ITEMID: 001-61685
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MERIT v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Zoryana Bortnovska
TEXT: 5. The applicant was born in 1939 and now lives in Israel. He owns ninety-nine per cent of the shares in Jason Development Enterprises Ltd (hereafter the “JDE”), a company registered in Ukraine.
6. On 27 September 1997 the Vadul-Syretska Customs Service of the State Customs Department of Ukraine conducted a customs check of the coffee-tilling goods supplied by the Jason Industries company (the company owned by the applicant) as a contributory to the statutory fund of the jointstock company, JDE. The customs check showed that a cargo-customs declaration had been made by the representatives of JDE on the basis of false documents. On 29 September 1997 the Vadul-Syretska Customs Service initiated a criminal investigation into alleged smuggling and fraud offences.
7. On the same date, the case was transferred to the prosecution service of the Chernivtsi Region (hereafter “the prosecution”) for further investigation. On the basis of resolutions of the prosecution of 10 and 20 October 1997, 18 November 1997 and 19 January 1998, the Vadul-Syretska Customs Service seized documents pertaining to the financial and commercial activities of JDE.
8. On 13 October 1997 the prosecution seized the goods supplied to the statutory fund of JDE as evidence and on 16 October 1997 it froze JDE’s accounts. It also seized all of the company’s documentation, including accounting books and copies of contracts, as well as other property belonging to the company and the applicant.
9. On 28 January 1998 the applicant was detained on suspicion of having committed a criminal offence under the Criminal Code of Ukraine (the “CCU”).
10. On 30 January 1998 the prosecution ordered the applicant’s detention on remand in view of the pending criminal investigation against him.
11. On 4 February 1998 the prosecution charged the applicant with smuggling (Article 70 of the CCU), financial fraud (Article 148-5 CCU) and fraud committed by an official (Article 172(2) CCU).
12. On 5 February 1998 the prosecutor extended the deadline for the investigation by four months.
13. On 17 March 1998 the prosecutor extended the applicant’s detention on remand by four months.
14. On 6 April 1998 the prosecutor extended the deadline for investigation by five months and fourteen days.
15. On 9 June 1998 the applicant was additionally charged with tax evasion (Article 148-2(2) CCU) and deliberate use of a forged document (Article 194(2) CCU).
16. On 10 June 1998 the applicant was notified about the completion of the investigation.
17. On 30 January 1999 the deputy prosecutor approved the bill of indictment issued by the investigating officer.
18. On 3 February 1999 the case file was transferred to the Leninsky District Court of Chernivtsi (the “District Court”).
19. On 29 June 1999
20. In July 1999 the prosecution sought the annulment of the remittal decision before the Chernivtsi Regional Court (the “Regional Court”) on the ground that there was already sufficient corroborating evidence.
21. On 10 August 1999 the Regional Court rejected the prosecution’s application, considering that it was necessary to undertake additional investigations in order to reconstruct the crime.
22. On 25 August 1999 the applicant was released from detention on the basis of the resolution of the prosecution’s investigator. The applicant was required not to leave his place of residence.
23. On 22 September 1999 the applicant’s recognisance not to abscond was changed to an undertaking to appear before the investigating authorities and the court. On the same date, the criminal investigation against the applicant was suspended due to the issue of a search warrant against Ms Lodyanova (a suspect in the case).
24. In September 1999 JDE instituted proceedings in the District Court against the Government of Ukraine, the Chernivtsi Regional Administration and the prosecution, seeking the return of its property and documents.
25. On 15 September 1999 the District Court, by a letter addressed to JDE, stated that it would not consider the complaints directed against the legal entities as it had no jurisdiction over them.
26. On 1 October 1999 the District Court, following JDE’s additional submissions, refused to consider the complaints against the Government of Ukraine and the prosecution service, on the ground that the complaints were outside its jurisdiction. It also held that the State arbitration courts had jurisdiction in the matter.
27. On 27 October 1999 the Regional Court allowed JDE’s cassation appeal, quashed the ruling of 1 October 1999 and remitted the case for reconsideration by the same court.
28. On 3 November 1999 the District Court suspended the proceedings in the case due to JDE’s failure to comply with the formal requirements of the Code of Civil Procedure for the introduction of the complaints (Article 137 of the Code). The court gave JDE until 16 November 1999 to rectify the mistakes.
29. On 17 November 1999 the District Court refused to consider JDE’s claims because of its failure to comply with the ruling of 3 November 1999. On 1 December 1999 the Regional Court upheld this decision.
30. On 14 December 1999 JDE lodged further complaints against the Government of Ukraine, the Chernivtsi Regional State Administration and the Prosecution Service of the Chernivtsi Region.
31. On 6 January 2000 the District Court left JDE’s complaints without consideration on account of its failure to comply with the formal requirements of Article 137 of the Code of Civil Procedure for the introduction of complaints. JDE was given until 14 January 2000 to rectify the mistakes.
32. On 17 January 2000 the District Court refused to consider JDE’s complaints due to its failure to comply with the ruling of 6 January 2000.
33. On 2 February 2000 the Regional Court quashed the ruling of 17 January 2000 and remitted the case for consideration on the merits to the same court.
34. On 24 April 2000 the District Court rejected JDE’s motion concerning compensation for moral and material damage caused to JDE by the Government of Ukraine, the Chernivtsi Regional State Administration and the Prosecution Service of Ukraine. In particular, it found that JDE’s complaints amounted to a separate claim, which had to be lodged with the court in compliance with Article 137 of the Code of Civil Procedure.
35. On 25 April 2000 the District Court, in the course of a hearing in the presence of the parties, refused to consider JDE’s claims for the return of property and documents as being outside the courts’ jurisdiction, in accordance with Articles 227-1 and 248-3 of the Code of Civil Procedure and Article 234 of the Code of Criminal Procedure. It also decided to terminate the proceedings in the case.
36. On 31 May 2000 the Regional Court upheld this decision. In particular, it stated that, for the time-being, JDE’s claims could not be determined in civil proceedings. It also noted that a different procedure for their consideration existed in the domestic law.
37. In May 2000 the applicant instituted proceedings in the District Court against the prosecution, demanding termination of the criminal investigation against him. On 2 June 2000 the District Court rejected his claims as being outside the court’s jurisdiction under Article 248-3 of the Code of Civil Procedure and Article 234 of the Code of Criminal Procedure. In particular, it specified that the applicant had not availed himself of a special procedure for lodging complaints against acts of the investigator carried out in the course of the pre-trial investigation.
38. On 20 July 2000 the criminal investigation was terminated on account of lack of corroborating evidence.
39. On 19 September 2000 the deputy prosecutor quashed the resolution of 20 July 2000 due to the investigating officer’s failure to comply with the District Court’s instructions of 29 June 1999 (see paragraph 19 above). The prosecution remitted the case for additional investigations.
40. On 22 November 2001 the District Court passed a resolution authorising the apprehension of Ms Lodyanova.
41. On 7 December 2001 the prosecution informed the applicant that the criminal charges against him were still being investigated.
42. The criminal investigation is currently suspended due to the nation-wide search for Ms Lodyanova.
“Human and citizens’ rights and freedoms are protected by the court.
Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers.
... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
“The Prosecution of Ukraine constitutes a unified system that is entrusted with:
1. prosecuting in court on behalf of the State;
2. representing the interests of a citizen or of the State in court in cases determined by law;
3. supervising compliance with the laws of the bodies which conduct detective and search activities, inquiries and pre-trial investigations;
4. supervising the observance of the laws in the execution of judicial decisions in criminal cases, and also in the application of other coercive measures aimed at the restraint of citizens’ personal liberty.”
“The Prosecution of Ukraine is headed by the Prosecutor General of Ukraine, who is appointed to office with the consent of the Verkhovna Rada of Ukraine, and dismissed from office by the President of Ukraine. The Verkhovna Rada of Ukraine may express no confidence in the Prosecutor General of Ukraine, which results in his or her resignation from office.
The term of authority of the Prosecutor General of Ukraine is five years.”
“The organisation and operational procedure for the bodies of the Prosecution of Ukraine shall be established by the law.”
“Justice in Ukraine is administered exclusively by the courts.
... The jurisdiction of the courts extends to all legal relations that arise in the State.
... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
“The pre-trial investigation in criminal cases shall last no longer than two months. This term shall commence from the moment the criminal proceedings were initiated up to the point of their being sent to the prosecutor with:
an indictment or a resolution concerning the committal of the case to the court in order to decide on applicable measures of compulsory medical treatment or terminating the proceedings in the criminal case. In the event of impossibility to terminate the proceedings this term shall be extended by up to three months by the district, city, military prosecutor of the army, fleet, military districts (commands), garrisons and the prosecutors of equal rank. The time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period of the pre-trial investigation.
In especially complicated cases the term of the pre-trial investigation, established by part 1 of this Article, can be extended on the basis of the reasoned resolution of the investigator up to six months, to be approved by the prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, the military prosecutor of the military district (command), fleet and the prosecutors of equal rank or their deputies.
Further continuation of the term of the pre-trial investigation shall only be approved by the Prosecutor General of Ukraine or by his deputies.
Where the case was remitted for an additional investigation, or if the terminated case was re-opened, the term of additional investigation shall be established by the prosecutor who supervises the investigation, and shall not be more than one month from the moment of the re-initiation of the proceedings in the case. Further continuation of this term shall be enacted on a general basis.
The rules enshrined in this Article, shall not be applicable to criminal proceedings where it has not been established who committed the crime. The running of the term of the investigation in such cases shall commence from the date of identifying the person who committed a crime.”
(On 30 January 2003 the Constitutional Court of Ukraine interpreted this provision and held that the maximum deadline for investigating criminal cases cannot be fixed. It decided that the time allowed for investigation should be reasonable, and referred to Article 6 of the Convention.)
“... Complaints in respect of the acts of the investigating officer can be lodged with the court.
The complaints in respect of the actions of the investigating officer shall be considered by the first instance court in the course of the preliminary hearing in the case or in the course of its consideration on the merits, unless otherwise provided by this Code...”
(This provision was declared partly unconstitutional by the Constitutional Court of Ukraine on 30 January 2003).
“Complaints in respect of the prosecutor’s actions during the conduct of the pre-trial investigation or other individual investigative actions in the case shall be submitted to the superior prosecutor, who shall consider them in accordance with the procedure and within the terms prescribed by Articles 234 and 235 of this Code.
A complaint about the prosecutor’s actions can be lodged with the court.
Complaints about the prosecutor’s actions shall be considered by the first-instance court in the course of the preliminary consideration of the case or in the course of its consideration on the merits, unless otherwise provided for by this Code.”
“The claim shall be lodged with the court in writing.
The claim shall contain the following:
1. the full name of the court the claim is lodged with;
2. the exact name of the applicant and respondent, their place of residence and their situation, as well as the name of the representative of the applicant, in the event the claim is lodged by the representative;
3. the content of the claim;
4. the circumstances with which the applicant substantiates his claim;
5. reference to relevant evidence substantiating the claim;
6. reference to the sum claimed;
7. the signature of the applicant and his representative, mentioning the date the claim was lodged.
... Written evidence shall be appended to the claim and, in the event the claim is lodged by the representative of the applicant, a letter of authority or another document certifying the powers of the representative.”
“The proceedings in the case shall be terminated by the court:
1. if the claims are outside the courts’ jurisdiction; ...”
“The following complaints are outside the courts’ jurisdiction: ...
- ... the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints is established....”
(This provision was declared partly unconstitutional as to the complaints “against the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution...” by the decision of the Constitutional Court of Ukraine No. 6-pп/2001 of 23 May 2001).
“To declare Article 248-3 § 4 of the Code of Civil Procedure as not in compliance with the Constitution of Ukraine (unconstitutional), concerning the lack of jurisdiction of the courts as regards – ... the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints has been established...”
“To declare that the following provisions do not contravene the Constitution of Ukraine (are constitutional):
... 1.2. Part 6 of Article 234, part 3 of Article 236, in accordance with which the complaints against the resolutions of the investigator or prosecutor concerning the arraignment of the accused shall be considered by the first instance court in the course of the administrative hearing or in the course of the consideration of the case on the merits.
2. To declare the following not to correspond to the Constitution of Ukraine (unconstitutional): the provisions of part 6 of Article 234, part 3 of Article 236 of the Code of Criminal Procedure of Ukraine, that prevent the consideration of complaints against the investigator or prosecutor at the stage of the preliminary investigation concerning the basis, grounds and the procedure for the initiation of criminal proceedings against a particular person.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113460
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GODELLI v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant, who was born on 28 March 1943 in Trieste, was abandoned by her mother at birth.
6. Her birth certificate records the following information:
“Today, 28 March 1943, at 7.30 a.m., a woman, who did not consent to being named, gave birth to a baby girl.”
7. The applicant was placed first in an orphanage and subsequently with the Godelli family. When she was six years old she was adopted by Mr and Mrs Godelli under the simple adoption (affiliazione) procedure, by a decision of the Trieste Guardianship Judge of 10 October 1949.
8. At the age of ten, after learning that she had been adopted, the applicant asked her adoptive parents to tell her who her birth parents were, but did not receive an answer. On an unspecified date she discovered that a young girl living in her village, who had been born on the same day as her, had been abandoned and subsequently adopted by another family under the simple adoption procedure. The applicant suspected that she was her twin sister. The adoptive parents of the two girls prohibited any contact between them.
9. The applicant stated that she had had a very difficult childhood because she had been unable to find out her origins.
10. In 2006 the applicant requested information about her origins from the Trieste Register Office, in accordance with section 28 of Law no. 184 of 4 May 1983 (Adoption Act: “Law no. 184/1993”), the regulations governing simple adoption having been repealed by that Law. The Register Office gave the applicant her birth certificate, on which her birth mother’s name did not appear because she had not agreed to have her identity disclosed.
11. On 19 March 2007 the applicant lodged an application with the Trieste City Court, under Article 96 of Presidential Decree no. 396/2000, seeking rectification of her birth certificate. On 4 May 2007 the court declined jurisdiction and dismissed the application on the ground that section 28(5) of Law no. 184/1983 provided that where persons aged over twenty-five were seeking access to information about their birth parents the court with the appropriate jurisdiction was the Family Court.
12. On 5 June 2007 the applicant lodged an application with the Trieste Family Court. On 11 June 2008 the court dismissed her application on the ground that, under section 28(7) of Law no. 184/983, she was prohibited from gaining access to information about her origins because her mother, at the time of the applicant’s birth, had not agreed to have her identity disclosed.
13. The applicant appealed to the Court of Appeal, which dismissed her appeal by a decision of 23 December 2008.
14. The court observed, in particular, that the Family Court had stressed the fact that the applicant’s birth mother had requested to keep her identity secret and that it had therefore correctly applied section 28(7) of Law no. 184 of 1983, even though the applicant had been adopted under a simple adoption order, as simple adoption did nevertheless create a family status. The Court of Appeal found that section 28(7) was designed to guarantee respect for the mother’s wishes. The prohibition on allowing the applicant access to information about her origins also served a public interest.
15. The applicant did not lodge an appeal on points of law.
16. Under Article 250 of the Civil Code, one of the parents may decide not to recognise his or her child. In order to exercise that right, the mother must, at the time of the birth, request the hospital to keep her identity secret. In such a case a medical file containing medical information about the mother and child is drawn up. Only the child’s general practitioner may have access to the file, with the permission of the child’s guardian.
17. Simple adoption (affiliazione) was created in 1942 in order to provide assistance to abandoned or parentless children aged under eighteen. Unlike full adoption, this did not create an effective family relationship and the person being adopted did not have to be childless; however, he or she did have to be aged under eighteen. A simple adoption order could be requested by: the person with whom the child had been placed, the Health and Social Security Department, or the person who had been raising the child on their own initiative.
18. The Articles of the Civil Code providing for simple adoption were repealed as a result of the entry into force of Law no. 184 of 4 May 1983 (subsequently revised by Law no. 149 of 2001 and by Legislative Decree no. 196 of 30 June 2003).
19. Section 27 of Law no. 184/1983 guarantees the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority.
20. Under section 28(7) of Law no. 184/1983, a mother who decides not to keep her child can give birth in a hospital and at the same time remain anonymous on the declaration of birth. That anonymity lasts one hundred years, after which access to the birth certificate becomes possible.
21. An adoption order, once issued by the court, is sent to the register office so that a note can be made in the margin of the birth certificate. Any copies of the adopted child’s civil-status certificates must be issued with only the new family name shown and must bear no mention of the biological father or mother or any annotation regarding the adoption. However, where the registrar is expressly so authorised by the court, he or she may disclose this information.
22. Adopted children may have access to information about their origins and the identity of their birth parents on reaching the age of twenty-five. Where there are compelling and proven reasons relating to their physical and mental health, they may obtain that information on their majority. An application is lodged with the family court of their place of residence, which gives its decision after assessing the particular situation and hearing any persons whom it deems it necessary to hear.
23. Access to the information is refused where the birth mother has not recognised the child at birth and where one of the birth parents has declared their wish not to be named on the birth certificate or has given their consent to the adoption subject to remaining anonymous.
24. In a judgment of 16 November 2005, the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not wish to be identified was compatible with Articles 2, 3 and 32 of the Constitution.
25. The Constitutional Court observed, in particular, that section 28(7) of Law no. 184/1983 aimed to protect mothers who – in difficult circumstances – decided not to keep their child, by allowing them the possibility of giving birth in a hospital and at the same time remaining anonymous on the declaration of birth. In the court’s view, the mother could thus give birth in good conditions and was prevented from taking an irreversible decision. That possibility would be jeopardised if, under that provision, the mother were also to know that she might one day be called upon by the judicial authority to confirm or waive her decision.
26. Article 111 § 7 of the Italian Constitution provides: “Appeals to the Court of Cassation in cases of violations of the law are always admissible against judgments or measures affecting personal freedom pronounced by the ordinary or special courts”.
27. A government bill on access to personal origins has been before the Italian Parliament since 2008. The bill has two main objectives:
i) to permit and make provision for a procedure whereby confidentiality can be waived without calling into question the legal consequences of the decision initially taken by the mother;
ii) to make a waiver of confidentiality subject to the express agreement of the mother and child.
Under the provisions of the bill, anyone aged twenty-five or over who has been adopted and not recognised at birth may apply to the family court for access to information about their origins, subject to the mother’s agreement. Where the child seeks to discover his or her origins, the family court will take steps to find the mother and obtain her consent to waive confidentiality while respecting her private life. Where the mother has died and where the father has died or cannot be identified, the court will obtain information about their identity and any medical data that may disclose the existence of any transmissible hereditary diseases.
28. Whilst the system of anonymous or secret births would appear to exist in a minority of countries in Europe, it is not exceptional. In addition to France, where for many years the positive law has provided for a system of anonymous births, other national legislations, which are relatively recent as they have been drafted during the past decade, also provide for births in such conditions (Austria, Luxembourg, Russia, Slovakia).
In France the system of anonymous births tends to resemble that of secret births, like the practice in the Czech Republic where the secrecy of the birth mother’s identity is temporary, rather than definitive, as access to the relevant information is delayed.
29. The situation of children born anonymously or secretly is comparable to that of children who find it difficult, or even impossible, to gain access to their biological origins. The omission of the name of one or other or of both parents may sometimes be provided for by law, but this is very rare (Italy, Luxembourg, France). Usually factual circumstances will prevent the registrar from fully completing the child’s birth certificate; court proceedings are brought to determine paternity/maternity and may be available to persons other than the child alone. Notwithstanding the fact that such actions may not necessarily be effective in the particular circumstances, their very existence, allowing research to be done into personal ties maintained by a child with his birth family, provides a safeguard for the interested persons.
30. It should further be pointed out that the practice of abandoning children continues in modern forms: there is an undeniable increase in the number of “windows” or “baby hatches” reminiscent of foundling wheels in the Middle Ages. It is practically and materially impossible for the child to gain access to information about his or her birth family; the register of births will give a “fictitious” name to the child that bears no connection to that of its birth parents. The circumstances of the birth may be only partially secret (Spain, Hungary), but this will then necessarily mean that some data is available. Legal proceedings are generally available for children searching for their birth mother (Bulgaria, Croatia, the former Yugoslav Republic of Macedonia) or mothers who may be searching for their child (Ukraine).
31. In the case of full adoption, the child will often lose all contact with its birth family; the new parent-child relationship will totally erase any ties that may have existed during the child’s previous life with other adults (Austria, France, Monaco, Bulgaria, Russia and the former Yugoslav Republic of Macedonia). Access to the birth certificate is sometimes possible from a minimum age (Germany, Croatia, Hungary, Latvia, Portugal). The child may be authorised to gain access to a wider range of information (Bulgaria, Estonia, Lithuania, Switzerland, Spain), which often presupposes bringing legal proceedings whereby the competing interests may be examined.
32. The United Kingdom and Ireland have set up a mechanism making it easier for adopted persons to gain access to records about their adoption that goes a long way towards reconciling the right to information of the adopted child and respect for the private and family life of the mother or, more broadly, the birth family.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-70094
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GUREPKA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1956 and lives in the city of Simferopol, the Autonomous Republic of Crimea, Ukraine.
5. In the course of civil proceedings for defamation brought by a Member of Parliament in which the applicant was a co-defendant, the applicant was summoned to a court hearing in April 1998 (exact date unknown). According to the applicant, the summons was never served on him properly, and the postman later confirmed this.
6. On 18 May 1998 the court imposed a fine of UAH 17 on the applicant for his failure to appear. The court also indicated in its decision that the applicant could appeal within ten days. According to the applicant, he received this decision on 28 May 1998.
7. On 3 June 1998 the applicant lodged an appeal against the decision of 18 May 1998. In his appeal the applicant did not indicate the reasons for lodging it outside the time-limit and did not request its extension. On 5 June 1998 the Kievskiy District Court of Simferopol rejected the appeal as having been submitted too late.
8. On 12 July 1998 the applicant lodged with the Highest Court of the Autonomous Republic of Crimea (hereinafter the “HCARC”) an appeal against the decision of 5 June 1998 together with a request for the composition of the first instance court to be changed. In January 1999 the applicant was informed that the HCARC had only received the request but not the appeal.
9. Within the framework of the same set of civil proceedings, the applicant was summoned to appear before the court on 9 October 1998. The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans. On 8 October 1998 the applicant requested Mr B. to inform the judge that he could not attend the hearings due to his illness. According to Mr B., he did so on 9 October 1998. The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court.
10. On 1 December 1998 the court decided in the applicant's presence to impose seven days' administrative detention on him for contempt of court, as manifested by his repeated failure to appear. The court found that the applicant was at his place of work on the day of the hearings, as confirmed by his employer – the Prosecutors' Office of the Autonomous Republic of Crimea (hereinafter the “POARC”). The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence. It disregarded the sick leave certificate produced by the applicant for the date in question.
11. The same day the applicant was arrested and placed in a cell, which he described as cold.
12. The applicant's arrest was covered by the local press in December 1998.
13. On 2 December 1998 the POARC lodged an extraordinary appeal (protest) with the HCARC. This appeal suspended the enforcement of the decision of 1 December 1998 and the applicant was released after spending 16 hours in detention.
14. In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence, but considered that the applicant had to be sanctioned under the Disciplinary Statute of the Prosecutor's Office rather than under administrative proceedings.
15. On 3 December 1998 the President of the HCARC rejected this appeal.
16. From 7 to 21 December 1998 the applicant was in hospital suffering from an acute form of chronic urological disease. According to the applicant, this illness was caused by his detention in the cold cell on 1 December 1998.
17. On 10 December 1998 the applicant lodged a request with the HCARC for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 29 January 1999 by the President of the HCARC.
18. From 25 to 31 December 1998 the applicant served the remainder of the administrative detention.
19. On 4 January 1999 the applicant was dismissed from his position as a prosecutor attached to the POARC.
20. On 21 January 1999 the applicant lodged a further request with the Supreme Court of Ukraine for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 24 March 1999.
21. In October 2001 the applicant was diagnosed with Hepatitis C, which he believed he could have contracted in the prison or in the hospital in December 1998.
22. In 1996, the former Prosecutor of the Autonomous Republic of Crimea, Mr K., lodged a claim with the Simferopolskiy District Court of the Autonomous Republic of Crimea against the applicant for defamation. On 6 June 2000 the court found against the applicant and ordered him to pay UAH 10,000 in compensation for moral damage. The applicant was not present at the final court hearing.
23. On 20 September 2000 the Simferopolskiy District Court rejected the applicant's cassation appeal as having been submitted too late.
24. In October 2000 the applicant lodged a request for extraordinary review with the President of the HCARC. The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court.
25. On 2 February 2001 the plenary of the HCARC allowed the appeal. The decision of 6 June 2000 was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings. The court also reduced the amount of the fine to be paid by the applicant to UAH 1,000.
26. On 6 December 2001 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal under the new cassation procedure.
27. Paragraph 4 of Article 172 of the Code foresaw that, in the event of a failure of a party to the proceedings to appear before a court without valid reasons, and if such failure led to the postponement of court hearings, the court could impose on the person a fine of one instalment of the “minimum non-taxable income” (UAH 17).
28. Article 32 of the Code provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of 15 days.
29. Paragraph 1 of Article 185-3 of the Code foresaw punishment by a fine or administrative detention for up to 15 days for contempt of court, manifested, inter alia, by a repeated failure to comply with a summons to appear.
30. Article 287 of the Code provided that the decision imposing an administrative sanction could be appealed, except for the decisions given by the first instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provided otherwise.
31. Article 290 of the Code provided that the prosecutor could lodge an extraordinary appeal (a “protest”) against a decision imposing an administrative sanction.
32. Article 294 of the Code provided that a court decision on an administrative offence could be reviewed by the judge of the same court upon an extraordinary appeal lodged by a prosecutor, or by a judge of a higher court on his or her own motion.


ITEMID: 001-77751
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KARAOGLAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1 (composition of the State Security Court);Not necessary to examine Art. 6-1 (other complaints);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1971 and lives in Belgium.
5. On 20 March 1998 the applicant was arrested and taken into custody by police officers at the Diyarbakır Security Directorate on suspicion of his involvement in the activities of an illegal organisation.
6. On 22 March 1998 the applicant was brought before a judge at the Diyarbakır State Security Court who ordered his release pending trial.
7. On 4 May 1998 the public prosecutor at the İzmir State Security Court filed a bill of indictment accusing the applicant of membership of an illegal organisation, namely the PKK. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.
8. On 15 September 1998 the İzmir State Security Court joined the trial of the applicant to the ongoing trial of four other accused. Throughout the proceedings the applicant was represented by a lawyer.
9. On 15 December 1998 the İzmir State Security Court, relying on the applicant's statement to the police, the witness testimonies of other suspects as well as other evidence, convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment. This judgment was upheld by the Court of Cassation on 1 July 1999.
10. Following the decision of the Court of Cassation the applicant fled to Belgium where he successfully applied for asylum.
11. The applicant submitted that on 17 August 2005 he was arrested and taken into custody in Spain on the basis of a Red Notice issued by Turkey via Interpol on the ground of his original indictment in July 1999 and his subsequent case before the Court. He was released the next day since he had been granted asylum by Belgium. The Government denied the existence of any such notice.
12. The Government further submitted that the applicant's sentence had been reduced to six years and three months' imprisonment in accordance with the provisions of the new Criminal Code.
13. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
14. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, the State Security Courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103933
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TSECHOYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1965. He lives in Sagopshi, in the Malgobek district of Ingushetia.
6. The applicant is the brother of Suleyman Tsechoyev, born in 1956.
7. At the material time the applicant studied law in Yekaterinburg, Russia. The applicant was not an eyewitness to his brother's arrest and the following account is based on the witness statements collected by him later.
8. On the night of 23 October 1998 the applicant's brother Suleyman Tsechoyev was arrested in the family house situated at 40, Shosseynaya Street, in the settlement of Sagopshi in the Malgobek district of Ingushetia. The arrest was apparently carried out by the officers of the North Caucasus Regional Department for the Fight against Organised Crime (Северокавказское Региональное Управление по Борьбе с Организованной Преступностью – “the RUBOP”). The applicant submitted that at the time of the arrest the officers did not introduce themselves and did not present any documents or justification for their action. Nor did they inform the family where they were taking Mr Tsechoyev.
9. On 28 October 1998 the applicant, alerted by his mother, arrived at Sagopshi. His relatives told him that there had been no news of Suleyman Tsechoyev's whereabouts.
10. According to the documents submitted by the Government, on 3 November 1998 Suleyman Tsechoyev had been charged with aiding and abetting the kidnapping of Magomed K. on 5 September 1998, together with two other men and unidentified persons from Chechnya. The kidnapped man had been taken to Chechnya in two VAZ cars.
11. On 6 November 1998 the applicant, together with his sister, met with Mr Magomed Ye., the deputy prosecutor of Malgobek. The latter informed them that their brother had been arrested on his orders by officers of the RUBOP and was being detained in the town of Nazran, Ingushetia. Mr Magomed Ye. refused to tell the applicant and his sister where exactly their brother was detained and what charges had been brought against him.
12. On 20 November 1998 the applicant found out that his brother had been detained at the temporary detention centre (“the IVS”) of the Malgobek district police department (ROVD).
13. The applicant hired a lawyer, who unsuccessfully tried to reach Suleyman Tsechoyev at the detention centre.
14. In the beginning of December 1998 the applicant had a meeting with Mr Magomed Ye. The latter allegedly told him that he would release his brother in exchange for 6,000 US dollars (USD) and threatened to have Suleyman Tsechoyev transferred to the headquarters of the RUBOP in Nalchik, Kabardino-Balkaria, where he would be subjected to severe illtreatment, if the applicant refused to pay the money. The applicant refused to pay.
15. On 24 February 1999 the applicant saw his brother at the IVS. Suleyman Tsechoyev told the applicant that he had been pressured to confess to the crime and that he had been threatened with transfer to the RUBOP headquarters in Nalchik.
16. On 25 February 1999 the applicant returned to the detention centre to see his brother. He was told by the employees that the night before, at around 10 p.m., Suleyman Tsechoyev had been taken to the prosecutor's office and that after that, at about midnight, he had been taken away in a vehicle in the direction of Nalchik.
17. The Government confirmed that on 23 October 1998 Suleyman Tsechoyev had been detained by the law-enforcement bodies in accordance with the provisions of the criminal procedural legislation in force at the material time. He had been detained in connection with the investigation into Mr Magomed K.'s abduction that had been opened on 15 September 1998 and registered under file number 98540062. The decision to place Suleyman Tsechoyev under arrest had been unsuccessfully appealed against to a court. The Government submitted that the term of detention for Mr Tsechoyev had been extended on several occasions, the last of which had been on 25 May 1999; his detention had been authorised until 24 October 1999.
18. The applicant and his relatives had no news of Suleyman Tsechoyev after 25 February 1999. On 16 March 1999 a man who introduced himself as “Aslan” contacted one of the applicant's relatives. According to “Aslan”, he had been detained with Suleyman Tsechoyev in cell no. 8 in pre-trial detention centre no. 1 (SIZO-1) in Nalchik, Kabardino-Balkaria. The applicant's brother had been detained there under a false identity and had been in poor health.
19. On 17 March 1999 the applicant, together with his lawyer Mr Magomed Ga., went to Nalchik to visit his brother. The applicant's lawyer was granted permission to see Suleyman Tsechoyev. According to the lawyer, Suleyman Tsechoyev was in poor health and had no access to medical treatment.
20. On 22 March 1999 the head of the SIZO-1 medical unit provided the applicant with a handwritten statement. According to it, Suleyman Tsechoyev had been brought to SIZO-1 on 26 February 1999 with numerous bruises, abrasions, scratches on his limbs and injuries to the chest.
21. On 30 July 1999 the applicant and his sister obtained the Malgobek district prosecutor's permission to visit their brother. Suleyman Tsechoyev told them that he had been pressured to confess to the involvement in the abduction of Mr Magomed K. and that he had been ordered to convince his relatives to pay USD 6, 000 for his release. Suleyman Tsechoyev told his relatives that he had been subjected to severe beatings in the building of the RUBOP situated at 49 Naumova Street in Nalchik. Finally, he insisted that the applicant and his other relatives should not pay money for his release. It does not appear that any complaints have been lodged in this respect.
22. On 23 August 1999, at about 9 a.m., a group of four men wearing police uniforms arrived at SIZO-1 in a VAZ-2106 car. The men identified themselves as officers of the Malgobek ROVD in Ingushetia. Two of them entered the premises of the centre and produced the following documents authorising the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS:
a) a letter from the acting prosecutor of Malgobek Mr U. B., dated 21 August 1999, requesting that Suleyman Tsechoyev be handed over to four officers of the Malgobek ROVD: Anzor K., Islam O., Kambulat K. and Ruslan B;
b) a procedural decision in criminal case no. 98540062, dated 21 August 1999, concerning the transfer of the accused Suleyman Tsechoyev for investigative measures from SIZO-1 to the Malgobek IVS;
c) an authority form, dated 23 August 1999, issued by the head of the Malgobek ROVD to officers of the Malgobek ROVD, Anzor K., Islam O., Kambulat K. and Ruslan B., concerning the transfer of Suleyman Tsechoyev to the Malgobek IVS.
23. The documents were produced to the employees of SIZO-1, officers Sh. and U., who handed Suleyman Tsechoyev over to the two men. The latter took the applicant's brother away in an unknown direction.
24. On 24 August 1999 Suleyman Tsechoyev's body was found in the Mayskiy district of Kabardino-Balkaria with gunshot wounds to the head.
25. On 7 September 1999 two RUBOP officers arrived at the applicant's house. They told him that a body whose fingerprints were consistent with those of Suleyman Tsechoyev had been found in Kabardino-Balkaria and asked him to identify it.
26. On 8 September 1999 the applicant and his sister identified the body as that of Suleyman Tsechoyev.
27. On 8 September 1999 the Kabardino-Balkaria forensic assessments office issued a report (no. 79). According to this, Suleyman Tsechoyev had died on an unspecified date from an open gunshot wound to the head.
28. It can be seen from the documents submitted by the Government that on 23 October 1999 the criminal proceedings in respect of Suleyman Tsechoyev were terminated in view of his death.
29. On 2 December 1999 the Malgobek town civil registration office issued a death certificate for Suleyman Tsechoyev. It stated that death had occurred on 23 August 1999.
30. The description of the events of the night of 23 October 1998 and the subsequent developments is based on the following documents: the applicant's accounts given on 10 and 16 February, 28 July and 29 August 2005; an account by the applicant's sister Ms L.B., given on 4 August 2005; an account by the applicant's neighbour R.G., given on 15 August 2005; a hand-drawn map of the premises of the applicant's house in Sagopshi and copies of the documents submitted with the application.
31. The Russian press widely reported the kidnapping for ransom of Magomed K., whose younger brother Musa K. had occupied a top executive position in Lukoil, one of Russia's largest oil companies, at the relevant time. It appears from the reports that Magomed K. had been freed from UrusMartan, Chechnya, some time in 1999 as a result of a raid carried out by his relatives, including Musa K., and that several well-known Chechen “field commanders” involved in the kidnapping were killed. Numerous publications also reported Suleyman Tsechoyev's murder and linked it to the kidnapping of Magomed K. Mr Magomed Ye., former deputy prosecutor of the Malgobek district, was quoted in many of these publications and wrote several articles himself.
32. It can be seen from the information submitted by the Government that the official investigation into the kidnapping of Magomed K. was closed in November 2001.
33. The Government, in response to the Court's request, submitted 380 pages from the investigation file, as well as additional information about its progress. They stated that disclosure of the remaining documents from the file could be harmful to the continuing investigation and sought application of Rule 33 § 3 of the Rules of Court to the submitted documents.
34. The applicant, in turn, submitted some additional information about his contacts with the investigation. The relevant information may be summarised as follows.
35. On 24 August 1999 the prosecutor's office of the Mayskiy district of Kabardino-Balkaria instituted an investigation under Article 105 § 1 of the Criminal Code (murder) into the death of an unknown man whose body had been found in the vicinity of Aleksandrovskaya with gunshot wounds to the head. The case file was given number 16/24-99 (in the submitted materials the number is also referred to as 16/24).
36. On 9 September 1999 the investigation into the murder of Suleyman Tsechoyev was transferred to the Kabardino-Balkaria prosecutor's office. The applicant's family was informed of this by a letter from the Prosecutor General's Office.
37. On 9 December 1999 the Ingushetia prosecutor's office opened a criminal investigation in respect of Mr Magomed Ye. under Article 285 § 3 of the Criminal Code (abuse of power entailing serious consequences), no. 99540071. On 15 March 2000 the Ingushetia prosecutor's office opened an additional investigation into abuse of power by Magomed Ye. under file number 2054007.
38. On 23 May 2000 the three cases were joined under file number 16/24-99 at the Northern Caucasus department of the General Prosecutor's Office.
39. On 9 July 2001 (in accordance with the decision of 4 September 2002 suspending the investigation, see paragraph 46 below) the investigation in respect of Mr Magomed Ye., his relatives and members of the K. family (twelve persons altogether) for abuse of power was closed.
40. On 12 July 2001 criminal charges against Magomed Ye. for murder and kidnapping were dropped for want of evidence.
41. On 15 July 2001 the investigation into the murder was suspended in view of the failure to identify the suspects.
42. On 23 July 2001 the department of the Northern Caucasus department of the General Prosecutor's Office concluded that the investigation had been incomplete. The decisions of 12 and 15 July 2001 were quashed and the investigation was remitted to an investigator of that department with a number of specific directions.
43. In December 2001 the Northern Caucasus department of the General Prosecutor's Office created a special investigative group charged with solving the crime.
44. On 15 May 2002 charges of involvement in the kidnapping and murder of Mr Magomed Ye. were dropped for want of evidence. On the same day proceedings were suspended for lack of suspects.
45. On 4 June 2002 the Russian Deputy General Prosecutor quashed the decisions of 9 July 2001 and 15 May 2002 and appointed a new investigative group, headed by the deputy head of the Northern Caucasus department of the General Prosecutor's Office.
46. On 4 September 2002 the investigation in criminal case no. 16/2499 was suspended owing to the failure to identify the perpetrators. On the same date the North Caucasus department of the Prosecutor General's Office informed the applicant of the decision.
47. On 24 August 1999 the investigators carried out an examination of the site, compiled a description of the body and collected three cartridges. Two days later an additional examination of the site resulted in the finding of another cartridge and four bullets.
48. On 25 August 1999 a forensic expert from the Mayskoye police department carried out an examination of the body and an autopsy. The expert found, inter alia, that the body bore six gunshot wounds to the left side of the head, each of which could have been lethal. The shots had been fired from a close range within a short period of time. The expert noted several bruises and abrasions on the face and hands, especially around the wrists, which had been caused within a period of twenty-four hours before death; he also noted traces indicating that the body had been dragged along immediately after the death had occurred. The expert concluded that death had occurred two or three days before the examination of the body.
49. On 23 September 1999 the ballistic expert reported that the four cartridges and bullets had been fired from one “Makarov” 9 mm calibre hand pistol. This conclusion was confirmed by a ballistic expert report of 14 November 1999, carried out by the expert department of the Ministry of the Interior of Kabardino-Balkaria.
50. On 9 September 1999 the investigator of the Mayskoye district prosecutor's office questioned the applicant. He stated that his brother had been detained on 23 October 1998 on the orders of the deputy prosecutor of the Malgobek district, Mr Magomed Ye., on suspicion of involvement in kidnapping. The applicant stated that on several occasions his brother had been transferred from one detention place to another. He had last seen him in June 1999 and Suleyman had complained that for a long time no investigative action had taken place. He also stated that in the beginning of September 1999 the investigator working on the kidnapping case had told him that he had ordered his brother's transfer to Malgobek and that he would soon be taken there. The applicant named several persons who could have been responsible for his brother's death, including former police officer Musa Kh., a cousin of the former deputy Malgobek district prosecutor Ibragim Ye., and Musa K.
51. On 30 September 1999 the investigator of the KabardinoBalkaria prosecutor's office again questioned the applicant, who gave detailed submissions relating the account of his brother's arrest and detention as summarised above. The applicant told the investigator that his brother had close friends in Urus-Martan, Chechnya, where he regularly travelled. He also stated that he suspected Magomed Ye. of masterminding and carrying out the operation aimed at abducting Suleyman Tsechoyev from the pretrial detention centre. He stated that Magomed Ye. had possessed the knowledge required to produce the papers necessary to organise the prisoner's transfer, that he had the necessary computer and other technical skills and that he had been rewarded by the relatives of Magomed K. In particular, the applicant stated that he was aware that Magomed Ye. had obtained from those relatives a VAZ vehicle, a computer, a mobile phone and that he had bought a flat in Nalchik, Kabardino-Balkaria, with money received from them. Furthermore, the applicant accused Magomed Ye. of being present when his brother had been beaten by relatives of Magomed K. outside Malgobek in February 1999. He again accused the K. family of organising his brother's murder and said that the crime could have been carried out by Magomed Ye., Musa Kh, Zaurbek Kh. and Mukhszhir Ye.
52. On the same day the applicant's sister L.B. told the investigator that she had visited her brother in prison, that he had not complained of anything but had denied that he had been involved in the kidnapping. She also named Magomed Ye. and Musa K., brother of the kidnapped Magomed K., as the possible perpetrators of the killing.
53. On 30 September 1999 the applicant and his sister L. B. were granted the status of victims in the criminal proceedings relating to their brother's murder. On 17 April 2000 the applicant was granted the status of victim in the criminal investigation carried out “into the unlawful actions of the former deputy prosecutor of the Malgobek town, Mr M[agomed] Ye.”
54. On 11 November 1999 the applicant and L. B. wrote to the Malgobek district prosecutor. They accused Mr Magomed Ye. of allowing the beating of their brother on the night of 24 to 25 February 1999 by two relatives of Ye. and by the relatives of Magomed K. They again submitted that Ye. had obtained property from the family of Magomed K. in return for his “assistance” in the solving of his kidnapping.
55. On 28 November 1999 the applicant's sister told the investigators that on 3 April 1999 she had visited her brother in prison and that on that day she had noticed marks from handcuffs and traces of beatings on his face. She also submitted that Suleyman Tsechoyev had told her that during the night of 24 February 1999 Magomed Ye. and his relatives, together with relatives of Magomed K., had taken him outside of Malgobek and beaten him in an attempt to obtain a confession regarding the kidnapping.
56. On 15 December 1999 the applicant gave detailed submissions to an investigator from the Ingushetia prosecutor's office relating the arrest and detention of his brother, as described above. In addition, he submitted that on 3 April 1999 his brother had told him in great detail what had happened on the night of 24 to 25 February 1999 and named other persons who had been detained with him and questioned by the relatives of Magomed K. He also allegedly told him that he had been taken to several detention centres in the Northern Caucasus prior to being admitted to the pre-trial detention centre no. 1 in Nalchik because he had suffered from the beatings and the officials had refused to accept him. The applicant named Mr Magomed Ye. as the individual responsible for the ill-treatment of his brother and, ultimately, for organising his transfer to the murderers. He stressed that the documents authorising his brother's removal from the prison in Nalchik had been produced by someone who had detailed knowledge of the requirements for such documents and that the forgery had necessitated considerable computer skills. The applicant also submitted that on 28 August 1999 he had gone to the SIZO no. 1 in Nalchik and left a food parcel for his brother, which had been accepted. At that time he had not been informed that his brother was no longer detained there.
57. On 17 December 1999 the applicant's sister repeated her previous statements. She stated, further, that in May and October 1999 Mr Ye. had threatened to kill her brother, the applicant.
58. On 17 December 1999 the applicant's mother gave statements similar to those of the applicant and her daughter.
59. On 21 April 2000 the applicant was questioned by an investigator from the Ingushetia prosecutor's office again. He repeated his allegations against Magomed Ye.
60. On 16 October 2001 the investigator from the Ingushetia prosecutor's office questioned the applicant again. He supplemented his previous statements and claimed that Mr Magomed Ye. had been acting in cooperation with the relatives of Magomed K. from the very early stages of the investigation. He stated that as early as September 1998 a number of men, whose names he had supplied to the investigation, had been arrested and then transferred to private residences where they had been beaten and tortured with the aim of extracting confessions. According to the applicant, Mr Magomed Ye. had participated in these actions and filmed them. The applicant also claimed that in February 1999 Mr Ye. had asked his mother and sister to pay USD 6,000 in return for his brother's release. He also submitted additional details about the circumstances of his brother's beatings on 24 February 1999.
61. The investigators questioned the staff at the pre-trial detention centre in Nalchik who had been on duty on 23 August 1999. On 10 September 1999 two officers stated that they had inspected the papers of the two men who had presented themselves as police officers from the Malgobek ROVD and had not found them suspicious. They had organised the transfer of Suleyman Tsechoyev to the two men in accordance with the usual procedure. One of the men bore the distinction of a Senior Lieutenant, the other of a non-commissioned officer of the Ministry of the Interior. The men had spoken Ingush between themselves; one of them had had a Motorolla radio receiver but had not used it during the encounter. One of the officers gave a detailed physical description of the two men and said that he would be prepared to identify them. The deputy head of the detention centre, Mr Zaurbi Sh., told the investigators that he had checked the names of the two men and the papers for the prisoner's transfer. He had not inspected their documents because, according to the relevant procedure, the identity documents should have been left at the entrance to the building.
62. Several of Suleyman Tsechoyev's co-detainees in the pretrial detention centre in Nalchik stated on 10 September 1999 that the deceased had not raised any complaints, that he had been visited by a lawyer and by his brother and that in August 1999 he had been taken away, apparently for transfer to Ingushetia.
63. On 12 October 1999 the acting prosecutor of the Malgobek district told the investigators that he had ordered Mr Tsechoyev's transfer to Malgobek on 5 August 1999, but for unknown reasons that order had not been complied with. The documents which had enabled Mr Tsechoyev to be kidnapped had been forged and their numbers corresponded to other documents. The persons indicated in the escort documents had not worked at the Malgbek ROVD. In June 2002 he gave a further statement, describing Mr Magomed Ye. as an honest and motivated officer who had been falsely accused by the applicant and his relatives.
64. On 15 November 1999 an officer from the Nalchik pre-trial detention centre identified a man from a photo as one of those who had collected Suleyman Tsechoyev on 23 August 1999. Later that man, a worker in a gas plant, submitted reliable evidence that he had not been in Kabardino-Balkaria at the time, as supported by documents and witness statements collected by the investigation.
65. On 22 December 1999 the head of the Malgobek ROVD stated that Suleyman Tsechoyev had been detained at the Malgobek IVS from September 1998 to February 1999. He was shown the registration log of the IVS, according to which on 24 February 1999 Mr Tsechoyev had been taken out of the IVS at 11.40 p.m. by the local police officer Musa Kh. The head of the ROVD explained that he had been informed late at night by the officer on duty that the deputy district prosecutor had ordered that Mr Tsechoyev be brought to his office for questioning. At first the head of the ROVD had refused, but Mr Ye. had called him and insisted, threatening to open a criminal investigation if he did not comply. Mr Ye. explained that he had senior officers of the Ministry of the Interior in his office and that it was possible that Mr Tsechoyev would be transferred to Kabardino-Balkaria for further investigation. The head of the ROVD then agreed, but instructed his staff to obtain Mr Ye.'s signature to the effect that he had accepted the detainee. He could not explain why a district police officer, Mr Musa Kh., had signed. When questioned about Suleyman Tsechoyev's abduction and murder, the head of the police confirmed that the men identified in the escort documents had never served at the ROVD and that he had not issued the documents in question.
66. In addition to the above investigative documents, copies of which the Government submitted to the Court, it can be seen from their memorandum of 2 October 2008 that the investigators also questioned five acting and former officers of the Malgobek prosecutor's office, all of whom denied that they had been aware of any connection between the K. family and Magomed Ye. One of these officers, quoted by the Government, stated that Suleyman Tsechoyev had been a member of the bandit group based in UrusMartan, along with three other men who had been charged with kidnappings.
67. The Government also submitted a copy of the record of interview of Zaurbek Kh., who stated that he had permanently lived in Moscow and had been there throughout the summer of 1999. Zaurbek Kh. denied having known Suleyman Tsechoyev; as to Magomed Ye., the witness stated that he had gone to the same school but had not kept in contact in recent years.
68. On 16 November 1999 the investigators in criminal case no. 16/2499 carried out an expert assessment of three documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 on 23 August 1999. The criminology expert of Kabardino-Balkaria concluded that the imprint of the Malgobek district prosecutor's office's seal had been reproduced with the aid of a factory-made stamp, but not the one used by the district prosecutor's office. The imprint of the Malgobek ROVD seal had been reproduced with the aid of a colour printer. A graphology expert report reported difficulties in analysing short notes with dates and signatures on the documents, but concluded that some of the notes could have been made by Mr Magomed Ye., his brother and by the acting Malgobek prosecutor.
69. On 14 December 1999 the Central North-Caucasus forensic laboratory issued an additional expert assessment. It concluded that the signatures on all the documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS had been forged, and that the date and signature on one of the documents had been written by Mr Magomed Ye.
70. In October 2001 the investigators questioned a number of experts from the Central North-Caucasus forensic laboratory seeking an explanation for the differences in the reports. The experts referred to the incomplete conclusions of some of the studies.
71. On 12 November 2001 the Russian Federal Forensic Assessments Office of the Ministry of Justice concluded that it was impossible to establish with certainty whether the handwritten words on the document in question had been written by Mr Magomed Ye. or not.
72. According to the documents contained in the criminal investigation file, at some point in 2001 documents constituting the basis for examination and a part of the original expert report had been stolen or changed. A separate criminal investigation was carried out, during which several officers from the prosecutor's office and the Ministry of the Interior were questioned. The investigation collected the copies of the original documents from the Russian Federal Bureau of Forensic Studies. Magomed Ye. was questioned as a suspect. On 15 May 2002 the investigation against him was closed for want of incriminating evidence.
73. On 7 October 1999 the investigator from the Kabardino-Balkaria prosecutor's office questioned Magomed Ye. The latter confirmed that he had headed the group at the Malgobek prosecutor's office which had investigated the kidnapping of Magomed K. He had authorised Suleyman Tsechoyev's detention in relation to that crime. According to him, Mr Tsechoyev had been suspected of involvement in other crimes committed in the region, which was the reason for his transfer to Nalchik and Pyatigorsk. Mr Ye. denied that he had been involved in the kidnapping and murder of Suleyman Tsechoyev. He stated that he had never seen the documents authorising the latter's removal from the pre-trial detention centre in Nalchik in August 1999. Mr Ye. stated that he had quit his job at the prosecutor's office in March 1999 and now lived in Moscow. He had learnt of Suleyman Tsechoyev's death from his father in September 1999. He denied that he had previously allowed the relatives of Magomed K. access to Suleyman Tsechoyev.
74. In October 1999 the investigators carried out a series of identification parades, during which the officers of the Nalchik pretrial detention centre failed to identify Mr Magomed Ye., his brothers and cousins as the persons who had taken away Suleyman Tsechoyev.
75. On 11 January 2000 the Kabardino-Balkaria prosecutor's office brought charges against Mr Magomed Ye. He was charged in absentia with complicity in Suleyman Tsechoyev's kidnapping and murder and forgery of official documents. On the same day Mr Magomed Ye. was ordered to be arrested and declared a fugitive from justice, and his name was put on the wanted list.
76. On 26 February 2000 Mr Ye. was detained and questioned as a suspect. He again denied any connection with the murder and requested a number of additional investigative measures.
77. The investigators obtained the documents according to which in March 1999 Mr Magomed Ye. had complained to his superior about the false accusations brought against him by the relatives of Suleyman Tsechoyev and requested the district prosecutor of Malgobek to open a criminal investigation for libel. At the same time, pending completion of the investigation, he requested to be relieved from the duty of investigating the case. On 31 March 1999 Magomed Ye. resigned from the prosecutor's office.
78. On 10 March 2000 the Nalchik Town Court released Mr Magomed Ye. from detention, having found that there were no reasons to suspect him of absconding from justice. The court noted that Mr Ye. had always appeared at the prosecutor's office when summoned to do so, resided at his declared place of residence in Moscow and had other family reasons not to abscond.
79. In April 2000 a waitress in a roadside café in KabardinoBalkaria told the investigators that between 21 and 25 August 1999 she had seen Mr Magomed Ye. During a confrontation carried out on 24 January 2002 she retracted her statements and explained that she had last seen him in March 1999, and that in August 1999 she had seen another person whom she had confused with Mr Ye. She gave detailed submissions in this respect. Two other men and Magomed Ye. gave concordant statements.
80. In July 2001 the investigators questioned witnesses and obtained documents to the effect that in August 1999 Mr Ye. had been working daily for a private company in Moscow.
81. In April 2002 Magomed Ye. gave an additional statement as a suspect. He again denied any involvement in the imputed crime, denied having ever received or used a VAZ vehicle and denied receiving any money or property from the K. family.
82. In their memorandum of 2 October 2008 the Government stated, without providing copies of such documents or the dates when they were obtained, that the investigators also questioned four members of the K. family who denied having any relations with Magomed Ye. or giving him money or property. These and other witnesses suggested that the libel campaign against Magomed Ye. had been inspired by members of a fundamentalist bandit group based in Urus-Martan, Chechnya, who had committed numerous kidnappings for ransom. The Kabardino-Balkaria Land Registry reported that Magomed Ye. had owned no real estate in that region.
83. In their memorandum of 2 October 2008 the Government also stated, without providing copies of such documents or the dates when they were obtained, that the investigators had also questioned the brother and cousin of Magomed Ye.: police officers named by the applicant as possible perpetrators of the crime. They denied their involvement in the events. The police department of Malgobek confirmed that Magomed Ye.'s cousin had been working daily between July and September 1999. Police officers Musa Kh. and Zaurbek Kh. were also questioned at some point and denied having any connection with the murder. The Government also referred to records of interviews of four members of the K. family who stated that they had no relations with Magomed Ye. outside the official framework of the investigation and that they had not given him money or property.
84. As can be seen from the statements collected in January 2008 from the applicant and his father, some time in 2001 police officer Musa Kh. had been charged with false imprisonment and abuse of power in relation to the taking of Suleyman Tsechoyev from the Malgobek IVS in the late hours on 24 February 1999. He had been found guilty and given a suspended sentence; the applicant did not appeal against the sentence. It also appears from these statements that the applicant and Musa Kh. had reached an informal agreement prior to the trial and that the applicant had “accepted” Musa Kh.'s “apology” and declaration that he had not been involved in his brother's murder. No other documents or information relating to this process have been submitted by the parties.
85. It can be seen from the submitted documents that in 2001 Musa K., the brother of the kidnapped Magomed K., complained to the prosecutor's office that he had been libelled by the applicant. It appears that in June 2001 the indictment was sent to the court, which at some point acquitted the applicant.
86. The investigators into the kidnapping of Magomed K. suspected and arrested several other men in addition to Suleyman Tsechoyev. Later, three of them were charged with other kidnappings; one of them was found guilty and sentenced in 2001; and two others were charged in absentia and their names put on the wanted list. One of them told the investigators that the applicant had threatened to denounce him to the law-enforcement bodies in order to give incriminating evidence against Magomed Ye. and Musa K.
87. On 26 February 2002 the criminal investigation was closed regarding the part concerning the actions of the officers of the Nalchik pretrial detention centre, on grounds of absence of corpus delicti.
88. On the same day the investigator from the department of the General Prosecutor's Office in the North Caucasus closed the criminal proceedings against Magomed Ye. for want of evidence. He noted that it had turned out to be impossible to identify the persons who had abducted and killed Suleyman Tsechoyev; that the conclusions of the graphology expert reports were contradictory and could not be construed as a single body of incriminating evidence against Mr Magomed Ye.; that by the time of the abduction he had no longer been employed at the prosecutor's office for more than six months and there was no evidence that he had continued to be aware of or to influence the proceedings; that between March and September 1999 he had remained in Moscow, as confirmed by witness statements and documents; that the allegations that he had obtained money or property from the K. family had proved to be unfounded; and, finally, that there were reasons to suspect that the applicant had personal motives, since he was being prosecuted for libel against the K. family and had threatened a witness in order to obtain evidence incriminating Magomed Ye.
89. On 22 May 2001 the Prosecutor General's Office informed the applicant that on 11 April 2001 the investigation in criminal case no. 16/2499 had been transferred to the department of the Prosecutor General's office in the North Caucasus. According to the letter, Mr Ye. had absconded from the authorities and his name had been put on the wanted list.
90. On 7 January 2002 the applicant and his relatives complained of the ineffectiveness of the investigation in criminal case no. 16/24-99 to the Prosecutor General. In his letter the applicant also alleged that some of the evidence in the criminal case-file materials had been forged by the investigators.
91. On 22 February 2002 the Prosecutor General's Office replied to the applicant. The letter stated that in connection with the forgery of the evidence in criminal case no. 16/24-99, they had opened criminal case no. 18/24411-01 on 14 September 2001.
92. On 15 or 24 May 2002 (the letter has two dates) the department of the Prosecutor General's Office in the North Caucasus informed the applicant that on 15 May 2002 the authorities had terminated the criminal proceedings against Mr Ye. owing to the failure to prove his involvement in the abduction of Suleyman Tsechoyev. On the same date the investigation had been suspended owing to the failure to identify the perpetrators.
93. On 20 June 2002 the applicant and his relatives wrote to the Prosecutor General complaining of the ineffectiveness of the criminal investigation into the murder.
94. On 9 August 2002 the applicant's family received a letter from the Prosecutor General's Office. The letter stated that on an unspecified date the investigation of criminal case no. 16/24-99 had been resumed.
95. On 28 February 2003 the applicant complained about his brother's murder to the President of the Supreme Court of the Russian Federation. In his letter he complained of the ineffectiveness of the investigation into the crime and the decisions suspending it. The applicant requested the authorities to resume the investigation and carry out an additional examination of the evidence in criminal case no. 16/24-99. In particular, he complained that the investigation had failed to compile a composite sketch of the two men who had collected his brother from the pre-trial detention centre and to compare the handwriting of the kidnappers with those of all the officers of the Ministry of the Interior in Ingushetia and KabardinoBalkaria, as well as of the regional department of the RUBOP in the Northern Caucasus.
96. On 5 March 2003 the Prosecutor General's Office, upon the applicant's request, forwarded him a copy of the decision of 4 September 2002 suspending the investigation in criminal case no. 16/24-99.
97. It does not appear that the applicant or the investigators took any steps between 5 March 2003 and 20 May 2005.
98. On 20 May 2005 the applicant's representatives wrote to the Prosecutor General. They requested information concerning the progress reached in the investigation in criminal case no. 16/24-99 and enquired whether the investigators had carried out any expert or forensic examinations in the case. It does not appear that the applicant's representatives received any response to this request.
99. On 21 August 2007 the Deputy Prosecutor General quashed the decision suspending the proceedings. On 25 December 2007 Mr Magomed Ye. was placed under an obligation not to leave his place of residence in Moscow.
100. In January 2008 the investigator questioned the applicant, his sister and his mother in Malgobek. They denied that Suleyman Tsechoyev had any connections to illegal armed groups in Chechnya or in Ingushetia, pointed out that he had never been charged with any such crime before and affirmed that there was no evidence to support that allegation. They again insisted that Magomed Ye. had been connected with the abduction and murder of their brother, in view of his involvement in the arrest and beatings.
101. On 21 May 2008 the father of Musa and Magomed K. gave a statement in which he denied that his family had ever given any money or valuables to Magomed Ye. or his family.
102. In his submissions the applicant also described attacks by unspecified persons on himself, his relative and his house.
103. Accordingly, the applicant submitted that on 13 July 2001 he and Mrs U. had been wounded during an attempt to arrest them by officers from the RUBOP of Kabardino-Balkaria. On the same day the Ingushetia prosecutor's office opened a criminal investigation into violent acts against public officers.
104. However, in January 2002 the investigation was adjourned in view of the failure to identify the suspect. In March 2004 criminal charges against the applicant were dropped; Mrs U. was granted victim status.
105. The applicant and Mrs U. sought damages for the injuries and moral suffering inflicted by the RUBOP and the Federal Treasury. They also contested the lawfulness of the order to deliver the applicant to an investigator which had served as the basis for the attempt to arrest him.
106. In October 2004 the Malgobek Town Court refused to grant their claim, referring to the absence of any definitive outcome of the criminal investigation and the applicant's failure to appeal against the decision to adjourn the proceedings. An appeal by the applicant was dismissed without consideration for failure to observe the requisite time-limits; he tried to have the time-limits restored but it appears that his complaint to the Supreme Court of Ingushetia remained unexamined.
107. No complaints were brought following those developments, but the applicant relied on the above proceedings to explain his inaction between 2003 and 2005 vis-à-vis the domestic criminal investigation into his brother's murder.
108. The applicant submitted, referring to numerous publications concerning the subject, that following the events described above Mr Magomed Ye. had become a well-known political figure in Ingushetia. As a successful businessman and journalist, he had founded an Internet site (www.Ingushetiya.ru) in 2001 which had quickly become an important media forum for the opposition forces. In 2008 Mr Magomed Ye. had become one of the organisers of the “I did not vote” campaign aimed at denouncing electoral fraud in Ingushetia during the Russian presidential elections. In June 2008 a district court in Moscow classified the site as “extremist” and demanded its closure. The order could not be implemented because the site was hosted in the United States.
109. On 31 August 2008 Mr Magomed Ye. was detained on arrival at the airport in Nazran, Ingushetia, and shot dead in the police car. In December 2009 a court in Ingushetia found one officer of the Ministry of the Interior of Ingushetia guilty of causing death by negligence and gave him a suspended sentence. In August 2010 this officer was killed by unknown gunmen in Ingushetia. On 25 October 2009 another former coowner of the Ingushetia.ru site, Mr Maksharip A., was killed by unknown gunmen in Kabardino-Balkaria.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-92357
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KURT AND FIRAT  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1921 and 1926 respectively and live in Gaziantep.
5. In 1999 the Ministry of Energy and Natural Resources expropriated a plot of land belonging to the applicants (plot no. 746) in the Aşağıçardak village, in Nizip, in order to build the Birecik dam.
6. On 9 February 1999 the applicants brought an action before the Nizip Civil Court for additional compensation.
7. On 30 December 1999 the Nizip Civil Court of First Instance awarded the applicants additional compensation of 15,748,251,500 Turkish liras (TRL) plus interest at the statutory rate, running from 28 February 1999.
8. On 26 June 2000 the Court of Cassation upheld the judgment of the first-instance court.
9. On 3 December 2002 and 23 May 2007 the administration paid the applicants TRL 47,876,259,385 and 24,628.81 Turkish liras (TRY) respectively in additional compensation, together with interest.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1