ITEMID: 001-81932
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MUSAYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;No violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Christos Rozakis
TEXT: 7. The applicants were born in 1954, 1946 and 1977 respectively and live in the village of Gekhi, Urus-Martan District, Chechnya.
8. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9 - 55). A description of documents submitted by the Government is contained in section B below (paragraphs 56 - 59).
9. The first two applicants are a married couple. They have four children, two of whom – Ali Musayev, born in 1972, and Umar Musayev, born in 1977 – lived together with their parents in a household comprising two houses in Gekhi. The third applicant was married to Ali Musayev.
10. On 8 August 2000 a Russian armoured personnel carrier (APC) was attacked and blown up in the vicinity of Gekhi and the military responded with a “sweeping” operation in the village.
11. During this operation an armed man, who was being pursued by soldiers, entered the applicants' house and hid in one of the rooms. According to the Government, the man was A., a member of an illegal armed group. The servicemen strafed the house, using machine-guns and grenade-launchers. Two daughters and a grandson of the first two applicants, the second applicant, the third applicant, Ali Musayev and Umar Musayev were inside the house at the time. A two-year-old grandson of the first two applicants was in a car parked in the courtyard.
12. A. was killed when the military threw nine grenades into the house and shelled it from the APC. The servicemen then wrapped the corpse in a blanket and put it into Ali Musayev's car, a white Zhiguli. They then searched the house. Umar Musayev, who had been feeling ill that day and was lying in bed, was blindfolded and ordered to step out of the house and lie down.
13. Major S., an officer in command, seized the identity papers, car documents and car key belonging to Ali Musayev, who was then forced into the car. Umar Musayev was put into an APC which had no visible vehicle number. They were both taken away.
14. The first applicant later found out that the APC number was 108 and belonged to the Main Intelligence Department of the Ministry of Defence of Russia (Главное разведывательное управление Министерства Обороны РФ).
15. Following their detention, Ali and Umar Musayev were brought to a temporary operational headquarters of the military commander's office situated near Gekhi. According to the first applicant, who referred to unnamed witness statements, Ali Musayev was beaten there by federal officers.
16. Thereafter the Musayev brothers were brought to the Urus-Martan Temporary Office of the Interior (временный ОВД Урус-Мартановского района, “the VOVD”) and questioned. The first applicant submitted, with reference to the witnesses' accounts, that after the interrogation her sons and three other persons apprehended in Gekhi that day had again been brought to the temporary operational headquarters. At 5 p.m. the military released the other three persons, but not Ali and Umar Musayev, of whom there was no further news.
17. Between 8 and 10 August 2000 federal troops sealed off the village of Gekhi. On the latter date, after restrictions were lifted, the first applicant went to Urus-Martan and notified the head of the district administration (глава администрации) of the detention of her sons.
18. She then went to the district military commander's office (районная военная комендатура) where she noticed her elder son's car in the courtyard. The first applicant applied to military commander G. with enquiries about her sons and the car. The military commander told the first applicant that he had no information concerning Ali and Umar Musayev and advised her to come back in two days. As regards the car, Mr G. stated that it was “unclean”.
19. On the same date the first applicant also applied to the Urus-Martan prosecutor's office (прокуратура Урус-Мартановского района), claiming that her sons had been unlawfully detained.
20. On 11 or 12 August 2000 the first applicant went to the military commander's office again. Mr G. told her that he had not participated in the “sweeping” operation on 8 August 2000 and had no information about the whereabouts of her sons. Later, the military commander stated that the Musayev brothers had been taken to the main federal military base in Khankala. As to the car, Mr G. said that a database check had confirmed that it was “clean” and that the first applicant had to produce a power of attorney to recover the vehicle. The first applicant stated that she did not have this paper, as all the documents had been in the seized car, and the military commander refused to return the vehicle. In the first applicant's submission, the car was returned only on 4 October 2000, after her son-in-law had brought a copy of the power of attorney from a vendor from Dagestan.
21. During August and September 2000 the first applicant repeatedly applied to the military commander's office, the VOVD and prosecutors at various levels in connection with her sons' disappearance. She received hardly any substantive information from official bodies in reply to her enquiries. The responses were mainly formal ones stating that her requests had been forwarded to different prosecutor's offices.
22. In a letter of 11 September 2000 an acting prosecutor of the Urus-Martan District informed the first applicant that Ali and Umar Musayev were not detained in the VOVD, that they were not listed in the VOVD registration papers, and that no criminal proceedings had ever been brought against them. The letter further stated that information requests sent to military units had remained unanswered, and that the head of the Urus-Martan VOVD had been instructed to commence a criminal investigation into the disappearance of the Musayev brothers.
23. According to the applicants, on 11 August 2000 the Russian TV channel NTV showed Ali Musayev's body as that of a rebel fighter killed during the “sweeping” operation in Gekhi on 8 August 2000. The applicants did not submit a copy of that recording.
24. In early September a serviceman of a military unit stationed in the village of Tyangi-Chu produced a plan of a burial site near the cemetery of Gekhi, where, he claimed, Ali and Umar Musayev had been buried. According to the applicants, they had to pay for the indication of the site.
25. On 13 September 2000 the applicants notified the head of the administration of Gekhi, the Urus-Martan District Prosecutor's Office, the military commander's office and the district administration of Urus-Martan (администрация Урус-Мартановского района) that they were going to excavate the grave.
26. On the same date the second applicant exhumed the grave in the presence of a police officer and officials from the local administration and found four corpses, all of which showed signs of having met a violent death. He identified his sons' bodies by fragments of the remaining teeth. The other two bodies were identified as that of the man killed in the applicants' house on 8 August 2000 and that of a resident of Gekhi, who had been detained along with the Musayev brothers. It appears that the remains were examined by officials of the administration of Gekhi, who issued a certificate in this respect.
27. The police officer undertook no investigative actions at the excavation site. According to the Government, the applicants refused to submit the bodies for an autopsy on account of their national and religious traditions. The applicants buried the remains shortly afterwards, without taking photographs or inviting a medical doctor to attend before the burial.
28. On 7 September 2001 the Urus-Martan Town Court certified the death of Ali Musayev, upon the first applicant's request. The court heard evidence from two witnesses, who confirmed the first applicant's submissions about the detention of her son on 8 August 2000, the discovery of his body and his burial on 13 September 2000 at the Gekhi village cemetery. The court certified that Ali Musayev's death had occurred on 13 September 2000 in the village of Gekhi. It does not appear that a court certification of death was made in respect of Umar Musayev.
29. On 18 September and 9 October 2001 respectively the registry office of the Urus-Martan District issued death certificates for Ali Alamatovich Musayev, born in 1972, and Umar Alamatovich Musayev, born in 1977. The date and the place of death were recorded as 12 September 2000, Gekhi.
30. On 8 October 2001 a medical certificate of death was issued for Umar Musayev. Referring to the certificate of the administration of Gekhi and a certificate of the Urus-Martan prosecutor's office, the medical certificate stated that Umar Musayev's death had been caused by multiple stab wounds and severe injuries. The date and the place of death were recorded as 12 September 2000, Gekhi.
31. On 18 September 2000 the Urus-Martan VOVD refused to institute criminal proceedings in connection with the discovery of four bodies on 13 September 2000, referring to the absence of essential elements of a crime.
32. On 18 October 2000 the Urus-Martan prosecutor's office set aside the above decision and instituted criminal proceedings under Article 105 (2-a) of the Russian Criminal Code (murder of two or more persons). The case file was assigned the number 24047.
33. In a letter of 1 November 2000 the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102) informed the first applicant that a suspect in the blowing-up of the APC had been found in their house, and that her sons had been detained for an identity check in this connection. The letter confirmed that after being apprehended Ali and Umar Musayev had been brought to the Urus-Martan VOVD but stated that no further information about them was available, since they were not listed among the detained persons. The letter went on to say that on 13 September 2000 a burial site had been excavated by police officers who had found four male bodies there. Two of the bodies had been identified as those of the first applicant's sons. The letter also stated that Major S., the officer in charge of the operation, had left for his permanent location in Penza, and that efforts were being made to obtain information from him about the detention of Ali and Umar Musayev.
34. On 27 November 2000 the Urus-Martan prosecutor's office received a letter from a district prosecutor of the Penza Region informing him that on 15 November 2000 Major S. had been questioned about the operation of 8 August 2000. The transcript of this interview was enclosed. Major S. stated the following:
“From 18 June until 22 September 2000 I was seconded to the town of Urus-Martan, the Chechen Republic. ...
In addition to the Urus-Martan VOVD, military personnel of the troops of the interior and of the army (военнослужащие из внутренних и федеральных войск) and the military commander's company (комендантская рота) also took part in the operation [on 8 August 2000]. I cannot say which particular person was in command of the operation. From our department there was the head of the Urus-Martan VOVD, Lieutenant-Colonel Sh. There were also three generals, whose names I do not know, and military commander G. in the vicinity of the village of Gekhi.
Acting on the instructions of the superiors of the alignment, I and a group of 30 – 35 men arrived by bus and APC in Gekhi at around 11 a.m. ... About 20 men in the group were police officers, the rest were army servicemen. I was in charge of the police officers, and the [army] servicemen were under the command of an officer with the rank of captain, whose name I do not know. I do not know in which particular military units those servicemen served and at whose disposal the APC with the vehicle number 108 was.
During the “sweeping” operation we went to the courtyard of one of the houses. It was subsequently established that the house belonged to the Musayev family. ...
I approached one of the windows and looked inside. I saw a man wearing an ammunition jacket and holding a pistol. Having seen me, the man fired ... at me. ... In response to the shots from the house, our personnel opened fire. ... [During the fight another] man came over to me and said that he lived in Moscow and was a relative of this family. ...
One of the soldiers threw 6 grenades into the house, but the shots from the house did not stop. Then [we] started shooting at the criminal from the APC, and only then did the fire from the house cease, but the house caught fire. ...
Only one man seemed to have been shooting from the house, and only one body was found inside. The soldiers put this corpse into a white car and the relative from Moscow also got into this vehicle. Then I went out and saw two cars near the house. The servicemen said that they had seized those cars. I cannot tell who ordered them to seize the cars. I did not give such an order. Besides, on the APC I noticed another detained man in a white shirt. I do not know who ordered that man to be detained. We escorted the detained men and two cars to the outskirts of Gekhi, where the command centre of the alignment was located. ... On the instructions of the superiors, the detained persons and the cars were left at the command centre. Upon my return from Gekhi, somebody told me that the detainees and the red car had been released. The detainees were not brought to the Urus-Martan VOVD, as upon my return there in the evening I saw neither the white car nor the persons apprehended during the fight at the Musayevs' house. I do not know whether they were brought to the military commander's office and who escorted them. ... Following the instruction of the superiors, we left these detainees at the command centre, and I have no further information about them, or about the white car.”
35. Having regard to the transcript, the prosecutor of the Urus-Martan District ordered the military commander G. to be questioned. According to the first applicant, that order was never complied with.
36. In a letter of 4 January 2001 the military prosecutor of military unit no. 20102 informed the Urus-Martan prosecutor's office and the first applicant that an inquiry had been carried out into the first applicant's allegations, and that no involvement of the military personnel of the Ministry of Defence or of the interior troops of the Ministry of the Interior in the detention of the Musayev brothers had been established, and therefore no criminal proceedings would be brought against the aforementioned personnel.
37. On 18 December 2000 the Urus-Martan prosecutor's office suspended the criminal proceedings in case no. 24047 for failure to establish the identity of the alleged perpetrators. The first applicant was notified of that decision in a letter of 18 January 2001.
38. On 7 August 2001 the Urus-Martan prosecutor's office quashed the decision of 18 December 2000, stating that the investigation had been incomplete and that, in particular, no forensic medical examination of the bodies had been carried out and the witnesses who had identified the corpses had not been questioned. The prosecutor's office thus ordered that the investigation be resumed.
39. On an unspecified date the first applicant received a letter from the Urus-Martan prosecutor's office dated 24 August 2001. The letter contained a restatement of the facts of the detention of Ali and Umar Musayev and the discovery of their bodies and informed the first applicant that a criminal investigation had been commenced and that the case file had been assigned the number 24047. The letter also stated that the first applicant would be informed of any further developments in the case.
40. On 8 September 2001 the criminal proceedings in case no. 24047 were adjourned as it was impossible to establish the identity of the alleged perpetrators. The proceedings were then resumed pursuant to a decision of the Urus-Martan prosecutor's office dated 1 April 2002 and suspended a month later.
41. On 22 July 2002 the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor's office”) set aside the decision of 1 May 2002 and resumed the investigation, ordering the investigators “to study thoroughly the circumstances of the Musayev brothers' disappearance and to establish the identity of those responsible”.
42. On 22 August 2002 the Urus-Martan prosecutor's office granted the first applicant the status of victim of a crime and civil claimant.
43. On 26 August 2002 the Urus-Martan prosecutor's office suspended the investigation into the death of the Musayev brothers.
44. In a letter of 27 August 2002 the Prosecutor General's Office informed the first applicant that the investigation into her sons' death had been resumed on 19 July 2002 and was being supervised by them.
45. Between 26 August 2002 and 14 October 2004 the proceedings remained suspended and there were no developments in the case.
46. In September 2004 the present application was communicated to the Russian Government. On 14 October 2004 the Urus-Martan prosecutor's office resumed the investigation, referring to the fact that a number of essential steps had not previously been taken and giving detailed instructions to the investigators as to what measures should be taken.
47. In a letter of 14 October 2004 the Urus-Martan prosecutor's office informed the first applicant that the proceedings in criminal case no. 24047 had been recommenced on that date.
48. On 14 November 2004 the Urus-Martan prosecutor's office notified the first applicant of the suspension on the same date of the preliminary investigation into her sons' murder in the absence of those responsible.
49. It appears that at some point the investigation was resumed, then suspended on 21 April 2005 and recommenced on the same date. It was then suspended on 21 May and 31 October 2005 and resumed on 30 September 2005 and 18 August 2006 respectively.
50. Referring to the information provided by the Prosecutor General's Office, the Government submitted that the investigation into the murder of Ali and Umar Musayev had commenced on 18 October 2000 and had then been suspended and resumed on several occasions, but had so far failed to identify those responsible. According to the Government, the applicants were duly informed about all decisions taken during the investigation. They further submitted that the first applicant had been questioned on 20 October and 12 December 2000, 4 April 2002, 19 and 23 October 2004 and 1 April 2005 and had been granted the status of victim and been declared a civil claimant on 20 October 2000 and 22 August 2002 respectively. The second applicant had been questioned as a witness on 23 October 2000, 5 April, 20 and 23 October 2002 and 12 April 2005. Apart from the first two applicants, the investigating authorities had also questioned at least 18 witnesses, including the applicants' relatives and acquaintances, residents of Gekhi, the head of the local administration and a number of servicemen of law-enforcement agencies who had been working in the Chechen Republic at the material time. The Government referred in particular to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had told him that the Musayev brothers had been detained and then released. The Government did not specify on which date this statement had been made. They also submitted that military commander G. had not been questioned during the investigation, as he had been killed on 29 November 2001 in a terrorist attack. The Government did not indicate any other names of the servicemen who had allegedly been questioned by the investigators.
51. According to the Government, it was impossible to identify other witnesses in the case, but the search for them was currently under way. The Government further stated that the applicants had refused to disclose the place of burial of Ali and Umar Musayev and allow the investigating authorities to exhume the bodies so as to enable forensic experts to examine them. Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 16 December 2000, 20 and 26 October 2002, 20 October, 1 and 14 November 2004, 28, 30, 31 January, 3 February, 23 and 25 March and 5 May 2005 and undertaken other investigative actions, but did not specify what those actions had been.
52. On unspecified dates the first two applicants issued separate sets of civil proceedings against the Ministry of Finance in the Basmanny District Court of Moscow (“the District Court”), seeking compensation for non-pecuniary damage in connection with the unlawful detention of their sons.
53. On 23 December 2003 and 21 May 2004 the District Court delivered two similar judgments. It established that on 8 August 2000 in the house of the Musayev family in the village of Gekhi, Urus-Martan District, a member of an illegal armed group had been found and killed, as he had shown armed resistance. The applicants' sons, Ali Musayev and Umar Musayev, were detained and escorted to the Temporary Office of the Interior of the Urus-Martan District so as to establish the circumstances of the above-mentioned incident. On 13 September 2000 their corpses were found at the outskirts of Gekhi, and criminal proceedings were instituted in this connection but later suspended, as no culprits could be identified. The court further stated that under Article 1069 of the Civil Code of Russia the State was liable only for damages for its agents' actions that were unlawful. It then noted that the military operation in Chechnya had been launched by virtue of Presidential Decree no. 2166 of 30 November 1994, and Governmental Decree no. 1360 of 9 December 1994 which had been found constitutional by the Constitutional Court of Russia on 31 July 1995, except for two provisions of the governmental decree. In the latter respect the court noted that the said two provisions had never been applied to the applicants and that “it did not follow from the evidence submitted that there was a causal link between the loss by [the first two applicants] of their sons and any unlawful actions on the part of the State bodies”. The court concluded that the applicants' claims were not based on domestic law and dismissed them accordingly.
54. On 8 July 2004 the Moscow City Court rejected an appeal by the first applicant and upheld the judgment of 23 December 2003.
55. It is unclear whether the second applicant appealed against the judgment of 21 May 2004, and, if so, what the outcome of the appeal was.
56. In September 2004, at the communication stage, the Government were invited to produce a copy of the investigation file in criminal case no. 24047 opened into the killing of Ali and Umar Musayev. Relying on the information obtained from the Prosecutor General's Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. In March 2005 the Court reiterated its request and suggested that Rule 33 § 3 be applied. In reply, the Government stated that the submission of the case file would breach the relevant national legislation, given that it contained classified information of a military nature and personal data concerning witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and transmit it to others”.
57. On 1 June 2006 the application was declared partly admissible. At that stage the Court again invited the Government to submit the investigation file and to submit information concerning the progress in the investigation. In September 2006 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced 39 documents running to 47 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 423 pages. The documents included:
(a) a procedural decision of 18 October 2000 instituting criminal proceedings in connection with the discovery of four bodies on 13 September 2000;
(b) numerous procedural decisions suspending and reopening criminal proceedings in connection with the killing of the applicants' relatives;
(c) a number of investigators' decisions taking up case no. 24047
(d) letters informing the first applicant of the suspension and reopening of the criminal proceedings in case no. 24047.
58. The Government did not furnish the Court with any other documents from the case file.
59. The Government enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged any such complaints about the allegedly unlawful detention of their relatives or challenged in court any actions or omissions of the investigating or other law-enforcing authorities.
60. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
61. Article 161 of the new CCP enshrines the rule that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.
62. The Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens (as revised by the Federal Law of 14 December 1995) provides that any citizen has the right to lodge a complaint with a court when he or she considers that his or her rights have been infringed by an unlawful action or decision of a State agency, local self-government body or an institution, enterprise or association, non-governmental organisation or official or State employee. Complaints may be lodged either directly with a court or with a higher State agency, which must review the complaint within one month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.
63. Under Section 5 of the Law on Operational Search Activities, an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities, a prosecutor or a court.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-106778
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BALENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3 (procedural aspect)
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1958 and lived in Novotroitsk, Orenburg Region. On 17 March 2010 the applicant died. On 29 April 2010 Ms Aleksandra Balenko, the late applicant’s mother (born on 14 September 1937), and Mr Timofei Balenko, the late applicant’s son (born on 17 January 2000), expressed their wish to pursue the proceedings before the Court.
6. On an unspecified date the police received information that certain “persons with a criminal propensity” would be gathering at the grave of a deceased gangster on 1 May 2004 and that they would be carrying guns, explosives and drugs.
7. On 1 May 2004 a group of police officers came to the cemetery and started checking the identification of the men and women gathered at the said grave. The applicant was among them. He did not have any documents on him. He was placed in a police car together with G. and R. to be taken to the police station by officers S. and Kh.
8. On the way to the police station an altercation occurred between the applicant and the police officers. As a result, the applicant sustained multiple injuries and S. had an index finger cut. The police officers and the applicant disputed the circumstances of the incident. It appears that investigation was opened into the incident on the same day and resulted in two sets of proceedings.
9. The applicant was released from the police custody on 2 May 2004. On the same day he was examined by a doctor in a clinic, who noted numerous bruises on his face and alcoholic intoxication.
10. On 23 June 2004 the applicant underwent an X-ray examination which showed that he had sustained a fractured nose.
11. On an unspecified date the applicant lodged a complaint about police brutality. With regard to the events of 1 May 2004, he submitted that he had been detained by the police at the cemetery. No explanation had been furnished by the police officers as to the reasons for his detention. The applicant had criticised the police’s actions and the policemen had then forced him into the car together with G. and R. On the way to the police station he had continued to express his dissatisfaction with the police. S., who had been driving the car, had turned back, had told him to shut up and had hit him in the face, breaking his nose. Then S. had stopped the car, and together with Kh., the other police officer, had pulled the applicant out of the car and had continued beating him. The applicant had lost consciousness. He had then been taken to the police station and released the next day.
12. On 12 July 2004 the applicant was subjected to another forensic examination. The expert reiterated the earlier findings of the forensic examination of 2 May 2004, including the nature and time of the injuries, and added that the applicant had also sustained a fractured nose with a time of the injury similar to that of the other injuries.
13. On 3 November 2004 an investigator from the Leninskiy District Prosecutor’s Office in Orsk dismissed the applicant’s complaint of police brutality as unsubstantiated. In particular, the investigator stated as follows:
“In the course of the inquiry [the applicant] submitted that on 1 May 2004 the policemen had beaten him up at the cemetery ... in Orsk. As result, he sustained injuries, including the nose fracture. He denied having assaulted the police officer.
Within the framework of the inquiry in response to the [applicant’s] complaint of police brutality, he underwent a medical examination. It was established that [the applicant] sustained bruises on the top right side of the head, bruises on the left part of the forehead, bruises under the left eye and dorsum of the nose, petechiae on the left temple and on the right cheek and a fractured nose. The said injuries resulted from blunt force trauma...
[Policeman] S. submitted that [on 1 May 2004] he had been in the taskforce which arrived at the cemetery... where he had asked [the applicant] to proceed to the police car. Neither he nor other policemen had beaten the applicant. [The applicant] could have sustained injuries ... when they had pulled him out of the car after his assault. It was possible that [the applicant] had caused those injuries himself when resisting the policemen, hitting himself against the car and then falling.
[Policeman] Kh. submitted that [the applicant] had refused to get out of the car and had resisted when they pulled him out.
...
Having regard to the above, [I conclude] that the [applicant’s] complaint of police brutality has not been confirmed. ... The fact that the applicant resisted being pulled out of the car suggests that his injuries could have been caused by his own actions or by the actions of the policemen who restrained him.”
14. The applicant did not appeal against the decision of 3 November 2004 to the courts
15. A criminal investigation was opened against the applicant due to the version of events provided by police officers S. and Kh. concerning the incident of 1 May 2004. According them, in the car the applicant took out a knife and tried to stab S., who was driving the car, in the neck. S. saw the applicant’s movements in the rear-view mirror and covered his neck with his hands. The applicant cut S.’s right index finger. Kh. grabbed the applicant by the arm. S. stopped the car and got out. He opened the rear door and pulled out the applicant, who had managed to free himself from Kh. The applicant fell out of the car, hitting his head against the car as he did so, and then landed on his face. The knife fell onto the road. The police officers handcuffed the applicant and took him to the police station.
16. The investigator ordered the forensic examination of the applicant. On 2 May 2004 the forensic expert examined the applicant and noted the following injuries: bruises on the top right side of the head, bruises on the left part of the forehead, bruises under the left eye and top of the nose, and petechiae (evidence of bleeding under the skin) on the left temple. The expert considered that the said injuries could have resulted from blunt force trauma occurring no earlier than one day prior to the applicant’s examination.
17. On the same day R. was questioned by an investigator and stated the following:
“As I had drunk wine, I immediately fell asleep in the back seat. Then I was woken up by noise. I saw that the policeman who was in the driver’s seat had blood on his right hand. I can confirm that when we were leaving the cemetery, that policeman had no injuries on his hands. Nor did I see any blood on him.
When I was woken up by the noise to see the policeman’s hand covered with blood, I felt sick and lost consciousness. I cannot tell whether the car stopped on the way [to the police station]. Nor do I know why the policeman’s hand was bleeding. I do not know if anyone in the car had a knife on him...
I regained consciousness when the car stopped at the police station.”
18. G. was also questioned on 2 May 2004. He stated the following:
“[At the cemetery] I was asked to get into [a police car]. I complied and got into the back seat. There was a guy wearing sunglasses sitting next to me behind the driver’s seat... [He] was severely intoxicated. He was mumbling... On the way [to the police station] the guy who was sitting behind the driver moved his right arm towards the driver. In his hand he had an object which resembled a knife. The driver saw the guy’s movements in the rear-view mirror and leaned forward. After that, the guy made another move with his right arm – [holding] the object resembling a knife – towards the driver. The driver, however, covered his neck with his right hand to protect himself and then grabbed the guy by the right hand. Then the driver stopped the car, opened the rear door next to the guy with the sunglasses with his left hand, grabbed the guy’s right hand – holding a knife – with his left hand and pulled him out of the car. He kicked the guy in the chest. The other policeman ... took out a gun, told the others present in the car to sit and be quiet. Then he got out of the car and helped the driver to handcuff the guy. When the driver pulled the guy out of the car, the guy fell down on the asphalt and hit his face.”
19. On 14 May 2004 the applicant was charged with assaulting S.
20. It appears that on 8 June 2004 the applicant was remanded in custody pending investigation. He was released on 11 June 2004.
21. On 21 July 2004 a court authorised the applicant’s detention arguing that the applicant might abscond, tamper with evidence or put pressure on witnesses. He remained in custody pending investigation and trial. In particular, the court noted as follows:
“The court takes into account the fact that [the applicant] has a permanent place of residence. However, he is not officially married and he is unemployed ...
The [applicant’s] contacts with G. and R., even though denied by the [applicant’s] lawyer, have been noted by [the investigators]. Furthermore, the applicant himself did not deny that he was in contact with them... Pursuant to the materials in the case-file, G. and R. are the only eye-witnesses of the crime the applicant is charged with. Those persons have registered residence in Orsk and Novotroitsk. They are unemployed and failed to appear [for questioning]. The court considers that, if released, the applicant might influence those witnesses.
...
The court takes into account the information furnished by [the police department] concerning the applicant’s connection with [known gangsters], that he is a member of an organised criminal group... Having regard to the above, the court considers that ... the applicant might continue his criminal activities.”
22. The investigating officer commissioned several expert evaluations, including that of the knife found at the alleged crime scene. As it turned out, the quality of the fingerprints on the knife was not good enough to determine their origin. The investigator also questioned the applicant, the police officers involved, the paramedic who had attended to S., and R.’s mother.
23. On 13 September 2004 the investigator summoned G. and R. to appear for questioning. Neither G. nor R. were found at their last known addresses. The police questioned their neighbours and family, who stated that they had no knowledge of G. and R.’s whereabouts.
24. On 22 November 2004 the forensic expert prepared another report on the basis of the prior medical documentation, including the results of the medical examination of 2 May 2004, the forensic report of 2 May 2004, Xray examinations of 23 June and 14 July 2004, and the applicant’s medical file. The expert concluded that the applicant might have sustained a fractured nose approximately two to three weeks prior to the date of the first X-ray examination of 23 June 2004. As regards the origin of the injury, the expert reiterated the earlier forensic findings.
25. On 5 December 2004 the investigator forwarded the applicant’s case file to the court.
26. During the trial the applicant pleaded not guilty. He denied assaulting S. or having had a knife.
27. On 23 December 2004 the applicant unsuccessfully asked the court to admit as evidence written statements made by G. and R. which corroborated his version of the events of 1 May 2004. In particular, the court indicated as follows:
“Pursuant to the [rules of criminal procedure], [such] statements cannot be considered as evidence. Furthermore, [G. and R.’s] signatures are not duly certified, which fact may give rise to doubts as to whether the statements were made by G. and R. and as to their admissibility as evidence. If the defence can obtain R. and G.’s attendance in court for questioning or indicate their whereabouts to the court, the court, if requested so by the parties, may summon and question those persons.”
28. On 27 December 2004 the Orenburg Regional Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. In particular, the court noted as follows:
“... the fact that the [applicant] has committed the crime ... is confirmed by the following evidence:
By the testimony given by [police officer] S. ...;
...
By the testimony given by [police officer] Kh. ...;
...
By the testimony of [Police officer] Sh., who testified that on the way from the cemetery to [the police station] he was in the car that followed the one S. was driving. ... When S. stopped his car, [Sh.] saw S., whose right hand was bleeding, and Kh., who ran out of the car. They opened the rear door of the car and pulled [the applicant] out. [The applicant] had a knife in his right hand. The [police officers] knocked the knife out of his hand, put him on the ground and handcuffed him. Then S. wrapped his injured finger with a handkerchief. Some fifteen minutes later an ambulance appeared and provided medical assistance to S.
...
The crime scene investigation report notes that ... inside the [police car], eight brown stains were discovered on the left rear door. Brown spots resembling blood ... were also discovered inside the car on the steering wheel, on the interior of the window pane next to the driver’s seat, on the door near the driver’s seat, [and on the] windscreen wiper stalk near the steering wheel. A handkerchief covered with brown stains was found on the floor of the car, on the left side near the driver’s seat. A flick knife ... was found next to the left of the car ...
...
The report on the findings of the biological forensic expert evaluation ... of 25 October 2004 states that blood, which could have belonged to S., was found on the flick knife and the handkerchief and in four samples taken from the asphalt next to the police car, the car’s steering wheel, the handle in the car and the [applicant’s] right hand. It is possible that the samples also contain the [applicant’s] blood provided that he sustained injuries causing bleeding, but it is ruled out that the blood belonged only to him...
Further to defence counsel’s request, witness V., [R.’s mother], testified in court.
...
She learnt from her son, R., that on the way to the police station [the applicant] continued to “ask for trouble” in the car. The policemen advised him to shut up and then one of them punched him in the face with his fist. He started bleeding. The policemen pulled him out of the car and continued beating him.
Regard being had to all the evidence examined in the course of the proceedings, the court views witness V.’s testimony critically ... Her testimony is refuted not only by the testimony given by S. and Kh., but also by data contained in the crime scene investigation report and the findings of the biological forensic expert report.
According to the testimony given by S., Kh., and [the applicant], the latter was seated in the back seat of the car. [The applicant] and ... V. alleged that the [applicant] bled severely after the policeman hit him in the face.
However, this is not confirmed by the crime scene investigation report, which shows that there was no blood discovered in the seat occupied by the [applicant] in the car.
Furthermore, according to the above-mentioned report and the findings of the biological forensic expert evaluation report, the blood found both in the car and next to it, belonged to [S.] and possibly to [the applicant]. It did not belong only to [the applicant].
Having regard to the data contained in the crime scene investigation and the forensics reports, it is not possible to accept as substantiated the applicant’s allegations about being beaten in police custody ...
According to the testimony given by S. and Kh., the applicant sustained the injuries as a result of the police efforts to put a stop to his unlawful actions. He hit his head and face against the asphalt and the frame of the car when [the policemen] pulled him out of the car. This is confirmed by the findings of the medical forensic report of 6 May 2004 confirming that [the applicant] could have sustained the injuries as a result of contact with solid blunt objects within the period in question.
...
The court finds [the applicant] guilty [beyond reasonable doubt].”
29. On 11 March 2005 the Supreme Court of Russia upheld the applicant’s conviction on appeal. As regards the trial court’s failure to question G. and R., the Supreme Court indicated as follows:
“According to the materials of the case file, G. and R. were detained together with [the applicant] and placed in the same police car. They made written statements [about the incident]. However, they were not questioned, pursuant to the rules of criminal procedure. During the investigation and at trial it was impossible to establish their whereabouts.
According to V.’s testimony, R. is her son. He left home on 3 May 2004. Since then, he has showed up only once – in August 2004. His whereabouts are not known to her.
As regards her son’s account of the events of [1 May 2004], V. gave contradictory testimony. First, she claimed that her son had seen that [the applicant] had been beaten up and covered with blood. He had not remembered, however, what had happened in the car because he had been asleep there after drinking. Then she asserted that [the applicant] had been beaten up by the policemen in the car and then next to it. Under such circumstances, the [trial] court had reasons to critically assess that witness’s testimony.
The court’s decision not to admit as evidence G. and R.’s written statements submitted by [the applicant’s] counsel has also been justified.”
30. On an unspecified date the applicant sued the State Treasury for damages resulting from his injuries. On 29 May 2006 the Tverskoy District Court of Moscow dismissed the claim without examination of the merits for the applicant’s failure to comply with certain procedural requirements for lodging civil claims. It appears that the applicant failed to comply with those requirements and on 1 August 2006 the statement of claim was returned to him. On 21 December 2006 the Moscow City Court upheld the decision of 1 August 2006 on appeal.
31. On an unspecified date the applicant resubmitted his claims. On 29 October 2007 the Tverskoy District Court dismissed them. The applicant’s representative was present in court. On 4 March 2008 the Moscow City Court upheld the judgment on appeal.
32. On 18 April 2006 the applicant was transferred to correctional colony no. 5 in the Orenburg Region. On 20 September 2007 he was placed in a prison hospital. He died on 17 March 2010. The autopsy showed tuberculosis and AIDS as causes of death.
33. On 15 June 2009 the case file containing the applicant’s complaint of police brutality was destroyed after the expiry of the statutory period for its storage.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-21928
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: CALISKAN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Efraym Caliskan, is a Turkish national of Kurdish origin, born in 1968 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador's household were prevented from leaving the premises. On 17 February 1999, the applicant was arrested and subsequently detained in police custody (inverzekeringstelling) on suspicion of having been involved in the events in the residence of the Greek Ambassador.
The applicant was released from custody on 23 March 1999 after having been served with an indictment to stand trial on charges in relation to the events in the Greek Ambassador's residence. On the same day, he was handed over to the aliens' police (vreemdelingenpolitie). He was subsequently placed in aliens' detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet).
At some unspecified point in time, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. This request was rejected by the State Secretary of Justice (Staatssecretaris van Justitie) at an unspecified point in time. The applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against the State Secretary's refusal of his request for asylum. As the applicant had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. The applicant further requested the Hague Regional Court for an injunction on his expulsion pending the appeal proceedings.
In a decision taken on 31 March 1999, the Hague Regional Court rejected an appeal filed by the applicant against his placement in alien's detention.
On 23 April 1999, the applicant filed a second appeal with the Hague Regional Court against his placement in aliens' detention.
On 19 May 1999, the Hague Regional Court rejected the applicant's appeal against the State Secretary's decision to reject his request for asylum. It further rejected the applicant's request for an injunction on his expulsion.
On 26 May 1999, following a hearing held on 25 May 1999, the Hague Regional Court rejected the applicant's second appeal against his placement in aliens' detention. Insofar as relevant, it held:
“The Regional Court considers at the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been determined in its decision of 31 March 1999. The present appeal concerns the question whether, after a balancing of all interests involved, a further continuation of the placement should reasonably be considered as unjustified.
The Regional Court is of the opinion that it cannot be said that there are no real prospects for expulsion within a reasonable time. On behalf of the <State Secretary> it has been submitted that the alien will be presented to the Turkish <consular> authorities at short notice, given that his request for an injunction in connection with his request for entry to the Netherlands as a refugee or on humanitarian grounds was rejected on 19 May 1999 and the appeal ... declared illfounded. The Regional Court sees no reason to find that <the State Secretary> is proceeding with insufficient diligence. The Regional Court further finds that <the State Secretary>, pending the alien's presentation to the Turkish authorities, can reasonably adopt the position that the alien's placement in aliens' detention should be maintained.
As to the complaint of the alien's representative that <the State Secretary> has given undertakings to the effect that the issue of expulsion of Kurds who are being prosecuted for their alleged participation in the occupation of the Greek Ambassador's residence in The Hague will only be addressed once the criminal proceedings have come to an end, the Regional Court considers as follows. It appears neither from the case-file nor the oral submissions in the present case that <the State Secretary> has made solid and legally binding undertakings as to the expulsion of persons who occupied the Greek Ambassador's residence. Neither can such an undertaking be read into the replies given by <the State Secretary> to questions of members of the Lower House of Parliament. The Regional Court further does not perceive a need for the alien who has been placed in aliens' detention to be allowed to remain in the Netherlands pending his trial. After his expulsion, the alien may apply for a visa in order to attend his trial, as has been indicated at the hearing by the representative of <the State Secretary>.
Having regard to the above, the Regional Court considers that the appeal is illfounded. The placement in aliens' detention will not be lifted. Having regard to Article 34j of the Aliens Act there is no reason to award compensation.”
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the applicant was released from aliens' detention.
On 29 September 2000, the applicant's representative informed the Court that the applicant, following his release on 31 August 1999, had gone to Germany for a family visit. The applicant's representative further stated that the applicant had been apprehended, detained and expelled from Germany to Turkey despite the fact that there were asylum proceedings ongoing in the Netherlands. According to his representative, the applicant was detained in Turkey and tortured for a number of days.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;
c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.
2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.
3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.
...”
An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated.
It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point.
On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999.
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin.
On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.


ITEMID: 001-71635
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF VUJCIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1945 and lives in Stročín.
5. On 18 August 1992 the applicant’s son claimed that the maintenance which courts had earlier ordered the applicant to pay should be increased. The plaintiff submitted that his living costs had increased as he had started studying at a university.
6. On 26 October 1992 the Košice 1 District Court heard the parties. On 29 October 1992 it asked a tax office for information on the applicant’s income. The tax office submitted the information on 15 January 2003.
7. In the course of February and March 1993 the parties made further submissions and the court obtained fresh information on the applicant’s income.
8. The plaintiff did not appear before the court on 22 March 1993. The case was adjourned. Further documentary evidence was obtained in April 1993.
9. On 10 May 1993 the Košice 1 District Court ordered the applicant to pay monthly 1,200 Slovakian korunas (SKK) to his son as from 1 September 1992. The applicant appealed on 4 June 1993. On 9 July 1993 the applicant submitted another copy of his appeal and paid the court fee. The file was transferred to the appellate court on 29 July 1993.
10. On 30 September 1993 the Košice Regional Court quashed the first instance judgment to the extent that it had been challenged by the applicant. The appellate court found that the first instance court had failed to establish the relevant fact of the case and that it had acted contrary to the relevant provisions of the Code of Civil Procedure and of the Family Act. Reference was made, inter alia, to Article 6 of the Code of Civil Procedure.
11. On 7 March 1994 the District Court made an inquiry about the plaintiff’s studies. On 24 March 1994 the case had to be adjourned as both the plaintiff and the applicant had not appeared.
12. Between 15 April 1994 and 9 September 1994 the District Court held five hearings and it also obtained documentary evidence. On the latter date the court decided to determine the applicant’s income on the basis of an expert opinion which had been ordered in a different set of proceedings concerning the maintenance of the applicant’s other son. On 23 December 1994 the District Court found that the opinion had not been submitted as the applicant had refused to co-operate with the expert.
13. On 14 February 1995 the applicant proposed to settle the case. On 28 February 1995 the plaintiff agreed to a settlement. However, the parties refused to settle the case at a hearing held on 16 March 1995. The case was adjourned. On 22 April 1996 the court found that the applicant had not yet submitted the relevant documents to the expert in the context of the different set of proceedings.
14. On 7 March 1996 the President of the Košice 1 District Court admitted, in reply to the applicant’s complaint, that there had been delays in the proceedings after the Regional Court had quashed the first instance judgment.
15. In January and in October 1997 the District Court asked for the file in the proceedings concerning the maintenance of the applicant’s other son. The file could not be submitted to it as that case, which the first instance court had determined in the meantime even in the absence of an expert opinion, was pending before the appellate court.
16. On 29 April 1998 the plaintiff modified the claim. He proposed that a criminal file against the applicant be examined by the District Court.
17. On 7 May 1998 a hearing was held. In May 1998 the District Court obtained further evidence. Another hearing was held on 1 October 1998. The hearing scheduled for 30 October 1998 had to be adjourned as the requested documentary evidence had not yet been submitted to the court.
18. On 26 November 1998 the Košice 1 District Court ordered the applicant to pay SKK 1,200 monthly to his son as from 14 September 1992. It further authorised the applicant to pay the arrears for the period from 14 September 1992 to 30 November 1998 in monthly instalments of SKK 5,000. On 3 February 1999 the applicant appealed. The plaintiff submitted his comments on 23 February 1999. The applicant submitted further reasons for his appeal on 28 June 1999.
19. On 29 March 1999 the District Court delivered a supplementary judgment by which it rejected the plaintiff’s claim to the extent that it concerned the period from 1 to 13 September 1992.
20. In April and in July 1999 the District Court obtained further documentary evidence. The file was submitted to the appellate court on 17 June 1999.
21. The Košice Regional Court held hearings on 14 July 1999 and on 27 September 1999. On the latter date it upheld the first instance decision ordering the applicant to pay SKK 1,200 per month to his son. The Regional Court held that that obligation covered the period from 14 September 1992 to 31 August 1999. The decision on that issue became final on 23 November 1999.
The Regional Court further quashed the first instance decision concerning the payment of the sums in arrears and the costs of the proceedings as further evidence needed to be obtained with a view to determining the issue. Reference was made to Article 221(1)(c) of the Code of Civil Procedure.
22. On 2 December 1999 the District Court scheduled a hearing on the outstanding issue for 24 February 2000. On 15 February 1999 the applicant challenged the District Court judge involved in the case.
23. On 29 March 2000 the Košice Regional Court dismissed the applicant’s request for exclusion of the District Court judge. On 24 May 2000 the Regional Court issued a decision by which it rectified a clerical error in its decision of 29 March 2000.
24. A hearing before the District Court was scheduled for 5 October 2000. It had to be adjourned as the judge was ill.
25. The District Court heard the parties on 18 January 2001. On 9 February 2001 it gave a judgment ordering the applicant to pay to his son the outstanding sum of SKK 82,880 for the period from 14 September 1992 to 31 August 1999. It authorised the applicant to pay the sum in monthly instalments of SKK 5,000.
26. On 30 March 2001 the applicant appealed and he submitted further reasons for his appeal on 15 October 2001. He alleged, in particular, that his son was not entitled to maintenance throughout the period in question. He further alleged that the courts should have taken into account that he had paid SKK 9,000 to his son between September 1991 and February 1992 when the latter had studied at a different school.
On 5 April 2001 the plaintiff also appealed.
The file was transmitted to the appellate court on 4 May 2001.
27. On 22 October 2001 the Košice Regional Court upheld the judgment of 9 February 2001. It noted that the applicant’s obligation to pay maintenance to his son had been determined in proceedings which had ended with the Regional Court’s judgment of 27 September 1999. With reference to the documents included in the file the appellate court held that the District Court had correctly determined both the sum which the applicant owed to the plaintiff and the monthly instalments for payment of that sum.
28. The appellate court’s judgment with reasons was transmitted to the District Court on 17 January 2002. The District Court served it on the parties on 30 January 2002. On that day the decision on the point in issue became final.
29. Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
30. Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated. According to its case-law under former Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
31. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in the event that it finds a violation of Article 48(2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
32. It has been the Constitutional Court’s practice to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending, at the moment when such complaints are lodged with it, before the authority liable for the alleged violation (e.g., decision IV. ÚS 96/02, with further references, or decision IV. ÚS 176/03).
33. The Government submitted to the Court several decisions given by the Constitutional Court between 24 January and 10 July 2002. In them the Constitutional Court decided on complaints under Article 127 of the Constitution about the length of proceedings which had been filed in January 2002. The complaints concerned proceedings before ordinary courts which had been brought prior to 1 January 2002.
34. Pursuant to Article 6, the courts shall examine cases in co-operation with all participants so that the protection of rights is expeditious and effective and that the facts in dispute be reliably established.
35. Article 221(1)(c) provides that an appellate court shall quash the first instance decision, in particular, where the first instance judgment cannot be reviewed either as being incomprehensible or for lack of reasons.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22257
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JOVANOVIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Želimir Jovanović, is a Croatian citizen of Serbian national origin, who is born in 1959 and lives in Požega, Croatia. He is represented before the Court by Mr Nikola Bastaić, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed as an agricultural technician in the Požega Penitentiary and Rehabilitation Home - a State prison for young offenders - (Kazneno popravni dom Požega). On 21 January 1992 the director of the prison dismissed the applicant and four other employees, as a disciplinary penalty, for allegedly having voted for the formation of the so called Serbian Autonomous Territory of Western Slavonia (Srpska Autonomna Oblast “Zapadna Slavonija”) and the secession of that Territory from Croatia, in the Referendum for Serbian Autonomy in Croatia in August 1990 (hereinafter the “Referendum”). The decision of the applicant's dismissal stated that the Referendum was part of the efforts to change the State frontiers by secession of parts of the Croatian territory and their annexation to another State, which amounted to a criminal offence under Section 236 (b) of the Penal Code. The Referendum was found to be contrary to the Croatian Constitution, thus illegal and participation in it was declared incompatible with service in State organs. The decision was, in addition, based on the Enforcement of Penalties Decree, enacted in 1991.
The applicant appealed against his dismissal. On 25 March 1992 the Disciplinary Board of the Požega Penitentiary and Rehabilitation Home (Disciplinski sud pri Kazneno popravnom domu u Požegi) dismissed the appeal.
On 3 March 1992 the applicant filed an action challenging his dismissal in the Požega Municipal Court (Općinski sud u Požegi). He claimed that he did not take part in the Referendum. He also claimed that the Enforcement of Penalties Decree was enacted after his alleged participation in the Referendum and should not have been retroactively applied.
On 14 October 1992 the Požega Municipal Court upheld the decision of the applicant's dismissal. It found the applicant’s participation in the Referendum incompatible with his service in the Požega Penitentiary and Rehabilitation Home.
On 13 November 1992 the applicant lodged an appeal against the above judgment with the Požega County Court (Okružni sud u Požegi), reiterating his previous arguments.
On 22 December 1992 the appellate court dismissed the appeal and upheld the first instance judgment.
On 19 February 1993 the applicant filed a request for revision with the Supreme Court (Vrhovni sud Republike Hrvatske). On 20 December 1995 the Supreme Court upheld the lower courts’ judgments.
On 2 May 1996 the applicant filed a constitutional complaint. He claimed that he had not taken part in the Referendum. He argued that the Enforcement of Penalties Decree provision, prescribing that an employee in the prison may be dismissed if he was not fit for working in that institution, lacked sufficient clarity and, therefore, was inconsistent with the requirement of foreseeability. In his opinion the decision of his dismissal on account of his alleged participation in the Referendum violated his right to freedom of expression.
On 20 October 1999 the applicant’s constitutional complaint was rejected. The Constitutional Court (Ustavni sud Republike Hrvatske) found the applicant’s dismissal to be a consequence of his participation in the Referendum which it found incompatible with the applicant’s employment in the Požega Penitentiary and Rehabilitation Home, pursuant to Section 8 (3) of the Enforcement of Penalties Decree.
Section 8 (3) of the Decree on the enforcement of penalties for crimes, economic offences and misdemeanours committed during the state of war or the state of immediate danger for the independence and unity of the Republic of Croatia (the Enforcement of Penalties Decree - Uredba o izvršenju sankcija izrečenih za krivična djela, privredne prijestupe i prekršaje za vrijeme ratnog stanja ili u slučaju neposredne ugroženosti neovisnosti i jedinstvenosti Republike Hrvatske, Official Gazette no. 55/91) provides that the director of an institution may decide to dismiss an employee who is not fulfilling his duties or when it is established that he is not fit (podoban) to work in that institution.


ITEMID: 001-139345
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: AHMADOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 1. The applicant, Mr Abbas Hasan oglu Ahmadov (Abbas Həsən oğlu Əhmədov), is an Azerbaijani national, who was born in 1957 and lives in Baku.
2. He was represented before the Court by Mrs A. Tagiyeva, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 March 2005 police officers took the applicant and his brother from the applicant’s home to the Surakhani District Police Station in connection with the investigation of the murder of an acquaintance of the applicant with whom he had had a brief business relationship in Moscow one year before. After their arrival at the police station, the applicant and his brother were arrested for hooliganism and, on 8 March 2005, the Surakhani District Court sentenced them to seven days’ administrative detention.
5. According to the applicant, he was heavily beaten and ill-treated in police custody with the aim of extracting a confession from him. He did not however give any self-incriminating or confession statement.
6. On 10 March 2005 the applicant was heard by the investigator as a witness in connection with the murder case. He was questioned in particular about his relationship with the victim. According to the record of questioning, the applicant stated that he had fallen in the street on 7 March 2005 before his arrest by the police.
7. According to the medical record drawn up on 29 March 2005, on 10 March 2005 an X-ray examination of the applicant’s ribcage was carried out. The reason of this examination was not specified in the record. It was noted in the record that the applicant had not been examined or registered by a doctor. The medical record which is composed of two sentences reads as follows:
“On 10 March 2005 an X-ray examination of the ribcage was carried out. He was not examined or registered by a doctor.”
The record did not mention the results of the X-ray examination.
8. At the end of the seven days’ administrative detention the applicant’s brother was released, but the applicant remained detained on suspicion of involvement in the murder.
9. On 13 March 2005 the applicant was questioned by the investigator as a suspect. It was suspected that the applicant and a friend of his (A.M.) had contracted two other suspects (V.O. and Q.H.) to murder the victim in exchange for a certain sum of money. According to the record of the questioning of 13 March 2005, the applicant denied his involvement in the murder, stating that he had never ordered the murder of the victim. He also stated that there had been no conflict between him and the victim; however A.M. had had a conflict with the victim. The applicant did not raise any complaint concerning his alleged ill-treatment by the police.
10. On 13 March 2005 V.O. and Q.H. were also questioned by the investigator. In their submissions, V.O. and Q.H. admitted that they had murdered the victim, who was a taxi driver. On the day of the murder, they had taken the victim’s taxi as clients and, once outside the city, had asked the victim to stop the car and stabbed him with a knife. V.O. and Q.H. stated that the applicant and A.M. had contracted them to kill the victim in exchange for money. A.M. was questioned on the same day by the investigator and he described the applicant as the person behind the murder.
11. On 15 March 2005 the applicant maintained his initial position that he had never ordered the victim’s murder. Also on 15 March 2005, V.O. and Q.H. were again questioned by the investigator. In their submissions, they reiterated their previous statements, stating that the applicant had pointed out the victim’s taxi to them and that the applicant and A.M. were behind the murder. On the same date, A.M. again made an incriminating statement against the applicant.
12. On the basis of the investigation the applicant was charged with having committed the offence of premeditated murder.
13. Following his sons’ arrest the applicant’s father complained to the prosecution authorities that they had been ill-treated by the police. He claimed that his sons had been heavily beaten and ill-treated in police custody and that police officers had asked him for a bribe in the amount of 20,000 US dollars (USD) in order to release his sons from the police station. He said that he had not had enough money to pay the sum demanded and had managed to pay only USD 6,000. According to the applicant’s father, the applicant’s brother was released following the payment of the latter amount to police officers at the Surakhani District Police Station, but the applicant remained in detention as he could not pay the total amount of the bribe.
14. By a decision of 15 April 2005 the investigator at the Baku City Prosecutor’s Office instituted criminal proceedings under Article 309 of the Criminal Code (excess of authority) on the basis of the complaints by the applicant’s father.
15. On 15 August 2005 the investigator at the Baku City Prosecutor’s Office decided to terminate the criminal proceedings under Article 309 of the Criminal Code. The investigator found that the applicant’s father had failed to prove his allegations. As regards the complaint relating to the applicant’s ill-treatment in police custody, the investigator confirmed the existence of injuries to the applicant’s left ribcage and left ear. However, he stated that these injuries were due to a fall that the applicant had had in the street before his arrest. In this connection, the investigator noted that the applicant had stated when he was heard as a witness that he had fallen in the street. The investigator also relied on the submissions of the police officers, who denied ill-treating the applicant. The relevant part of the decision reads as follows:
“It appears from the record drawn up on 7 March 2005 by the policeman on duty A. Aliyev at Police Station No. 30 of the Surakhani District Police Office that at his arrival at the police station Ahmadov Abbas Hasan oglu stated that he had had a fall in Nakhchivanski street where he lived and had hurt his left ribcage and left ear. In this connection, a record was drawn up in the presence of Ahmadov Intigam Hasan oglu [the applicant’s brother] and the officers at the police station and it was signed by I. Ahmadov and A. Ahmadov. A. Ahmadov who was questioned as a witness during the investigation of the criminal case carried out by the Surakhani District Prosecutor’s Office stated that he had had a fall.
The head of Police Station No. 30 of the Surakhani District Police Office Mammadov Fuad Nariman oglu stated that ... after his arrival at the police station Abbas [the applicant] stated that he had been injured because of a fall and he was suffering and that a record was drawn up on 7 March 2005 at the police station and Abbas and Intigam signed it. Neither during their transportation to the police station, nor during their stay there, were Abbas and Intigam subjected to physical force and they did not sustain injuries...
The deputy head of Police Station No. 30 of the Surakhani District Police Office Jamalov Natig Alihuseyn oglu confirmed the submissions of F. Mammadov.
The agents of Police Station No. 30 of the Surakhani District Police Office Tagiyev Azer Abbaseli oglu, Mustafayev Kamandar Ahmad oglu, Seferov Shikar Cavab oglu and Mahmudov Elshan Bakhtiyar oglu submitted that they had gone on 7 March 2005 at 10 p.m. to Nakhchivanski street 93, in Baku city, where I. Ahmadov and A. Ahmadov resided, to invite them to come to the police station. I. Ahmadov and A. Ahmadov who came to the police station at their request committed acts of hooliganism in front of the police station and this fact was documented and the relevant record on the existence of the injuries on the person of A. Ahmadov when he was taken to the police station was drawn up. They did not use physical force against anyone...
Therefore, it was not established during the investigation that A. Ahmadov and I. Ahmadov ... had been beaten in the police station...”
16. The applicant did not appeal against the above decision to terminate the criminal proceedings.
17. In the meantime, the charges of premeditated murder against the applicant had been brought before the Assize Court for examination. During these proceedings the applicant protested his innocence, submitting that he had been beaten by the police and that a criminal investigation against the police officers in this respect was pending before the prosecuting authorities. In the course of the trial V.O. and Q.H. likewise stated that they had been beaten and ill-treated in police custody, maintaining that their testimony in the pre-trial investigation had been extracted by this ill-treatment. On 15 July 2005 the Assize Court ordered an examination of V.O. and of Q.H. by a forensic expert. According to the forensic reports of 22 July 2005, there was no sign of ill-treatment on their person.
18. On 2 August 2005, i.e. prior to the termination of the criminal investigation concerning the applicant’s alleged ill-treatment (see paragraph 15 above), the Assize Court found the applicant, A.M., V.O. and Q.H. guilty of premeditated murder. The applicant was convicted under Articles 32.4, 120.2.1 and 120.2.5 of the Criminal Code (complicity in premeditated murder) and sentenced to fourteen years’ imprisonment. The relevant part of the judgment reads as follows:
“The submissions of Abbas Ahmadov [the applicant] that A.M., V.O. and Q.H. were partial towards him in their statements which indicate that he had ordered the murder of the victim; that V.O. and Q.H. killed the victim at the request of A.M. because the latter had had a conflict with the victim and the submissions of A.M. that V.O. and Q.H. killed the victim at the request of Abbas [the applicant] in exchange for 300,000 Azerbaijani manats and deleting a rental debt of 50,000 Azerbaijani manats because there had been a conflict between the applicant and the victim in Moscow and the victim refused his consent to the marriage between his sister and the applicant’s brother were examined and the submissions of Abbas Ahmadov [the applicant] were not confirmed by any other evidence in the case file.
...
The video recordings and other documents in the case file confirm that the statements of V.O., Q.H., Abbas Ahmadov [the applicant] and A.M. were freely taken by the investigator in the presence of their lawyers.
The arguments put forward by Abbas Ahmadov and A.M. in support of their defence which were completely and objectively examined in detail during the court investigation should be dismissed as they are unjustified and rebutted.
The statement and the documents written by V.O. in favour of Abbas Ahmadov [the applicant], as well as the statement given by V.O. in the courtroom, have been examined in the court investigation and they could not be accepted as evidence because they had been done under pressure as V.O.’s family lived in a house belonging to Abbas Ahmadov [the applicant].”
The judgment was silent as to the applicant’s alleged ill-treatment.
19. The applicant appealed against the Assize Court’s judgment maintaining his innocence and reiterating that he had not been involved in the murder in question.
20. According to the record of the hearing held on 5 October 2005 before the Court of Appeal, V.O. stated that he had not intended to kill the victim but had just wanted to frighten him. He further stated that the applicant did not know anything about the murder and that A.M. was behind the murder. Q.H. also retracted his previous testimony against the applicant at the hearing. In his submissions before the court, A.M. denied his involvement in the murder, but admitted that he had pointed out the victim’s taxi to V.O. and Q.H. However, he described the applicant as the person behind the murder.
21. On 25 October 2005 the Court of Appeal upheld the Assize Court’s judgment. The relevant part of the judgment which is almost identical in its wording to the first-instance court’s judgment reads as follows:
“The submissions of Abbas Ahmadov [the applicant] that A.M., V.O. and Q.H. were partial towards him in their statements which indicate that he had ordered the murder of the victim; that V.O. and Q.H. killed the victim at the request of A.M. because the latter had had a conflict with the victim and the submissions of A.M. that V.O. and Q.H. killed the victim at the request of Abbas [the applicant] in exchange for 300,000 Azerbaijani manats and deleting a rental debt of 50,000 Azerbaijani manats because there had been a conflict between the applicant and the victim in Moscow and the victim refused his consent to the marriage between his sister and the applicant’s brother were examined and the submissions of Abbas Ahmadov [the applicant] were not confirmed by any other evidence in the case file.
...
The video recordings and other documents in the case file confirm that the statements of V.O., Q.H., Abbas Ahmadov [the applicant] and A.M. were freely taken by the investigator in the presence of their lawyers.
The arguments put forward by Abbas Ahmadov and A.M. in support of their defence which were completely and objectively examined in detail during the court investigation should be dismissed as they are unjustified and rebutted.
The statement and the documents written by V.O. in favour of Abbas Ahmadov [the applicant], as well as the statement given by V.O. in the courtroom, have been examined in the court investigation and they could not be accepted as evidence because they had been done under pressure as V.O.’s family lived in a house belonging to Abbas Ahmadov [the applicant].”
22. On 18 April 2006, i.e. approximately eight months after the proceedings concerning the alleged ill-treatment of the applicant had been terminated (see paragraph 15 above), the Supreme Court quashed the Court of Appeal’s judgment of 25 October 2005 and remitted the case for fresh examination. The relevant part of the judgment reads as follows:
“After having heard the lawyer’s submissions in favour of the applicant’s cassation appeal and the applicant’s submission in favour of his own cassation appeal and against the other co-accused, as well as the prosecutor’s submissions against all the cassation appeals and having examined the arguments and the facts of the case, the panel of the court considers that the appeals should be partially granted, the judgment of the Court of Appeal should be quashed and the case should be sent for a new appellate examination.
In accordance with Article 419.1 of the Code of Criminal Procedure of the Republic of Azerbaijan, the cassation court examines the cassation appeal and protest on the merits and verifies only the lawfulness of the applicability of the criminal law and provisions of this Code on legal issues.
The panel of the court considers that although a number of violations of procedural law had been committed at the investigation stage of the proceedings, these violations had not been fully examined and duly assessed at the two court instances.
In accordance with Article 125.2.2 of the Code of Criminal Procedure, information, documents and other items obtained through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts shall not be accepted as evidence in a criminal case.
It appears from the case file that A. Ahmadov sustained moderate bodily injury because of the use of physical force against him at the investigation stage, and criminal proceedings were instituted in this connection by the Baku City Prosecutor’s Office. It follows that the statements were extracted from him by force during the investigation and that, as he was not willing to give the statements the investigator wanted, he was subjected to physical force.
Moreover, the detainees V.O. and Q.H. also stated in their cassation appeals that their testimony had been extracted from them by force at the investigation stage.
Section 6 of the decision of the Plenum of the Supreme Court on Activity of Courts in the Field of Protection of Human Rights and Liberties in the Administration of Justice of 10 March 2000 provides that unlawfully obtained evidence cannot be used in the administration of justice and for this reason, when examining cases, the courts guided by the provisions of the criminal procedural law, as well as the explanations of Section 3 of the decision of the Plenum of the Supreme Court on Judgment of Court of 27 December 1996, shall not in any case use unlawfully obtained evidence.
As it transpires from the case file the detainees V.O. and Q.H. did not confess in their statements that they had been ordered to kill the victim and only V.O. stated that he had been ordered to frighten the victim for preventing him from going to Moscow. Although in his statements made at the investigation stage he submitted that he had received this order from the detainees A. Ahmadov [the applicant] and A.M., in his statement made during the examination of the case at the first-instance court and in his appeal to the appellate court, he noted that this order had been given solely by A.M. However, instead of dismissing these submissions by examining them with other evidence, both court instances refused to consider this evidence without any justification concluding that these statements had been transferred to him by the relatives of A. Ahmadov [the applicant]...
Moreover the panel of the court considers that the motive for the crime was not completely and clearly established...”
23. The Court of Appeal re-examined the criminal case. At the hearings before the Court of Appeal the applicant denied his involvement in the murder of the victim. He maintained that he had been beaten by the police and that he had never said that he had fallen in the street.
24. In the course of the proceedings before the Court of Appeal, V.O. and Q.H. stated that the murder of the victim had not been ordered by the applicant and A.M., and that their statements to that effect given during the investigation had been extracted by force. However, they also stated that the applicant and A.M. had asked them to beat and frighten the victim in order to prevent him from going to Moscow. V.O. and Q.H. lastly stated that they had not intended to kill the victim and had only stabbed him in the leg, but that the victim had died as a result of the injuries to his leg. In his submission before the Court of Appeal, A.M. also stated that the applicant had only asked V.O. and Q.H. to beat and frighten the victim.
25. On 19 February 2007 the Court of Appeal delivered a new judgment on the merits. The relevant part of the judgment reads as follows:
“The panel of the court concludes ... that the statements of V.O. and Q.H. given at the investigation stage, according to which Abbas [the applicant] and A.M. ordered them to kill the victim, were not true.
In accordance with Article 125.2.2 of the Code of Criminal Procedure, information, documents and other items obtained through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts shall not be accepted as evidence in a criminal case.
It appears from the case file that the detainees were subjected to violence, that they were beaten and sustained injuries, and that a criminal investigation was instituted in this connection.
For this reason, the panel of the court decides under Article 125.2.2 of the Code of Criminal Procedure not to admit the statements given during the investigation by V.O. and Q.H.
The panel of the court, based on the above-mentioned facts, considers that the detainees’ actions were not correctly classified by the first-instance court and that Abbas Ahmadov [the applicant] and A.M. did not intend to kill the victim and they did not give such an order.
The detainees Q.H. and V.O. also did not intend to kill the victim and did not want such a consequence. They only intended to frighten the victim.”
The Court of Appeal convicted the applicant on the basis of the testimony given before the court by the other accused and reclassified his conviction under Articles 32.4 and 126.3 of the Criminal Code (complicity in the premeditated infliction of physical damage by a group of persons and resulting in the victim’s death). The applicant was sentenced to nine years’ imprisonment.
26. On an unspecified date the applicant lodged a cassation appeal claiming his innocence.
27. On 29 May 2007 the Supreme Court upheld the Court of Appeal’s judgment of 19 February 2007 and dismissed the applicant’s cassation appeal. It appears from the Supreme Court’s decision of 29 May 2007 that the applicant complained before the cassation court about the assessment of the evidence by the lower court claiming his innocence. This part of the judgment reads as follows:
“In the cassation appeal lodged by the advocate of the detainee A. Ahmadov [the applicant] it was requested that the appellate court’s judgment of 19 February 2007 be quashed and that the criminal proceedings be closed. The appeal was supported by the allegations that A. Ahmadov [the applicant] had been convicted on the basis of the incorrect statement of the other accused A.M., that the preliminary investigation in connection with this case had been biased, that A. Ahmadov’s [the applicant] involvement in the crime had not been proved in court by reliable evidence, that the court had not correctly assessed the evidence, had not taken into consideration the statement of V.O. and Q.H. according to which A. Ahmadov had not ordered them to kill the victim, had incorrectly concluded that A. Ahmadov had participated in the crime and that the judgment of the Court of Appeal was not based on reliable evidence”.
As to the reasoning of the Supreme Court, the relevant part of the judgment reads as follows:
“The appellate instance court examined the appeal by conducting a court investigation. It correctly determined the facts of the case, the degree of participation of the detainee A. Ahmadov [the applicant] in the commission of the crime and his role in this regard and correctly classified his acts by the criminal law by completely and objectively examining in detail the arguments of the appeal, by analysing and assessing, as required by the law, the collected evidence.
In order to reach this conclusion, the appellate court in its decision, in support of its finding that A. Ahmadov had committed the crime, also referred to the statements of A.M., Q.H. and V.O., clarified the contradictions between these statements and correctly assessed them.
Moreover, the appellate court also substantiated its findings on this case by testimonies of witnesses and other objective facts of the case.”
28. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows:
“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”
29. Article 63 (IV) of the Constitution provides:
“Unlawfully obtained evidence shall not be used in the administration of justice.”
30. Information, documents and other items, if there is no doubt as to their accuracy, their source and the circumstances in which they were obtained, may be accepted as evidence (Article 125.1). Article 125.2 of the CCrP provides that information, documents and other items cannot be accepted as evidence in a criminal case if they were obtained in the following circumstances: if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings were deprived of their rights protected by law, or those rights were restricted through a violation of their constitutional human or civil rights and liberties or of other requirements of this Code (Article 125.2.1); through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts (Article 125.2.2); and where the rules governing investigations or other procedures have been seriously violated (Article 125.2.7). Article 125.3 of the CCrP provides that information, documents and other items obtained in the circumstances described in Article 125.2 of the Code are to be regarded as invalid and may not be used to prove any circumstance with a view to determining a charge correctly.
31. Chapter LII of the Code of Criminal Procedure (“the CCrP”) lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that the victim or his counsel can challenge actions or decisions of the prosecuting authorities concerning, inter alia, refusal to institute criminal proceedings or to terminate criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions can quash them if he or she finds them to be unlawful (Article 451). The decision of the judge on the lawfulness of the prosecuting authorities’ actions or decisions can be disputed before an appellate court in accordance with the procedure established in Articles 452-453 of the CCrP.
32. The relevant part of the decision of the Plenum of the Supreme Court reads as follows:
“... Unlawfully obtained evidence cannot be used in the administration of justice. For this reason, when examining cases courts ... shall not under any circumstances use unlawfully obtained evidence. The court, if it considers that evidence submitted by the prosecution or the investigating authority has been unlawfully obtained, shall give an opinion on the acts of the person having violated the law which excludes in all cases such impugned evidence from the body of evidence in the case ...”