ITEMID: 001-58200
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF ERGİ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (validity of application);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);No violation of Art. 2 (applicant's sister);Violation of Art. 2;Not necessary to examine Art. 8;Violation of Art. 13 (applicant and his niece);No violation of Art. 14;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicant, Mr Muharrem Ergi, a Turkish citizen of Kurdish origin, was born in 1954 and lives at Incirliova, Aydın.
7. The application was brought on behalf of the applicant himself, his deceased sister, Havva Ergi, and her young daughter. It concerns complaints relating to an incident on 29 September 1993 in which Havva Ergi was killed.
The village in which the events took place has two names: an old Kurdish name of Gisgis and an official Turkish name of Kesentaş. The latter name has been used below.
8. The facts in this case are disputed.
9. A week before the incident on 29 September 1993 in the applicant’s village of Kesentaş, Cuma Bali, one of two “collaborators” in the village had been killed by the PKK (Workers Party of Kurdistan). The day before the incident, Ibrahim Halil, the other “collaborator” had moved, under the protection of Ziyaret village guards and apparently with the assistance of gendarmes, from the applicant’s village to Ziyaret, a village five kilometres away. A “collaborator” is described by the applicant as someone spying for the State as distinct from members of the village guards.
10. On 29 September 1993, the security forces set up an ambush in the vicinity of the village purportedly to capture members of the PKK. They consisted, inter alia, of a commando unit and village guards from Ziyaret. Security forces were located in or near a cemetery 600 metres northwest and south of the village near the asphalt road. The security forces opened fire. The shooting lasted for about one hour and consisted of indiscriminate bombardment of civilian houses. It led to the death of the applicant’s sister, Havva. No members of the PKK were killed or captured.
11. The applicant’s house was in the middle of the village. At the time of the incident, his father and his sister Havva were sleeping on the balcony, on the upper part of the house. As soon as the firing started, Havva and his father took shelter inside the house, but Havva went out on the veranda to collect something. She was hit in the head by a bullet when she was on the threshold and died immediately.
12. On the following morning, the applicant’s uncle Hasan Ergi informed the Ergani gendarmerie commander, possibly by telephone, that the applicant’s sister had been killed. The commander was surprised to learn that only one person had died and stated that he expected at least twenty people to have died. The applicant’s uncle told the commander that he would apply to the public prosecutor. However, the commander told him to go home and said that he would himself inform the public prosecutor.
13. Towards noon, the public prosecutor, a doctor and some soldiers came to the applicant’s house and an autopsy was carried out. While the autopsy was being undertaken inside the applicant’s house, the applicant’s brother, Seyit Battal Ergi, asked the soldiers why his family were being persecuted in this way. A non-commissioned officer replied that, if the villagers accepted to become village guards, the persecution would stop and the reason why they shot at the village was that they saw terrorists at its entrance and that the indiscriminate firing at the entire village was to be explained by the clumsiness of the troops. The doctor, after completing the autopsy, said nothing except to present his condolences. He also issued a burial certificate. The applicant and his family were not asked by the public prosecutor about their version of the circumstances of the shooting. The gendarmerie officer İsa Gündoğdu, drew up the incident report without interviewing or seeking any statements from the villagers or members of the commando unit involved. No cartridges were found by the gendarmes in the area in which the PKK were said to be located during the incident. There is no evidence that the PKK were in fact present in the vicinity during the incident.
14. The bullet which killed the applicant’s sister was described in the ballistics report as a standard NATO 7.62 which was used by the Turkish security forces as well as by many other forces. The shot could not have been fired from the east since it would have been blocked by the walls of the houses. It could only have been fired from the south or south-east from higher ground, which was where the security forces were stationed on a hillside.
15. There had been no communication between the public prosecutor and the family since the day of the autopsy. He and his family remained in the dark as to the official view of the incident and did not know whether there had been any investigation or prosecution in respect of the shooting. He stated that the village of 200 households had now been reduced to twenty families, the rest having abandoned their homes as a result of military incidents such as the one which led to his sister’s death.
16. The security forces carried out an ambush operation in the vicinity of the village to catch the PKK members who were active in the area. Units were concealed in the north-west and engaged in an armed clash with the PKK at a point to the south-east of the village, near the cemetery. Their position was 100 metres above the PKK. There were no units positioned to the south and there would have been no point in having men there since the PKK would not come from the south. The security forces could not therefore have fired the shot from the south which killed the applicant’s sister.
17. During the clash, only a few houses were slightly damaged, which does not support the allegations of prolonged, indiscriminate firing by the security forces.
18. A preliminary investigation into the incident was opened by the public prosecutor of the Ergani district. An autopsy was carried out on the applicant’s sister on 30 September 1993 in his father’s house. According to the medical examiner’s report of that date, an external examination disclosed a bullet wound to the head, probably an entry wound. The skull was opened and a 7.62 mm bullet found in the right parietal lobe and removed. Time of death was estimated at about ten to twelve hours prior to the examination.
19. In a letter dated 7 October 1993 addressed to the Ergani public prosecutor, gendarmerie major Ahmet Kuzu reported that the security forces had carried out an ambush at the entrance of Kesentaş village. The security forces opened fire on terrorists, who fled towards the northerly part of the village and a search party was sent in that direction without making any contact. He stated that it was reported that a telephone call had been made to the district gendarmerie headquarters at Ergani at 8 a.m. on 30 September 1993, informing the latter that Havva Ergi had been killed in the clash. An investigation took place at 10 a.m. that day in the presence of the public prosecutor. Copies of the incident report and a sketch of the location were enclosed with the letter.
20. On 12 December 1993, the Ergani public prosecutor, Mustafa Yüce, considering that the matter lay outside his jurisdiction, transferred the file to the relevant public prosecutor attached to the Diyarbakır National Security Court where the matter is still pending. The decision of lack of jurisdiction named the defendants as “members of the illegal PKK organisation” and the offence as engaging in armed combat with the security forces and homicide. It indicated that Havva Ergi had died as a result of gunfire occurring in the course of an armed clash which broke out between members of the security forces who were carrying out an ambush operation on the outskirts of Kesentaş village and members of the PKK who were approaching the village.
21. On 1 April 1994, the regional criminal police laboratory issued its expert ballistics report. It found that the bullet was 7.62 mm calibre and fired by a weapon with a barrel containing four ridges which rotated clockwise.
22. In a letter dated 8 December 1994 from the Principal Public Prosecutor’s Office at the Diyarbakır National Security Court to the Ministry of Justice, it was reported that during the ambush operation clashes spread to the village and as a result a bullet hit the doorframe of a house, ricocheted and hit Havva Ergi who was standing near the door. The investigations into her death were still under way. A ballistics examination revealed that the bullet was misshapen and no material information could be obtained which could lead to a conclusion as to the weapon used. No empty cartridges were found at the scene. Thus, there was no information in the file on the weapon which had caused the death. Since the fighting started at 9.30 p.m. and continued into the night, there was no eyewitness evidence as to what was seen or heard. Proceedings were continuing with a view to apprehending the members of the PKK involved in the armed clash but since they did not return to the scenes of clashes for a long time it would take time to identify and arrest them. As regards the allegations made in the applicant’s statement of 9 October 1993 taken by the Human Rights Association (“the HRA”), the claim that the security forces opened harassing fire on the village was false and was intended to denigrate the security forces involved in the fight against terrorism. It was the duty of security forces to maintain order and protect the population so there could be no question of them opening harassing fire on the village. The incident in Kesentaş resulted from the type of ambush operation commonly carried out by the security forces on roads leading into and out of villages.
23. By letter dated 26 December 1994, the Ministry of the Interior informed the Ministry of Foreign Affairs that on 29 September 1993 the security forces had come to the village with the purpose of apprehending terrorists whom they had heard were coming to the village. The security forces were attacked by the PKK. Village guards from Ziyaret were not involved in the operation. No raid was carried out on the village which was due to have village guards of its own. Although villagers had applied for posts as village guards they had not in fact been recruited since no suitable posts were available. At the time of the incident there were 150 households, not 200 as alleged by the applicant (see paragraph 15 above), and currently there were 180 households living there, not twenty, as alleged by the applicant (ibid.).
24. Since the facts of the case are disputed, particularly concerning the events in or around June 1993, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements, and oral evidence taken from four witnesses by three delegates at a hearing in Ankara on 7–8 February 1996.
25. As regards written evidence, the Commission had particular regard to a statement by the applicant dated 9 October 1993 taken by the HRA in Diyarbakır, and an incident report of 30 September 1993, drawn up by İsa Gündoğdu, commander of the Ergani central gendarmerie, and signed by other gendarmes. The report concluded that Havva Ergi must have been killed accidentally as a result of shots fired by members of the PKK in the course of clashes with members of the security forces. Furthermore, the Commission had regard to a sketch map of the incident location dated 30 September 1993, drawn up and signed by İsa Gündoğdu. It indicated, inter alia by numbers, the location of the deceased’s body, the terrorists’ firing position (no. 7), the security forces’ firing position (no. 9), the road and the village slopes.
26. In addition, the Commission had regard to two statements dated respectively 30 October and 3 November 1995.
The first statement, signed by the applicant and by officers of the anti-terrorism department, was set out in the form of questions and answers. The applicant was referred to his declaration of means and confirmed his signature. He was asked whether he had made an application to the European human rights association or in Turkey and if so, to provide further explanations. He stated that he had applied to the HRA regarding his sister, that he had not applied to the Kurdish Human Rights Project and that he had applied to the European Commission of Human Rights indirectly through the HRA. He gave details of his finacial position.
The second, signed by the applicant and by a public prosecutor, indicated that the applicant had been shown his declaration of means and that he confirmed that it looked like his. He had explained that he had made an application in 1993 to the HRA and to the European Commission of Human Rights. His application had not concerned anything else and he had not wished to add anything.
27. The oral evidence included statements by the applicant himself, Ahmet Kuzu (gendarmerie commander in the district of Ergani), İsa Gündoğdu and Mustafa Yüce (Ergani public prosecutor). The following witnesses had also been summoned but they did not appear: Bekir Selçuk (Principal Public Prosecutor at the National Security Court, Diyarbakır), Senai Baran (muhtar), Ibrahim Halil Ergi (father of Havva Ergi), Seyit Battal Ergi (brother of Havva Ergi), Hasan Ergi (uncle of Havva Ergi) and Hacere Ergi (mother of Havva Ergi).
28. The verbatim record of the hearing held on 7–8 February 1996 contained the following passages of relevance to the Government’s preliminary objection as to the validity of the application (see paragraph 60 below):
“Mr GÜNDÜZ: We have your petition before us. It bears your signature. Muharrem Ergi, isn’t it:
Mr Muharrem ERGI: Yes.
Mr GÜNDÜZ: Mr Ergi, do you know about the application that was written later on your behalf? Did you see the application that was submitted to the Human Rights Commission?
Mr Muharrem ERGI: Yes.
Mr GÜNDÜZ: Certainly you don’t speak English, do you?
Mr Muharrem ERGI: No, not much.
Mr GÜNDÜZ: Again there is a mistake. You are referred to as a woman. Of course, the name Muharrem is not so usual and that is why. This is your signature. You said, ‘We went together with my father and mother’, didn’t you?
Mr Muharrem ERGI: Yes.”
Mustafa Yüce had stated to the delegates that he had been convinced that the incident report had been accurate in concluding that the PKK had been responsible and that no other allegation to the contrary had been made. There had been no reason to think that the record drawn up by the security forces had not been accurate. If an allegation had been made that Havva Ergi had been killed by gunfire from the security forces, he would have been obliged to go to the village. He believed that he would have received a complaint if the security forces had been responsible.
29. In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates.
In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination or other independent investigation of the events in question. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problems of language adverted to above there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while ten witnesses had been summoned to appear, only four in fact had given evidence before the Commission’s delegates. Significantly, only one of two public prosecutors who were summoned had appeared and, despite repeated requests by the Commission, the Government had not identified any officers who had participated in the operation for the purpose of giving evidence before its delegates. The Government also had not provided complete documentary materials relating to the operation. The Commission had therefore been faced with the difficult task of determining events in the absence of potentially significant testimony and evidence.
The Commission’s findings can be summarised as follows.
30. Kesentaş village was located on a slope, the northern part higher than the southern, with steep mountains behind to the north. There were vineyards around the village; a road running east-west through the village which continues north-east between the mountains; a wider main road to the south of the village running roughly east-west and to the south of this road the ground slopes upwards again. The village accordingly lay in a depression. The terrain to the north was rough and steep, with a river bed running down to the village from a north/north-eastern direction.
31. The Commission found from the evidence of the witnesses that PKK activity in the area around the village in or around 1993 had been significant. There had been at least two incidents involving the village shortly before the operation on 29 September 1993. In one incident, a villager ,Cuma Bali, had been shot dead and in the other, another villager, Ibrahim Halil, and his father had left the village under gendarmerie protection after his house had been shot at and moved to Ziyaret where they joined the village guards. Halil had been in the mountains with the PKK and had returned of his own free will. The timing of the latter incident had not been established. The applicant’s written statement to the HRA referred to the move from the village taking place the day before the incident, whereas it had appeared from the applicant’s oral testimony that he had been absent from the village and he had had no real recollection of what he might have been told by others. Major Kuzu, who had remembered helping the family move, did not specify the date.
32. The PKK had tended to arrive from the north of the village under cover of the terrain, requiring the villagers to provide food and medicine. There had been no village guards in the village and no permanent security presence in the vicinity. The main road to the south of the village had been patrolled from time to time.
33. At Ergani, about 17 kilometres to the east, there was a central gendarmerie headquarters under the command of İsa Gündoğdu, a non-commissioned officer (“NCO”). There was also a district gendarmerie headquarters, under the command of Major Kuzu, and a separate commando unit. Major Kuzu was in overall command of the district and central gendarmerie and had frequently been absent in his additional capacity as commander of a commando unit which had often been in the field.
34. The Commission observed that there had been no detailed investigation or judicial finding of facts on the domestic level as regards the events which occurred in the village of Kesentaş on 29 September 1993. The Commission had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings; in this assessment the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and in addition the conduct of the parties when evidence is being obtained may be taken into account (see, mutatis mutandis, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
35. The Commission noted that the two gendarmes had stated in evidence that they had not in fact been at the village when the clash had occurred. Major Kuzu had stated that he was in an operation elsewhere
with commandos. NCO İsa Gündoğdu had arrived after the firing had stopped and, although he followed in the direction of the allegedly fleeing PKK, he had seen no sign of them. The Commission had requested the Government on two occasions prior to the hearing in Ankara to identify, for the purpose of taking evidence, gendarmerie officers who had been present during the operation. The Government had not responded. The Commission recalled that the applicant had not been in the village either and his testimony concerning the events of that night had been based on what he had remembered being told by members of his family or villagers. Members of the applicant’s family present during the clash had not appeared as witnesses although summoned by the delegates. There had therefore been no direct eyewitness evidence before the Commission as to what had occurred, which was regrettable.
36. Further, the documentary evidence had also been of second-hand quality. The incident report and sketch had been drawn up by İsa Gündoğdu, not by any gendarmerie officer involved in the operation and, from İsa Gündoğdu’s testimony before the delegates, it is not apparent that he questioned the security forces on the spot in any detail. Indeed his contact with them appeared to have been limited to radio contact, by way of coded transmissions. The Government had failed to comply with the Commission’s request to be informed of the name and of the unit of the commanding officer of the unit involved in the operation and to be provided with the copy of the logbook entry, register or field report which recorded the operation.
37. The Commission accordingly had little direct evidence as to what had occurred on the night of 29 September 1993. As to whether a clash had in fact taken place, the Commission noted that it had been alleged by the applicant that an indiscriminate bombardment of the village had been carried out in retaliation for the incidents in the village in which “collaborators” were, in one case, shot and, in the other, forced to leave. The Commission recalled that Major Kuzu had been directly involved in the move of the threatened villager and that he did not consider that the PKK had shot at the villager, but that it had been the other villagers who would have killed him as they wanted to know why he had left the organisation. İsa Gündoğdu commented that a great many people in the village had joined the organisation. The applicant’s allegation that the bombardment of the village could have been motivated by a desire to teach the village a lesson was not totally without substance.
38. The Commission noted several puzzling features. Major Kuzu had been the district gendarmerie commander but had had no apparent knowledge of, or role in, an operation within his jurisdiction, though he had felt able to give firm opinions as to what must have occurred. The night the
incident occurred, İsa Gündoğdu of the central gendarmerie had had to borrow an armoured personnel carrier from the police because those belonging to the gendarmerie were being used in a mission. İsa Gündoğdu had stated that the firing at the village had only lasted about five minutes whereas the letter from the public prosecutor at the Diyarbakır National Security Court dated 8 December 1994 referred to fighting that had started at 9.30 p.m. and continued into the night, which appeared to corroborate the applicant’s version of events, derived from his family, that the firing had continued for over an hour. The applicant had stated that, as might be expected from sustained shooting, there was widespread damage to the village. He had gone round the village, noting damage to about a hundred houses and had taken a few photographs which indeed revealed bullet marks on two houses. İsa Gündoğdu who had also been in the village the next day had stated that there was damage only to two or three houses and to a car, from at most fifteen bullets. This is another area which could have been elucidated by further information provided by the Government. İsa Gündoğdu stated that photographs of the village had been taken by the public prosecutor. These had not been provided by the Government, which had stated that no photographs had been taken.
39. As regards the details of the clash which had been given, the Commission was again hampered by a lack of direct information. It had initially been provided with a blurred copy of the sketch map by İsa Gündoğdu with the bottom section omitted. This copy showed a key indicating the positions of the terrorists (no. 7) and the security forces (no. 9). A no. 7 had clearly appeared to the east of the village. A no. 9 had appeared to the north-west. There had also been a squiggle in the south not dissimilar to that portraying the security forces’ position to the north-west and which contained a blurred figure. This figure had seemed to be a 9. İsa Gündoğdu when questioned stated that the terrorists were to the south and indicated on the sketch that they would have been close to the position marked with the blurred figure. If the blurred figure had been a 9, this had been a mistake. Major Kuzu had also been adamant that there would be no security forces in the south. In brief, there would be no point: the terrain had not been favourable and they had known the PKK would come from the north and would flee in that direction. Since Major Kuzu had not been present during the clash, on his own testimony, the Commission felt unable to give his evidence much weight. İsa Gündoğdu had based his sketch on what he had heard from the units involved – apparently a brief radio contact. It was strange that at the time he appeared to have marked the security forces as having been present in the south yet was now certain that this must have been a mistake. Many months after the hearing of the witnesses, the Commission was provided with a clearer copy of the sketch map in which the blurred figure to the south of the village had, identifiably, been a 9, which represented the security forces.
40. The Commission agreed with the submissions of the applicant that, given the south-facing position of the balcony and the position of the neighbouring houses, in particular a high wall to the east, it was probable that the bullet which killed Havva Ergi was fired from the south or south-east. The Government had not contested this.
41. Having regard to the failure of the Government to provide the documents and information referred to above, the Commission found that strong inferences could be drawn supporting the applicant’s allegations that the security forces had opened fire around the village for some time and that units of the security forces had been present towards the south. There was nonetheless insufficient material before the Commission to support a finding that the operation of 29 September 1993 had not been an ambush which led to a clash as alleged but a mission of retaliatory punishment. The Commission was unable to find it established that the bullet which had killed Havva Ergi had been fired by the security forces. It did find however that there was significant evidence indicating that it may have been.
42. The death of the applicant’s sister had been reported to the authorities at about 8 a.m. on 30 September 1993. The public prosecutor accompanied by İsa Gündoğdu and a number of gendarmes arrived at the village. An autopsy had been carried out in the Ergi house and a bullet removed which had later been sent for forensic examination. The public prosecutor had talked to a number of persons. However, while İsa Gündoğdu had referred to the prosecutor conducting interviews, he had confirmed that he had not incorporated any such information in his own incident report and it had not been apparent that he had in fact witnessed any statements being taken. On the instructions of the prosecutor, İsa Gündoğdu had looked for cartridges in a number of locations, particularly to the south. None had been recorded as having been found.
43. Another public prosecutor, Mustafa Yüce, had taken over the investigation on his return from leave. On 12 December 1993, he had issued a decision of lack of jurisdiction indicating that the PKK were the suspects for the killing. He had based his decision on the incident report and sketch by İsa Gündoğdu. He had not conducted any interviews of family members, villagers or military personnel. No statements had been taken from such persons by any other public prosecutor.
It had not been apparent from the incident report in question that it was the PKK who had fired the bullet which killed the applicant’s sister. Furthermore, the sketch map accompanying the report appeared to place security forces to the south and north-west and terrorists to the east but there had been no plan of the Ergi house and neighbouring houses which clarified from which direction the bullet was likely to have been fired. Nor had there been any explanation in the text of the report as to the location of the security forces.
44. Following the decision of lack of jurisdiction, the file had been transferred to the public prosecutor’s office at the Diyarbakır National Security Court. Except for the ballistics report issued on 1 April 1994, no documents had been provided relating to any investigatory measures since that date.
45. Major Kuzu had stated to the delegates that there was a fundamental principle in the planning of military operations that these be not moved into civilian areas. In this incident, the plan had been to restrict the activity in the north of the village but the PKK had not approached them from the expected side. No military inquiry or investigation had been carried out as to the conduct of the operation. Major Kuzu, having seen the incident report and sketch by İsa Gündoğdu, forwarded them to the public prosecutor and took no further action.
46. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
47. The above provision is not subject to any restrictions even in a state of emergency or war. The second paragraph of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
48. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). In respect of these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153), the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).
49. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Article 89 of the Military Criminal Code. Proceedings in these circumstances may be initiated by the persons concerned (nonmilitary) before the relevant authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
50. If the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
51. Proceedings may be brought against the administration before the administrative courts in respect of fault committed in the performance of official duties. Other illegal acts or omissions by civil servants, be it a crime or a tort, which result in material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
52. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
53. The applicant’s representatives have previously pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme.
VIOLATED_ARTICLES: 13
2
25
VIOLATED_PARAGRAPHS: 25-1
NON_VIOLATED_ARTICLES: 14
18
2


ITEMID: 001-109855
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DEARI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicants, Mr Gajur Deari (“the first applicant”), Mr Bedri Murtezanov (“the second applicant”) and Mr Asllan Sherifi (“the third applicant”), are Macedonian nationals who were born in 1952, 1952 and 1955 respectively and live in Golema Recica, Tetovo and Skopje. They were represented before the Court by Ms Nuala Mole, of the Aire Centre (Advice on Individual Rights in Europe, London). The Macedonian Government (“the Government”) were initially represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The first applicant is the father of Mr Agron Deari (“Mr A.D.”) who was killed on 30 August 2002; the second applicant is the father of Mr Jakup Murtezanov (“Mr J.M.”); and the third applicant is the father of Mr Qahil Sherifi (“Mr Q.S.”). Mr J.M. and Mr Q.S. were killed on 7 September 2003.
4. The Government invited the Court to view the events giving rise to the applicants’ complaints in the light of the 2001 armed conflict between ethnic Albanians and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas several years after the conflict. In respect of Mr A.D.’s killing, particular attention was drawn to the incidents of 29 August 2002 on the Tetovo-Gostivar highway (“the highway”) in which armed civilians kidnapped eight persons, including two minor girls. In this connection the Government referred to a public announcement of 30 August 2002 in which the Ministry of the Interior (“the Ministry”) called for the inhabitants of neighbouring villages to remain, for security reasons, in their homes.
5. At 3.30 a.m. on 30 August 2002 Mr A.D. was travelling in a car with foreign registration plates, together with J.I., when police officers from the special police force “Lions”, under the Ministry, stopped them on the highway. According to a report drawn up the same day by the Ministry, Mr A.D., in an attempt to flee the scene, resisted the security forces by pulling out a pistol. Firearms were used against him. He sustained several bodily injuries. Furthermore, two pistols were found in the car. The local police station was alerted immediately. Police officers arrived at the scene and took Mr A.D., who still held the pistol in his hand, to the local medical centre where his death was confirmed. J.I. was arrested on account of unlawful possession of firearms and released without charge. The names of the officers involved in his arrest were not recorded in any register of the Ministry.
6. On the same day the investigating judge, public prosecutor, police and representatives of the OSCE’s mission in the respondent State inspected the scene, but no useful evidence was found owing to heavy rainfall. In a written and duly signed statement given before the investigating judge, the first applicant requested that no autopsy or investigation be conducted in relation to his son’s death. In view of that request, the investigating judge ordered an external examination of Mr A.D.’s corpse and requested that an expert describe the injuries, the way in which they had been sustained, as well as to determine, if possible, the time and direct cause of Mr A.D.’s death. The expert report noted bruises to Mr A.D.’s head, face, chest and stomach and several penetrating gun-shot wounds to his leg, arms, chest and neck.
7. On 2 September 2002 the public prosecutor requested that the investigating judge take certain steps to investigate Mr A.D.’s death. The request referred to the on-site examination report of 30 August 2002, which was to be regarded as a criminal complaint.
8. On 5 September 2002 the Ministry questioned J.I. According to a report signed by a police officer, J.I. stated, inter alia:
“... we [with Mr A.D.] were stopped by the police. I showed them my ID and car registration document. The officers ordered me to step out of the car. A. [Mr A.D.] got out of the car as well. I was ordered to open the boot. ... During the search of the boot and the interior of the car, I heard an officer saying ‘I’ve found two guns’. After this statement, my hands were put behind my back and tied ... At one moment, they put my head in the boot. While my torso was in the boot I heard gunshots, after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio, saying that one of the persons concerned had been killed after he had fired a gun while attempting to flee ...”
9. On the same day, the Ministry submitted a criminal complaint against an unidentified perpetrator. Photo documentation of the scene and of Mr A.D.’s corpse, as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge.
10. On 22 November 2002 the Forensic Science Department (Управа за криминалистичка техника) at the Ministry sent the investigating judge an expert report concerning Mr A.D.’s pistol, which stated the following:
“... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr A.D. ... The reaction was negative, namely no nitrate residue was discovered. We emphasise that the samples were covered in blood, which significantly affected the analysis for nitrate residue... Since the clothes were abundantly covered in blood, we cannot determine the distance from which the gunshots were fired ...”
11. The first applicant alleged that on 27 September 2002 he had notified the OSCE’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son’s death. No evidence was provided in this respect.
12. In February 2003 the investigating judge returned the case file to the public prosecutor. The latter requested that the Ministry determine the identity of the police officers involved in the incident.
13. In a letter of 15 August 2003, the Ministry confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions (see paragraphs 35 and 36 below) after the incident.
14. In December 2003 the public prosecutor again asked the Ministry to submit the required information.
15. At the same time, a working group was set up to investigate several cases of alleged police abuse of citizens of Albanian ethnic origin, including the present case. The working group involved representatives of the Ministry, the OSCE, the EU, NATO and the US Embassy in the respondent State. The working group operated between December 2004 and October 2005.
16. On 12 January 2005 the investigating judge heard evidence from J.I. According to the transcript signed by J.I., the latter stated, inter alia:
“... When we approached the toll booth on the Tetovo-Gostivar highway, I noticed a high police presence and decided to turn around and take the ‘old road’... While driving on the old road ... I again noticed a high police presence; the road was blocked by a heavy vehicle. At both sides of the road there were many armed police officers. A police officer used a lamp to stop our car. He approached the car and requested documents. I gave him my registration document and my ID. Then he grabbed my shirt and pulled me out of the car. After me, Mr A.D. was also removed from the car. Both of us were standing in front of the car, while police officers conducted the search. One of them said that he had found two guns in the car. Each of them belonged to me and A. [Mr A.D.]. At that moment, a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up; another officer grabbed my leg and pushed me to the ground. They dragged me to the back of the car. ... They put me head first into the boot. My legs were outside the car. An officer pointed an automatic gun at my head and another beat me. I couldn’t see what was happening to A. I heard someone saying ‘stop, hold on’. Gunshots were subsequently heard, I think from several weapons, but I did not know what was going on. They took off my sweater and put it over my head. They took me out of the boot and placed me on the ground ...The two pistols were in the compartment in front of A.’s seat ... The person who pulled me out of the car that night was wearing a mask, so I could see only his eyes, I couldn’t see his face. Others were wearing masks as well. I only noticed the ‘Lions’ symbol on their uniforms...”
17. Between March and June 2005, the investigating judge examined eight police officers. Between September and December 2005, the investigating judge requested, in vain, that a certain police officer, A.M., be summoned.
18. In December 2005 the file was forwarded to the public prosecutor, who, in September 2006, returned it to the investigating judge, requesting, inter alia, that the first applicant be examined. By a letter of 17 November 2006, the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness. After the file was returned to the public prosecutor, the latter requested, by a letter of 2 February 2007, that the Ministry undertake additional measures to identify the individuals involved in Mr A.D.’s killing.
19. On 15 September 2008 the first applicant, with the assistance of Mr M.R., a lawyer from Skopje, sought information from the public prosecutor about the death of his son and requested a copy of the case file. On 17 September 2008 the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken, but the perpetrator had not yet been discovered. Mr M.R. was permitted to inspect the case file.
20. The first applicant took no further action. It appears that the investigation into the killing of Mr A.D. is still pending.
21. On 7 September 2003 the Ministry of the Interior and the Ministry of Defence conducted a joint operation in the village of Brest with the purpose of apprehending an armed group suspected of having committed several crimes, including robbery and kidnapping of civilians and police officers. There was an exchange of fire in which automatic long-range weapons and mortars were used. After the exchange of fire, the security forces searched the area and discovered five bunkers and a large quantity of heavy weaponry and ammunition. Mr J.M. and Mr Q.S. were killed in this operation. According to the post-mortem reports of the same date drawn up by the Forensic Institute, Mr J.M. sustained six bullet wounds and Mr Q.S. sustained four. Gunpowder tests confirmed the presence of nitrate residue on the hands of Mr J.M. and Mr Q.S.
22. On 12 September 2003 the Ministry submitted photos and video material of Mr J.M.’s and Mr Q.S.’s corpses to the public prosecutor, as well as an expert report regarding the weaponry and ammunition found.
23. On 7 November 2003 the public prosecutor requested information from the Ministry of the Interior. In a letter of 11 July 2005 the Ministry informed the public prosecutor that, owing to the use of heavy weapons by the armed group, police officers had not been able to reach the armed group’s positions, but that military forces from the Ministry of Defence had arrived at the critical area instead.
24. On 21 September 2005 the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor’s intervention.
25. As stated by the Government, on the basis of recommendations of the working group that also looked into this case, on 31 January and 4 April 2006 the public prosecutor contacted the Ministry of Defence seeking information about the operation. In a letter of 5 June 2006, the Ministry of Defence indicated that the operation had been carried out by the Ministry of the Interior. On 15 February 2007 the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation. In submissions of 16 April 2007, the Ministry of the Interior confirmed its position indicated in its letter of 11 July 2005 and invited the public prosecutor to clarify the matter with the Ministry of Defence. The same was repeated in the Ministry’s letter dated 26 June 2008.
26. On 17 September 2008 the second and third applicants, represented by Mr M.R., asked the public prosecutor to provide them with a copy of the case file. They stated that all the information they had obtained about the death of Mr J.M. and Mr Q.S. had come from the media since no competent institution had ever contacted them concerning the case. By a letter of 26 December 2008, the public prosecutor informed the second and third applicants of his requests for information from both Ministries and his “resolution” of 21 September 2005 (see paragraph 24 above). According to the Government, this letter was sent on 21 January 2009.
27. The second and third applicants took no further action. It appears that the investigation into the killing of Mr J.M. and Mr Q.S. is still pending.
28. The applicants submitted extracts of articles and reports published between April 1998 and 2005 by Human Rights Watch and Amnesty International about alleged police abuse, in particular of Macedonian citizens of Albanian ethnic origin. Most of the documents concerned the period before and after the 2001 armed conflict. None of them discussed the deaths of the applicants’ sons.
29. Article 123 of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of at least five years. It also provides for imprisonment of at least ten years or lifetime imprisonment in the case of aggravated murder.
30. The provisions of the Criminal Proceedings Act relevant to the present case were described in the Jašar judgment (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 33-40, 15 February 2007).
31. Section 25 (1) and (3) of the Public Prosecution Act of 2004 (Закон за Јавното Обвинителство, Official Gazette no. 38/2004) provided that citizens, bodies and other legal persons could make submissions, complaints and statements to the public prosecutor in relation to activities that fell within his or her competence. The public prosecutor was required to take, as soon as possible, but not later than three months after the service of a criminal complaint, any action specified by law.
32. Under section 47 of this Act, the superior prosecutor’s office supervised the work of the subordinate prosecutor’s office through an inspection of case files and in any other way.
33. Section 21 of the Public Prosecution Act of 2007 (Official Gazette no.150/2007) provides that the superior prosecutor’s office supervises the work of the subordinate prosecutor’s office in concrete cases brought before the latter. The aim of that supervision is to detect inter alia any lack of professionalism, unlawful, untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings.
34. Section 39 (1) and (3) of that Act provides for the same rules as those specified in section 25 of the 2004 Public Prosecution Act (see paragraph 31 above).
35. Under Article 27 of the Government Decree on the use of coercion and firearms, when means of coercion or firearms have been used, the State official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified.
36.


ITEMID: 001-70455
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MAASS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Ursula Maaß, is a German national, who was born in 1948 and lives in Neckarsulm, Germany. She is represented before the Court by Mr R. Andreß, a lawyer of the law firm Herrmann, Gass & Kollegen practising in Heilbronn. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a questionnaire dated 17 March 1999 the Neckarsulm Police Station informed the applicant that she was suspected of having damaged Mr W.’s car on 13 or 14 March 1999. The police informed her that she was free to make a statement on this accusation in writing or to remain silent.
On 23 March 1999 the Neckarsulm Police Station received the questionnaire completed by the applicant, in which she stated that she did not admit the crime she was suspected of. She wrote that she did not wish to make a statement herself and that she left it to her lawyer to deal with the matter. She went on claiming that she considered the behaviour of Mr W. to be an act of revenge on her.
In a letter dated 8 April 1999 the applicant’s lawyer K. notified the Neckarsulm Police Station that he represented the applicant and requested to grant him access to the case file. Although he stated in this letter that a power of attorney was enclosed, the letter did not contain this document.
On 20 May 1999 the public prosecutor applied to the Heilbronn District Court to issue a penal order against the applicant.
In a letter dated 9 June 1999 addressed to the Neckarsulm Police Station the applicant’s lawyer K. repeated his request to inspect the case file.
On 10 June 1999 the Heilbronn District Court issued a penal order (Strafbefehl) against the applicant in a summary procedure. The applicant was convicted of damage to property and sentenced to a fine of 50 Deutschmarks per day for 30 days.
On 16 June 1999 counsel K.’s letter recalling his motion to be granted access to the case file reached the Heilbronn District Court.
On 23 June 1999 the penal order was served on the applicant by way of a notice in her letter-box to collect a letter deposited at the Neckarsulm Post Office, as the postman had not found anyone at the applicant’s home. The applicant did not collect this letter. The applicant’s counsel was not sent a copy of the penal order.
On 8 July 1999 the penal order became final, since no objection had been lodged by the applicant within the two-week time-limit under the relevant provisions of the Code of Criminal Procedure (Strafprozeßordnung – see ‘Relevant domestic law’ below).
On 10 August 1999 the Heilbronn Public Prosecutor’s Office issued a payment order (Zahlungsaufforderung) against the applicant in respect of the fine.
On 20 September 1999 the Heilbronn Public Prosecutor’s Office ordered the imprisonment of the applicant for default of payment of the fine (Ersatzfreiheitsstrafe). The order was served on the applicant on 22 September 1999, again by way of a notice in her letter-box to collect a letter deposited at the Neckarsulm Post Office. The applicant also did not collect this letter.
On 26 October 1999 the Heilbronn Public Prosecutor’s Office issued a warrant to bring the applicant before the competent authority (Vorführungsbefehl). The warrant contained a reference to the date and filenumber of the penal order, to the offence the applicant was convicted of and to the amount of the fine.
On 29 October 1999 an officer of the police station which had been instructed to execute this warrant phoned the applicant, informed her of the warrant and requested her to come to the police station. The applicant did so and was informed by a police officer about the warrant and the existence of the underlying penal order. In the following discussion the applicant denied having damaged the car of Mr W., her former partner. She paid the fine in order to prevent the execution of the warrant.
In a letter dated 29 October 1999, which reached the Heilbronn Public Prosecutor’s Office on 3 November 1999, the applicant’s new lawyer, who has represented the applicant since then, requested the Heilbronn Public Prosecutor’s Office to grant him access to the case file. He stated that he had been informed by the applicant of the measures taken to enforce a sentence without her having received a penal order or a judgment.
On 4 November 1999 the Heilbronn Public Prosecutor’s Office granted the applicant’s new lawyer access to the case file. The file reached the lawyer on 5 November 1999.
By a letter dated 10 November 1999, which reached the Heilbronn District Court on 11 November 1999, the applicant’s new lawyer lodged an objection against the penal order after having inspected the case file. At the same time, he submitted an application for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand) with respect to the two-week timelimit for lodging the objection. He argued that it was not the applicant’s fault that she did not comply with this time-limit. She had not received the penal order. Since she had instructed a counsel, she was confident that services would be effected on her lawyer, and that she did not have to attend to the observance of any time-limits herself.
On 28 December 1999 (decision served on 4 January 2000) the Heilbronn District Court dismissed the applicant’s request for reinstatement as inadmissible. Consequently, it dismissed her objection against the penal order as inadmissible. It found that the request for reinstatement was filed out of time. According to the court, the applicant was informed of the content of the penal order when she came to the police station on 29 October 1999. Neither she nor her new counsel applied for reinstatement of the proceedings within the one-week time-limit running from that date. The court found that, in any event, the application for reinstatement of the proceedings was ill-founded. It was not credible that the applicant had neither received the penal order nor any of the other documents served on her, because the address to which the documents had been sent was correct. Therefore, it was the applicant’s fault that she did not comply with the timelimit to lodge an objection against the penal order.
On 10 January 2000 the applicant lodged an appeal (sofortige Beschwerde) against the decision of the Heilbronn District Court. She stated that in 1999 several letters to her or her neighbours did not reach their addressees. She claimed in particular that, even assuming that the notification of the penal order was valid, it was contrary to her right to a fair trial and to be heard that the District Court had neither granted her lawyer access to the case file nor informed him that it had issued a penal order. She therefore had to be granted reinstatement. She disputed that she had been informed of the contents of the penal order by the police on 29 October 1999. In fact, the competent police office was unable to explain to the applicant’s lawyer who had called him on the same day why the applicant had to pay a fine. Therefore, the time-limit of one week to apply for reinstatement of the proceedings did not start running before the applicant’s counsel had inspected the case files and was consequently observed.
On 23 February 2000 (decision served on 1 March 2000) the Heilbronn Regional Court, endorsing the reasons given by the Heilbronn District Court, dismissed the applicant’s appeal as ill-founded.
On 30 March 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She claimed that her right to be heard had been violated by the Heilbronn District Court by not granting access to the case file to her lawyer, not hearing her via counsel before issuing the penal order, not informing the latter that a penal order had been issued and not granting reinstatement of the proceedings.
On 30 October 2000 the Federal Constitutional Court, without giving reasons, refused to admit the applicant’s constitutional complaint. The decision was served on the applicant’s lawyer on 9 November 2000.
By a letter dated 27 April 2001, which was posted on 3 May 2001, the applicant sent her first submissions to the Court. In these she set out the object of her application, including the underlying facts and her complaints, and enclosed copies of all relevant court decisions. The completed application form dated 13 June 2001, in which the applicant referred to her first submissions, reached the Court on 25 June 2001.
Sections 407 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) provide for the imposition of a penal order, without a trial, in cases concerning minor offences. The Public Prosecutor’s Office may lodge a motion to the District Court to issue a penal order, setting out the offence the accused is charged with and fixing the sentence. The judge must issue the penal order if there are no grounds for refusing it, that is, if he has no objections to deciding without a trial hearing, agrees with the legal assessment of the case and does not wish to impose a different sentence. The written penal order must contain a reference to the fact that the penal order should be final, binding and enforceable if the accused fails to lodge a written objection with the District Court or have such an objection taken down in writing at the court’s registry within two weeks of service.
If the objection reaches the court within the prescribed time-limit, normal trial proceedings are instituted, and the District Court conducts a hearing. If the accused was prevented from complying with the time-limit through no fault of his own, a motion to have the proceedings reinstated may be brought. According to Sections 44 and 45 of the Code of Criminal Procedure this motion must reach the District Court within one week from the cessation of the impediment due to which the objection could not be lodged in time. The facts justifying the motion shall be substantiated at the time the motion is filed or during the proceedings concerning the motion.
Pursuant to Section 37 of the Code of Criminal Procedure the service of documents is governed by Sections 181 and 182 of the Code of Civil Procedure (Zivilprozeßordnung). If a document cannot be served personally, it may be deposited, inter alia, at the local post office. In that case a written notice of deposit must be left at the recipient’s address in the manner customary for ordinary letters.
Section 145a of the Code of Criminal Procedure provides that if a decision is served on the accused, the defence counsel must be informed thereof at the same time and must be provided with a copy of this decision, even if there is no written power of attorney in the case file.
The defence counsel’s right of access to the case file is governed by Section 147 of the Code of Criminal Procedure. A defence counsel is entitled to consult the case file as a whole as soon as the preliminary investigation has been terminated and, in principle, also during the preliminary investigation, if the purpose of the investigation is not endangered thereby. During the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether or not to grant access to the file; thereafter it is for the president of the trial court.


ITEMID: 001-100377
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TIGRAN AYRAPETYAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1983 and lives in Moscow.
7. On 10 February 2001 at about 11 a.m. the applicant, who at the material time was a student, was arrested in a yard of school no. 970 by police officers while receiving a sum of money from another student.
8. The applicant was suspected of extortion and was taken to Moscow police station no. 184 (“the Otradnoe District Police Station of Moscow”) where he was locked in an office.
9. The applicant submits that one of the police officers who had arrested him periodically entered the office, asked him questions and beat him.
10. The applicant was then taken to another office where two more police officers were present. The officers explained to him that he had the right not to give evidence against himself.
11. According to the applicant, they then started to ask him questions, which he refused to answer. All three officers started to beat him. One of them forced the applicant to stay in a half-squatting position while holding a metallic plate in his hands. The officer warned the applicant that if he failed to maintain the position, he would “get a kick in his chest”.
12. Allegedly, when the applicant dropped the plate, he was kicked in the chest and the beatings resumed. At one point the applicant was kicked in the face. On the verge of losing consciousness, the applicant agreed to “sign all the papers”, after which he was placed in a cell.
13. On the same day at about 10.10 p.m. the applicant was taken by a police officer to the casualty department of polyclinic no. 218 where he was examined by a doctor. The doctor concluded that the applicant's lower jaw was fractured and that he needed an urgent in-patient examination by a surgeon.
14. Following the doctor's examination, the applicant was taken back to the police station where he was once again placed in a cell. About an hour later the applicant was taken to another police station, no. 141, where his fingerprints were taken.
15. On 11 February 2001 at about 2 a.m. the applicant was released.
16. On the day of his release, the applicant was taken to Moscow City Hospital no. 1 (Городская клиническая больница № 1 г. Москвы) for inpatient treatment. The applicant was diagnosed as having a “fracture of the lower jaw in the area of the right condylar process accompanied by a dislocation of the articular head”. The medical report further stated that “the lower jaw was abnormally mobile and the configuration of the face had changed due to a post-traumatic oedema in the right parotid area”. In the course of his treatment the applicant underwent surgery to replant the articular head.
17. The applicant was discharged from hospital on 2 March 2001.
18. On an unspecified date criminal proceedings were instituted against the applicant, who was charged with extortion.
19. On 18 December 2001 the Butyrskiy Inter-Municipal Court of Moscow (Бутырский межмуниципальный суд северо-восточного административного округа г. Москвы) decided, on a request by the applicant, to terminate the criminal proceedings against him on the basis of an Amnesty Act in respect of minors and women passed by the State Duma on 30 November 2001.
20. On an unspecified date the applicant's defence counsel lodged an appeal against the decision of the Inter-Municipal Court claiming that the applicant was not guilty and that he should have been acquitted. The outcome of that appeal is unclear.
21. On 15 February 2001 the applicant lodged a complaint with the Head of the Internal Affairs Department of the Ministry of the Interior (начальник Управления собственной безопасности МВД России) stating that he had been subjected to ill-treatment by police officers. His complaint contained a detailed description of the events and of all three police officers involved. He also stated that one of them had participated in his earlier arrest and that another was called V.
22. It appears that on 19 February 2001 the applicant's mother lodged similar complaints with the Butyrskiy Inter-District Prosecutor's Office of Moscow (Бутырская межрайонная прокуратура г. Москвы) and the Moscow City Prosecutor's Office (прокуратура г. Москвы). The case was assigned to Investigator G. of the Butyrskiy Inter-District Prosecutor's Office of Moscow.
23. On 16 April 2001 the applicant lodged a complaint with the Prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow. In his complaint the applicant submitted that no decision, whether to institute or refuse to institute criminal proceedings, had been taken so far on the basis of his allegations of ill-treatment. He further submitted that pressure had been exerted by the investigators of police station no. 184 on the witnesses in the criminal case against him and that his family had received threatening phone calls because they had complained that the applicant had been ill-treated.
24. On 21 May 2001 the applicant's mother lodged a complaint with the Prosecutor General's Office (Генеральная прокуратура РФ). In her complaint she once again raised the issue of the applicant's ill-treatment by the police officers. She further submitted that since 19 February 2001 no effective investigation had been carried out. The case had been transferred from one investigator to another and no forensic medical examination had yet been ordered. She also alleged that their family had received threatening phone calls.
25. By a letter of 21 May 2001 Investigator G. informed the applicant's mother that:
“... on 21 May 2001 criminal proceedings no. 5649 have been instituted under Article 286 § 3 of the Criminal Code [(Уголовный кодекс РФ)] on the basis of your complaint about the physical injuries caused to [the applicant]”.
26. On 29 May 2001 Investigator G. ordered a forensic medical examination to be carried out. The investigator found that:
“On 10 February 2001 [the applicant] was arrested on suspicion of having committed an offence by police officers of Otradnoe District Police Station of Moscow [(Отделение внутренних дел района Отрадное г. Москвы)]. On 11 February 2001 [the applicant] was placed in Moscow City Hospital no. 1 as a result of physical injuries which, according to [him], had been inflicted by police officers.”
27. A number of questions were put to the forensic expert. The latter was also provided with the applicant's medical file.
28. On 8 June 2001 the applicant's mother lodged a complaint with Investigator G. In her complaint she submitted that during the medical examination carried out on 6 June 2001 she had discovered that certain vital documents were missing from the applicant's medical file. In particular, she drew attention to the doctor's conclusion, in which, besides the diagnosis and need for urgent hospitalisation, it was also allegedly stated that the applicant had been brought to the casualty department by a police officer. The applicant's mother alleged that this document had been deliberately destroyed in order to substantiate the version of events put forward by the police, according to which the applicant had been released from the police station at 10.10 p.m. on 10 February 2001.
29. On 13 and 14 June 2001 the applicant's mother lodged similar complaints with the prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow and the Moscow City Prosecutor's Office respectively, requesting an inquiry to be carried out. In addition, she requested permission to familiarise herself with the materials in case no. 5649 in the presence of a public official.
30. By letter of 14 June 2001 Investigator G. informed the applicant's mother that access to the case file could not be granted as, in accordance with the relevant rules of procedure, the victim, the accused, the civil plaintiff and the defendant could familiarise themselves with the case file only after the investigation had been completed.
31. On an unspecified date before 5 July 2001, the head of a local human rights NGO, the Committee for Civil Rights (Комитет за гражданские права), acting as the applicant's defence counsel, sent a letter to the Moscow City Prosecutor complaining of the ineffective nature of the investigation into the applicant's allegations of ill-treatment. In his letter the defence counsel alleged that police officers B. (last name) and V. (first name) had participated in the beating of the applicant. He further alleged that police officer B. had been exerting pressure on witnesses in the criminal case against the applicant. As a result, the witnesses had confirmed B.'s version of events, according to which the applicant fell and injured his jaw during his arrest.
32. By letter of 7 August 2001 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office (и.о. начальника Управления по надзору за следствием при прокуратуре г. Москвы) informed the applicant's defence counsel that the criminal case against police officers of Otradnoe Police Station was being examined by the Butyrskiy Inter-District Prosecutor's Office. The letter stated that “a medical examination had been carried out and a number of witnesses had been questioned”. It was further stated that “the investigation was being supervised”.
33. On 23 August 2001 Investigator G. decided to stay the preliminary investigation of criminal case no. 5649 on the grounds that “the person against whom charges should be brought had not been identified”.
34. On 18 September 2001 the applicant's mother applied to Investigator G. seeking to obtain a copy of the decision to stay the preliminary investigation.
35. By letter of 28 September 2001 the Deputy to the Butyrskiy InterDistrict Prosecutor (заместитель Бутырского межрайонного прокурора г. Москвы) informed the applicant's mother that the decision to stay the preliminary investigation had been set aside and that the investigation had been resumed and assigned to Investigator Ye. of the Butyrskiy Inter-District Prosecutor's Office of Moscow (следователь Бутырской межрайонной прокуратуры г. Москвы Е.). A letter along similar lines dated 1 October 2001 was received by the applicant's father from Investigator Ye.
36. By letter of 23 October 2001 the Moscow City Prosecutor's Office informed the applicant's defence counsel, in reply to his complaint about the ineffective nature of the investigation, that “the preliminary investigation had been resumed and the necessary investigative measures were being taken”. The letter also stated that “no evidence of pressure by the police officers of Otradnoe Police Station on witnesses or on the applicant's family had been found”. It was further stated that “the investigation was being supervised”.
37. By letter of 28 October 2001 Investigator Ye. informed the applicant and his parents that:
“criminal proceedings no. 5649 ... have been terminated on 28 October 2001 ... owing to the lack of evidence of any crime having been committed.”
38. It appears that the applicant's mother lodged an appeal against that decision with the Moscow City Prosecutor's Office.
39. On 9 November 2001 she also requested permission to familiarise herself with the materials in criminal case no. 5649.
40. By letter of 19 November 2001 she was informed by Investigator Ye. that:
“... The legislation does not permit the parties to criminal proceedings to obtain copies of the case-file materials.
According to the law, only the accused, the victim and their counsel have the right to familiarise themselves with the materials in the case file. Your status, as well as the status of [the applicant] and [his father], is that of a WITNESS. Therefore, you do not have the right to familiarise yourself with the materials in the case file.
Since the termination of the present criminal case affects the lawful interests of [the applicant], only he, after lodging a relevant request, will be allowed to familiarise himself with the decision, and only the decision, to terminate the criminal proceedings.”
41. By letter of 11 January 2002 the Moscow City Prosecutor's Office informed the applicant's mother and defence counsel that the decision of 28 October 2001 “had been found to be lawful and substantiated”. The City Prosecutor's Office also forwarded to the Butyrskiy Inter-District Prosecutor's Office the complaint of the applicant's mother and his defence counsel about the lack of access to the case file.
42. By letter of 21 January 2002 the Deputy to the Butyrskiy InterDistrict Prosecutor informed the applicant's mother that as witnesses neither she, nor the applicant or his father, had the right to have full access to case file no. 5649. They could, however, familiarise themselves with the relevant decision to terminate the criminal proceedings by coming to the Butyrskiy Inter-District Prosecutor's Office at a convenient time. The letter further stated that “there were no grounds for transferring criminal case no. 5649 to another prosecutor's office in Moscow for a further investigation, or for imposing criminal liability on police officer B. and other persons, or for imposing disciplinary sanctions on Investigator Ye”.
43. By letter of 28 February 2002 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office informed the applicant's mother, in reply to her complaint about the ineffective nature of the investigation, that “the allegations of ill-treatment by police officers are not corroborated by the materials in the case”. In the letter it was further stated that “there was no evidence that the investigation was not being carried out in an objective way or that Investigator Ye. had threatened witnesses”.
44. By letter of 7 March 2002 the acting head of the Department for Supervision of Investigation at the Prosecutor General's Office (и.о. начальника Управления по надзору за расследованием преступлений органами прокуратуры при Генеральной прокуратуре РФ) informed the applicant's counsel, in reply to his complaint, that the General Prosecutor's Office had examined the applicant's case and the relevant materials. It had been found that the applicant had attempted to flee during his arrest on 10 February 2001. Therefore, the police officers had had to apply force, as a result of which the applicant had fallen and fractured his jaw. There was no criminal element in the actions of the police officers and, therefore, there were no grounds for reversing the decision to terminate the criminal proceedings.
45. According to the Government, on 11 June 2002 the investigation was reopened and transferred to the Moscow City Prosecutor's Office. Some time later, police officer B. was charged with abuse of office under Article 286 of the Criminal Code. The investigation established that on 10 February 2001 at around 12 midnight. the police officer B. escorted the applicant to Moscow police station no. 184 on suspicion of extortion. In office 5 of the station he inflicted blows to the applicant's jaw with his right fist with a view to forcing the applicant to confess.
46. On 2 July 2003 the investigation in this case was completed and the case file was sent for examination to a trial court.
47. According to a judgment dated 10 February 2006, the Butyrskiy District Court of the city of Moscow had examined police officer B.'s alleged actions and acquitted him in respect of the episode involving the applicant. The court, having questioned a number of witnesses, including the applicant, his family members as well as the doctors and police officers, found that the statements and other evidence collected by the investigation had been too confusing and contradictory to enable the court to conclude with sufficient certainty that the injuries in question had indeed been inflicted by officer B.
48. In particular, in respect of the statements given by the applicant during the trial, the court stated as follows:
“... The court is critical in respect of the statements made by [the applicant during the trial] and does not trust them, since they are self-contradictory as well as incompatible with the objective information contained in the case file. From his statements it is clear that he believes that the blows were inflicted on him by B., and not anyone else, and that it is his presumption. At the same time, under [domestic law] all doubts concerning the guilt of the accused which cannot be eliminated in accordance with the Code of Criminal Procedure are interpreted in favour of the accused. Also, the court considers that by giving these statements, the applicant is trying to defend himself and the extortion committed by him by showing that his initial confessions were motivated by police coercion. Later, however, [the criminal case against the applicant] was discontinued owing to an Amnesty Act, that is, on the basis of non-rehabilitative grounds ...”
49. Having examined some further witnesses, including the family of the applicant and the medical personnel who carried out the medical examination of the applicant, the court noted that:
“... All the statements by witnesses ... to which the prosecution is referring, do not prove the guilt of B. in connection with [the crime], since they only indirectly confirm the fact that injuries were inflicted on [the applicant],on the basis of the descriptions made by [the applicant himself].”
50. The court noted that the police officers who had been on duty on 10 February 2001 had consistently stated that no coercion or violence had been used in respect of the applicant.
51. The court further noted that it had examined the two medical examination reports submitted in the prosecution case file, both confirming the existence of the injuries on the applicant's body. The court accepted one of them as evidence in the case and rejected the other on the grounds that the prosecution had failed to comply with legal requirements concerning the use of copies of documents and the methodology of the examination.
52. The court did not elaborate on other possible causes of the applicant's injuries, having limited the analysis to the issue of B.'s involvement in the incident. At the same time, the court stated that:
“... [it] takes note of the fact that the bodies involved in the preliminary investigation, by bringing criminal proceedings in respect of B. on a request by [the applicant], took the decision not to initiate criminal proceedings in respect of N., Ch., Sh. [other police officers], even though [the applicant himself] had sought a finding of liability in respect of all of the persons mentioned, and thus accepted [the applicant's] application only in part...”
53. The judgment of 10 February 2006 was upheld on appeal by the Moscow City Court on 29 March 2006.
54. In particular, the City Court agreed with the District Court's conclusion concerning the assessment of admissibility of the medical examinations of the applicant. The City Court specifically noted that in a decision of 30 July 2002 the investigator in charge of the case had acknowledged that:
“... medical documents and x-rays of [the applicant] from polyclinic no. 218 and Moscow City Hospital no. 1 could not be submitted for expert examination because they had been lost by an investigator of [the local prosecutor's office] ...”
55. The court further noted that:
“As can be seen from the case file, the court was unable to locate the original medical documents in question confirming [the applicant's injuries], as attested by the reply of 12 December 2005 no. 34 15 2002 066057 from the Moscow City Prosecutor's Office ...”
56. Article 21 § 2 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.
57. Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, shall be punishable by three to ten years' imprisonment with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.
58. Article 109 of the Code of Criminal Procedure of 1961 (Уголовнопроцессуальный кодекс РСФСР), as in force at the relevant time, provided that a prosecutor, investigator, inquiry body or judge were obliged to consider applications and information about any crime committed, and to take a decision on that information within three days. In exceptional cases, this time-limit could be extended to ten days. The decision should be either a) to institute criminal proceedings, or b) to refuse to institute criminal proceedings, or c) to transmit the information to another competent authority.
59. Article 209 of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings and the reasons for that, and explain how they could appeal against that decision. An appeal against the decision to terminate proceedings could be lodged with the prosecutor or a court within five days of the date of notification of the decision.
60. Under Article 210 of the Code, the prosecutor could reverse the above decision of the investigator and reopen the proceedings.
61. Under Article 211 of the Code, the prosecutor was responsible for the general supervision of the investigation. In particular, the prosecutor could order that specific investigative activities be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.
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