ITEMID: 001-77932
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IMAKAYEVA v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person;Security of person;Article 5-1-c - Reasonable suspicion);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Deprivation of liberty;Liberty of person;Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1951 and lived in the village of Novye Atagi, Shali district, Chechnya. In early 2004 she left for the United States of America, where she sought asylum.
9. The facts surrounding the disappearance of the applicant's son and husband were partially disputed. In view of this the Court requested the Government to produce copies of the entire investigation files opened in relation to the abduction of Said-Khuseyn and Said-Magomed Imakayev. The submissions of the parties on the facts concerning the circumstances of the apprehension and disappearance of the applicant's son and husband and the ensuing investigations are set out in Sections 1-5 below. A description of the materials submitted to the Court is contained in Part B.
10. The applicant lived in the village of Novye Atagi in the Shali district, Chechnya. Her husband, Said-Magomed Imakayev, was born in 1955, and they had three children: Said-Khuseyn, born in 1977, Magomed-Emir and Sedo. The applicant is a school teacher by profession. The applicant's son Said-Khuseyn graduated from medical school in 1999 as a dentist and continued his studies in the Grozny Oil Institute.
11. In the morning of 17 December 2000 Said-Khuseyn Imakayev drove to the market in the village of Starye Atagi in a white VAZ-2106 (“Zhiguli”) car, which he used with the written permission of the owner.
12. About 6 p.m. on the same day neighbours informed the applicant that they had seen her son being detained by Russian servicemen at a roadblock between the villages of Starye Atagi and Novye Atagi. The applicant and her relatives immediately started looking for him and collected several statements from the witnesses who had seen her son's detention. They initially agreed to testify on condition that their names were not disclosed, but later agreed to submit their names.
13. Witness Umayat D. is a resident of Novye Atagi and knew Said-Khuseyn Imakayev from school. On 17 December 2000 he was at the market in Starye Atagi. At about 2 p.m. he met Said-Khuseyn Imakayev, who said he had wanted to buy a jacket but had not found anything. He offered D. a lift back to their village, but D. was driving himself and declined. He later learnt that Imakayev had been detained by Russian soldiers on the road near the bridge over the Argun river.
14. Witnesses Zulay T. and Kolita D. are residents of Novye Atagi who were returning home in a bus from the market in Starye Atagi. At about 3 p.m. on 17 December 2000 the two women saw from the bus window a group of military personnel wearing masks and standing around a white Zhiguli car. A young man got out of the Zhiguli. The women alighted from the bus and wanted to help him, but the military started shooting in the air and at the ground, and shouted at them not to approach. They saw the young man being thrown into the military UAZ car (“tabletka”), and one of the servicemen drove the white Zhiguli. They left very quickly, and the witnesses did not note the UAZ number plates. The cars went towards Novye Atagi. Later that day they learnt that the man detained was Said-Khuseyn Imakayev.
15. Adam Ts. testified that in the afternoon of 17 December 2000 in Lenin Street, Novye Atagi, he saw a military UAZ and Said-Khuseyn Imakayev's Zhiguli, driven by an unknown man aged 30-35. The car was driving at very high speed. He thought that Imakayev had lent the car to someone, as he sometimes did. Later that day he learnt that Said-Khuseyn Imakayev had been detained by the military and that his car had been taken as well. A witness identified as E. orally stated to the applicant's representatives that at about 3 p.m. on 17 December 2000 he saw Imakayev's car in Nagornaya Street, Novye Atagi, followed by a UAZ and an armoured personnel carrier (APC).
16. The applicant has had no news of her son since.
17. Starting on 18 December 2000, the applicant and her husband applied on numerous occasions to prosecutors of different levels, to the Ministry of the Interior, to the administrative authorities in Chechnya and to the Russian President's Special Envoy to the Chechen Republic for Rights and Freedoms. The applicant submitted several copies of standard letters stating that her son had been detained by unknown military servicemen and had then disappeared, and asking for assistance and details of the investigation, submitted by her to various authorities. On her request similar letters were signed by the village council of elders and the head of administration. On 5 January 2001, at her request, a letter was sent from the office of the Head of Administration of Chechnya to the prosecutor of the Shali district, the Prosecutor of Chechnya and the President's representative in the Southern Federal circuit. She and her husband also personally visited detention centres and prisons in Chechnya and further afield in the Northern Caucasus.
18. The applicant received very little substantive information from the official bodies about the investigation into her son's disappearance. On several occasions she received copies of letters by various authorities directing her complaints to the prosecutor of the Shali district and the prosecutor of the Chechen Republic.
19. On 5 January 2001 the applicant was informed by the Shali District Prosecutor's Office that on 4 January 2001 they had initiated criminal proceedings in respect of kidnapping, under Article 126 § 2 (a) of the Criminal Code. The file was assigned number 23001.
20. On 21 January 2001 the traffic police division of the Ministry of the Interior department for the Chechen Republic notified the applicant that the details of her son's car had been entered in the search database and that servicemen had been instructed to look for it.
21. On 21 April 2001 the Shali district department of the interior (ROVD) informed the applicant that criminal investigation no. 23001 had been opened at her request. She would be informed of further developments.
22. According to the information submitted by the Government in July 2002, in March-May 2001 the Shali District Prosecutor's Office forwarded requests about Said-Khuseyn Imakayev to the Shali ROVD and the Federal Security Service (FSB) Department for Chechnya. Both agencies denied that they had ever detained Imakayev or that they had any information about his whereabouts. On 15 May 2001 [sic] the investigation was adjourned and the Shali ROVD was instructed to continue search for the missing man.
23. On 16 June 2001 the Shali District Prosecutor informed the applicant that the investigation had been adjourned.
24. On 26 February 2002 an investigator of the Shali District Prosecutor's office issued a “progress note” (справка). It stated that on 17 December 2000, on the road towards Novye Atagi, Said-Khuseyn Said-Magomedovich Imakayev, born in 1977, a resident of Novye Atagi, travelling in his own car, had been detained and taken away by unknown persons wearing camouflage outfits and masks. His location remained unknown. On 4 January 2001 the Shali District Prosecutor opened criminal investigation no. 23001 under Article 126 § 2 (a) of the Penal Code (kidnapping). The investigation had been adjourned under Article 195 § 3 of the Code of Criminal Procedure because of the failure to identify the culprits. Investigative measures to locate Imakayev were continuing.
25. According to the Government, on 22 June 2002 the investigator of the Shali District Prosecutor's Office forwarded requests for information about Imakayev to the Chechnya Department of the FSB, to the military prosecutor of military unit no. 20116 (based in Shali), to the Shali military commander's office and to the information centres of the Ministry of the Interior and of the Chechnya Department of the Interior. It appears that none of these requests produced any result. On 5 July 2002 the investigation was resumed by an order of the deputy Chechnya Prosecutor.
26. On 16 July 2002, in connection with the disappearance of the applicant's husband (see below), the Chechnya Prosecutor's Office informed the applicant that criminal investigation no. 23001 had failed to establish her son's whereabouts. The letter stated that following a review of the case-file, the district prosecutor's order of 11 March 2001 [sic] to adjourn the investigation had been quashed. The investigator had been instructed to conduct certain actions, including a thorough check of the possibility of his abduction by “servicemen from the power structures” («сотрудниками силовых структур»).
27. On 24 July 2002 the applicant was granted victim status in criminal case no. 23001 into her son's abduction.
28. On 20 December 2002 the respondent Government submitted further information to the Court about the investigation. They stated that two witnesses, S. and T., had testified that Said-Khuseyn Imakayev had been kidnapped by a group of persons armed with automatic fire-arms, dressed in camouflage uniforms and using a UAZ-452 vehicle. Neither the applicant's son nor the vehicle he had been driving had been found. Criminal investigation no. 23001 had been suspended on 4 March 2001 [sic] due to a failure to identify the culprits, but on 5 July 2002 the investigation had been resumed by an order of the first deputy prosecutor of the Chechen Republic. The new investigation was to pursue “a complete and thorough examination of all the circumstances of the committed crime, including checking the version that Imakayev S.-Kh. had been kidnapped by persons who were members of illegal armed units for the purpose of discrediting the federal forces”. On 5 August 2002 the investigation was again adjourned.
29. On 19 March 2003 the applicant was informed by a letter from the Chechnya Prosecutor's Office that the investigation had been reopened on 26 February 2003. On 15 April 2003 the Shali District Prosecutor informed the applicant that the case had been adjourned.
30. On 17 April 2003 the SRJI, on the applicant's behalf, wrote to the Shali District Prosecutor and asked him to inform them about the progress in the investigation and to grant the applicant victim status in the proceedings.
31. On 12 May 2003 the Shali District Prosecutor's Office informed the SRJI that the investigation had been adjourned. A copy of the decision to grant the applicant victim status had been forwarded directly to her.
32. On 19 May 2003 the Chechnya Prosecutor's Office informed the SRJI that the investigation had taken a number of steps to establish the whereabouts of Said-Khuseyn Imakayev, including questioning of witnesses and of eye-witnesses to the crime. However, the culprits were not established, and on 23 March 2003 the investigation was again suspended. The applicant was informed accordingly.
33. On 4 August and 26 October 2003 the Shali District Prosecutor's Office informed the applicant that, although the investigation into her son's abduction had been suspended, the measures to establish his whereabouts continued. The applicant was also informed of the possibility to appeal.
34. On 26 September 2003 the respondent Government informed the Court that the acting Chechnya Prosecutor had reversed the decision to suspend the investigation, and had ordered a number of steps to be taken.
35. The applicant submits that certain investigative actions were taken in October – December 2003 in the course of investigating her husband's disappearance (see §§ 74 and 76 below).
36. On 9 January 2004 the head of the criminal investigation department of the Shali district informed the applicant that he had ordered a search for the car driven by Said-Khuseyn Imakayev on the day of his disappearance.
37. On 20 January 2005 the SRJI asked the Shali District Prosecutor's Office whether criminal investigation no. 23001 was still pending with their office and if so, to provide an update on progress. The applicant submits that no reply was received to this letter, and she was thus unable to familiarise herself with the file and has had no information about the progress, if any, of the investigation.
38. The applicant refers to the Human Rights Watch report of March 2001 “The 'Dirty War' in Chechnya: Forced Disappearances, Torture and Summary Executions” which lists Said-Khuseyn Imakayev as one of the victims of “forced disappearances” after detention by Russian servicemen.
39. In October 2005 the Government presented additional submissions about the progress of the investigation. According to them, the investigation into the kidnapping of the applicant's son established that, at about 3 p.m. on 17 December 2000, the VAZ-2106 driven by Said-Khuseyn Imakayev had been stopped by a group of armed persons near the village of Novye Atagi. His subsequent whereabouts could not be established.
40. The Government further submitted that the applicant had been questioned on several occasions, and that on 24 July 2002 she had been granted victim status. She was not an eye-witness to the events and learnt of them from the statements of others. Two female witnesses, S. and T., stated to the investigation that on 17 December 2000 they had seen from a bus that a group of men armed with automatic rifles had detained the above-mentioned car and its driver, Said-Khuseyn Imakayev. The bodies of the interior ministry and the security service stated that S.-Kh. Imakayev had never been charged with a criminal offence. The investigation into criminal case no. 23001 continued and its progress was being monitored by the General Prosecutor's Office.
41. At the same time the Government submitted copies of several documents from criminal investigation file no. 23001 (see § 93 below). These documents are summarised in Part B below.
42. On 12 February 2002 the applicant and her husband, Said-Magomed Imakayev, lodged a complaint with the European Court of Human Rights concerning the disappearance of their son, Said-Khuseyn Imakayev. It was given the above application number on 21 February 2002. Both Mr and Mrs Imakayev issued forms of authority for the SRJI and were listed as applicants.
43. According to the applicant, on 2 June 2002 she and her husband were in their house in Novye Atagi. At 6.20 a.m. they were awakened by loud noise in their courtyard. They saw several APCs and a UAZ car. The Imakayevs' neighbours later noted down the numbers of three out of the six APCs involved in the operation and the number plates of the UAZ.
44. About 20 servicemen in military camouflage uniforms came into the house, some of them wearing masks. The servicemen spoke Russian between themselves and to the applicant, with no trace of an accent. They searched the house without showing any warrants or providing explanations. During the search the applicant managed to talk to the senior officer in the group. He was wearing camouflage uniform and had no mask, and the applicant described him as being about 40 years old, about 180 cm tall and bearded. The officer told her that his name was “Boomerang Alexander Grigoryevich”. The applicant understood that “Boomerang” was his nickname. She also managed to talk to another officer who refused to introduce himself, but whose appearance the applicant describes as about 40 years old, with fair hair and slightly shorter than “Boomerang”.
45. The military seized some papers and floppy disks. The applicant asked for some sort of receipt for these items, for which they left her the following hand-written note: “Receipt. I, Boomerang A.G. seized in the Imakayevs' house a bag of documents of the Republic of Ichkeria and a box of floppy disks. 2.06.02”.
46. In return, “Boomerang” asked the applicant to sign a receipt that she had no claims to the servicemen in connection to the search. The applicant agreed to sign the slip acknowledging that no force was used, but added that she objected to her husband being detained without any grounds. She also added that the floppy disks and papers did not belong to her husband, since they were taken from a place where they stored items belonging to their relatives who had fled from Grozny in 1999. She gave this signed receipt to “Boomerang”.
47. The applicant's husband, Said-Magomed Imakayev, was held against the wall during the search, and after it was over he was forced into the UAZ vehicle. He was allowed to dress appropriately, since it was raining heavily, and to take 50 roubles “for the road back”. When the applicant asked where he was taken, “Boomerang” told her they would take him to Shali, the district centre.
48. After the visit to the Imakayevs' house, the APCs went to other places in the village and detained four other men. They then departed.
49. The applicant submitted 30 witnesses' statements collected by her and relating to the events of 2 June 2002, including those produced by the relatives of the four other men detained on that night. They noted the hull numbers of the three APCs involved in the operation: no. 1252, which went to the applicant's house, and nos. 889 and 569. One of the neighbours also noted the registration number of the UAZ vehicle in which Said-Magomed Imakayev was placed, namely 344.
50. Since 2 June 2002 the applicant has continued to search for her husband. She has had no news of him. There has been no news of the other four men detained on the same night in the village.
51. On 2 June 2002 the applicant travelled to the Shali military commander's office and talked to the military commander, who told her not to worry and reassured her that all would be fine with her husband. On the same day she also travelled to Grozny, where she complained in person and in writing to the Chechnya administration and the military commander's office. On 4 June 2002 an unnamed officer of the local FSB department in Shali told her that her husband had probably been taken to Mesker-Yurt.
52. The applicant attempted to ascertain whether an officer by the name of “Boomerang” served in the military units in the vicinity, and she was led to understand by some unnamed military personnel in the military commander's office in Starye Atagi that they knew him. The applicant has on many occasions attempted to meet him, but has always been told that he was absent on “mopping up” operations.
53. On 4 June 2002 the applicant informed the SRJI, her representative in the case concerning her son, about her husband's apprehension. On 4 June 2002 the Moscow offices of the SRJI and of Human Rights Watch intervened on the applicant's behalf by writing letters to the Envoy of the Russian President on Human Rights in the Chechnya and to the Chechnya Prosecutor. They informed them about the known circumstances of the detention of Said-Magomed Imakayev and four other men in Novye Atagi and asked for urgent measures to be taken to find the detainees. On 6 June 2002 they sent additional information to those offices submitting the numbers of the APCs noted by the neighbours, details of the officer in charge of the arrest, who had introduced himself as “Alexander Grigoryevich Boomerang”, and the applicant's description of the second officer.
54. On 11 June 2002 the European Court of Human Rights, acting under Rule 49 § 1 of the Rules of Court, requested the Government to submit information concerning the applicant's husband's apprehension and whereabouts.
55. On 2 July 2002 the applicant was visited at her home by a senior investigator from the Ministry of the Interior, Department for the Southern Federal Circuit. He questioned her about the circumstances of her husband's detention and confirmed that the investigation was linked to her application to the European Court of Human Rights.
56. On 16 July 2002 the Chechnya Prosecutor's Office informed the applicant that pursuant to her applications, on 28 June 2002 the Shali District Prosecutor had opened criminal proceedings no. 59140 under Article 126 § 2 (a) of the Penal Code. The investigation established that the applicant's husband had not been detained by the law-enforcement agencies, and that there were no grounds for such detention.
57. On 24 July 2002 the Russian Government submitted to the Court a response to the request for information. They cited a report by the Directorate of the General Prosecutor Office for the Southern Federal Circuit, according to which on 17 June 2002 the applicant had filed a report with the Shali District Prosecutor's Office stating that “a group of unidentified armed men” had forcibly removed her husband on 2 June 2002. On 28 June 2002 criminal proceedings were initiated by the district prosecutor under Article 126 § 2 (a) of the Penal Code. At the same time, the Government denied that the applicant's husband had been detained by the authorities. The Government submitted:
“Before the initiation of this criminal case, in the course of examination and initial investigative actions no facts that Mr Said-Magomed Imakayev was detained by servicemen of Federal Forces were obtained. Mr Said-Magomed Imakayev was not conveyed to law machinery bodies or institutions of Penalty Execution System and he is not being kept there now. Moreover, law machinery bodies do not have grounds for his detention. ...
Shalinskiy district of Chechen Republic (and the village of Novye Atagi in particular) is an area of active criminal activities of terrorist and extremist organisations that commit crimes with a view to discredit Federal Forces in Chechen Republic using camouflage uniforms and motor vehicles that are similar to uniforms and vehicles used by servicemen and employees of law machinery bodies in Chechen Republic. Along with other crimes, illegal armed formations perpetrate abduction and kidnapping of persons who live or stay in Chechen Republic. In this connection the main version as regards this criminal case is kidnapping of Mr Said-Magomed Imakayev by members of one of the terrorist organisations acting in Chechen Republic and using an outfit of servicemen of Federal Forces with a view to disguise”.
58. The Government further submitted that the services whose forces are present in Chechnya - the FSB and the Ministry of the Interior - had not conducted any special operations in the village of Novye Atagi on 2 June 2002, and that the applicant's husband was not listed among the detainees held by those agencies.
59. It appears that on 25 July 2002 the applicant was granted victim status in the proceedings concerning the kidnapping of her husband.
60. On 31 July 2002 the Government made further submissions in relation to the application. They described certain procedural steps related to the opening, adjournment and re-opening of the criminal proceedings in relation to the disappearances of the applicant's son and husband. They also referred to requests sent by the investigators to the law-enforcement authorities for information related to their whereabouts. Despite the measures taken, their whereabouts were not established and the investigations in both cases were pending.
61. The applicant submits that in early August 2002 she, together with relatives of the other four men who had been apprehended on 2 June 2002, visited the Shali military commander, General Nakhayev. In the courtyard of the commander's office they spotted APC no. 569, which had been used in the detention of their relatives. At their request, a crewmember of the APC was brought to the General's office, where he was asked if he had been in Novye Atagi on 2 June. The serviceman accepted that he had been there, but could not recall the exact date. The General then asked him if he “had driven people away”, and he said that two persons had been taken away in his APC, but that they had been removed at the first military roadblock and that he did not know what had happened to them. The applicant submits that during the same conversation, in the presence of other relatives of the “disappeared” men, General Nakhayev informed them that 27 people had been detained in June and 15 of them had been “eliminated” (see also § 90 below).
62. In late August 2002 the applicant visited the Chechnya Prosecutor's Office, where she was told that the criminal proceedings in relation to her husband's disappearance had been transferred to the military prosecutor's office, which, under national law, is responsible for investigation of crimes committed by military servicemen.
63. In their letters and observations the Government submitted several different dates of procedural steps and case-file numbers assigned to the criminal case. It appears from these documents that in early September 2002 the investigation was transferred to the military prosecutor of military unit no. 20116, where it was assigned number 34/35/0172-02. It also appears that on 26 September 2002 the investigation was adjourned on account of failure to identify the culprits (as follows from the Government's observations of 26 September 2003, 27 October 2005 and the decision of 9 July 2004 by the Main Military Prosecutor to withdraw the applicant's victim status).
64. On 5 September 2002 the applicant submitted an unofficial composite sketch of “Boomerang”, along with other additional information collected by her, to the Shali District Prosecutor. No receipt of that letter has been acknowledged and the applicant believes that the actions requested by her were not carried out at that time, such as establishing the location of the APCs whose numbers were noted or questioning her neighbours.
65. On 20 December 2002 the Government submitted that the criminal proceedings were pending with an investigator of the military prosecutor of military unit no. 20116 in Shali. No further information was available about the “disappearance without trace” of the applicant's husband.
66. On 17 April 2003 the SRJI, acting on the applicant's behalf, requested the military prosecutor of military unit no. 20116 to grant the applicant victim status in the proceedings or, if that had already been done, to forward her a copy of such a decision.
67. On 25 and 30 April 2003 the military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) informed the applicant that on 9 September 2002 the criminal investigation into her husband's abduction had been transferred to the military prosecutor of military unit no. 20116 in Shali, where it had been assigned file number 14/35/0172-02 (see also § 63 above).
68. On 16 June 2003 the military prosecutor of military unit no. 20116 responded to the SRJI that they would be informed of the results of the preliminary investigation.
69. On 23 September 2003 an investigator of the Main Military Prosecutor's Office in Moscow informed the applicant that on 18 August 2003 the military prosecutor of the UGA had resumed the investigation into her husband's abduction. On 23 September 2003 the case was assigned to the Main Military Prosecutor's Office, and the term of investigation was extended until 25 March 2004. The investigator further informed the applicant that he was on mission in Shali, in military unit no. 20116, and invited the applicant to contact him with any further questions.
70. On 7 October 2003 the SRJI wrote to the investigator and asked him to appoint a date for a meeting with the applicant. They also noted that the investigators from the military prosecutor's office had not questioned her, despite the applicant's visits to that office.
71. On 10 October 2003 the applicant was summoned as a witness to the Shali ROVD.
72. On 20 October 2003 the applicant met with the investigator at the military prosecutor's office in Shali and was questioned about her husband's apprehension. On the same day the investigator collected from her the “receipt” issued to her by “Boomerang” on 2 June 2002.
73. Also on 20 October 2003 the applicant applied to the investigator with a request to forward the photographs of her son and husband, supplied by her, to all regions of the Russian Federation, in order to check whether they had been detained under false identities. On 21 October 2003 the investigator granted the applicant's request and assured her that once she submitted the photographs, they would be forwarded to all the regional departments of the Ministry of the Interior and of the Ministry of Justice.
74. The applicant submits that on several occasions in October – November 2003 she met with the investigator at the premises of military unit no. 20116, in connection with the abduction of her son and husband. Her neighbours were also questioned there. In late October 2003 a group of investigators arrived in Novye Atagi and questioned the neighbours about the applicant's son and husband. In November 2003 two investigators inspected the applicant's house and collected pictures made after the search of 2 June 2002 from her.
75. The applicant submits that during one of the meetings the investigator told her that he had questioned serviceman Alexander Grigoryevich “Boomerang”, who had admitted his participation in the search and the apprehension of the applicant's husband, but had insisted that he had released him.
76. At the end of November 2003 the applicant was summoned to the Oktyabrskiy ROVD in Grozny to participate in a photo-identification in conjunction with the disappearance of her son. She was shown a total of 58 photographs of unidentified corpses, but did not identify her relatives among them.
77. The applicant further submits that in early December 2003 she was summoned to the Shali District Court and asked to put in writing the information about the apprehension of her son and husband, and the State bodies to which she had applied in this connection. The applicant did as requested, indicating also that she had applied to the European Court of Human Rights. She submits that she was asked to specify if she had ever filed an application to a domestic court in connection with these events.
78. On 9 July 2004 the criminal investigation into the applicant's husband's abduction was closed under Article 24 part 1.1 of the Criminal Procedure Code because no criminal offence had been committed. On 10 July 2004 the Main Military Prosecutor's office communicated this to the applicant and stated that her husband had been detained by military servicemen in accordance with the Federal Laws on the Suppression of Terrorism and on the Federal Security Service. After a check he was handed over by the head of the Shali district bureau of the FSB to the head of the Shali administration, Mr Dakayev. Since Said-Magomed Imakayev did not subsequently return home, the relevant documents were forwarded to the Chechnya Prosecutor's Office for purpose of organising a search for him as a missing person. The applicant was informed of the possibility of appealing against that decision.
79. Also on 9 July 2004 the investigator of the Main Military Prosecutor's Office withdrew the applicant's victim status in case no. 29/00/0015-03. The order stated that the investigation had established that on 2 June 2002 military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had carried out an operative-combat action (оперативно-боевое мероприятие) and detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. Following an inquiry, his involvement with illegal armed groups was not established and he was simultaneously transferred to the head of the Shali administration for return to his home. The order continued that it had thus been established that no abduction had been committed and that the actions of the servicemen who had detained Imakayev did not constitute an offence. Imakayev's further absence from his place of residence was not connected to his detention by military servicemen on 2 June 2002. No pecuniary or non-pecuniary damage had thus been caused to the applicant, and the decision to grant her victim status was quashed. She was informed of the possibility to appeal.
80. On 21 July 2004 the SRJI asked the Main Military Prosecutor's Office to inform them what investigative measures had been taken prior to closure of the investigation and to send them a copy of the decision.
81. On 12 August 2004 the Main Military Prosecutor's Office refused to provide copies of documents to the SRJI on the ground that they were not the applicant's lawyers.
82. On 22 September 2004 the SRJI forwarded to the Chechnya Prosecutor a copy of the applicant's power of attorney and asked him to inform them where the case file was located and to allow them access to it.
83. On 13 October 2004 the Chechnya Prosecutor informed the SRJI that the criminal case remained in the Main Military Prosecutor's Office, to which all further questions should be addressed.
84. On 1 March 2005 a lawyer of the Moscow Regional Bar, representing the applicant, requested the Main Military Prosecutor's Office to grant him access to the documents of the criminal case opened in relation to her husband's abduction. In a telephone conversation on 21 March 2005 an officer of the Main Military Prosecutor's Office informed the lawyer that the applicant's status as a victim in the criminal proceedings had been withdrawn, and therefore she no longer had the right to familiarise herself with the case file, either in person or through a representative.
85. In May and October 2005 the Government submitted additional information about the investigation. They claimed that the investigation into Said-Magomed Imakayev's abduction had established that he had been detained on 2 June 2002 but had subsequently been released and transferred to the head of Shali administration, Mr Dakayev. Mr Dakayev could not be questioned because he had died. The investigation also established that “ideological literature of propaganda nature and of extremist orientation” had been found at the Imakayevs' house. No further details about the literature could be provided, because it had been destroyed.
86. All this was established on the basis of statements from the special forces servicemen who had participated in the counter-terrorist operation in Chechnya in 2002. Among them was the military serviceman who had signed the receipt issued to the applicant on 2 June 2002. The Government explained that, in accordance with section 15 of the Suppression of Terrorism Act, no information about the special forces servicemen who had taken part in the counter-terrorist operations could be divulged.
87. The Government further stated that after the criminal investigation by the military prosecutor's office had been closed, a new criminal case file, no. 36125, had been opened by the Shali District Prosecutor's Office under Article 105 (murder) on 16 November 2004. An investigative group had been put together because the case was a complex one. Within these proceedings about 70 persons had been questioned, including the head of administration of Novye Atagi, a representative of the Shali district administration and the applicant's neighbours. However, the witnesses had no information about the abduction or the subsequent whereabouts of the missing man. The whereabouts of Mr Imakayev or of his corpse, or the fact that he had died, could not be established. In view of this, on 16 February 2005 the investigation was adjourned due to failure to identify the culprits. Despite that, actions aimed at solving the crime continued.
88. The applicant was granted victim status in the new proceedings, but the order was not communicated to her because she had left Russia. She also could not be questioned about the case. The investigation forwarded relevant requests to the law-enforcement bodies of the USA, but these were not carried out.
89. The applicant submits that she was twice questioned by the authorities in connection with her application to the Court. On 24 July 2002 the applicant was questioned by an investigator of the Shali District Prosecutor's Office. The investigator asked the applicant how much money she had paid to get her case to the Court. The applicant stated that she had not paid any legal fees, but the investigator expressed his disbelief.
90. In early August 2002 the applicant visited the Shali military commander General Nakhayev, seeking information about her husband (see also § 61 above). He questioned her about her application to the European Court and suggested that “a Russian citizen needs 15,000 dollars or more to get to the European Court.” He went on to ask her how much she had paid. When the applicant denied paying any fees, the commander apparently stated that her husband had been detained because of his involvement with financing the rebel activities. The applicant concluded from the conversation that the question of her husband's detention was in some way linked with her application to the Court, because both had financial implications.
91. In July 2003 the complaint was communicated to the Russian Government, who were requested to submit copies of the investigation files opened in relation to the abduction of the applicant's son and then husband. In September 2003 the Government responded that the provision of copies of the files was impossible because both cases were still under investigation. The Court reiterated the requests in October and November 2003, but the Government insisted that a copy of the investigation file could be provided only when the proceedings had been completed. In their letter of 15 December 2003 the Government argued that submission of the documents prior to the end of the domestic investigation could interfere with the rights of the parties to the proceedings and of third persons, for instance, to familiarise themselves with the case file. They agreed that copies of certain documents from the file could eventually be submitted.
92. In February 2004 the Court reiterated its request for copies of the documents. It also invited the Government to submit a detailed outline of the proceedings. In March 2004 the Government rejected this request. They informed the Court that certain documents had been classified as “secret” in accordance with section 5 § 4 of the Federal State Secrets Act, because they contained data received as a result of undercover operative measures (оперативно-розыскная деятельность). With regard to the requested outline of the investigations, the Government submitted the following in respect of the investigation into the applicant's husband's abduction:
“A wide range of investigative actions have been carried out in the mentioned criminal case, many possible eye-witnesses of the crime scene were identified. The major part of them are military servicemen and at present have moved out from the territory of Chechen Republic to other regions of the Russian Federation. The relevant investigative commissions were forwarded to places of their whereabouts. A part of the commissions have been executed and an additional [time] is required to complete the others”.
93. On 20 January 2005 the application was declared admissible, following which both parties submitted observations on the merits. At the same time the Court asked the parties to submit their position as regards a possible violation of Article 2 of the Convention in respect of the applicant's husband. In September 2005 the Court sought additional observations from the parties concerning the Government's compliance with Article 38 of the Convention in view of their refusal to submit the requested documents. At the same time it again reiterated the request. In October 2005 the Government submitted 32 pages from case-file no. 23001, opened in relation to the abduction of the applicant's son. It appears from the page numbers that the case-file consisted of at least 240 pages. They also submitted seven pages of documents from criminal investigation file no. 36125, opened in November 2004 by the Shali District Prosecutor's Office under Article 105 part 1 (murder). These documents are summarised below in Part B.
94. The Government did not submit any documents from the initial criminal investigation file opened in relation to Said-Magomed Imakayev's abduction, which had been closed in July 2004. They stated that the submission of other documents was impossible because they contained state secrets. They also stated that their disclosure would be in violation of Article 161 of the Code of Criminal Procedure and would compromise the investigation and prejudice the rights and interests of the participants of the proceedings.
95. The Government submitted 32 pages of documents from the criminal case into the abduction of Said-Khuseyn Imakayev. These documents contain only formal decisions to open, adjourn and resume the investigation and the notifications to the applicant about these steps. No other documents have been submitted, such as witness statements (including those collected from the applicant), requests for information forwarded to various bodies and their replies etc.
96. According to the submitted documents, the investigation was opened on 4 January 2001 by an investigator of the Shali District Prosecutor's Office under Article 126 part 2 (kidnapping). The decision referred to the information that Said-Khuseyn Imakayev had been detained by unknown persons wearing camouflage uniforms and masks at the entry to the village of Novye Atagi and then taken to an unknown destination. The investigation was opened following the applicant's application to the prosecutor's office on 29 December 2000.
97. The investigation further established that these “unknown persons” had been armed with automatic weapons and had used a grey-white UAZ-452 vehicle, in which they had placed Imakayev and driven him in the direction of the town of Shali. The whereabouts of Imakayev, the identity of the abductors and the location of his VAZ-2106 had not been established.
98. On 24 July 2002 the applicant was granted victim status in the proceedings.
99. Between January 2001 and October 2005 the investigation was adjourned and reopened on at least five occasions. The order of 5 July 2002 by which the investigation was reopened stated that the decision to adjourn the investigation had been unfounded because the investigation had failed to identify and question eye-witnesses or to establish whether the crime had been committed by members of illegal armed groups for the purpose of discrediting the federal forces. On 17 October 2005 the Shali District Prosecutor again issued an order to resume the investigation, to question the applicant in the USA and to take other steps to identify the perpetrators of the crime.
100. In October 2005 the Government submitted copies of several documents from criminal case file no. 36125, opened in November 2004 by the Shali District Prosecutor's Office. The file was opened on the basis of unspecified documents from the Main Military Prosecutor's Office concerning the disappearance of Said-Magomed Imakayev. The prosecutor's order stated that on 2 June 2002 Said-Magomed Imakayev had been detained at his house by servicemen from the federal forces on suspicion of participation in illegal armed groups. Imakayev had been delivered to the district premises of the FSB in Shali, where he had been transferred to the head of Shali administration, Mr Dakayev. His further whereabouts were unknown. The order stated that there were grounds to believe that Mr Imakayev had become a victim of a criminal assault and referred to Article 105 part 1 of the Criminal Code (murder).
101. On 5 May 2005 the investigation was adjourned on account of failure to identify the culprits. On 17 October 2005 the investigation was reopened. On the same day the applicant was granted victim status; this decision could not be served on her because of her absence.
102. As stated above, in the night of 2 June 2002 four other men were detained in Novye Atagi beside Said-Magomed Imakayev. They were Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev, all of whom also disappeared subsequent to their arrest (see § 48 above). Their relatives applied to the European Court with a complaint about enforced disappearance, which was registered under no. 29133/03, Utsayeva and Others v. Russia. They are also represented before the Court by the SRJI.
103. The relatives of the four men submitted in their application that they had conducted the search for their missing relatives together with the applicant in the present case, and with support from the head of the Novye Atagi administration, Mr Datsayev. At their request, the Shali District Prosecutor's Office opened criminal investigations in respect of the kidnappings of their relatives: no. 59176 in respect of Islam Utsayev, no. 59155 in respect of Movsar Taysumov, no. 59159 in respect of Idris Abdulazimov and no. 59154 in respect of Masud Tovmerzayev. From the letters received from different authorities the relatives of the four detained men also understood that at some point the investigation was joined with the file initially opened in relation to the kidnapping of Said-Magomed Imakayev. The applicants also understood that in October 2002 the investigation was transferred from the Shali District Prosecutor's Office to the military prosecutors. At some point the case file was then returned to the Shali office. The proceedings were adjourned and reopened on several occasions, but did not establish the perpetrators of the abductions.
104. When communicating the complaint to the Russian Government in September 2004 the European Court of Human Rights requested them to submit copies of the criminal investigation files opened in relation to the kidnappings of the four men on 2 June 2002. In response, the Government refused to do so, referring to Article 161 of the Code of Criminal Procedure. They denied that the four men had ever been detained by the federal authorities. They conceded that Said-Magomed Imakayev had been detained on that night by state bodies, but insisted that his detention had been lawful and that he had later been released.
105. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
106. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of data from the preliminary investigation. Under part 3 of the said Article, information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants of the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of the participants in criminal proceedings without their permission is prohibited.
107. The Suppression of Terrorism Act (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows:
“For purposes of the present Federal Law the following basic concepts shall be applied:
... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities;
'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...”
“1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled:
... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;
(3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;
(4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health;
(5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...”
“...2. Information that cannot be released to the public includes:
(1) information disclosing the special methods, techniques and tactics of an antiterrorist operation; ...
(4) information on members of special units, officers of the operational centre managing an antiterrorist operation and persons assisting in carrying out such operation.
In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
108. The State Secrets Act of 1993, with subsequent amendments, lists in Section 5 part 4 the types of information which constitute state secrets in the area of intelligence, counter-intelligence and undercover operative activities. They include, inter alia, data on the measures, sources, methods, plans and results of such activities; data on persons who corroborate on a confidential basis with the agencies carrying out such activities; data about the organisation and methods of maintaining security at state security premises and of the systems of secured communications.
VIOLATED_ARTICLES: 13
2
3
38
5
8
VIOLATED_PARAGRAPHS: 2-1
5-1
8-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-58322
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF HUMEN v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Christos Rozakis;Nicolas Bratza
TEXT: 9. On 3 May 1982 the applicant was arrested by the militia because he had taken part in a street demonstration in Gdańsk. Subsequently, he was detained on remand on suspicion of having participated in an illegal assembly. On 5 January 1983 the Gdańsk Regional Court (Sąd Wojewódzki) convicted the applicant of participating in an illegal assembly constituting a violent attack against third persons and public property (an offence outlawed by section 275 § 1 of the Criminal Code of 1969) and sentenced him, under martial law as then in force, to sixteen months' imprisonment. The court of first instance found, inter alia, that the applicant, while participating in the demonstration (commemorating the anniversary of the Constitution of 3 May 1791) had shouted anti-government slogans and hurled insults at the militia officers; had unfurled the national flag on a monument; and, when the militia forces had attempted to put down the demonstration, had thrown stones at them from the street barricades, thus destroying public property (i.e. militia vans and park benches). On 8 June 1983 the Supreme Court (Sąd Najwyższy) upheld the first-instance judgment.
10. On 3 March 1993 a panel of seven judges, sitting as the Criminal Chamber of the Supreme Court, on an extraordinary appeal filed by the Prosecutor General (Prokurator Generalny), quashed both the above-mentioned judgments and acquitted the applicant, finding that he had not committed any offence but had merely exercised his fundamental civil liberties as "he had taken part in a peaceful and patriotic demonstration". On this last point, the Supreme Court stressed that there was no doubt that the demonstration, regardless of whether it had been “legal” or “illegal” under the law as then in force, had not been intended to be a “violent attack against third persons or property”. Moreover, the violent clash between the demonstrators and the militia forces had been a simple consequence of and an inevitable response to the brutal attack by the latter on the demonstrators with, inter alia, truncheons, tear-gas bombs and water-cannons.
11. On 13 April 1993 the applicant lodged a request based on section 487 of the Code of Criminal Procedure with the Gdańsk Regional Court. He sought compensation from the State Treasury for his wrongful conviction in 1983 and his unjustified detention which had lasted 249 days in all. He requested the court to award him an unspecified sum in damages for loss of earnings, injuries allegedly sustained by him in the course of his detention and damage to his health resulting from imprisonment. At the material time the applicant was detained in Kwidzyń Prison where he was serving a sentence imposed in other criminal proceedings.
12. On 21 May 1993 the Chief Justice of the Gdańsk Regional Court informed the applicant that the above request had been referred to Criminal Division IV of that court on 18 May 1993.
13. In a letter of 7 June 1993 the applicant requested the court to inform him of the progress of the proceedings.
14. On 15 June 1993 the Gdańsk Regional Court ordered the applicant to specify the amount of the damages sought by him and to produce documents relating to the injuries sustained by him during his detention. The applicant specified the amount of the damages in a pleading filed with the court’s registry on 25 June 1993.
15. On 19 July 1993 the applicant requested the court to deal with his request as soon as possible. On 30 July 1993 the court informed him that it was dealing with requests for compensation submitted in the first six months of 1992. The applicant's attention was drawn to the fact that he had failed to submit the documents requested on 15 June 1993. The applicant produced the documents in question on an unspecified date in September 1993 and requested the court to list a hearing.
16. On 10 August 1993 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich), the Minister of Justice and the Gdańsk Court of Appeal (Sąd Apelacyjny) about the slow conduct of the proceedings in his case. On an unspecified date his complaints were referred to the Chief Justice of the Gdańsk Regional Court, who replied thereto on 6 November 1993. The Chief Justice informed the applicant that there were 28 similar compensation cases registered with the Criminal Division of that court and that the applicant’s case was the twentieth on the list. As a consequence, it was difficult to foresee precisely when a hearing in his case would be held.
17. On 26 October 1993 the applicant complained to the Supreme Court about the length of the proceedings in his case. On 9 November 1993 his complaint was referred to the Gdańsk Court of Appeal which, on 23 December 1993, informed the applicant that his case was currently the sixteenth on the list and that it would probably be dealt with in the first three months of 1994.
18. In the meantime, on 10 November 1993, the applicant had submitted a pleading to the Gdańsk Regional Court, increasing his claims. In particular, he requested the court to order the State to pay him in addition a monthly amount to compensate him for loss of opportunities. He also informed the court that he was unable to produce any documents relating to the injuries sustained by him during detention since his medical records of 1982 were kept in the prison archives and they could be disclosed only upon the court’s order. On 25 November 1993 the court ordered the competent prison authorities to produce the relevant documents; they were filed with the court on 7 December 1993. On the same day the applicant requested the court to list a hearing.
19. In a pleading filed with the court’s registry on 29 December 1993 the applicant increased his claims to an unspecified sum.
20. On 5 January 1994 the Gdańsk Regional Court, in reply to a subsequent complaint from the applicant, informed him that it was still dealing with other requests for compensation submitted prior to his. The court stated, however, that a hearing in his case would be listed as soon as possible.
21. On 24 January 1994 the applicant again complained to the Gdańsk Regional Court about the excessive length of the proceedings. In a letter of 8 February 1994 the court informed him that it was not feasible to list a hearing for any date in the first three months of 1994.
22. On 14 February 1994 the applicant complained to the Chief Justice of the Gdańsk Regional Court about the length of the proceedings and asked him when the first hearing would be held. On 23 March 1994 the Chief Justice informed the applicant that his case would probably be dealt with in June or July 1994. He also admitted that, on account of substantial delays in dealing with similar requests for compensation, previous indications as to a possible hearing date appeared to have been inaccurate.
23. On 28 March 1994 the applicant complained to the Minister of Justice about inactivity on the part of the Gdańsk Regional Court.
24. On 1 June 1994 the Gdańsk Regional Court listed the first hearing in the applicant's case for 17 June 1994. During the hearing the court took evidence from the applicant who stated, inter alia, that in 1982 he had conducted a business activity and had been a member of the Gdańsk Trade Guild. The court adjourned the trial sine die since it found that evidence needed to be obtained from medical experts in order to assess whether there was a causal link between the state of the applicant's health and the detention imposed in 1982-83. The court also considered it necessary to hear evidence from the applicant’s sister and to call for documentary evidence of financial loss (if any) sustained by the applicant as a result of his conviction and the deprivation of his liberty.
25. On 20 June 1994 the court ordered that the following documentary evidence be obtained: firstly, the applicant’s updated medical records from the relevant prison authorities; secondly, written information from the competent tax office as to whether the applicant had paid any tax on his income for April and May 1982; thirdly, a certificate from the applicant’s former employer stating the applicant’s average monthly salary over the period preceding his detention (i.e. from 29 October 1981 to 31 March 1982) and, fourthly, written information from the Gdańsk Trade Guild on whether the applicant had been a member of the guild and had paid membership fees.
26. On 27 June 1994 the court received the applicant’s medical records. On 21 July 1994 the tax office informed the court that the applicant had not been registered as a taxpayer conducting business activities in 1982. Since the company by which the applicant had formerly been employed had failed to produce the certificate requested, the court issued two reminders to it, on 19 July and 1 September 1994. On 15 December 1994 the applicant’s employer provided the court with the certificate in question.
27. Meanwhile, in a letter of 25 July 1994, the applicant had asked the trial court when the proceedings would be terminated. On 8 August 1994 the court informed him that procedural steps had been taken to obtain the evidence relevant for the determination of his claims.
28. On 3 and 24 October 1994 the applicant complained to the Chief Justice of the Gdańsk Regional Court about the length of the proceedings. On 25 October 1994 the Chief Justice informed the applicant that on 20 October 1994 the case-file had been sent to experts at the Faculty of Forensic Medicine of the Gdańsk Academy of Medicine. Therefore, the date of the next hearing could not be fixed until the experts had submitted their report.
29. On 18 November 1994 the court, after finding that the experts had not fixed a date for the applicant to be examined, ordered that the registry supervise the experts’ work and report to the presiding judge on the progress of the process of obtaining evidence.
30. On 1 December 1994 the applicant was examined by a neurologist who expressed the opinion that he should also undergo a brain tomography examination. The Faculty of Radiology of the Gdańsk Academy of Medicine, at the court’s request, fixed the date of the examination for 22 December 1994.
31. In the meantime, on 19 December 1994, the applicant had been granted twenty-four hours' leave from prison and had failed to return. He did not keep his appointment for the brain tomography examination.
32. On 13 January 1995 the Gdańsk Regional Court stayed the proceedings, after being informed by the prison authorities that the applicant was still being searched for. On 17 February 1995 the court resumed the proceedings as the applicant had informed it that service of a summons or other court documents on him could be effected at his home address. Subsequently the court requested the experts to fix another date for the brain tomography examination. The examination was to be carried out on 24 April 1995 and the court ordered that on that day the applicant, who had in the meantime been redetained, be taken from prison to the experts.
33. However, on 11 April 1995, the Chief Justice of the Gdańsk Regional Court informed the President of the Criminal Division of that court that the applicant, in his two letters dated 3 April 1995, had refused to consent to the brain tomography examination and had threatened to go on hunger strike in order to obtain a date for the next hearing.
34. On 4 May 1995 the trial court informed the experts that the applicant was unwilling to undergo the brain tomography examination and asked them whether they would be able to prepare their report on the basis of the materials contained in the case file. The experts submitted their report to the court on 23 May 1995.
35. On 23 May 1995 the court again requested the Gdańsk Trade Guild to submit information on whether the applicant had been a member of the guild in April and May 1982. On 25 May 1995 the court was informed, by telephone, that the applicant had not been a member of the guild from 1980 to 1995. Later, on 30 May 1995, the court established on the basis of unspecified evidence that the applicant, even though he had previously alleged that he had commenced his business activity in 1982, had in fact registered his business with the relevant authorities on 1 August 1990.
36. On 2 June 1995 the Gdańsk Regional Court held a hearing and heard evidence from the applicant’s sister. During the hearing the applicant confirmed that he was unwilling to undergo the brain tomography examination. On the same day the court pronounced a decision granting the applicant's claims in part. It awarded him the sum of 5,000 Polish zlotys (PLN), of which PLN 2,500 was for pecuniary damage and PLN 2,500 for non-pecuniary damage.
37. On 5 July 1995, on the applicant's appeal of 9 June 1995, the Gdańsk Court of Appeal quashed the first-instance decision and remitted the case to the Gdańsk Regional Court, finding, in particular, that the lower court had failed to establish properly a causal link between the state of the applicant’s health and his detention. In the meantime, on 26 June 1995, the applicant had requested the court to terminate the proceedings as soon as possible.
38. On 17 July 1995 the Gdańsk Regional Court ordered that a fresh report be obtained from the neurologist who had prepared the previous report.
39. In his pleading of 19 July 1995 the applicant increased his claims to an unspecified sum.
40. On 17 August 1995 the applicant complained to the court that the length of the proceedings in his case was excessive. On 23 August 1995 the court informed him that the next hearing would be listed after obtaining the report from the expert.
41. On 28 August 1995 the expert informed the court that he was unable to prepare a more extensive report on the applicant’s state of health without the help of the brain tomography examination.
42. In a letter of 12 September 1995, received at the court’s registry on 25 September 1995, the applicant requested the court to proceed with his case.
43. On 11 October 1995 the court held a hearing and heard evidence from the expert. The trial was adjourned since the court decided that evidence should be heard from two witnesses, namely K.D., a doctor, and A.P., the prosecutor who had detained the applicant on remand in May 1982. Until 14 December 1995 the court was unable to establish the address of (and thus to serve a summons on) A.P.
44. On 12 January 1996 the court held the next hearing and heard evidence from K.D.; however, the trial was adjourned to 9 February 1996 since A.P. had failed to appear before the court. On 9 February 1996 the trial was again adjourned for the same reason. During a subsequent hearing, which was held on 6 March 1996 in the applicant’s presence, the court heard evidence from A.P. and pronounced a decision granting the applicant compensation in the sum of PLN 6,800 for pecuniary and non-pecuniary damage. The full text of the decision was served on the applicant on 18 March 1996. Since he did not appeal against it within the statutory time-limit of seven days, the decision became final and enforceable on 26 March 1996. On 1 October 1996 the applicant went to the Financial Department of the Gdańsk Regional Court and received the sum awarded, in cash.
45. At the material time the domestic provisions setting out the State’s liability for wrongful conviction or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him were contained in Chapter 50 of the Polish Code of Criminal Procedure of 1969, entitled "Compensation for unjustified conviction, detention on remand or arrest". The Code is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997, currently referred to as the “New Code of Criminal Procedure”.
46. Section 487 of the Code of Criminal Procedure of 1969 provided, insofar as relevant:
"1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging an extraordinary appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
...
4. The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand."
47. Section 488 of that Code provided, insofar as relevant:
"1. A request for compensation shall be submitted to a regional court in whose jurisdiction the decision giving rise to the request for compensation was given at first instance. ...
2. The court shall consist of three judges. Cases relating to requests for compensation shall be given priority and no court fees shall be required from the applicant."
48. A request for compensation based on the foregoing provisions was examined by a criminal court. In those proceedings the court applied the rules of criminal procedure; however, in respect of such questions as the evaluation of the pecuniary or non-pecuniary damage sustained by an accused, the court applied the relevant principles set out in the Civil Code. The person concerned was entitled to compensation for any financial loss (e.g. loss of work or earnings), damage to health and psychological harm resulting from the execution of the sentence or detention on remand. In order to determine the amount of the damages due for loss of work or earnings the court was obliged to establish the earning capacity which the applicant would have had if he had not been convicted and detained and to deduct from the sum so determined his necessary everyday expenses and, if appropriate, other spending or losses (see the decision of the Supreme Court of 19 April 1995, no. WZ 71/95, published in OSP 1995/12/235).
49. The court primarily applied the rules of evidence contained in the Code of Criminal Procedure. However, according to well-established legal theory and practice, the court also applied the relevant rules of civil procedure. In particular, since the main issue involved in such proceedings was financial reparation for a miscarriage of justice, and not the determination of any criminal charge, the court applied a general principle of civil procedure that the burden of producing evidence and the burden of proof lay on the claimant.
50. In such matters as the admissibility and assessment of evidence the court essentially applied the relevant provisions of the Code of Criminal Procedure, providing, in particular, that the court could admit evidence either of its own motion or at the parties’ request and assess it on the basis of its own conviction. However, in cases where it was impossible or difficult to establish with precision the facts relevant for the determination of the damages due for loss of work or earnings (such as the earning capacity of the applicant, his income and expenses), the court was required, applying by analogy section 322 of the Code of Civil Procedure, to fix the amount of such damages on the basis of its own assessment of all the relevant circumstances (see the resolution reached by the Plenary Supreme Court on 7 June 1958, no. Prez. 729/58, published in OSN 1958, no. 4, item 34)
51. Under Section 10 § 2 of the Code of Criminal Procedure organs conducting criminal proceedings were, if necessary, obliged to inform the parties to the proceedings of their procedural rights and duties.
52. Mr Edward Humen applied to the Commission on 7 April 1994. He alleged firstly that the proceedings in the Gdańsk Regional Court, which concerned his claim for compensation for his wrongful conviction under martial law and his unjustified detention, had been unreasonably long. He further maintained that, in three separate sets of criminal proceedings against him, the Polish courts had convicted him on the basis of insufficient evidence and that they had incorrectly assessed the evidence presented before them. In respect of one of those three sets of criminal proceedings against him, the applicant also alleged that his right to be released pending trial had not been respected. Lastly, the applicant complained about the fact that he had been refused a temporary suspension of his sentence. He did not invoke any specific provision of the Convention in support of his complaints.
53. The Commission examined the applicant’s complaints under Article 6 § 1 and Article 5 § 3 of the Convention. On 3 December 1997 the Commission (Second Chamber) declared the application (no. 26614/95) admissible insofar as it concerned the complaint about the length of the proceedings relating to the determination of the applicant’s claim for compensation for wrongful conviction and unjustified detention. It declared the remainder of the application inadmissible. In its report of 20 May 1998 (former Article 31), the Commission expressed the opinion that there had been a violation of Article 6 § 1 (eight votes to six). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102842
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MIKOLAJOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1969 and lives in Košice.
6. On 30 June 2000 the applicant's husband filed a complaint with the police alleging that the applicant had beaten and wounded him on 25 June 2000.
7. On 3 July 2000 the police department in Košice issued a decision by which it dropped the case on the ground that the applicant's husband did not agree to criminal proceedings being brought against her. The decision stated that although the police “investigation” had established that the applicant had committed a criminal offence, criminal prosecution was barred as the victim, the applicant's husband, had not given his consent as required under Article 163 of the Criminal Procedure Code. The applicant was not notified of this decision, nor is there any evidence in the case file that she was questioned or otherwise made aware of her husband's complaint.
8. On 28 January 2002 a health insurance company wrote to the applicant asking her to reimburse the costs of her husband's medical treatment. According to the letter, the applicant's husband had been treated in a hospital on 25 June 2000 as a result of injuries which the applicant had inflicted on him. Reference was made, inter alia, to the decision issued by the police department in Košice on 3 July 2000.
9. In a letter dated 3 July 2002 the insurance company explained the position to the applicant in reply to her request. A copy of the police decision of 3 July 2000 was enclosed with the letter which was delivered to the applicant's lawyer on 15 July 2002. The relevant part of the decision of 3 July 2000 read as follows:
“The investigation showed that [the applicant's] action met the constituent elements of the offence of causing injury to health pursuant to Article 221(1) of the Criminal Code in that she had deliberately inflicted an injury on another person.”
10. On 16 July 2002 the applicant informed the competent police department in Košice that the text of its decision violated her right to be presumed innocent. She requested an apology and that the police inform the health insurance company of this breach. On 9 August 2002 the director of the police department replied to the applicant, stating that the above decision had been given in accordance with the relevant law.
11. In a letter of 17 July 2002 the applicant requested that the Košice II District Prosecutor's Office quash the police decision of 3 July 2000. On 26 August 2002 the applicant was informed that the decision was not contrary to constitutional principles. The letter stated, in particular, that the task of the police had been to determine whether a justified reason existed to consider that a particular person had committed the offence in issue. The relevant text of the contested decision had been drafted and was to be read in that context.
12. On 12 September 2002 the applicant filed a complaint with the Constitutional Court. She alleged, inter alia, that by issuing its decision of 3 July 2000, the police department in Košice had violated her constitutional rights to be presumed innocent and to respect for her honour and reputation.
13. On 27 November 2002 the Constitutional Court rejected the complaint as having been filed outside the statutory two month time-limit. The decision referred to section 53 (3) of the Constitutional Court Act of 1993, which provided that the time-limit was to be counted from the day on which the plaintiff learned or could have learned about the contested measure. In rejecting the applicant's complaint as out of time, the Constitutional Court took 3 July 2000, the date on which the police decision was issued, as the key date.
14. Article 50 § 2 of the Slovak Constitution provides that “Every defendant against whom criminal proceedings are pending shall be considered innocent until the court establishes his/her guilt by a final judgment.”
15. The Criminal Procedure Code, as in force at the relevant time, provided as follows at Article 2 § 2:
“A defendant against whom criminal proceedings have been instituted must not be considered guilty until the court establishes his/her guilt by a final judgment.”
16. Article 163 (a) (1) required the victim's consent for a criminal prosecution to be pursued for a listed number of offences, including the offence of causing bodily injury, in cases in which the perpetrator was a relative of the victim.
17. Article 11 § 1 (h) provided that a criminal prosecution could not be initiated, and if already initiated, could not be continued and had to be discontinued, in the event that consent as required under Article 163 (a) (1) was not given or subsequently withdrawn.
18. The Civil Code in its relevant provisions reads as follows:
“Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, reputation and expressions of a personal nature.”
“1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party's dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
“A person who caused damage by infringement of the right to protection of personal integrity, shall be liable for such damage under provisions of this law on liability for damage.”
19. Article 134 of the Civil Procedure Code provides the following:
“Letters issued by the courts of the Slovak Republic or by other state authorities within the limits of their powers, as well as letters which were declared public upon special regulation, confirm that it is an order or declaration of an authority which issued the letter, and unless the contrary is proved, also the verity of what is to be approved or confirmed therein.”
20. Section 53 (3) of the Constitutional Court Act of 1993 provides that a complaint to the Constitutional Court can be filed within two months from the final effect of a decision or from the date of a contested measure or notification of another interference with a person's rights. In the case of measures or other interferences, the time-limit is to be counted from the date on which the plaintiff learned or could have learned about the contested measure or other interference complained of. Section 50 (2) provides that a copy of the legal decision, measure or any evidence proving another kind of interference shall accompany a complaint.
VIOLATED_ARTICLES: 8


ITEMID: 001-5030
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: APIS a.s. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a joint stock company with registered office in Turčianske Teplice. It is represented by Mrs B. Ambrušová, a lawyer practising in Martin.
On 25 July 1995 the applicant company filed an action with the Bratislava City Court (Mestský súd) claiming that it was entitled to obtain 51 per cent of the shares of another limited company. At the same time the applicant company requested the City Court to take an interim measure ordering the defendant, the Fund of National Property, not to sell the shares at issue pending the outcome of the proceedings.
On 15 August 1995 the City Court granted the request for an interim measure. On 8 July 1996 the Supreme Court (Najvyšší súd) upheld this decision.
On 30 September 1996 the City Court dismissed the defendant's request for annulment of the interim measure. The defendant appealed and on 30 May 1997 the Supreme Court quashed the interim measure without having heard the parties.
The applicant company petitioned the Constitutional Court (Ústavný súd) and alleged a violation of its right to a fair and public hearing in the proceedings leading to the Supreme Court's decision of 30 May 1997.
On 2 December 1997 the Constitutional Court rejected the petition. It noted, inter alia, that the interlocutory proceedings in question did not determine the merits of the applicant company's action.


ITEMID: 001-97859
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: JOVANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Dimče Jovanov, is a Macedonian national who was born in 1976 and lives in Krupishte. He was represented before the Court by Mr P. Dokuzov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 June 2003 the public prosecutor requested an investigating judge of the Štip Court of First Instance (“the trial court”) to open investigations against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant on account of having been in possession of weapons and explosives (недозволено држење на оружје и распрскувачки материјали). He also requested that the accused be examined and remanded in custody.
On the same date, the investigating judge examined the accused.
The applicant stated, inter alia:
“... Yesterday, while I was walking through the city, I met with R. [the first name of Mr Dz., as established in the course of the domestic proceedings, later referred to as Mr R.Dz.], an acquaintance of mine, last name and address I don’t know, who told me that he needed explosives to kill fish. I told him that I knew a person, Mr A.P., who knew a third person who could provide explosives. R. suggested me that that person could bring the explosives firstly to the V.P. petrol station and then in the village of Tri Češmi ... I hired a taxi and went to meet Mr A.P. ... I told him about the potential buyer, without specifying the quantity and price of the required explosives. It was something for him to agree upon with R. Mr A.P. accepted ... I called Mr A.A. to ask him, if possible, to come in his car ... I stayed in the village of D. Balvan in order to meet with R. whom I met at the petrol station. We stayed there for half an hour, until Mr A.P. and Mr A.A. arrived. We had a coffee ... when Mr A.A. and Mr A.P. arrived, I got into the car and continued towards Tri Češmi. There, we were stopped by police. They also stopped the car, which R. had got into at the petrol station, but they let it go on straight away. They searched our car and found the explosives ...”
Mr A.P. stated, inter alia:
“... We (the applicant and I) are former schoolmates ... we often see each other ... yesterday at around 1 p.m. [the applicant] came to my house in a taxi and told me that he had found a customer for the explosives ... He called Mr A.A. from my phone asking him to come in his car ... [The applicant] did not want to come with us to Zletovo village, but said that he would wait at the V.P. petrol station where he would meet the buyers ... When we arrived at the petrol station, [the applicant] joined us and told us to follow a car ... [The applicant] promised me 100 German marks (DEM) as a reward for my part ...”
Mr A.A. stated, inter alia:
“... At around 10 or 11 am. on 16 June 2003, [the applicant] came into my shop asking for a favour, namely to transfer him to a place, without specifying where and for what purpose. He left and at around 2 pm. he called me again. I told him to call back in fifteen minutes... [The applicant] called me on my mobile phone ... it was around 2.20 p.m. when [the applicant] called me again. I took my car and went in the village of G. Balvan. There, [the applicant] and .... Mr A. waited for me. While he was driving [the applicant] said that something had come up, that I would have to leave him in the village of D. Balvan, but that I would have to take Mr A. on to Zletovo and that he would pay me for the petrol... When we arrived at the petrol station, [the applicant] was waiting for us in the restaurant alone. He joined us in the car. I immediately started to argue with him, asking why he had not told me about the matter. With a smile on his face he told me: ‘don’t worry mate, I’m with you. I just want to ask for one more favour: to take us with the explosives to Tri Češmi. Mr A. and I will go on and you’ll go back and we’ll pay for the petrol...”
On 26 June 2003 the public prosecutor filed an indictment with the trial court against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant. The applicant was charged with acting as an accomplice in concert with Mr A.P. and Mr A.A. and with obtaining explosives with the intention of selling them to an unknown buyer.
According to depositions taken on 23 June 2003 in the pre-trial proceedings, the applicant, who was assisted by counsel, confirmed his statement of 17 June 2003.
At a hearing of 18 July 2003, the trial court examined all the co-accused, including the applicant.
Mr A.P. stated, inter alia:
“... [the applicant] engaged Mr A.A. [The applicant] knew that Mr A.A. and I would buy explosives from Zletovo. [The applicant] knew who the buyers were, but I did not ...”
The applicant confirmed his statements given in the pre-trial proceedings. Asked by his representative, he stated that he would not have taken part in any of the activities had it not been for R., who had incited him to find explosives. In his concluding remarks, the applicant’s representative stated that R., acting as an agent provocateur, had instigated the offence. He further argued that the prosecution had failed to secure R.’s attendance at the trial so that evidence could be taken from him.
On 21 July 2003 the trial court found the applicant guilty and sentenced him to one year’s imprisonment. It established that Mr T.A. had taken explosives in 2001 from a mine where he had worked. On the morning of 16 June 2003, the applicant had agreed with Mr A.P. and Mr A.A. to sell the explosives to R. The transaction was supposed to take place in the village of Tri Cesmi. The same day, Mr A.P. and Mr A.A. went to Mr T.A.’s house and obtained the explosives from the latter’s wife, Mrs S.A. They put the explosives in their car and drove towards Stip. The applicant joined them in the car at the V.P. petrol station near Stip. They were stopped by police on their way to the village of Tri Cesmi, where the sales transaction, which had earlier been agreed between the applicant and R., should have taken place. Mr A.A. was driving the car and the explosives were found behind the right-hand front seat. The police issued Mr A.P. with a receipt for temporarily seized objects (потврда за привремено одземени предмети).
The trial court stated that evidence of the alleged crime was provided by the statements of Mr T.A., Mr A.P. and the applicant and by the actual actions taken by each of them. The court also referred to documentary evidence, namely two expert reports, several search reports, photo evidence and the explosives and detonators found. The trial court rejected the applicant’s allegations of being entrapped by an agent provocateur as “ill-founded” and “irrelevant”.
On 11 September 2003 the applicant, through his representative, complained that, inter alia, the trial court had not provided reasons for rejecting his request to examine the key witness on his behalf, namely the agent provocateur. He argued that there was considerable evidence that he had been incited by a police informer to uncover the person who was able to obtain explosives, even though the police had already known about the latter. He further alleged that the whole series of events had been planned in advance and monitored by the police. He considered it crucial for the court to establish whether it was the applicant who had approached the police informer of his own accord or whether it was the agent provocateur who had taken the initiative. He regarded it as inhuman for the investigating authorities to have taken advantage of his poor standard of living to ensure a successful police operation. He therefore concluded that the trial court had erred in rejecting his request to examine the buyer whose identity, in fact, he did know. That person was Mr R.Dz. The applicant also provided his address and requested the Court of Appeal to examine him regarding the circumstances surrounding the applicant’s involvement in the crime.
At a session (седница) held on 25 February 2004, the Štip Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to a term of eight months’ imprisonment. It upheld the remainder of the trial court’s decision. At the session, the applicant requested acquittal and stated that he would not have had any involvement in the crime had it not been for the agent provocateur. The Court of Appeal established that the fact that no items had been confiscated from the applicant did not rule out his guilt. It further found that evidence adduced by the trial court, namely the statements given by the applicant, Mr A.A. and Mr A.P., together with other evidence, corroborated the contention that the applicant, before arriving at the petrol station, had instructed the other two accused to obtain the explosives with the intention of selling them to the buyer Mr R.Dz., with whom he had arranged the transaction. It concluded, therefore, that the applicant’s defence rights had not been violated.
The court further rejected the applicant’s allegations that he had been incited to commit the offence by an agent provocateur, on the grounds that the applicant himself had stated in the pre-trial proceedings that, having been asked by his acquaintance, Mr R.Dz., whether he knew anyone selling explosives, he had offered the latter explosives, which he had said he would secure through another person. The applicant had then agreed to bring the explosives to the petrol station and take them to the village of Tri Češmi afterwards. The court further relied on Mr A.P.’s statement, according to which the applicant had promised him a reward of DEM 100, to be deducted from the selling price of the explosives after the transaction. Finally, the court concluded that the trial court had established all facts relevant to the case and that accordingly, examination of Mr R.Dz., the alleged agent provocateur, was not necessary.
On 9 April 2004 the applicant lodged with the Supreme Court an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). He complained that the lower courts had erred in rejecting his request for examination of the alleged agent provocateur as irrelevant. Relying on Article 6 of the Convention, the applicant complained that the lower courts had failed to consider the arguments in his defence.
On 18 May 2004 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the lower courts had adduced sufficient evidence to establish the truth and that the applicant’s arguments had not been such as to undermine their credibility. It further stated that the applicant’s conviction had not been based, as he alleged, on inadmissible evidence. The applicant’s allegations had been examined by the Court of Appeal, which had provided sufficient reasons to satisfy the Supreme Court. As to the applicant’s allegations that there had been a violation of Article 6 of the Convention as his conviction had been based on evidence which could not serve that purpose, namely the evidence of an agent provocateur, the Supreme Court stated:
“... the court does not accept this allegation ... given that, in order for there to have been a violation of Article 6 of the Convention concerning the right to a fair trial, the lower courts’ decisions must have been based solely on evidence provided by a socalled agent provocateur. The lower courts’ decisions were not based on any such evidence ... On the contrary, the defence insisted that evidence should be heard from such a witness. The witness in question was not examined and the courts’ decisions were in no way based on statements made by him. The lower courts adduced sufficient evidence and provided sufficient reasons in relation to all the defence arguments. There has, accordingly, been no violation of Article 6 of the Convention.”