination in an APC.", "67. Several days later the servicemen returned to the applicant’s house. They searched the premises and asked her about her husband’s involvement in illegal armed groups. During the search they found a list of members of illegal armed groups and a number of identity documents, as well as firearms hidden in the garden.", "68. The applicant has not seen Mr Zaynadinov since 30 July 2002. In 2007 she moved to France.", "69. The Government submitted copies of seventeen pages of documents from criminal case file no. 59229 opened into the abduction of Mr Zaynadinov. The information concerning the criminal proceedings as submitted by both parties may be summarised as follows.", "70. On 6 August 2002 the Chechnya prosecutor’s office forwarded the abduction report lodged by Mr Zaynadinov’s father, Mr A.Z. to the Shali district department of the interior (Шалинский районный отдел внутренних дел (РОВД) (hereinafter “ROVD”).", "71. On 6 September 2002 investigators questioned Mr A.Z., who stated that at about 3 a.m. or 4 a.m. on 30 July 2002 armed men in camouflage uniforms had arrived in two APCs at their house. They had broken in and checked some identity documents. Afterwards they had taken his son outside, put him into one of the APCs and driven off.", "72. On 7 September 2002 two of the applicant’s neighbours (their names were illegible on the documents submitted) stated that on the night of 29 July 2002, they had been woken up by the sound of women crying. They had gone outside and had seen their neighbours on the street and several APCs driving off. They had then learnt that Mr Zaynadinov had been abducted.", "73. On 16 September 2002 the Shali district prosecutor’s office opened criminal case no. 59229 into the abduction and informed the applicant thereof.", "74. On 16 November 2002 the investigation was suspended. The applicant and her relatives were not informed thereof.", "75. On 10 June 2004 the Shali ROVD replied to a request by the applicant for information stating, amongst other things:\n“ ... in connection with the abduction of Mr E. Zaynadinov, the Shali district prosecutor’s office opened criminal case no. 59229... the police operational search unit opened search file no. 71373 and has been taking measures to search for Mr E. Zaynadinov, whose whereabouts as of 10 June 2004 have not yet been established [...]”", "76. According to the applicant, on 16 November 2004 she had to leave the Chechen Republic out of fear for her and her children’s lives. Since January 2007 she has resided in France.", "77. On 16 May 2007 the Shali Town Court declared Mr Zaynadinov missing.", "78. On 18 March 2008 Mr A.Z. asked the investigators to provide him with copies of documents from the investigation file. His request was granted on 19 March 2008.", "79. On 28 October 2008 the Shali Town Court declared Mr Zaynadinov dead at the request of the applicant’s representative.", "80. On 12 December 2011 the investigation was resumed further to a complaint by the applicant’s relatives.", "81. On various dates in December 2011 and then in February 2012 the investigators questioned several of the applicant’s relatives and neighbours and examined the crime scene. No new information was obtained.", "82. On 13 February 2012 the investigation was again suspended. From the documents submitted, it appears to be still pending.", "83. The applicant, Ms Ayna (also spelled Aina) Alkhotova, was born in 1975 and lives in Grozny, the Chechen Republic. She is the wife of Mr Ayndi (also spelled Aindi) Diniyev, who was born in 1971.", "84. At the material time Grozny was under curfew. The applicant and her husband resided in a block of flats at 186 Pugacheva Street in the Staropromyslovskiy district of Grozny.", "85. At about 1 a.m. on 16 August 2003 a group of about ten to fifteen armed servicemen in camouflage uniforms and balaclavas arrived at the flats in three grey UAZ vehicles and an APC. They broke into the applicant’s flat, quickly searched it, dragged Mr Ayndi Diniyev outside, forced him into one of their vehicles and drove off through checkpoint 24 in the direction of the city centre.", "86. The applicant has not seen her husband since his abduction on 16 August 2003.", "87. The above account is based on a statement provided by the applicant and copies of documents from the criminal case file.", "88. On 18 August 2003 the applicant reported her husband’s abduction to the Staropromyslovskiy ROVD stating, amongst other things, that the abductors had arrived in three UAZ minivans and an APC without registration numbers.", "89. On 18 August 2003 investigators from the Staropromyslovskiy district prosecutor’s office (“the prosecutor’s office”) examined the crime scene. No evidence was collected.", "90. On the same date the investigators questioned the applicant and her relatives, Mr R.E. and Ms M.A., whose statements concerning the incident were similar to the account the applicant submitted to the Court.", "91. On 29 August 2003 the prosecutor’s office opened criminal case no. 50094 into the abduction of Mr Diniyev.", "92. On 22 September 2003 the investigators questioned the applicant’s mother Ms M.A., whose statement was similar to the account the applicant submitted to the Court.", "93. On 22 September 2003 the applicant was granted victim status in the criminal case and questioned. Her statement was similar to her earlier statement of 18 August 2003. In addition, she stated that she would not be able to identify any of the abductors as their faces had been covered.", "94. On 29 October 2003 the investigation was suspended for failure to identify the perpetrators. The applicant was not informed thereof.", "95. On 7 December 2004 the Staropromyslovskiy District Court of Grozny declared Mr Diniyev missing.", "96. On 12 May 2005 the investigation was resumed.", "97. On 28 May 2005 the investigators again questioned the applicant, who reiterated her earlier statements.", "98. On 12 June 2005 the investigation was suspended again. The applicant was not informed thereof.", "99. On 8 April 2008 the Leninskiy inter-district investigations department in Grozny replied to a request by the applicant for information and provided her with copies of two documents from the investigation file.", "100. It appears that on 20 August 2010 she was again granted victim status in the criminal case at her request.", "101. On 1 June 2011 the supervising prosecutor criticised the investigators for their failure to take basic steps and ordered that the investigation be resumed. On 7 June 2011 the proceedings were resumed.", "102. On 24 June 2011 the investigators again questioned Mr E.R. and the applicant, who reiterated their earlier statements. In addition, the applicant stated that about a month prior to the abduction unidentified armed men had robbed her mother-in-law and had even fired several shots at her.", "103. On 7 July 2011 the investigation was suspended.", "104. On 14 July 2011 the applicant complained to the Leninskiy District Court of Grozny that the investigation of the abduction had been ineffective and asked for the proceedings to be resumed. On 2 August 2011 the court rejected the applicant’s complaint as the investigation had been resumed earlier the same day.", "105. On 2 September 2011 the investigation was suspended again and then resumed on 23 April 2012.", "106. The criminal proceedings are still pending." ]

[ 0, 1, 2 ]

[ "8. In all cases the applicants brought civil proceedings before Russian courts of general jurisdiction, claiming various monetary sums (unpaid salaries, pensions, compensation payments and/or other benefits) in relation to their military or police service.", "9. On various dates the domestic courts found for the applicants and these judgments became final and enforceable (for more details see the Appendix).", "10. The defendant authorities applied for supervisory review of those judgments. On the dates indicated in the Appendix, the supervisory review courts allowed the authorities’ applications and quashed the final judgments in the applicants’ favour. Their claims were dismissed either by the same judgments of the supervisory review courts or by lower courts in subsequent proceedings, except in the two cases of Mr Bochkarev and Mr Umanets, whose claims were partially granted.", "11. In the Baranov case, on 8 June 1998 the applicant brought proceedings against the local military authority. The proceedings were concluded on 22 September 2004, when the Amur Regional Court upheld the judgment of 17 June 2004 in which the Svobodnyy Town Court of the Amur Region had dismissed all the applicant’s claims. During this period, the case was examined nine times by the domestic courts (four times by the first-instance court, four times by the appeal court and once by the supervisory review court).", "12. In some of the cases (Zaytsev, Kudryavtsev, Polusmyak, Russkikh, Stepanov and Others, Mochalov, Barkov, Kozlovskiy and Martynov) the authorities complied with the judgments fully or partially prior to their quashing. In the rest of the cases (Baranov, Sitnikov, Belyasov, Umanets, Bochkarev (the judgment of 15 March 2004), Kuzmin, Korchagin, Gafarova and Others and Dudov) the judgments in the applicants’ favour were never complied with.", "13. In the Bochkarev case, the judgment of 1 June 2006, delivered as a result of a new round of proceedings conducted after the supervisory review, became binding on 25 October 2006. On 30 August 2007 the authorities complied with this judgment by putting the applicant’s family on the priority housing list.", "14. In the Kudryavtsev case the pension paid to the applicant following the quashed judgments was recovered from him after the supervisory review." ]

[ 3, 9 ]

[ "4. The applicant was born in 1971 and lives in Pécs. He had been practising as a lawyer.", "5. On 22 January 2006 Mr K. I. lodged a criminal complaint against the applicant on charges of abuse of a minor.", "6. As it appears from the case file, the criminal investigation was launched against the applicant around 7 August 2006.", "7. The Public Prosecutor preferred a bill of indictment on 5 March 2007.", "8. As a consequence of the criminal proceedings, on 3 July 2007 the Komárom-Esztergom County Bar Association suspended the applicant’s licence to practise as lawyer.", "9. On 25 September 2008 the Pécs District Court convicted the applicant of abuse of a minor and sentenced him to one year imprisonment with enforcement suspended for two years. The applicant appealed against the judgment.", "10. On 10 February 2010 the Baranya County Regional Court quashed the judgment and ordered the first-instance court to try the case again.", "11. In the ensuing proceedings on 2 July 2010 the Pécs District Court acquitted the applicant due to absence of proof. The applicant appealed against the judgment for acquittal due to lack of an offence.", "12. Finally, in early December 2010 the applicant withdrew his appeal. Arguing that he could have received several mandates from clients if he had had his licence to practise as lawyer, the applicant decided to terminate the criminal proceedings as early as possible in order to resume his practice." ]

[ 3 ]