ITEMID: 001-102625
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KOLKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Giorgio Malinverni
TEXT: 4. The applicant was born in 1971 and lives in Astrakhan.
5. On 24 October 2001 the applicant lodged a paternity and alimony suit against Yu. before the Petrogradskiy District Court of St Petersburg.
6. At the first hearing that took place on 22 April 2002 the court granted the respondent’s motion for transfer of the case to the Nevskiy District Court of St Petersburg (“the District Court”). According to the Government, the applicant’s representative left this decision to the court’s discretion.
7. After holding a meeting with the parties on 9 September 2002, the court scheduled the first hearing for 6 November 2002. However, on that date the hearing was adjourned to 4 February 2003 to give the applicant time to procure additional evidence. The hearing of 4 February 2003 did not take place due to the respondent’s illness.
8. On 29 July 2003 the applicant and the respondent requested that the hearing be postponed due to their illness and the respondent’s counsel’s vacation.
9. The hearing of 7 October 2003 did not take place due to the judge’s involvement in different proceedings and the respondent’s inability to appear due to a business trip.
10. The hearing of 27 November 2003 was adjourned due to the applicant’s misconduct in the courtroom. The judge summoned the police who took the applicant to a police station for questioning and released soon afterwards. On an unspecified date the authorities instituted criminal proceedings against her.
11. The hearing of 11 February 2004 did not take place due to the judge’s illness. At the next hearing of 21 April 2004 the court granted the applicant’s motion for an outpatient DNA testing and stayed the proceedings. After the applicant challenged the decision to stay the proceedings, the case was remitted to the District Court for repeat examination of her motion for a DNA testing. The next hearing scheduled for 5 October 2004 was adjourned to obtain medical evidence in respect of the respondent.
12. The hearing of 14 December 2004 was adjourned due to the respondent’s default in appearance and lack of results for the court’s inquiry.
13. On 19 December 2004 the investigator imposed on the applicant an undertaking not to leave. Ten days later he put the applicant on the wanted list and stayed the preliminary investigation.
14. The hearings of 15 March and 9 June 2005 did not take place due to the judge’s illness.
15. On 26 May 2005 the applicant asked to postpone the hearing due to her own illness.
16. On 30 June 2005 the District Court left the claims without consideration ruling that the parties had failed to appear in court twice for no plausible reasons. This decision was overturned on the applicant’s appeal on 22 July 2005 for unspecified reasons.
17. Once back to the District Court, the case was assigned to a different judge due to the termination of the previous judge’s term in office.
18. At the next hearing of 24 November 2005 the court again ordered a DNA testing and stayed the proceedings.
19. On 28 February 2006 the respondent motioned for transfer of the case to the Khabarovsk Region where he had relocated.
20. On 12 April 2006 the applicant motioned for transfer of the case to Astrakhan where she had relocated with her child.
21. On 19 May 2006 the District Court sent a letter rogatory to a competent Astrakhan court asking that the latter order a local expert bureau to take the applicant’s and her child’s blood samples and send them to an expert bureau in St Petersburg. A similar letter rogatory was sent to a court in the Khabarovsk Region in respect of the respondent. However, the parties never appeared at the expert bureaus.
22. On 15 February 2007 the District Court declared the investigator’s decision to put the applicant on the wanted list unlawful. Both this decision and the decision to stay the investigation were revoked on 6 April 2007 by the higher investigation body. Subsequently, the investigation against the applicant was resumed and stayed on several occasions.
23. The parties did not appear at the next court hearing scheduled for 21 February 2007.
24. On 20 March 2007 the court ordered an expert examination of the medical documents. It also decided that the parties should have their blood samples taken in St Petersburg and sent a letter rogatory to an Astrakhan court for questioning of certain witnesses.
25. The next hearing scheduled for 13 September 2007 was adjourned to give the applicant time to obtain additional evidence.
26. The hearing of 26 September 2007 did not take place as the parties did not appear. The hearing of 31 October 2007 was adjourned to obtain additional evidence. The court also sent another letter rogatory for questioning of a certain witness and an inquiry in respect of the respondent. On this date and then on 11 January 2008 the court ordered additional expert examinations and stayed the proceedings.
27. On 10 July 2008 the District Court dismissed the applicant’s claims as unfounded. On 13 November 2008 the St Petersburg City Court decided that the applicant had not been duly notified of the date and whereabouts of the expert examination scheduled for 15 April 2008, set the judgment aside on appeal and required a new hearing.
28. On 1 December 2008 the District Court sent the case materials for the DNA testing and notified the parties of its date and whereabouts. However, on 12 January and 17 February 2009 only the respondent appeared at the expert bureau.
29. On 18 February 2009 the District Court again disallowed the applicant’s claims as unfounded. The judgment was upheld on appeal by the St Petersburg City Court on 21 April 2009.
30. The Government submitted that the authorities were considering termination of the criminal proceedings against the applicant as time-barred.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86255
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JUHNKE v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;Violation of Art. 8;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-84268
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FEVZİ SAYGILI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;Violation of Art. 13;No violation of Art. 14
JUDGES: András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1966 and lives in Istanbul.
6. The applicant is the owner of a daily newspaper, Günlük Evrensel, published in Istanbul.
7. Günlük Evrensel released its first issue on 23 July 2001. On the same day, the state of emergency regional governor in south-east Turkey banned the newspaper's entry and distribution in the provinces under his jurisdiction, namely, Diyarbakır, Tunceli, Hakkari and Şırnak. The governor considered that the newspaper was pursuing the same editorial line as another newspaper called Yeni Evrensel, the entry and distribution of which had also been banned on 4 January 1999.
8. The governor's decision to ban Günlük Evrensel, which contained no reasons, was served on the newspaper's Diyarbakır representative on 23 July 2001. The representative acknowledged its receipt on the same day and the ban took immediate effect.
9. While banned in the state of emergency region, the newspaper was freely distributed elsewhere in Turkey.
10. The governor's office of the state of emergency region was set up with special powers after the state of siege was officially declared to be over on 19 July 1987 by Legislative Decree no. 285 of 10 July 1987. A state of emergency was thus decreed in the provinces of Bingöl, Diyarbakır, Elazığ, Hakkari, Mardin, Siirt, Tunceli and Van. On 19 March 1994 the state of emergency was extended to the province of Bitlis, but lifted in the province of Elazığ. It was declared to be over in the provinces of Batman, Bingöl and Bitlis on 2 October 1997, in the province of Van on 30 July 2000 and in the provinces of Tunceli and Hakkari on 1 August 2002. In July 2002 it was extended by four months in the provinces of Diyarbakır and Şırnak.
11. The powers of the governor of the state of emergency region (Olağanüstü Hal Bölge Valisi) are set out in the State of Emergency Act (Law no. 2935 of 25 October 1983) and various legislative decrees that were issued after the state of emergency was declared (Legislative Decrees nos. 313, 387, 413, 421, 425, 426, 427, 428, 430, 432 and 481).
12. Section 11(e) of the State Emergency Act reads as follows:
“... If a state of emergency is decreed, the following measures may be imposed with a view to maintaining general security, safety and public order and to preventing any escalation of the violence...:
...
(e) An order prohibiting, either absolutely or without prior permission, the editing, dissemination, publication or distribution of newspapers, reviews, brochures, pamphlets, posters or any similar publications, or the publication or distribution of any such [publications] which have been printed or disseminated outside the state of emergency region ...”
13. Article 1 (a) of Legislative Decree no. 430 provides:
“The printing, dissemination, publication or distribution of books, reviews, newspapers, brochures, posters or other similar publications liable seriously to undermine public order in the region, to cause agitation among the local population or to obstruct the security forces in the course of their duties by giving a false account of operations being conducted in the region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned. [Likewise,] the publication or distribution of [any publication of the same type] that has been printed and published outside the state of emergency region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned ...”
14. The relevant part of Article 148 § 1 of the Constitution provides:
“... There shall be no right of appeal to the Constitutional Court to contest the form or substance of legislative decrees issued during a state of emergency, a state of siege or in wartime.”
15. Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no. 425 of 9 May 1990, precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no. 285 set aside.
16. Article 8 of Legislative Decree no. 430 reads as follows:
“No criminal, financial or civil liability may be asserted against ... the governor of the state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This shall be without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification [sebepsiz].”
17. The Constitutional Court has reviewed the constitutionality of Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no. 425 of 9 May 1990, in a judgment of 10 January 1991, which was published in the Official Gazette on 5 March 1992. It stated:
“It is not possible to reconcile that provision [which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny. There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review. Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom. However, the impugned provision is contained in a legislative decree that cannot be the subject of constitutional review ... Consequently, the application for an order quashing that provision must be dismissed as being incompatible ratione materiae [yetkisizlik] ...”
18. As regards Article 8 of Legislative Decree no. 430, in two judgments delivered on 3 July 1991 and 26 May 1992 (published in the Official Gazette on 8 March 1992 and 18 December 1993 respectively), the Constitutional Court followed that decision in dismissing as incompatible ratione materiae applications for orders quashing the relevant provisions.
VIOLATED_ARTICLES: 10
13
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-107132
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHUVALOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1973 and lives in Volgograd.
6. On 23 March 2001 the applicant, a former police officer, was arrested, with two others, on suspicion of drug dealing.
7. On 26 March 2001 the applicant was detained pending investigation, and on 30 March 2001 charges were brought against him.
8. On 9 September 2003 the Volgograd Kirovskiy District Court convicted the applicant of drug dealing and sentenced him to ten years’ imprisonment.
9. On 8 June 2004 the Volgograd Regional Court quashed the judgment on appeal and remitted the case for retrial.
10. On 29 June 2006 the Volgograd Kirovskiy District Court convicted the applicant of drug dealing and sentenced him to five years and four months’ imprisonment. The judgment was not appealed against and became final.
11. On 22 July 2006 the applicant was released on completing his sentence.
12. On 19 July 2002 officer P. of the Volgograd Regional remand prison IZ-34/4 (ФБУ ИЗ № 34/4 ГУФСИН России по Волгоградской области), where the applicant was detained at the material time, allegedly hit the applicant several times with a rubber truncheon on the lower back and buttocks. The applicant could hardly walk afterwards. In the evening he felt feverish. The doctor on duty was to examine the applicant. However, according to the applicant, despite his request the doctor was instructed not to record the injuries.
13. On 23 July 2002 the applicant was brought to Volgograd Kirovskiy District Court for trial. However, he felt unwell, and an ambulance team was called. The ambulance paramedic discovered bruises on the soft tissue of the applicant’s buttocks. When he returned to the remand prison the applicant was examined by a medical assistant. The latter recorded multiple haematomas on the applicant’s buttocks, measuring 1.5 x 1.5 cm. On the same day the applicant made a complaint about the beatings to the Volgograd City Prosecutor’s Office.
14. On 16 August 2002 the chief assistant of the Volgograd City Prosecutor refused to institute criminal proceedings against officer P. The decision read as follows:
“[...] The inquiry conducted [into the applicant’s allegations] established that at 11.15 a.m. on 19 July 2002 [officers P. and Podm. of the Volgograd Regional remand prison IZ-34/4] took [the applicant] out of cell no. 47 for a talk on the subject of compliance with the detention regime [...]
[Officer P.] invited officer K. by telephone to come to his office, no. 4, and bring [the applicant’s] personal file. Approximately ten minutes later those present went to P.’s office, where K. informed [the applicant] of the material in the file. The latter threatened to have criminal proceedings instituted against K., and to make all others present regret everything, without offering any further explanation.
At about 12.30 p.m. [the applicant] was taken to a temporary isolation cell, from where, three hours later, he was escorted back to his cell.
No physical force or special means were applied to the [applicant]. According to the records on the use of special means, officers P., Podm. and K. were not given special means on 19 July 2002.
When he returned to his cell [the applicant] made no health-related complaints to his cellmates or to the medical unit of the [remand prison].
During the exercise period on 20 July 2002 [the applicant] was rubbing his buttocks against the wall of the exercise yard (explanations by detainees Sh., D., and others), deliberately causing himself harm.
At 12.12 p.m. on 23 July 2002, having been escorted to the Kirovskiy District Court, [the applicant] complained to convoy officers that he felt unwell, mentioning in particular pain in the area of his kidneys, for which reason an ambulance was called to the courthouse.
Medical assistant Sh. discovered haematomas on [the applicant’s] buttocks [...].
[The applicant’s] allegations of “blows to the kidneys and high blood pressure” were not confirmed. His health was assessed as relatively satisfactory.
It follows from submissions by detainees D., I., P., and Sh. that [the applicant] repeatedly expressed discontent with [officer P.] and was planning to make accusations against him...
In view of the foregoing, [the applicant’s] allegations were not substantiated...”
15. On 8 September and 29 November 2002 the applicant obtained written statements from his cellmates P., I. and B., who stated that they had not seen the applicant causing himself injuries. They further stated that police officer P. had made them and other inmates sign statements to the contrary.
16. In the meantime, in October 2002 the applicant appealed against the decision of 16 August 2002 to the Prosecutor General of the Russian Federation.
17. In December 2002 the applicant was informed that his complaint had been referred to the Volgograd Regional Prosecutor’s Office, which, in its turn, referred the complaint to the Volgograd Regional Prosecutor supervising the enforcement of legislation in correctional institutions.
18. Soon afterwards the applicant received a letter dated 15 December 2002 from the Volgograd Regional Prosecutor, informing him that his complaint had been examined and that no grounds had been found to quash the decision of 16 August 2002. A copy of the relevant decision was not however made available to the applicant.
19. The applicant tried to challenge the refusal to institute criminal proceedings against officer P. before the court examining his criminal case in 2003, during the trial and in 2004 on appeal. However, neither of the domestic courts considered the applicant’s arguments.
20. Since some considerable time had elapsed since the quashing of the applicant’s conviction in 2004 and no new trial had yet started (see paragraphs 9 and 10 above), the applicant decided to challenge the refusal to institute criminal proceedings against police officer P. in separate proceedings.
21. On an unspecified date in June 2005 he challenged the refusal before the Volgograd Regional Prosecutor’s Office and the Tsentralniy District Court of Volgograd.
22. On 4 July 2005 the Deputy Prosecutor of the Volgograd Region quashed the decision of 16 August 2002, because it had been taken by the wrong person and outside the procedural time-limits. The decision also referred to the results of the inspection of the case file material (материалы служебной проверки). An additional investigation was ordered.
23. On 7 July 2005 the Tsentralniy District Court of Volgograd dismissed the applicant’s appeal against the decision of 4 July 2005.
24. However, on 14 July 2005 the Volgograd City Prosecutor refused to institute criminal proceedings against officer P. The decision read as follows:
“... Junior inspector [of facility IZ-34/4] Kush. explained that on 19 July 2002 ... [officers P. and Podm.] took [the applicant] from cell. 47 to the management and security office. [Officer K.] was already there. [They] spent about ten minutes in the office, after which [the applicant] was taken back to cell. 47. The [officers] had no special equipment on them. Neither P. nor Podm were issued with rubber truncheons. He had seen no injuries on [the applicant]; [the applicant’s] behaviour was normal and, [the latter] made no health-related complaints.
Similar statements were made by junior inspector [of facility IZ-34/4] G., who confirmed that no physical force had been applied to [the applicant].
[Officer] K. submitted that on 19 July 2002 ... she had been showing [the applicant] the material in his personal file, explaining [to the latter] the lawfulness of his detention.. On that occasion no violence was used against [the applicant] by the officers of IZ-34/4.
[Officer Podm.] submitted that on 19 July 2002 together with [officers P. and K.] at about 11 a.m. he had [had a talk with the applicant]. [...] On that occasion none of [the officers] had used violence on [the applicant], beaten him or threatened him.
Medical staff from IZ-34/4 K. and T. submitted that [the applicant] had not sought medical assistance between 19 July and 24 July 2002.
A medical auxiliary from IZ-34/4 M. submitted that on 23 July 2002 he examined [the applicant] and discovered blue marks on his buttocks, the origin of which [the applicant] did not explain. [The applicant] did not seek medical assistance until 24 July 2002.
[Officer P.] [made statements similar to those made by officers K. and Podm.]...
[According to the IZ-34/4 records], Sh., P., I., D., R., B., M., A. [formerly detained with the applicant] were no longer being held in facility IZ-34/4 [...].
Shakh. confirmed that he had been detained in facility IZ-34/4 with [the applicant], but in a different cell [...]. Regarding the circumstances of the alleged beatings, he only knew what [the applicant] had told him, that he had filed a complaint about the beatings. [...]
The above-mentioned detainees had not confirmed the alleged beatings at the initial inquiry.
Therefore, it follows that the events outlined by [the applicant] in his complaint that he had been beaten up by [officer P.] had not taken place [...].”
25. The applicant challenged the above decision before the court.
26. On 2 December 2005 the Volgograd Tsentralniy District Court did not find grounds for quashing the decision of 14 July 2005. It concluded that the decision in question had been made following analysis of all the pertinent information and in full compliance with the requirements of the domestic law.
27. On 14 February 2006 the Volgograd Regional Court quashed the judgment of 2 December 2005 because it had been given in the applicant’s absence, without necessary measures having been taken to ensure that he was duly notified of the hearing and summons. The case was remitted for fresh examination, with an instruction to check more thoroughly the arguments set out in the complaint.
28. On 11 April 2006 the Volgograd Tsentralniy District Court held again that the decision of 14 July 2005 was lawful.
29. On 6 June 2006 the Volgograd Regional Court upheld the above decision on appeal.
30. The applicant was involved in court proceedings over his tenancy rights to a flat, which ended, to the applicant’s detriment, with final decisions of the Volgograd Regional Court of 26 April and 12 July 2007.
31. The applicant brought proceedings against his former employer (the Volgograd police office) for salary arrears and non-pecuniary damage.
32. On 24 August 2005 the Volgograd Regional Court, as the final appeal court, dismissed the applicant’s claims in full.
33. Abuse of position associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code).
34. The Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, in force from 1 July 2002, the “CCrP”) states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual (Articles 140 and 146). Within three days of receipt of such a complaint the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the appropriate investigating authority. The complainant must be notified of any decision taken. The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).
35. The CCrP provides for judicial review of a decision or (in)action on the part of an inquirer, investigator or prosecutor which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (1) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (2) to reject the complaint (Article 125).
VIOLATED_ARTICLES: 3


ITEMID: 001-108697
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BIZIUK v. POLAND (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1964 and lives in Sokółka.
6. Since 2000 the applicant has been involved in an administrative dispute with the Sokółka Municipality relating to the planned construction of a public road.
7. The applicant submits that on many occasions he was denied the right to see the relevant planning and building permissions and that the municipality clerks prevented him from accessing the files.
8. On 3 November 2004 and 4 January 2005 the applicant was charged with several offences, in particular insulting the Białystok Regional Prosecutor and uttering threats. The Białystok District Court subsequently ordered the applicant to undergo a psychiatric examination in order to determine whether he could be held criminally responsible in respect of the above-mentioned offences.
9. On 8 December 2004 the applicant was arrested and placed in a psychiatric hospital in order to undergo an observation.
10. On 21 December 2004 the applicant attacked a judge who was visiting another patient in the hospital. He was immobilised and given sedative medication. On 23 December 2004 the hospital asked the court for a post factum permission to treat the applicant without his consent.
11. On 5 January 2005 the applicant underwent a psychiatric examination.
12. On 6 January 2005 the Suwałki District Court gave a decision and declared the extension of the applicant’s detention in the hospital to be lawful. The applicant was released from the hospital on the same day.
13. On 5 May 2005 the Białystok District Court gave a decision and discontinued the criminal proceedings against the applicant. The court found it established that the applicant had committed the offences in question. However, he should not have been held criminally responsible as he was suffering from paranoia with elements of psychosis. It further referred to an expert’s opinion and ordered that the applicant be placed in a psychiatric hospital in Choroszcza.
14. On 29 July 2005 the Białystok Regional Court dismissed an appeal by the applicant.
15. Subsequently, the applicant asked the court to discontinue the enforcement proceedings relating to his placement in a psychiatric hospital. He claimed that his state of health had significantly improved. On 5 October 2005 the Białystok District Court dismissed his request. On 2 February 2006 the Białystok Regional Court dismissed the applicant’s appeal.
16. Meanwhile, the applicant was charged with assaulting a Sokółka municipality employee. On 7 April 2005 expert psychiatrists considered that the applicant suffered from paranoia with elements of psychosis. On 14 September 2005 the Sokółka District Court discontinued the criminal proceedings against the applicant and ordered his placement in a psychiatric hospital.
17. On 23 February 2006 the applicant was arrested by the police on the basis of the decision of 5 May 2005. He was then transferred to the Choroszcza Psychiatric Hospital. He was seen by a doctor upon his arrival. However he refused to answer any questions.
18. On 23 February 2006 the applicant lodged an interlocutory appeal against the decision to place him in a psychiatric hospital. He stressed that his condition had meanwhile improved and that he had not been summoned to go to the hospital voluntarily. He also complained that he could not prepare himself for the confinement. On 21 March 2006 the Białystok Regional Court dismissed the applicant’s interlocutory appeal.
19. On 24 March 2006 the Sokółka District Court ordered the applicant’s internment in the same institution (the Choroszcza Psychiatric Hospital) on the basis of its final decision of 14 September 2005.
20. The applicant subsequently lodged several motions, in particular another application for release on 26 March 2006 which was dismissed on 14 June 2006.
21. On 10 June 2006 an expert psychologist submitted her opinion to the court. She observed an improvement in the applicant’s emotional behaviour. On 13 June 2006 two expert psychiatrists submitted their joint opinion to the court. They concluded that the applicant’s condition had significantly improved. However, he should continue treatment in a hospital.
22. On 11 September 2006 the Białystok District Court ordered the applicant’s release. The court referred to an opinion prepared by two psychiatrists and a psychologist. They concluded that the applicant’s condition had significantly improved and that he could be treated outside the hospital.
23. The applicant escaped from the hospital on 17 September 2006.
24. On 19 September 2006 the hospital informed the Białystok District Court about the applicant’s escape. The hospital stressed that it refused to release the applicant because confinement in respect of another set of criminal proceedings against him had been ordered. The hospital referred to the decision of 14 September 2005 given by the Sokółka District Court.
25. Subsequently, the applicant sued the Choroszcza Psychiatric Hospital for compensation. He complained about the treatment he received and in particular about the fact that his head had been shaved without his consent and also that he had been placed in a closed ward of the hospital. On 28 May 2010 the Białystok District Court granted the applicant 5,000 Polish zlotys in compensation. On 30 September 2010 the Białystok Regional court gave judgment and increased the amount of compensation to PLN 8,000.
26. The applicant’s subsequent confinement was examined by the Court in application no. 22170/07.
27. Conditions for the detention of persons of unsound mind who are not criminally responsible on medical grounds are laid down in the Polish Criminal Code of 1997:
Article 93
“The court may impose a preventive measure provided for in this Chapter which involves confinement in a closed medical institution only if necessary to prevent the repeated commission of a prohibited act by a perpetrator suffering from mental illness, mental impairment or addiction to alcohol or other narcotic drugs. Before imposing such a measure the court shall hear evidence from psychiatrists and a psychologist.”
Article 94
“§ 1. If the perpetrator has committed a prohibited act of significant harm to the community in a condition excluding his criminal responsibility as specified in Article 31 § 1 and there is a high probability that he will commit such an act again, a court shall commit him to a suitable psychiatric institution.
§ 2. The duration of the stay in the institution shall not be fixed in advance; the court shall order the perpetrator’s release from the institution if his or her stay is no longer deemed necessary.
§ 3. The court may order the reconfinement of a perpetrator specified in § 1 in a suitable psychiatric institution if this is advisable in the light of the circumstances specified in § 1 or in Article 93; the order may not be issued later than five years after the date of release from the institution. “
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-e
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-95880
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BOTSKALEV AND ROSTOVSKAYA AND OTHER "PRIVILEGED PENSIONERS" CASES v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicants are pensioners who live in the Moscow Region. Before retirement they used to work in hazardous industries. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region's district and town courts.
5. In May 2005–November 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions. The courts based their findings on the Law on Labour Pensions. In May 2005–February 2007 these judgments became binding and were executed.
6. On the pension authority's request, in November 2007–April 2008 the district and town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007.
7. The applicants' cases were remitted for a rehearing and subsequently dismissed.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58153
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF HORNSBY v. GREECE (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Damage - financial award;Costs and expenses - claim dismissed
JUDGES: John Freeland;N. Valticos
TEXT: 9. On 30 June 1997, the Rhodes Administrative Court allowed in part the applicants’ claims in the action for damages against the State, brought on 3 July 1992 (see paragraph 19 of the principal judgment). It held inter alia:
“It appears from the documents in the file and particularly from the accounts … of the limited partnership ‘D. and A. Hornsby and Co’ that during the whole of the period concerned the plaintiffs … were running a private foreign language school, despite the defendant’s refusal to grant them the relevant authorisation. It is therefore not possible to prove the damage they alleged they had sustained in the form of loss of profit, particularly the school fees they would have expected to receive had it not been for the defendant’s unlawful conduct, since they were in fact carrying on the activity for which the relevant administrative authority had refused a licence…
Regard being had to the above considerations, neither the alleged damage nor the existence of any loss of profit can be proved. For these reasons, the action must be dismissed as unfounded…
On the other hand, the Administrative Court considers that the defendant’s repeated unlawful refusals to grant the plaintiffs’ legitimate request – which amounts to a flagrant breach of the provisions of European Community law – and the refusal to comply with the judgments of the Court of Justice of the European Communities and the Supreme Administrative Court caused the plaintiffs stress over a long period. It therefore considers it appropriate to award each of them 400,000 drachmas in respect of non-pecuniary damage, to which sum is to be added interest at the statutory rate from the commencement of the action, that is from 3 December 1990, when notice of the plaintiffs’ application to the civil courts was served on the defendant… Lastly, the plaintiffs’ request for the present judgment to be made immediately enforceable must be rejected because the conditions laid down in Article 70 § 2 of Presidential Decree no. 341/1978 have not been satisfied in the present case.”
10. By an application lodged with the Court of Justice of the European Communities on 26 April 1994, the Commission of the European Communities had brought an action under Article 169 of the EC Treaty for a declaration that, by maintaining in force the provisions of Article 70 of Law no. 2545/1940 and Decree no. 46508/1976 of the Minister for Education and Religious Affairs (as subsequently amended), the State had failed to fulfil its obligations under Community law, in particular the provisions on movement of workers within the Community. In its judgment of 1 June 1995 the Court of Justice held:
“The above-mentioned Greek provisions impose, in respect of recruitment of teachers in private foreign-language schools, more stringent conditions on foreigners, including nationals of other Member States, than they do on Greek nationals.
Decision no. 46508 thus provides that the recruitment of foreign teachers requires authorisation by the Director of Private Education and Religious Affairs following submission of certain documents specified in the decision. Renewal of authorisation is also subject to the submission of several documents, including a medical certificate.
Furthermore, paragraphs (1), (2) and (4) of Article 70 of Decree-Law no 2545/1940 provide that only persons possessing the qualifications required of teachers within public education may teach in a private school. The competent Minister may, however, decide that the qualifications of Greek nationals who do not satisfy that condition are adequate.
…
The Hellenic Republic does not deny that the disputed rules are incompatible with Community law. It does, however, point out that a Presidential Decree making the recruitment of nationals of other Member States subject to the same conditions as those required for employment of Greek nationals will be published shortly and that consequently the proceedings will serve no purpose.
That argument cannot be accepted. It is settled case-law … that amendments of national legislation are irrelevant for the purposes of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion.
A declaration of failure to fulfil obligations must therefore be made in the terms sought by the Commission.”
11. The European Commission has decided to refer Greece to the Court of Justice of the European Communities, requesting it to impose financial penalties for failure to apply two judgments concerning infringements of EC rules on the recognition of qualifications, namely the requirement that persons wishing to open private foreign-language schools, or to become directors of or teachers in such schools, must pass an examination in Greek language and history.


ITEMID: 001-76001
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SENCAR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals and live in Silopi. They are represented before the Court by Mr T. Elçi, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until 14 June 1993 the applicants lived in the Selçik village in the district of Silopi in the Şırnak province, where they own property.
On the night of 13 June 1993, the Gendarmerie Battalion in Görümlü, near the village of Selçik where the applicants reside, was attacked by the PKK.
On 14 June 1993 early in the morning the security forces carried out an operation on the applicants’ village, forcing women, children and men to come out of their homes. They gathered them in a square outside the village. The security forces accused the villagers of assisting the PKK. They then dispersed among the houses and set them on fire. The applicants were not allowed to retrieve any belongings from their houses and were forced to evacuate the village. They moved to the Silopi District.
On 30 June 1993 the applicants applied to the Silopi Magistrates’ Court for an assessment of the damage they had suffered as a result of the burning down of their homes and possessions. However, due to the extent of the damage, it was not possible to make a complete assessment of the damage caused to their possessions, neither was it possible to make any assessment of damage caused to the fields, vineyards and gardens.
On 28 July 1993 an independent expert submitted his detailed damage assessment reports to the Silopi Civil Court of First Instance. In his reports, he described the nature and the amount of the damage suffered by each applicant. On an unspecified date, copies of the assessment of damage reports were given to the Ministry of Interior.
The applicants repeatedly applied to the administrative authorities in Şırnak for permission to return to their village after the incident. However, the authorities refused their requests.
The investigation carried out by the authorities indicated that on 13 June 1993 there was an attack to the mechanize battalion by missiles, flak and longed barrelled rifles from inside and around Selçik village. During the clash six soldiers died and thirteen wounded, the houses of the villagers were also burned down. On 14 June 1993 a search was conducted in and around the Selçik village.
Concerning this incident an investigation was lodged by the Şırnak Public Prosecutor’s Office. On 12 July 1993 the public prosecutor decided that he lacked jurisdiction and sent the file to the Diyarbakır State Security Court on 20 August 1993. This investigation is still pending before this court.
The official records indicated that there was no obstacle preventing the applicants from returning to their homes and possessions in their villages. Selçik village is available for resettlement from the beginning of the year of 2001. The letter of the Şırnak Governorship dated 10 July 2001 to the district administrations stated that certain villages, including the applicants were available for resettlement. However, none of the villagers applied to return to their village. They only went to crop their fields time to time.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).


ITEMID: 001-4903
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DI SOMMA v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1967 and currently residing in Naples. He is represented before the Court by Mr Vittorio Trupiano, a lawyer practising in Naples.
The facts of the present case, as submitted by the applicant, may be summarised as follows.
A.
On 10 November 1997 the police arrested red-handed two persons who were carrying out a robbery at a bank in Terni. A third accomplice had escaped.
On 28 November 1997 the Public Prosecutor attached to the Terni District Court requested that the applicant be remanded in custody on grounds that there was a serious indication of his guilt, the applicant having been identified on the basis of a video filmed during the robbery and recognised by two police officers and by some others witnesses. Moreover, there was a significant risk that he would commit other similar offences, tamper with evidence, interfere with witnesses or abscond.
On 29 November 1997 the Judge for Preliminary Investigations of Terni issued a warrant of arrest against the applicant.
The applicant was arrested and remanded in custody on 29 November 1997.
On 10 December 1997 the applicant requested the Judge for Preliminary Investigations to revoke the decision to detain him on remand, arguing that there was no serious indication of guilt. The evidence submitted by the applicant included declarations from three of his colleagues stating that on the day of the robbery he was at work, transporting goods on behalf of his employer, together with invoices and tacograph print-outs.
On 13 December 1997 the Judge for Preliminary Investigations rejected the application. Having found out that the tacograph of the truck was not functioning properly and the invoices had not been signed by the applicant, the Judge considered that the evidence submitted by the latter was not sufficient to eliminate the serious suspicion against him. Moreover, custody was the only way of preventing the risk of tampering with evidence or absconding.
On 17 December 1997 the applicant lodged an appeal with the Perugia District Court against the decision of the Judge for Preliminary Investigations. The outcome of these proceedings is not known.
On 23 December 1997, the two persons charged together with the applicant made a statement to the effect that the applicant was innocent and implicated another person.
On 24 December 1997 the Judge of Preliminary Investigation revoked the remand in custody and the applicant was accordingly released, since further investigations had led to the implication of another suspect.
On 12 January 1998, following the guilty plea of the latter, the Judge of Preliminary Investigations dismissed the charge against the applicant.
On 6 February 1998 the applicant filed a criminal complaint against the police officers who had recognised him “beyond any doubt” as the third person participating in the robbery and against the Public Prosecutor and the Judge of Preliminary Investigations who had remanded him in custody.
B. Relevant domestic law and practice
Articles 273 and 280 of the Code of Criminal Procedure set out the conditions of applicability of preventive measures, namely the existence of serious indications of guilt (“gravi indizi di colpevolezza”) in respect of a crime punishable with life imprisonment or detention for more than three years.
Article 274 of the Code of Criminal Procedure sets out the grounds for preventive measures namely : prevention of interference with the course of justice (Article 274.a), danger of flight (274.b) and prevention of crime (274.c)
Under Article 314 § 1 and § 3 of the Code of Criminal Procedure, a person who has been detained in remand during a criminal prosecution is entitled to compensation if prosecution is discontinued or the accused is acquitted.
Under Article 314 § 2 of the Code of Criminal Procedure, a person whose detention on remand has been found, in a final decision, to have been ordered or maintained in breach of Articles 273 or 280 of the Code of Criminal Procedure is entitled to compensation. In a judgement of 20 December 1993, no. 21, the Court of Cassation sitting in Plenary held that, when an applicant is released while his appeal against the decision to put him in detention on remand is still pending, he still has an interest to pursue the appeal in order to obtain a final determination that his detention on remand was unlawful, and this for the purpose of obtaining compensation in pursuance of Article 314 § 2 of the Code of Criminal Procedure.


ITEMID: 001-76451
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF JAKUMAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Costs and expenses award - domestic and Convention proceedings
TEXT: 4. The applicant was born in 1969 and lives in Vilnius.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant was a police officer. On 14 November 1995 the prosecution initiated criminal proceedings on suspicion of his mishandling official resources.
7. On the same date the applicant was arrested and questioned. He was released on bail on 17 November 1995.
8. On 28 November 1995 the applicant was charged with abuse of office under Article 285 of the Criminal Code as then in force.
9. On 18 December 1995 the prosecution instituted criminal proceedings against the applicant for smuggling. Separate criminal proceedings for another episode of smuggling were instituted on 19 December 1995.
10. On 20 December 1995 the prosecutor ordered the applicant’s detention on remand on suspicion of his being an accomplice in the alleged smuggling scheme.
11. On 28 December 1995 the applicant was charged under Article 312 § 2 of the Criminal Code as then in force (smuggling).
12. On 30 December 1995 the applicant was dismissed from his job under the provisions on the status of the police, on account of his being suspected of having committed an act incompatible with his position as a law-enforcement officer (also see paragraph 44 below).
13. On 13 February 1996 all criminal cases against the applicant were joined into one set of proceedings.
14. On 26 August 1996 the applicant was released on bail, on his written undertaking not to leave the country.
15. On 11 December 1996 the charges against the applicant were reformulated. He was charged with exceeding official duties (Article 287 of the Criminal Code as then in force), complicity in smuggling (Articles 18 and 312 § 2) and abuse of office (Article 285).
16. On 16 December 1996 several other persons were charged with complicity in the same episodes of smuggling, but the charges against them were separated into a distinct set of proceedings as they had absconded.
17. The pre-trial investigation was finalised on 21 December 1996. Five other persons were charged along with the applicant.
18. From 21 December 1996 until 12 February 1997 the applicant and his lawyer were granted access to the case file.
19. On 21 February 1997 the prosecution rejected the applicant’s request to discontinue the proceedings.
20. On 28 February 1997, upon approval of the bill of indictment, the case was transmitted to a court.
21. In a directions hearing held on 11 June 1997, the Vilnius Regional Court ordered the case to be returned to the prosecution for further investigative measures to be carried out. It was noted that the charges were not formulated in a clear and precise manner, and that the investigation of the alleged offence of abuse of office had been conducted with certain procedural irregularities. As a result of this decision, the prosecution eventually decided to drop the charge of abuse of office.
22. On 10 July 1997 the applicant was again charged with offences under Articles 18 § 6, 287 and 312 § 2 of the then Criminal Code, as well as with an offence under Article 204 thereof (misusing an official title).
23. On 1 August 1997 the pre-trial investigation was concluded, and the applicant and his lawyer were given access to the case file until 8 August 1997. The applicant’s co-accused had access until 13 August 1997.
24. On 13 August 1997 the prosecution rejected the applicant’s request to discontinue the proceedings.
25. On 20 August 1997 the Deputy Prosecutor General confirmed the bill of indictment, and the case was again sent for trial.
26. However, on 28 October 1997 the Vilnius Regional Court ordered the case to be returned for additional investigation due to various procedural irregularities. In particular, it was noted that the charges against the applicant were still too vague, and that certain documents were missing from the case file.
27. The prosecution appealed against that order, but to no avail, as their appeal was rejected by the Court of Appeal on 10 December 1997.
28. On 27 January 1998 the applicant was issued with a new statement of charges under Articles 204 (misusing an official title), 287 (exceeding official duties) and 312 § 2 (smuggling) of the then Criminal Code, which excluded the previous charges of being an accomplice.
29. On 29 January 1998 the pre-trial investigation was finalised, and the defence was granted access to the case file until 31 March 1998.
30. On 31 March 1998 the applicant’s request to discontinue the proceedings was dismissed.
31. On 1 April 1998 the bill of indictment was confirmed by the Deputy Prosecutor General, and the case was referred to the Vilnius Regional Court.
32. On 22 June 1998 the applicant was committed for trial.
33. On 13 February 1999 the Vilnius Regional Court found the applicant guilty of three offences. He was sentenced to three years and six months’ imprisonment. He was also deprived of the right to work in law-enforcement institutions for five years, and half of his property was confiscated. The applicant was relieved from serving the sentence for an offence of misusing an official title (Article 204 of the then Criminal Code) on the ground of statutory limitations.
34. On 2 March 1999 the applicant lodged an appeal.
35. On 6 May 1999 the Court of Appeal dismissed the appeal.
36. On 30 June 1999 the applicant submitted a cassation appeal to the Supreme Court, complaining inter alia about various infringements of criminal procedure.
37. On 14 December 1999 the Supreme Court quashed the lower decisions, returning the case for a fresh examination at first instance. It was noted that the trial court had based its findings on certain speculations as well as evidence that had not been examined at the trial. The Supreme Court also observed that the appellate court had not answered all the issues raised in the applicant’s appeal.
38. On 3 August 2000 the Vilnius Regional Court again convicted the applicant of the three offences as charged, sentencing him to three years and three months’ imprisonment and the forfeiture of the right of employment in law-enforcement bodies for five years. The court also ordered confiscation of half of the applicant’s property.
39. On 20 February 2001 the Court of Appeal dismissed the applicant’s appeal. The applicant brought a cassation appeal, complaining that the courts had not established the facts properly, despite the requirements of the Supreme Court in its decision of 14 December 1999.
40. On 26 June 2001 the Supreme Court rejected the applicant’s cassation appeal.
41. On 18 December 2002 he was released on licence.
42. On 12 December 2003 the applicant’s criminal acts were re-classified under the new Criminal Code which had come into effect on 1 May 2003.
43. Article 18 of the former Code of Criminal Procedure (in force until 1 May 2003) and Articles 2, 44 and 176 of the new Code of Criminal Procedure (effective since 1 May 2003) provide that the investigation and trial shall be conducted within a reasonable time.
44. Section 43 paragraph 7 of the Statute of the Ministry of Interior provides for dismissal of a person who has discredited the name of the police.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89909
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ROMAN PONOMAREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1968 and lives in Volgograd, a town in the Volgograd Region.
5. The applicant sued the State for non-pecuniary damage inflicted by a groundless criminal prosecution. On 15 September 2004 the Tsentralnyi District Court of Volgograd awarded the applicant 5,000 Russian roubles against the Ministry of Finance. This judgment became binding on 14 February 2005.
6. In 2005–06 the applicant made unsuccessful attempts to obtain enforcement papers from the court. First, the papers mailed by the court failed to reach him. Once they did reach him, they proved to have a formal defect, a missing maturity date. Proper enforcement papers reached the Ministry of Finance on 3 July 2007, and on 18 October 2007 the judgment was enforced.
7. In separate proceedings the applicant sought a reinstatement in his post in the police. On 21 April 2004 his action was partially granted. Later, the applicant unsuccessfully sought a reopening of these proceedings.
8. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-102449
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MALIKA DZHAMAYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicants are:
1) Ms Malika Dzhamayeva, born in 1957
2) Ms Kheda Mamayeva, born in 1978,
3) Mr Imam Mukayev, born in 2002, and
4) Mr Ovkhad Mukayev, born in 2004.
8. The applicants live in Katyr-Yurt, in the Chechen Republic.
9. The first applicant is the mother of Khamid Mukayev, born in 1978. The second applicant is Khamid Mukayev's wife and the third and fourth applicants are their children.
10. At the material time the first applicant lived with her son Khamid Mukayev, the second to fourth applicants and other relatives at 10 Pervogo Maya Street (in the submitted documents the address is also referred to as 10 Pervogo Maya Lane and 25 Pervomayskaya Street), Katyr-Yurt, in the Achkhoy-Martanovskiy district of the Chechen Republic.
11. On the night of 15 September 2004 the above-mentioned persons and P.B. were staying at the applicants' house.
12. Between 4 and 5 a.m. on 16 September 2004 a convoy of military vehicles, including an armoured personnel carrier (APC) and Gazel and UAZ vehicles, arrived at the applicants' gate. The vehicles had no registration numbers. A group of about twenty-five to thirty armed masked men in camouflage uniforms got out of the vehicles. Some of them stayed outside, securing the perimeter of the applicants' house.
13. At about 4 a.m. on 16 September 2004 the first applicant was woken up by the barking of her dog. Shortly afterwards seven or eight armed masked men in camouflage uniforms and bullet-proof jackets burst into the house.
14. The intruders did not introduce themselves or explain the reason for their actions. They pointed their guns at the first applicant and her relatives and ordered them in unaccented Russian to get outside. The applicants inferred that the intruders were servicemen. In the courtyard the first applicant saw a large group of armed servicemen in camouflage uniforms and masks. The servicemen tied the first applicant's and her relatives' hands with adhesive tape. They also tied the first applicant and her other son, Kh.M., to a shed post. The first applicant's eighty-four-year-old motherinlaw, Ms M. M., stayed in the house. In a state of stress, Ms M. M. started shouting and the servicemen hit her several times with their rifle butts.
15. Meanwhile some of the servicemen who were in the house started searching it and some burst into the room where the second to fourth applicants and Khamid Mukayev were staying. They pointed their guns at the second applicant and ordered her in unaccented Russian to stay quiet. The servicemen then ordered Khamid Mukayev to lie down. After a quick search of the room they took Khamid Mukayev, who was in his underwear, to the yard. The second applicant tried to follow them but was forced back into the room under the threat of being shot dead. In the yard one of the servicemen took the tape off the first applicant's mouth and asked her where her husband was. She replied that she did not know and that he had left the family in 1992.
16. Having checked the house and attic, the servicemen started beating Khamid Mukayev up, requesting him to give them his passport. He replied that the first applicant had it. The servicemen untied her hands and brought her into the house. In the house she saw her mother-in-law Ms M. M., who was leaning against the wall and coughing up blood. The first applicant gave Khamid Mukayev's passport to the servicemen. At that moment one of the servicemen in the yard ordered the others to retreat. While the first applicant looked back to where Ms M. M. was standing, she saw that the latter had fallen to the ground. Shortly after this the first applicant heard military vehicles. She realised that the servicemen were taking Khamid Mukayev away and asked them not to. They ordered her to remain silent and then two servicemen took the first applicant and her other son into the passageway, tied their hands and legs with adhesive tape and put them on to the floor. After asking the first applicant “What is wrong with your granny?” and received the reply that she was Category 1 disabled, the servicemen closed the door and left, taking Khamid Mukayev with them.
17. The abduction of Khamid Mukayev was witnessed by a number of the applicants' neighbours.
18. At about 4 a.m. on 16 September 2004 the applicants' neighbour A.Kh., who lived in Pervogo Maya Street, was woken up by the noise of military vehicles. When he went outside he saw a convoy consisting of an APC with a large number of servicemen on it and Gazel and UAZ vehicles on the Pervogo Maya Street. He immediately went back into his house. Some fifteen to twenty minutes later he again heard the noise of the vehicles coming from the street. When he looked outside his window, he saw the same vehicles reversing. Shortly after this his nephew I.M. came to his house and told him that Russian servicemen had taken away Khamid Mukayev and that they had killed Ms M. M.
19. During the night of 15-16 September 2004 M.F., who lived at 12 Pervogo Maya Street, was woken up by the noise of vehicles. When she looked outside the window, she saw an APC, a white Gazel vehicle, a lightcoloured UAZ vehicle and a large group of armed masked men going towards the applicants' house. The vehicles had no licence plates. A group of servicemen secured the perimeter of the house. M.F. went home to get dressed but when she got outside, the APC was already driving back and the servicemen sitting on it pointed their guns at her. Once the APC had moved away, M.F. went to the applicants' house and was told about the abduction of Khamid Mukayev and the murder of Ms M. M.
20. On the night of 15-16 September 2004 A.M. was woken up by noise coming from the applicants' house. When he came closer to the applicants' house through his vegetable garden he saw Gazel and UAZ vehicles parked at the applicants' gate. Afraid to approach closer, he returned home. Some twenty minutes later I.M. came to his house and told him that servicemen had abducted Khamid Mukayev and killed Ms M. M.
21. The description of the events of 16 September 2004 is based on the first applicant's submissions in her application forms of 21 May and 25 July 2006 and the applicants' account given in the application form of 11 March 2008; accounts given to the applicants' representatives by the following witnesses: an account by P.B. given on 5 March 2008; an account by A.Kh. given on 14 February 2008; an account by M.F. given on 12 February 2008; an account by A.M. given on 15 February 2008; an account by the first applicant made on 11 March 2008, and an account made by the second applicant on 20 February 2008.
22. The applicants have had no news of Khamid Mukayev since 16 September 2004.
23. The Government did not dispute most of the applicants' submissions but claimed that the domestic investigation had established neither the implication of servicemen in the abduction of Khamid Mukayev nor that the abductors had used military vehicles.
24. After the departure of the servicemen on 16 September 2004 with Khamid Mukayev a number of neighbours gathered at the applicants' place. Meanwhile the first applicant's other son, I.M., untied her. Immediately thereafter the first applicant and M.F. ran after the military vehicles, which they saw going into Pervomayskaya Street. On their way the women alerted the local police inspector, M.A., who lived 100 metres from the applicants' house, about the abduction of Khamid Mukayev. M.A. did not say anything to the women and went back into his house.
25. Shortly after this the first applicant asked her neighbour, D.M., for help. He promised her to follow the servicemen in his private car and told her to go home, which she did.
26. When she arrived home the first applicant discovered that her mother-in-law was dead.
27. At about 9 a.m. on 16 September 2004 police officers of the Achkhoy-Martanovskiy Department of the Interior (ROVD), including local police inspector M.A., came to the applicants' house. They interviewed the applicants and some of their neighbours and left.
28. On 18 or 19 September 2004 a group of police officers visited the first applicant and told her to come to the ROVD.
29. At the ROVD an officer brought the first applicant to the head of the criminal police department, Mr K. He told her that Khamid Mukayev was in good health, that he was not under the control of the ROVD but that the ROVD was in contact with the “structures which were holding the first applicant's son”. He then asked the first applicant about the whereabouts of her husband, who had participated in illegal armed groups during the first Chechen campaign, and explained her that it was in her interest to provide that information. He also asked her if she knew any Wahhabis in her village.
30. Subsequently, the local police officer frequently questioned the first applicant about her husband, from which she inferred that the authorities had abducted Khamid Mukayev, because they were still looking for her husband, despite the fact that the latter had been amnestied meanwhile.
31. On 16 September 2004 the prosecutor's office of the AchkhoyMartanovskiy District (“the district prosecutor's office”) instituted a criminal investigation into the abduction of Khamid Mukayev and the causing of M.M.'s death under Articles 126 § 2 (aggravated kidnapping) and 111 § 4 of the Criminal Code, respectively. The case file was given the number 38041.
32. On 17 September 2004 the district prosecutor's office granted the second applicant victim status in connection with the proceedings in case no. 38041.
33. On 11 November 2004 the district prosecutor's office informed the Mukayev family that the time-limits for the investigation in criminal case no. 38041 had been extended to 16 December 2004.
34. On 11 July 2005 the military commander of the Chechen Republic forwarded the first applicant's complaint about her son's abduction to the Achkhoy-Martanovskiy district military commander's office (the district military commander's office) for examination, and ordered the latter body to search for Khamid Mukayev.
35. On 15 July 2005 the district prosecutor's office replied to the first applicant's complaint about her son's abduction and informed her that the complaint had been appended to case file no. 38041; that on an unspecified date the investigation of the abduction had been suspended, and unspecified operational and search measures aimed at solving the crime were under way.
36. On 18 July 2005 the district military commander's office informed the first applicant that on 16 September 2004 they had not been conducting any special operations in Katyr-Yurt. The letter also stated that the authorities had forwarded information requests concerning the whereabouts of Khamid Mukayev to various law-enforcement agencies in the Chechen Republic.
37. On 14 March 2006, in reply to the second applicant's request for information, the district prosecutor's office wrote to her that they had been undertaking unspecified operational and search measures aimed at establishing the whereabouts of Khamid Mukayev, but that those measures had failed to produce any results. The letter also stated that the investigation in the criminal case could be resumed upon receipt of new relevant information.
38. On 18 April 2006 the district prosecutor's office informed the first applicant that they had undertaken the following investigative steps in criminal case no. 38041: examination of the crime scene; forensic examination of the body of M.M.; granting victim status in the criminal case to relatives of the disappeared Khamid Mukayev; questioning of a number of local residents about the abduction; collaboration with a number of other law-enforcement bodies to establish the whereabouts of the applicants' relative. In addition, the supervising prosecutor had issued unspecified instructions aimed at solving the crime and these instructions had been complied with by the investigation. According to the letter, the investigation was examining the theory of the possible involvement of Russian servicemen in the crime, as well as the theory that Khamid Mukayev had been kidnapped for ransom. Finally, the document stated that the investigation in criminal case no. 38041 had been suspended on 16 January 2005; however, the operational and search measures aimed at solving the crime were under way.
39. On 10 July 2006 the second applicant wrote to the district prosecutor's office, requesting information on the progress of the investigation and seeking information on the outcome of her previous enquiries, to which she had received no replies. She submitted that, in the absence of information, she was prevented from challenging the investigation omissions before other authorities. She also sought access to the case file and permission to make copies from it. Lastly, she requested that the investigation be reopened if it had been suspended.
40. On 1 November 2006 the deputy prosecutor of the AchkhoyMartanovskiy district quashed the decision of 16 January 2005 to suspend the investigation in case no. 38041 as premature and unfounded, finding that the investigation had failed to take all steps necessary to establish the applicants' relative's whereabouts and to identify the perpetrators. In particular, the investigation had failed to interview officers A. T., A. M., T.Sh., I.Dzh., and R.B. of the ROVD, who had been on duty on 15-16 September 2004 at checkpoint no. 1, located at the entry to Achkhoy-Martan; it also had not interviewed as witnesses five residents of Achkhoy-Martan, whose testimony could have had . The investigation also failed to take all measures to identify other witnesses and eyewitnesses to the abduction and the perpetrators. No measures aimed at identifying the owners of the APC and the Gazel vehicles were taken. The deputy prosecutor ordered the district prosecutor's office to enlarge the circle of eventual witnesses to the abduction, to take all relevant investigative steps and to coordinate its efforts with other State authorities. It is not entirely clear whether the deputy prosecutor's instructions have been complied with.
41. On 1 December 2006 the district prosecutor's office suspended the investigation in case no. 38041 for failure to identify the perpetrators. The decision noted that the investigation had taken a number of investigative steps. In particular, the crime scene had been inspected; a forensic examination of the body of Ms M.M. had been carried out; a plan of operational and search measures had been compiled; the second applicant had been granted victim status and interviewed; relatives and neighbours of the kidnapped person, as well as residents of Katyr-Yurt and unspecified police officers of the ROVD had been interviewed; servicemen from checkpoint no. 186 had been interviewed; registration logs from checkpoints located in the Achkhoy-Martanovskiy District had been examined; character references in respect of Khamid Mukayev had been collected; and unspecified requests had been sent to various law-enforcement authorities in the Chechen Republic.
42. By a letter of 12 February 2008 investigator K. of the AchkhoyMartanovskiy Interdistrict investigating department of the Investigating Department with the Prosecutor's office of the Chechen Republic (the investigating department) replied to the second applicant's request for information that, until the termination of the investigation, she was only entitled to have access to the documents from case file no. 38041 which pertained to the investigative actions taken with her participation, and that she could be provided with access to the entire file only upon the termination of the investigation.
43. On 11 March 2008 the second applicant complained to the AchkhoyMartanovskiy District Court (the District Court) that the investigating authorities had taken no action in case no. 38041. She submitted, in particular, that the investigator's refusal to grant her access to the case file had prevented her from getting information on the progress of the investigation into the abduction of her husband and from effectively challenging its omissions before the domestic authorities.
44. By a decision of 26 March 2008 the District Court granted the second applicant's claims in part. It held that the investigator's permission to the applicant to have access only to the records of investigative steps taken with her participation was unlawful and in breach of the Criminal Procedure Code and the practice of the Constitutional Court. In particular, it referred to the Constitutional Court's finding that a victim could have access to decisions to charge particular persons with a crime, to the information on the composition of the investigating group, decisions to order various expert examinations and their conclusions and complaints of other participants to the criminal proceedings, if those documents and that information pertained to the victim's rights and legal interests. It was for the investigator to determine the manner and conditions of a victim's access to the relevant information, regard being had to the requirements of the interests of the investigation. At the same time, the second applicant's request for access to all the materials in the case file could not be granted until the investigation had been concluded.
45. On 14 May 2008 the Supreme Court of the Chechen Republic dismissed the second applicant's appeal against the decision of 26 March 2008.
46. The Government did not make detailed submissions on the course of the investigation.
47. They stated that the investigation had interviewed eyewitnesses to the abduction and over forty residents of the village; had inspected the crime scene; had carried out a forensic examination of the fingerprints left presumably by the abductors; had examined the body of M. M., and had sent numerous requests to various State authorities in connection with the abduction of the applicants' relative.
48. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 38041, providing only copies of the following documents: the decision to institute the investigation; the record of examination of the body of M. M. and its photographs; the crime scene inspection report and a copy of the sketch of the premises; the decision to grant the second applicant victim status; the decision to order a fingerprint examination; the fingerprint expert's report; the forensic report of examination of M. M., and replies from the authorities mentioned in paragraph 63 below. The Government also submitted interview records in respect of the first and second applicants, D.M., Z.M., M.F., L.M., R.A. and M.A. and another thirty residents of Katyr-Yurt (see paragraph 59 below). The Government claimed that the documents furnished by them were the only case file materials they could submit to the Court without prejudice to the interests of the parties to the criminal proceedings.
49. Some of the documents submitted by the Government were illegible and some documents were legible only in part.
50. The information contained in the documents submitted by the Government may be summarised as follows.
51. On 16 September 2004 officers of the ROVD examined the body of M. M. and photographed it.
52. On the same date they inspected the crime scene. According to the crime scene inspection report, the entry door to Khamid Mukayev's room was broken and there were tracks described as “presumably those of an APC” in the courtyard of the applicants' house. It further emerges from the report that some fingerprints were taken during the inspection.
53. On 16 September 2004 the ROVD officers interviewed as a witness D.M., who lived at 21, Pervogo Maya Street. D.M. stated that on the night of 15-16 September 2004 he went outside to relieve himself. At that moment he heard the noise of an APC. Immediately thereafter he saw a light-coloured Gazel vehicle without registration plates come into Pervogo Maya Street. It was followed by a UAZ vehicle and an APC. Shortly after this the first applicant came to D.M.'s house and told him that her motherin-law had been killed and her son abducted, upon which D.M. got into his car and followed the military convoy he had seen before. He caught up with it and saw that it was moving in the direction of Achkhoy-Martan. On its way the convoy passed checkpoint no. 186 without being stopped there. When D. M. approached that checkpoint, police officers stationed there stopped him and told him that he could not go any further and that the movement of vehicles was prohibited because of the curfew.
54. On 17 September 2004 the investigation interviewed the second applicant as a witness. She submitted that at about 4 a.m. on 16 September 2004 she had been woken up by M.M. shouting for help. Immediately thereafter several armed masked men in camouflage uniforms burst into the room she was sharing with Khamid Mukayev and ordered him in unaccented Russian to lie down and not to move. The intruders then took him outside in his underwear. When the second applicant tried to follow, the intruders threatened her with their guns and ordered to stay inside. When she managed to get outside, she saw I.M., who was untying the first applicant, and Ms M.M., who was lying on the floor covered in blood. The intruders had arrived on an APC and in two Gazel vehicles without registration plates.
55. Kh.M., interviewed as a witness on 17 September 2004, submitted that he had stayed in the applicants' house on the night of 15-16 September 2004. At about 5 a.m. on 16 September 2004 he had been woken up by the dog barking. Shortly after this a group of twenty-five to thirty armed masked men in camouflage uniforms burst into the applicants' property. They tied Kh.M.'s and the first applicant's hands with adhesive tape and put both of them on the floor. Then the intruders took Khamid Mukayev, who was in his underwear, outside. From the neighbours Kh.M. learnt that the intruders had arrived in an APC and two Gazel vehicles.
56. Z.M., residing at 1, Pervogo Maya Street and interviewed as a witness on an unspecified date in September 2004, stated that at about 5 a.m. on 16 September 2004 she had been woken up by the noise of military vehicles. When she went outside she saw an APC with a large group of armed masked men in camouflage uniforms. Shortly afterwards she heard shouting coming from the applicants' house and subsequently, when she arrived there, she learnt about the killing of Ms M.M. and the abduction of Khamit Mukayev.
57. On 5 October 2004 the investigator in charge of the case ordered a forensic examination of the three fingerprints taken in Khamid Mukayev's room during the crime scene inspection. On the same date the expert found that the fingerprints collected were not suitable for identification.
58. On 6 October 2004 the investigation interviewed the first applicant as a witness. She stated that at about 5 a.m. on 16 September 2004 she had been woken up by the barking of her dog. Shortly afterwards a group of armed masked men in camouflage uniforms had burst into the house. Some of the armed men had stayed in the yard. There were in total about twentyfive to thirty of them. The intruders took Khamid Mukayev outside in his underwear and beat up M. M., who died as a result of the beatings. According to the neighbours, the armed men had arrived in an APC and two Gazel vehicles. They spoke unaccented Russian.
59. Between 13 October and 28 December 2004 and on 16 November 2006 the investigation interviewed as witnesses thirty residents of KatyrYurt. According to their interview records, those persons submitted that they had learnt from the applicants or from other residents of KatyrYurt that between 4 and 5 a.m. on 16 September 2004 a large group of armed masked men in camouflage uniforms, who had arrived in an APC and Gazel and UAZ vehicles, had burst into the applicants' house, had kidnapped Khamid Mukayev and beaten Ms M.M. to death.
60. On 14 November 2006 the investigation interviewed M.F., who lived at 26 Pervomayskaya Street, as a witness. She submitted that at about 4 a.m. on 16 September 2004 she had been woken up by the noise of several vehicles. When she got outside she saw two light-coloured Gazel vehicles without registration plates. M.F. heard a walkie-talkie in one of the vehicles but could not catch what the people were saying over it. A man in a camouflage uniform with a sub-machine gun was standing near the vehicles. Suddenly another armed man in camouflage ran to him and ordered him in Russian to get the vehicles to the applicants' house. When the vehicles arrived there, about ten armed camouflaged men got into them. Shortly thereafter the two vehicles started taking off. They were followed by an APC with several servicemen on it. Once the convoy had left, M.F. ran to the applicants' house, where she was told that the servicemen had taken away Khamid Mukayev and killed Ms M.M.
61. L.M., interviewed as a witness on 6 November 2006, stated that at about 4 a.m. on 16 September 2004 he had been woken up by the noise of an APC. He looked out of the window and saw that an APC had entered Katyr-Yurt from the direction of Achkhoy-Martan and that it was in Pervomayskaya Street.
62. R.A., interviewed as a witness on 7 November 2006, and M.A., interviewed on 17 November 2006, who both lived in Pervomayskaya Street, stated that at about 4 a.m. on 16 September 2004 they had been woken up by the noise of military vehicles and, looking out of their windows, saw an APC near the applicants' house.
63. According to replies from SIZOs no. 1 of the Chechen Republic and the Dagestan Republic, the Zavodskoy, Leninskiy, Shalinskiy, AchkhoyMartanovskiy and Gudermesskiy interdistrict investigating departments and the Achkhoy-Martanovskiy department of the FSB, those State authorities had no information on Khamid Mukayev's eventual arrest or detention, his whereabouts or on any criminal proceedings against him. The above-mentioned documents were dated between 4 and 10 September 2008 and were sent to the investigating authority in case no. 38041 in reply to its requests for information made in September 2008.
64. The Government submitted that the investigation in case no. 38041 was pending.
65. On 18 April 2006 the Achkhoy-Martanovskiy District Court granted the second applicant's request and declared Khamid Mukayev a missing person.
66. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
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