ITEMID: 001-87227
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ISIGOVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants are:
1) Ms Tsalipat Shamilovna Isigova, who was born in 1954;
2) Ms Aminat Abdurakhmanovna Isigova, who was born in 1976;
3) Ms Khalisat Dayevna Umkhanova, who was born in 1948;
4) Ms Taisiya Magomedovna Musayeva, who was born in 1970;
5) Mr Arbi Zelimkhanovich Umkhanov, who was born in 1997.
7. On 2 July 2001 the federal armed forces carried out a large-scale “sweeping” operation (“zachistka”) in the village of Sernovodsk in Chechnya. According to the Government, interior troops of the Ministry of the Interior participated in the operation.
8. The applicants submitted numerous NGO and press reports on these events as well as statements by other villagers about the general circumstances of the sweeping operation and the detention of their relatives.
9. According to the applicants, a similar operation took place in the nearby village of Assinovskaya on 3 July 2001, where about 300 persons were detained.
10. The first applicant is the mother of Apti Isigov, who was born in 1978. The second applicant is the first applicant's daughter and Apti Isigov's sister. They live at 34 Pervomayskaya Street in Sernovodsk. According to the applicants, at the material time Apti Isigov was planning to enrol in a law faculty in Moscow.
11. According to the first applicant, at about 12 noon on 2 July 2001 an armoured personnel carrier (“APC”) pulled up in front of their house. The first applicant noted that the APC identification number was Ch025. Several armed men in camouflage uniforms rushed into the courtyard, where the applicant's son Apti Isigov and his cousin Rustam Isigov, who lived in the same house, had been waiting for them with their passports in hand. The first applicant submitted that the documents were in order. Nevertheless, the soldiers had collected the passports without looking at them, pulled the Isigov cousins' shirts over their heads and forced them into the APC. In reply to the first applicant's question about the reasons for their arrest, the servicemen stated that they had orders to detain every man aged between 15 and 50.
12. The soldiers then searched the house and, according to the first applicant, took some money and household items.
13. Rustam Isigov later recalled that the APC into which they were put had stopped in a neighbouring street and they had been ordered to get out and to climb into a military truck. He had noticed a serviceman with five or six passports in his hand nearby. There were several people inside the truck, both detainees and servicemen. One of the servicemen had ordered Apti Isigov to climb into the far corner of the truck and to cover himself with a piece of canvas attached to the side. Apti had obeyed.
14. The detainees had then been taken to a passport checkpoint situated in a field near the village, where the basement of an unfinished building stood. Rustam Isigov and other detainees had been ordered out of the truck. Apti was ordered to stay in the vehicle but got out and sat on the ground with the rest of them. He was frightened and Rustam Isigov had tried to calm him down, even though the detainees were not allowed to talk. About 15 minutes later a man in camouflage uniform had arrived, had looked through a passport he had been holding and had ordered Apti Isigov to climb back into the truck.
15. The first applicant referred to the statements of other witnesses she had managed to collect which stated that Apti Isigov had then been brought to the APC no. Ch025 and had spent some time inside. Several witnesses among those detained that day stated that they had seen Apti in the APC in the afternoon of 2 July 2001, several hours after his apprehension. One of those witnesses was K. Ch. who had been taken to the passport checkpoint at about 7.40 p.m. and had seen Apti Isigov inside the APC.
16. The third applicant is the mother of Zelimkhan Umkhanov, who was born in 1972. The fourth applicant is Zelimkhan Umkhanov's wife and the fifth applicant their son. Zelimkhan Umkhanov and his family used to live in Grozny, but after the resumption of hostilities moved to Sernovodsk to his mother's home because he thought they would be safer there.
17. The third and fourth applicants did not witness Zelimkhan Umkhanov's detention but referred to eye-witness statements submitted by them to the Court. According to those statements, at about 4 p.m. on 2 July 2001 Zelimkhan Umkhanov was detained in Groznensky Lane in Sernovodosk. The applicants submitted several statements of villagers who had witnessed Zelimkhan's detention in the street. Several witnesses, including K. Ch. (see above), stated that they had seen Zelimkhan Umkhanov in APC no. Ch025 in the afternoon of 2 July 2001.
18. The first, third and fourth applicants, along with other relatives of those detained during the “sweeping” operation, walked to the edge of the field where the men had been detained and remained there until about midnight. The guards did not allow them to approach any nearer.
19. According to the applicants, at about 6 p.m. an officer with the rank of major came out and reassured them that all the detainees would be released 30 minutes later. He also told them that he shared their indignation and that he had already talked to his superiors about the events. Later that evening he came out once again and repeated his comments.
20. At about 8 p.m. the women saw some of the detainees being put into two buses. When the buses drove off, the women tried to block them, but the soldiers started to shoot at the ground in front of the crowd and dispersed them.
21. The men from Sernovodsk remained detained at the passport checkpoint in the field until the early hours of 3 July 2001. At about 11 p.m. the military started to release them in small groups, and by 2 a.m. there was no one left in the field. About forty men were not released, however, and their relatives were eventually told that they had been taken to the Temporary Office of the Interior of Achkhoy-Martan District (“the Achkhoy-Martan VOVD”). Apti Isigov and Zelimkhan Umkhanov were not released that night, and the applicants have had no news of them since.
22. Early in the morning on 3 July 2001 the fourth applicant went to the military camp in an attempt to obtain information about her husband from the major who had talked to them the night before, but the military were already leaving and she was unable to speak to anyone.
23. Later in the morning on 3 July 2001 the first, third and fourth applicants, along with other relatives who had not seen their detained family members since the previous day, went to the Achkhoy-Martan VOVD. There they were shown a list of about forty names of persons from Sernovodsk, including Apti Isigov and Zelimkhan Umkhanov, who had been brought to the Achkhoy-Martan VOVD. According to the applicants, during the day detainees were gradually released from the Achkhoy-Martan VOVD, but they told the applicants that they had not seen their relatives inside. In the evening of 3 July 2001 the head of the Sernovodsk village administration joined the applicants at the Achkhoy-Martan VOVD. In reply to their enquiries the officials there denied that the two men had ever been brought there, contrary to what they had said in the morning.
24. On 4 July 2001 the applicants went to the village of Assinovskaya, in which a similar “sweeping” operation was being carried out. They saw the APC with the identification number Ch025 there and the same truck in which their two relatives had been taken away from Sernovodsk two days earlier, a Ural with identification no. O 10 03 KSh.
25. On the same date the applicants also talked to R. Kh., who had attended the same school as Apti Isigov and knew him quite well. He stated that on 3 July 2001 he had seen Apti Isigov and Zelimkhan Umkhanov in a military Ural truck in Assinovskaya. R. Kh. said that he had heard someone asking for water from inside the truck saying that “we have not had any water since yesterday” and when one of the military lifted the canvas to give him some water, the witness had seen two men, one of whom he had immediately recognised as Apti Isigov. Both men had traces of beatings on their faces, and Zelimkhan's hand was hurt, probably broken. R. Kh.'s written statement was submitted to the Court.
26. That day the applicants waited near the passport checkpoint in the field near Assinovskaya until 3 a.m. hoping that their relatives would be released together with the detainees from that village, but in vain.
27. They and their other relatives continued to search for the two missing men. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya, to the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, to the media and to public figures. In their letters to the authorities the applicants gave details of the detention of Apti Isigov and Zelimkhan Umkhanov and asked for assistance and information about the investigation, but were given hardly anything of substance. On several occasions they and other relatives received copies of letters forwarding their requests to various prosecution services.
28. On 4 and 5 July 2001 the applicants and their relatives applied in person to the Prosecutor's Office of the Achkhoy-Martan District and submitted a written complaint. They also applied in person to the Achkhoy-Martan VOVD. They asked for assistance in searching for the two missing men, but the officials denied that they had ever been detained by the district authorities.
29. On 5 July 2001 the Prosecutor's Office of the Achkhoy-Martan District forwarded the applicants' complaints to the Achkhoy-Martan VOVD. The latter replied to the first applicant in a letter of 10 July 2001 that Apti Isigov had not been detained by the VOVD and that the local office of the Interior had no information about his whereabouts.
30. On 12 July 2001 the third applicant wrote to the head of the administration of the Sunzhenskiy District and asked for assistance in finding Zelimkhan Umkhanov and Apti Isigov. She referred to witness statements and submitted the known details of the two men's apprehension, including the identification numbers of the military vehicles and call-signs of the military involved.
31. On 12 July 2001 Rustam Isigov, who, as noted above, was Apti Isigov's cousin and a witness to his detention, wrote to the head of the Chechen Department of the Interior and on 13 August 2001 to the Prosecutor's Office of the Chechen Republic. He described in detail the events of 2 July 2001 and requested that his cousin be found.
32. On 17 July 2001 the Prosecutor's Office of the Achkhoy-Martan District informed the third applicant that her son had not been detained by personnel of the district department of the Interior and had not been brought to the Achkhoy-Martan VOVD.
33. On 13 August 2001 the second and fourth applicants wrote to the Prosecutor's Office of the Chechen Republic to complain that they had not been granted victim status in the criminal proceedings concerning the disappearance of their brother and husband respectively. On the same date the fourth applicant requested the Prosecutor's Office of the Chechen Republic to institute criminal proceedings in respect of her husband's abduction.
34. The applicants reiterated their requests for assistance in searching for their relatives and information on the progress of the investigation to the Prosecutor General's Office on 16 August 2001 and 2 October 2001, the Prosecutor's Office of the Chechen Republic on 16 August 2001, 12 and 23 September 2001 and the Minister of Defence on 1 October 2001.
35. On 8 July 2001 the Prosecutor's Office of the Achkhoy-Martan District instituted criminal proceedings in connection with numerous complaints of the residents of Sernovodsk of abuse of authority by federal servicemen during a special operation of 2 July 2001. The case file was assigned number 27031.
36. On 10 September 2001 the Prosecutor's Office of the Chechen Republic informed the third applicant of the decision of 8 July 2001, stating that the disappearance of Apti Isigov and Zelimkhan Umkhanov was being investigated in the context of those proceedings. On 3 October 2001 the Prosecutor's Office of the Chechen Republic informed the applicants that the proceedings in criminal case no. 27031 were pending and that they would be informed of the outcome.
37. On 19 October 2001 the Ministry of the Interior replied to the applicants that their complaint had been forwarded to the Chechen Department of the Interior and that the search for their relatives would remain under the control of the Ministry.
38. On 22 November 2001 the Ministry of the Interior informed the applicants that a number of steps aiming at locating their relatives' whereabouts had been taken. In particular, the Achkhoy-Martan VOVD had opened “search files” (розыскные дела) and the two men had been included in the federal search database as well as in the system of identification of unidentified bodies. However, those efforts had not brought any results thus far. The letter assured the applicants that they would be informed of any results of the search.
39. On 10 September 2002 the third applicant requested the Prosecutor's Office of the Chechen Republic to update her on the results of the investigation.
40. In similar letters dated 3 October 2002 the latter replied to each of the applicants that on 8 July 2001 the Prosecutor's Office of the Achkhoy-Martan District had opened criminal investigation no. 27031 in connection with the allegations of abuse of authority, unlawful use of violence and detention, theft and destruction of property during the special operation in Sernovodsk on 2-4 July 2001 and that the investigation was being conducted by the Prosecutor's Office of the Chechen Republic. It had established that at about 11.20 a.m. and 4 p.m. respectively on 2 July 2001, Apti Isigov and Zelimkhan Umkhanov had been detained and that their whereabouts had remained unknown since. APC no. Ch025 belonged to military unit no. 6783, which had participated in the operation. During questioning, the APC crew had stated that they had taken a number of people to the location of Ministry of Justice detachments which had been carrying out identity checks on the detainees. The investigating authorities had also questioned a number of servicemen from the Ministry of Justice who had stated that pursuant to an order of Lieutenant-Colonel G., the deputy commander of the operation, they had put two “Chechens” into a separate vehicle. On 5 July 2001, also upon the deputy commander's orders, the two men had been taken to the military base in Khankala (the main Russian military base in Chechnya) where they had been handed over to servicemen from the Ministry of the Interior. However, given that no record concerning their apprehension or detention had been drawn up, it had been impossible to establish their identities. The letters did not specify whether Lieutenant-Colonel G. had been questioned as a witness. It was further stated that the investigating authorities had been unable either to identify those responsible or to establish the whereabouts of Apti Isigov and Zelimkhan Umkhanov. The search had also involved verification of unidentified bodies in Chechnya and the neighbouring regions. The relatives of those missing had been granted victim status in the criminal proceedings. The letters concluded that on 12 June 2002 the investigation had been suspended owing to the failure to identify the alleged perpetrators.
41. According to the applicants, between July 2001 and May 2002 at least five investigators of the Prosecutor's Office of the Chechen Republic had been appointed in turn to deal with the case. The missing men's personal details, such as their height, shoe size and photographs, had only been collected from the applicants in the spring of 2002. The applicants also submitted that the investigators had complained to them that they had had no answers or assistance from the military authorities of the Khankala base in establishing the whereabouts of Apti Isigov and Zelimkhan Umkhanov.
42. On 26 October 2002 the Prosecutor's Office of the Chechen Republic, in reply to a query from the first applicant, confirmed that her son was being searched for by the law-enforcement bodies and that the investigation in criminal case no. 27031 had been suspended on 12 June 2002, as it had been impossible to identify those responsible.
43. On 12 November 2002 similar information was sent to Zelimkhan Umkhanov's father.
44. In a letter of 20 March 2003 the Prosecutor's Office of the Chechen Republic informed the fourth applicant that the criminal proceedings in case no. 27031 had been resumed on 19 March 2003.
45. In a letter of 18 April 2003 the SRJI, on behalf of the first and third applicants, requested the Prosecutor's Office of the Chechen Republic to inform them of the developments in the investigation and to grant them victim status in the proceedings. On 24 July 2003 the SRJI sent a copy of its previous letter to the Prosecutor's Office of the Chechen Republic, as it had not received any reply. On the same date the applicants forwarded a similar letter to the Prosecutor General's Office.
46. On 19 April 2003 the investigation was suspended on account of the failure to identify the culprits.
47. On 25 August 2003 the Prosecutor's Office of the Chechen Republic replied to the SRJI's request lodged on the applicants' behalf that criminal case no. 27031 had been forwarded to the Southern Federal Circuit Department of the Prosecutor General's Office for examination.
48. According to the Government, “having obtained reliable information that Apti Isigov and Zelimkhan Umkhanov had disappeared during the special operation”, on 14 April 2003 the Prosecutor's Office of the Chechen Republic decided that a case in respect of the disappearance of the applicants' two relatives under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping) should be opened and severed from criminal case no. 27031. It appears that the new case was first assigned number 59114 which was then changed to number 34/33/0506-03. It was sent for investigation to the military prosecutor's office of military unit no. 20102 in Khankala in order to check the possible involvement of military personnel in the alleged offence.
49. In his decision of 14 April 2003 to open criminal case no. 59114, the deputy prosecutor of the Chechen Republic, “having examined the information on a criminal offence committed on 2 July 2001 during the special operation of the federal forces in Sernovodsk, which had been submitted by an investigator of the Prosecutor's Office of the Chechen Republic on 14 April 2003”, established that:
“On 2 July 2001, during a special operation in the village of Sernovodsk of the Sunzhenskiy District of the Chechen Republic, A.A. Isigov and Z.U. Umkhanov were detained and taken away in APC no. Ch025 by detachments of the federal forces. However, they were not delivered to the passport checkpoint situated on the outskirts of Sernovodsk. Their whereabouts remain unknown to date. The investigation has established that the APC belonged to [a detachment] of the Ministry of the Interior which, during the operation, was under the command of the commander of military unit no. 6785, Major [M.]. The crew of APC no. Ch025 was under the command of Senior Lieutenant [K.].”
50. The decision then made orders for a criminal case to be opened under Article 126 (2) of the Russian Criminal Code and criminal proceedings to be brought against M. and K. on suspicion of the abduction of the applicants' two relatives.
51. In a letter of 17 April 2003, the Prosecutor's Office of the Chechen Republic informed the first and third applicants “in reply to their numerous queries” that on 14 April 2003 criminal proceedings no. 59114 had been instituted under Article 126 (2) in connection with the abduction of their sons on 2 July 2001 by participants of the special operation carried out by the federal forces in Sernovodsk. The letter stated that the applicants would be notified of any results of the investigation.
52. On 21 May 2003 the Prosecutor's Office of the Chechen Republic transferred the criminal case to the Military Prosecutor's Office of the United Group Alignment (UGA, Объединенная группировка войск). The decision, submitted by the Government, read as follows:
“On 2 July 2001, during a special operation in the village of Sernovodsk of the Sunzhenskiy District of the Chechen Republic conducted by federal forces, Ministry of the Interior troops detained [A.A.] Isigov, who was born in 1978, and [Z.U.] Umkhanov, who was born in 1972, whose whereabouts have yet to be established.
On 2 July 2001 a special operation was conducted in the village of Sernovodsk in the Sunzhenskiy District of the Chechen Republic in accordance with the UGA commander's directive no. 3/01743 of 26 June 2001 and UGA order no. 3/01846 of 1 July 2001. The UGA deputy commander in respect of special operations, Colonel [B.], was the head of the operation. Detachments from the Ministry of Defence, the Ministry of the Interior, the Federal Security Service and the Temporary United Alignment of Agencies and Units of the Ministry of the Interior [ВОГО и П МВД – временная объединенная группировка органов и подразделений МВД] took part in its conduct.
Units 99 DON, 352 ORB [ОРБ – отдельный разведывательный батальон], 46 OBRON [ОБРОН – отдельная бригада оперативного назначения], special task units nos. 8 and 12 under the command of Colonel [V.] took part in the operation on behalf of Ministry of the Interior troops.
A passport checkpoint was established on the outskirts of Sernovodsk in order to check the passports of those detained. This work was carried out by 14 officials of the Department of Execution of Punishments of the Ministry of Justice under the command of Major [Vas.], who arrived in [two special vehicles for transporting the detainees] and a bus, and by four members of operations staff of the Temporary United Alignment of Agencies and Units of the Ministry of the Interior under the command of Major [Mos.].
Pursuant to an order by Colonel [B.], 15 joint search groups were formed of servicemen from special task units nos. 8 and 12, 352 ORB, military unit no. 6783, 46 OBRON... and policemen under the command of officers from Ministry of the Interior troops.
Cover for the groups was provided by armoured Ministry of the Interior units whose identifications numbers were concealed by mud on the orders of the operation commanders.
In the morning of 2 July 2001,, one of the search groups under the command of the head of intelligence of 46 OBRON Lieutenant-Colonel [M.] detained [R.S.] Isigov and [A.A.] Isigov at 34 Pervomayskaya Street. They were both taken out of the house by subordinates of [M.] and put in APC-80 (identification no. Ch025), which was under the command of a head of platoon from military unit no. 6785 Senior Lieutenant [K.].
In the course of the preliminary investigation it has been established that in the morning of 2 July 2001 [A.A.] Isigov was held in APC-80 (identification no. Ch025) under the command of Senior Lieutenant [K.] and subsequently in a Ural military vehicle. In the afternoon [A.A.] Isigov returned to [the] APC, where he was held together with [Z.U.] Umkhanov.
During the conduct of the special operation in Sernovodsk on 2 July 2001 one of the search groups detained... [Z.U.] Umkhanov, who resided at 4 Kutalova Street, Sernovodsk. During the afternoon of 2 July 2001 he was also held in APC-80 [with the identification no.] Ch025.
After their detention by the Ministry of Interior troops on 2 July 2001 A.A. Isigov and Z.U. Umkhanov were not brought to the passport checkpoint or transferred to the police. Nor are they listed in the register of residents of Sernovodsk who were detained at the passport checkpoint.
R.S. Isigov, who was questioned as a witness, stated that some time after he and A. Isigov had been apprehended by the servicemen and placed in the APC they were transferred to a Ural vehicle in which other residents of the village had already been placed. That vehicle had taken them to the passport checkpoint where everybody except for his cousin had got out. A. Isigov had then been taken to an unknown destination. During the night between 2 and 3 July 2001 R.S. Isigov had been allowed to go home and his passport had been returned to him.
On the basis of the records of questioning of officials from the Department of Execution of Punishments of the Ministry of Justice it has been established that during the operation three residents of Sernovodsk of Chechen ethnic origin were held in [the special vehicle used for transporting detainees] without proper documents authorising their detention. The investigation has established that those persons were [Kud.], [Gan.] and [Gad.], who on 3 July 2001 were brought to the village of Assinovskaya and then transferred to the Achkhoy-Martan VOVD.
On 3 July 2001 witnesses [R.Kh.] and [V.Kh.], who resided [in] the village of Assinovskaya, saw A.A. Isigov in a military vehicle ZIL-131 in which they were also placed by Ministry of the Interior troops and taken to the passport checkpoint on the outskirts of Assinovskaya for an [identity] control.
[V.Kh.] identified Senior Lieutenant [K.] as the head of the group that had detained them on 3 July 2001 and ordered them to be put in the military vehicle ZIL-131 where an acquaintance, A. Isigov from Sernovodsk, was already held. There was also another man in the vehicle, whom the witnesses had not been able to see clearly. Both men's arms were tied.
However, neither A.A. Isigov nor Z.U. Ukhmanov are mentioned in the records pertaining to the period from 3 to 5 July 2001 in the register kept at the passport checkpoint in the village of Assinovskaya. Therefore, it is established that between 2 and 5 July 2001 A.A. Isigov and Z.U. Ukhmanov were neither held in [the special vehicles used for transporting detainees] by the Department of Execution of Punishments of the Ministry of Justice nor brought to the [premises of the] Temporary United Alignment of Agencies and Units of the Ministry of the Interior.
On 5 July 2001 three persons of Chechen ethnic origin were brought to the Temporary United Alignment of Agencies and Units of the Ministry of the Interior in Khankala. However, they were residents of the village of Assinovskaya... and were released later at the request of [the head of the village administration].
On 14 April 2003 materials concerning the kidnapping of A.A. Isigov and Z.U. Ukhmanov on 2 July 2001 by participants of the special operation were separated from criminal case no. 27031, and criminal case no. 59114 was opened...
In the course of the preliminary investigation it has been established that servicemen from military units nos. 6783 and 6785 under the command of Lieutenant Colonel [M.] and Senior Lieutenant [K.] were involved in the abduction of A.A. Isigov and Z.U. Ukhmanov. This has been confirmed by the records of questioning of witnesses [D.], [K.] and [Gar.] and by reports of identification by [M.], [K.], [Gar.] and [D.] and by witnesses and victims.
[G.], who was questioned as a witness, submitted that Ministry of the Interior troops had, in breach of orders of the head of the operation Colonel [B.], independently carried out searches and apprehended persons on 2 July 2001 in Sernovodsk. [G.] had informed Colonel [V.]of this, but he had ignored the information.
Witness [K.] submitted that during the day of 2 July 2001 he had received by radio transmitter numerous orders[from M.] to take his APC-80 [with identification no.] Ch025 to specified addresses in Sernovodsk and to accept persons apprehended by intelligence units of the Ministry of the Interior troops. [Those arrested were] subsequently to be delivered to the passport checkpoint and transferred to offices used by troops from the Alignment [of Agencies and Units] of the Ministry of the Interior without any documents [authorising their detention]. He also submitted that he had witnessed a quarrel between [M.] and a local resident which had taken place in the afternoon of 2 July 2001 relating to the order requiring the identification numbers of the armoured vehicles to be covered in mud. [M.] had ordered [K.] to cover the identification number Ch025 of the APC-80 in mud as well.
Therefore, it is established that Ministry of the Interior troops were involved in the abduction of A.A. Isigov and Z.U. Ukhmanov. Furthermore, the investigation has refuted false statements by the heads of the special operation, Colonels [B.] and [V.] [who stated that] the servicemen had not been involved in detentions during the special operation.
The lack of control by Colonel [V.] and Colonel [B.] over the conduct of the operation and their failure to perform their duties properly led to the commission of this premeditated crime by servicemen. In breach of the established order concerning the conduct of the special operation, the Ministry of the Interior troops independently carried out checks of private households and detained and searched people and took them to the passport checkpoint.
Furthermore, Colonels [V.] and [B.] concealed from the UGA command the abduction of A.A. Isigov and Z.U. Ukhmanov by Ministry of the Interior troops under the command of Lieutenant-Colonel [M.] and Senior Lieutenant [K.], who had participated in the special operation of 2 July 2001.
Since the preliminary investigation of this type of offence ... is carried out by the military prosecutor's office ... criminal case no. 59114 ... [shall be] transferred to the UGA Military Prosecutor's Office...”
53. On 25 August 2003 the UGA Military Prosecutor's Office said in reply to an enquiry from the fourth applicant that the case was being investigated by the military prosecutor's office of military unit no. 20102.
54. On 13 September 2003 the military prosecutor's office of military unit no. 20102 extended the term of the preliminary investigation until 14 October 2003. The decision described the investigative acts that had been performed, which included: the questioning of twenty-nine residents of Sernovodsk; the questioning of the first, third and fourth applicants and granting them victim status; the questioning of servicemen M., K., Kom., D. “and others” who had taken part in the operation. It was further stated that additional steps were required to complete the investigation.
55. On 23 September 2003 the military prosecutor's office of military unit no. 20102 informed the SRJI that they were in the process of investigating criminal case no. 34/33/0506-03, which had been instituted under Article 126 (2) of the Russian Criminal Code by the Prosecutor's Office of the Chechen Republic on 14 April 2003. It stated that it had received the case file in May 2003 and victim status in the proceedings had been granted to the first, third and fourth applicants. In that connection, the military prosecutor's office noted that copies of the decision granting victim status could only be served on the victims. In conclusion it was stated that the relatives of the missing men would be notified of the results of the investigation.
56. On 14 October 2003 the military prosecutor's office informed the applicants that the preliminary investigation had been suspended on 14 October 2003, in accordance with Article 208 (1) § 3 of the Russian Code of Criminal Procedure and that they could challenge that decision before a superior prosecutor or in court.
57. On 10 November 2003 the military prosecutor's office resumed the proceedings and notified the fourth applicant accordingly.
58. On 10 December 2003 it again suspended the investigation, on this occasion on account of the death of suspect M. and the fact that suspect K. had been transferred to a different region.
59. On 19 December 2003 the Leninskiy District Court of Grozny declared Zelimkhan Umkhanov a missing person as from 2 July 2001.
60. On 17 January 2005 the Moscow City Military Prosecutor's Office resumed the investigation.
61. On 25 January 2005 it suspended the investigation. The first and third applicants were notified accordingly. The decision read as follows:
“On 14 April 2003 the Prosecutor's Office of the Chechen Republic instituted criminal proceedings under Article 126 (2) of the Criminal Code against [M.], [K.] and other persons.
On 2 July 2001, during a special operation in the village of Sernovodsk of the Sunzhenskiy District of the Chechen Republic, A.A. Isigov and Z.U. Umkhanov were detained and taken away in APC no. Ch025. Their whereabouts have not been established.
On 17 January 2004 the Chief Military Prosecutor's Office transferred the criminal case to the Moscow City Military Prosecutor's Office with instructions to take additional investigative and other steps. On the same date the investigation was resumed.
In the course of the investigation it was established that APC no. Ch025 belonged to Ministry of the Interior troops [detachment] 46 OBRON, which during the special operation had been under the command of [K.], who was subordinate to [M.].
On 19 March 2003 [K.] was transferred ... to military unit no. 6702 in Moscow.
However, according to the extract from order no. 38 dated 27 February 2004 of the commander of military unit no. 6702, [K.] was no longer on the list of staff of the military unit as he had [retired].
On 16 March 2003 [M.] died in [a Ministry of the Interior hospital].
In view of the fact that all investigative measures possible in the absence of the suspects have been taken ... the preliminary investigation ... should be suspended until there is a real possibility of [K.] participating in it or until his recovery.”
62. On 4 March 2005 the military prosecutor's office of military unit no. 20102 resumed the criminal proceedings.
63. By a decision of 21 March 2005 it discontinued the criminal proceedings in case no. 34/33/0506-03. The first and the third applicants were informed accordingly. The decision stated that on 2 July 2001, during a special operation conducted by detachments of the federal armed forces and the Ministry of the Interior in the village of Sernovodsk, a group of servicemen under the command of Major M. from military unit no. 6783 had detained Apti Isigov and Zelimkhan Umkhanov and put them in APC no. Ch025 under the command of Senior Lieutenant K. from the same military unit. The two detainees had then been delivered to the passport checkpoint and transferred to officers of the Department of Execution of Punishments of the Ministry of Justice. On the same day Apti Isigov and Zelimkhan Umkhanov had been taken away from the passport checkpoint by unidentified persons in to an unknown destination and their location had remained unestablished since.
64. The decision went on to say that in the above connection on 14 April 2003 the Prosecutor's Office of the Chechen Republic had instituted criminal proceedings against M., K. and others on suspicion of their involvement in a criminal offence under Article 126 (2) (aggravated kidnapping) of the Russian Criminal Code. According to the decision, a number of witnesses had been questioned during the investigation. In particular, suspect K. had stated that during the special operation of 2 July 2001 in Sernovodsk he had been entrusted with the task of delivering those detained in the course of that operation to a passport checkpoint on the outskirts of Sernovodsk and that he had not taken them anywhere else. He had also stated that he had had no information concerning the fate of the applicants' two relatives. Witness M. and the driver of APC no. Ch025 had given similar oral evidence. The latter had also stated that there were no detainees left in the vehicle after the termination of the operation.
65. According to the decision, the investigating authorities had also questioned Colonel G., who was one of the senior officers in charge of the operation. He had stated that detachments from the Ministry of Defence, Ministry of the Interior troops, special police units from the city of Moscow and the Stavropol Region, a Ministry of the Interior mobile detachment in the Chechen Republic, officers of the Achkhoy-Martan VOVD and personnel from the Ministry of Justice had taken part in the operation. Those detained during the operation had been delivered to a passport checkpoint on the outskirts of Sernovodsk. The identity check had been carried out by Ministry of Justice personnel. Colonel G. had also referred to reports by his officers that during the operation unidentified persons, who were probably representatives of law-enforcement agencies, had disembarked from helicopters which had landed in the village. Some of these agents had been wearing masks, whilst the servicemen under his command had not worn masks that day.
66. The decision further referred to the statements of four residents of Sernovodsk, including Apti Isigov's cousin Rustam Isigov (who had been detained on 2 July 2001), all of whom had stated that they had seen the applicants' two relatives delivered to the passport checkpoint on the outskirts of Sernovodsk. The first applicant and Rustam Isigov, who were questioned during the investigation, had stated that they had seen the names of Apti Isigov and Zelimkhan Umkhanov on the list of detainees at the Achkhoy-Martan VOVD on 3 July 2001. The decision also stated that on 16 March 2003 Major M. had died and on 27 February 2004 Senior Lieutenant K. had been discharged from service.
67. It then concluded that Major M., Senior Lieutenant K. and servicemen of the federal armed forces who had participated in the special operation in Sernovodsk on 2 July 2001 had not been involved in the abduction of Apti Isigov and Zelimkhan Umkhanov and that therefore the criminal proceedings against them should be discontinued “in the absence of evidence of an offence”.
68. On 31 March 2005 the Prosecutor's Office of the Chechen Republic resumed the criminal proceedings before suspending them on 4 April 2005 on account of the failure to identify the culprits.
69. On 7 March 2007 the Prosecutor's Office of the Chechen Republic resumed the criminal proceedings. The third and the fourth applicants were informed accordingly.
70. Despite specific requests by the Court on several occasions, the Government refused to submit a copy of the entire investigation file opened into the disappearance of Apti Isigov and Zelimkhan Umkhanov on the ground that they were prohibited from doing so by Article 161 of the Code of Criminal Procedure. After the application had been declared admissible they submitted an update on the progress of the investigation and materials from the case file running to some 92 pages. The materials contained information on the conduct of the special operation in Sernovodsk, the investigative measures taken and the interim findings of the investigation.
71. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP).
72. Article 125 of the new CCP provides for the judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
73. Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.
74. Article 208 (1) § 3 lays down that the preliminary investigation must be suspended if the whereabouts of a suspect are known, but it is impossible to ensure his participation in criminal proceedings.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-58360
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF E.P. v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Marc Fischbach
TEXT: 7. The applicant has a young daughter, M.-A., who was born in 1981.
8. On 3 October 1988 the applicant and her daughter, who had lived in Greece since the latter’s birth, arrived in Rome by aeroplane. As soon as she had landed, the applicant consulted the airport medical service because her daughter had not been feeling well. The duty doctor found that the little girl was vomiting and had a temperature of 38º and, accordingly, had her admitted to hospital.
9. On 15 October 1988, the hospital psychiatric department applied to the Rome Youth Court to have M.-A. removed from her mother’s care and for an injunction on the mother visiting her until the complex medical and psychiatric state of the child, who did not speak Italian, had been clearly diagnosed. According to the doctor in charge of M.-A.’s case, the applicant had a clinical obsession with her daughter’s health. It had also been very difficult to assess the little girl’s psychological state because the applicant had constantly interfered with her treatment and medical examinations. The doctor stated lastly that the applicant had attempted to remove her daughter from the hospital in breach (he said) of recommendations already made by the court. However, there is no evidence that the court had previously been called upon to make any decision with respect to the applicant or her daughter.
10. On 22 October 1988 the Child Support Institute (Istituto provinciale per l’assistenza all’infanzia) for the province of Rome supplied the court with the information it had been able to obtain by interviewing the applicant, the hospital staff and the applicant’s brother, H.P., who had lived in Milan for a long time. According to the Institute, the evidence gathered showed that the applicant had had M.-A. hospitalised on several occasions, in particular in paediatric hospitals in Athens, Sofia and London, because she had believed the little girl to be seriously ill. The Institute also reported that during M.-A.’s last period in hospital in Athens, in the summer of 1988, the Athens Youth Court had been asked to issue an injunction forbidding the applicant to remove her daughter from the hospital and to open proceedings to have the little girl adopted. The applicant had, however, succeeded in smuggling her daughter out of the hospital and reaching Rome. The Institute stated, lastly, that M.-A. did not appear to be troubled by the separation from her mother, even though she asked for news of her.
11. In its final report, dated 25 October 1988, the psychiatric department of the Rome hospital made the following recommendations to the Rome Youth Court:
(a) that M.-A. should be kept away from her mother;
(b) that M.-A. should be discharged from hospital as soon as possible;
(c) that she should be placed with a family in which the parents had an emotionally stable relationship; and
(d) that she should be settled in a school and take part in social activities.
12. The hospital had formed the opinion that M.-A. had developed a pathological bond with her mother, a bond which met the needs of the mother rather than the child’s developmental requirements. The little girl had reacted to the separation from her mother with anxiety and depression but had shown herself capable of overcoming this by relying on other images of women. She had demonstrated great interest in other children of her age and an excellent capacity for socialisation.
13. On 26 October 1998 the Rome Youth Court ordered that M.-A. be temporarily placed with the applicant’s brother’s family.
14. In the meantime H.P. and his wife had persuaded the applicant to seek treatment and on 18 October 1988 she was admitted to the psychiatric department of a hospital in Melegnano, near Milan. According to a medical report dated 15 December 1988, she was suffering from chronic psychosis, the constitutive element of which was a form of vicarious hypochondria focused on her daughter. The applicant left the hospital on the date of the report and returned to Greece.
15. In an order of 16 February 1989 the Milan Youth Court, which had acquired jurisdiction over the case because of where the applicant’s brother’s family lived, found that M.-A.’s placement with that family could no longer continue because of a series of problems within it. The court decided, in consequence, to keep the child away from the applicant and to place her in the care of social services on the basis that she should be placed with another family as soon as possible. The court also ordered a comprehensive psychological report on the mother. Lastly, it ordered that proceedings under section 8 of Law no. 184 of 4 May 1983 (hereinafter “Law 184/83”) should be set in motion with a view to a declaration that M.-A. was available for adoption. Under that provision, “the Youth Court, may, even of its own motion, declare …. a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from his parents or the members of his family responsible for providing such support (other than in temporary cases of force majeure)”.
16. In an order of 16 March 1989, the court suspended the applicant’s parental responsibility and ordered that there should for the time being be no contact between the little girl and her mother or the other members of her family. In view of the urgency of the matter, the court did not hear submissions from State Counsel or the applicant. It based its decision primarily on a report on M.-A.’s psychological health prepared by Milan University. According to that report, M.-A. was suffering from anxiety and depression together with an almost neurotic tendency to satisfy her immediate needs. Her perception of the image of her parents was problematic: that of her mother was difficult to identify and that of her father, whom she had never met, aroused fear and remained abstract. The report’s conclusion was that the little girl was suffering from serious emotional and relationship problems due to the pathological behaviour of her mother, who had for a long time been her sole source of stimulation. Noting the potential represented by the child’s will to develop emotionally in a positive way, the report recommended that she should be placed with an emotionally stable family, be given suitable psychological help and be integrated into a stimulating socio-scholastic environment.
17. On 9 May 1989 the applicant lodged her first application with the Milan Youth Court, seeking to have the order of 16 February 1989 revoked. She argued, inter alia, that her daughter had lived her whole life in Greece and that at the time at which she had been separated from her mother she had not even been able to speak or understand Italian. The applicant also pointed out that under Article 20 of the preliminary provisions of the Italian Civil Code, as it had stood at the time, the relationship between parent and child was governed by the law of the mother’s country if the father’s identity was not known.
18. On 22 May 1989 the court ordered the social services department in charge of M.-A.’s case to give an opinion on her suitability for adoption, emphasising that the matter was urgent.
19. In the meantime, M.-A.’s father had recognised her as his daughter.
20. On 30 June 1989 the Milan Youth Court declared M.-A. available for adoption after hearing submissions from, among others, the applicant, M.-A.’s maternal grandmother and H.P. The court held that the little girl had been abandoned within the meaning of section 8 of Law no. 184/83, given the mother’s situation and the fact that it was impossible to place the child with her maternal uncle’s family. It also held that no weight could be given to the late recognition of M.-A. by her natural father, who had never seen her and who did not know her first name. Lastly, on the question of whether Greek law applied, it held, following the case-law of the Court of Cassation, that it was sufficient for a child who had been abandoned to be within Italian territory for Italian law to apply.
21. The applicant lodged a second application, submitting, inter alia, that the report of 15 December 1988 on her psychiatric state had been based on an account of her medical history reconstructed primarily from information supplied by her sister-in-law, with whom she had had no contact before coming to Italy, and who could not therefore know what her life with her daughter in Greece had been like. Moreover, the court should have taken account of the fact that the applicant had had herself voluntarily admitted to Melegnano hospital because she was afraid of being separated from her daughter. She submitted lastly that it could not be said that M.-A. had been “abandoned” since she (the applicant) received an allowance and also owned an apartment in Athens which brought in rent. The applicant asked the court to order a report on her mental health and enclosed an expert report which she had had drawn up privately and which stated that separating a child from its mother could be justified only on exceptional grounds, which did not exist in the applicant’s case, and that certain symptoms of anxiety and depression in the applicant had been caused by the separation from her daughter.
22. In the meantime, State Counsel at the Athens Youth Court had informed the Italian authorities that, contrary to the information provided by the Child Support Institute of the province of Rome on 22 October 1988, the Athens court had never taken any action concerning the applicant or her daughter.
23. The first hearing in the case was held on 29 November 1989. A second hearing was scheduled for 21 February 1990 but was apparently adjourned because of a delay in M.-A.’s case file arriving from the Rome Youth Court.
24. At a hearing on 22 March 1990 the doctor who had been in charge of the applicant’s case at Melegnano hospital stated that he had obtained his information on the applicant’s recent past directly from her but that the general information about her life had been supplied by her sister-in-law. He said that the applicant’s sister-in-law had at first thought it desirable for the applicant to stay in hospital and only later, when the doctor had asked her to think of an alternative, had suggested that the applicant should return to Greece. The doctor stated lastly that his diagnosis of chronic psychosis had been based on the information provided by the sister-in-law and acknowledged that he had never asked the applicant if she had had other children or any abortions.
25. On 23 March and 2 July 1990 the Milan Youth Court again asked the Rome Youth Court to send it the little girl’s case file, emphasising the urgency of the matter. The Rome case file was finally sent to the Milan court on 27 July 1990.
26. The final hearing took place on 31 October 1990. M.-A.’s guardian ad litem (curatore speciale) applied to have the order of 30 June 1989 set aside on the grounds that the bench had been improperly composed. That application was allowed and the order in question annulled.
27. In an order of 22 November 1990, deposited with the court registry on 1 December and served on the applicant on 12 December of the same year, the court issued a fresh declaration that M.-A. was available for adoption. The court, which had not heard evidence from the child and whose decision reflected the submissions of State Counsel, based its ruling on the same grounds as those given in the annulled decision of 30 June 1989, namely, inter alia, the medical reports of 15 December 1988 and 14 March 1989. The court also noted the fact that M.-A.’s natural father intended to marry the applicant but without attributing any significance to it.
28. The applicant, who had meanwhile applied for the adoption process to be suspended, applied for an order setting aside that decision. She submitted, first, that it slavishly followed the reasoning set out in the first order and argued in particular that the diagnosis of her mental health made in December 1988 could not provide grounds for a decision reached two years later, given that a declaration of availability for adoption should be based on the circumstances existing at the time it was made. The applicant also declared her willingness to be supervised by social services so as to ensure a better upbringing for her daughter. She asked lastly for permission to see her daughter again, on neutral ground and in the presence of social workers, for M.-A. to give evidence and for an expert report on herself to be ordered.
29. The applicant also filed a number of expert reports by psychologists in private practice. One of them, by a forensic medical examiner specialising in psychiatry, stated that a diagnosis of “chronic” psychosis would have to be based on psychotic antecedents, of which there was no evidence in the records of the applicant, a trained nurse who had always practised her profession successfully. It also stated that the applicant’s concerns about her daughter’s health were based on real evidence and were not “delusions”.
30. There was indeed evidence that a number of doctors had in the past diagnosed M.-A. as having health problems. The case file contained:
a certificate of 3 September 1986 from the medical faculty of Athens University certifying the existence of an unspecified medical problem;
another certificate from the same faculty dated 12 December 1986 stating that the little girl's immune system was deficient and recommending that she should not be vaccinated, should avoid any contact with other children who might be carrying viruses and should not be sent to school;
a certificate of 30 December 1986 from a doctor in private practice recommending regular medical and pharmaceutical treatment and a change of climate;
a certificate of 2 September 1988 from another specialist in private practice diagnosing infections of the digestive and respiratory organs and prescribing the use of oxygen at home during attacks.
31. In March 1991 two expert reports ordered by the court were completed. In May of the same year evidence was taken from M.-A.’s grandfather and the applicant.
32. On 16 October 1991 the court took evidence from the applicant and ordered a psychological report on the little girl.
33. In January, April and May 1992 a number of lay and expert witnesses gave evidence (a hearing scheduled for 15 February 1992 was adjourned because the applicant’s counsel had had a road accident).
34. A hearing on 20 May 1992 was devoted to evidence from a number of witnesses called by the applicant, who also asked for a hearing to be scheduled to enable witnesses from Greece to testify.
35. A hearing scheduled for 21 October 1992 was adjourned because of the need to replace one of the members of the bench and also because the applicant had applied for an adjournment. The following hearing, scheduled for 4 November 1992, was also adjourned because the witnesses from Greece whom the applicant had called had failed to appear. The court was consequently obliged to issue rogatory letters.
36. On 9 December 1992 the applicant, noting that the final hearing had been adjourned to April 1993, complained that, in spite of her repeated requests, no meeting between her daughter and herself had been arranged and the court had taken no measures to enable her to explore the possibility of re-establishing a relationship with her daughter but had failed to respond to her requests or refused them.
37. On 23 December 1992 the court, following State Counsel’s recommendation, dismissed that complaint.
38. In a judgment of 16 July 1993 the Milan Youth Court dismissed the applicant’s request for the declaration of availability for adoption to be set aside. The court first examined the time taken to reach a decision at first instance. It found that the length of the proceedings had been caused by the applicant’s numerous requests for lay and expert witnesses to be called, to the large number of documents she had produced and her frequent changes of legal representative, as well as by the workload of the court. It pointed out, moreover, that it had not received the additional information requested from the Athens Youth Court until the final hearing.
39. As to the merits of the case, the court began by acknowledging the extremely complex nature of the case (which it described as one of the most difficult it had ever had to determine) and the difficulty of building an accurate picture of what the applicant and her daughter’s situation in Greece had really been. It noted that when M.-A. had last been in hospital in Greece, the department where she was a patient had informed the Athens Youth Court of her situation, with a view to possibly having her removed from the applicant’s care. The applicant had then smuggled her out of the hospital and left for Rome. Indeed, while M.-A. was a patient in the hospital, the doctors had had her transferred to the child psychology department, the children in which were usually destined for adoption.
40. The court emphasised that the report which it had commissioned on M.-A. had established that she had never had any serious medical problem until 1988, a finding certified by the hospitals to which she had been admitted (in Athens, London and Rome). The report had also stated that the little girl suffered from common childhood complaints which could be treated by ordinary medical methods and did not justify her mother’s obsessive health-care measures or the continual hospitalisations which the latter had made her undergo, frequently against medical advice.
41. The court placed particular emphasis on the fact that the report of 15 October 1988 from the Rome hospital referred to aspects of the relationship between the applicant and her daughter which were extremely similar to those noted just a few days earlier, on 30 September, by the doctor from the Athens hospital, aspects which had led the latter to notify State Counsel’s Office at the Athens Youth Court. It was clear, according to the court, that the doctor in Rome had not known of the identical step taken by his Greek colleague. Those two documents demonstrated the tragic conditions in which M.-A. had lived up to that time: isolated, without contact with other children of her age and trapped in the role of patient which, in reality, was satisfying the needs of her mother, with whom she had a symbiotic relationship. The tribunal found that the circumstances of the sudden departure for Rome were equally significant: the applicant had taken only two cases, had bought the airline tickets at the airport, had abandoned her job only a few months before retirement, had abandoned her flat and had taken M.-A. out of school, which she had recently started attending for the first time. The court considered that the explanation put forward by the applicant, who had stated that she had left for Italy in order to find her father – whose address she did not know and whom she had not seen since 1980 – was not convincing. Moreover, once in Rome the applicant had again attempted to discharge her daughter from hospital without permission when criticised for the way in which she treated her– as had also happened in Greece.
42. The court went on to observe that the little girl who had arrived in Italy pale, sad, with numerous decayed teeth and difficulty in walking – despite constant treatment from her mother for health problems which were really not serious – was now a happy, healthy little girl. Furthermore, a psychological report on the child showed that during her life in Greece she had felt like a prisoner in her home, where she was constantly being given injections, put on drips and treated with other medical apparatus and was taken to hospital against her will as soon as she felt in the slightest degree unwell. The report had also been able to establish that M.-A. had been happy to be placed with another family and had distanced herself from the memory of her mother, and that the idea of entering into contact with her again aroused fears in the child.
43. The court remarked, lastly, that the applicant, who had supplied it with a minute account of all the illnesses from which her daughter was allegedly suffering, had never told it about her physical characteristics, her personality or her preferences. Nor had the applicant at any point in the proceedings demonstrated a willingness to open certain of her attitudes towards her daughter up to discussion. In the face of this unwillingness to look at herself critically, all attempts to influence the convictions of the applicant, who had never been aware of having any psychological problems, had been in vain. Even though the applicant had spared no effort in relation to her daughter – albeit misguidedly – and even though her allegations as to the behaviour of the members of her family were not completely without foundation, she had not demonstrated an ability to remedy her psychological state so as to enable her to have renewed contact with her child.
44. The applicant appealed. She submitted, inter alia, that whenever M.-A. had been hospitalised it had always been for good reason and following medical diagnosis. She also emphasised that she had always been concerned for her daughter and her daughter’s upbringing. She submitted that there were a number of witnesses to confirm that she had had a good relationship with her daughter and that the little girl had been living in a completely normal environment.
45. The Milan Court of Appeal (Youth Division) dismissed the applicant’s appeal in a judgment of 2 June 1994, deposited with the court registry on 29 July 1994. The court of appeal placed emphasis on, inter alia, the importance of the fact that a doctor from the Athens hospital had sought to inform State Counsel’s Office at the local court of the seriousness of the little girl’s situation, and on the significant circumstance that an identical step had been taken by the doctor at the Rome hospital. The court also found that the expert reports which the applicant had commissioned could not diminish the weight of those prepared for the court, given the general nature of the contents of the former and their lack of specific observations. Nor had the testimony favourable to the applicant been such as to lead to a different conclusion from that set out in the thorough expert reports ordered by the court, since that testimony had concerned only limited contact with the applicant and her daughter and therefore did not go beyond appearances. The court of appeal held, lastly, that it was unnecessary and undesirable to hear evidence from M.-A. again as she had already been questioned at length by the court-appointed expert and that examination had shown that the little girl had already made her choice from a psychological point of view.
46. The applicant appealed to the Court of Cassation on a point of law. She submitted, inter alia, that, under Law no. 184/83, an adoption order was justified only when a child had been abandoned in the sense of being deprived of all emotional or material support; the fact of taking great care of the child’s health – on the basis of medical diagnoses, even ones later revealed to be mistaken – could not be a ground for such an order. The applicant also complained of the fact that the courts had never attempted to assess the manner in which her own situation and state of health had improved, something which, combined with the fact that M.-A. was older, could have justified an attempt to re-establish contact between herself and her daughter at a later stage, before any relationship between them had been finally destroyed.
47. In a judgment of 7 June 1995, deposited with the court registry on 24 October of that year, the applicant’s appeal was dismissed. The Court of Cassation observed, first, that it had consistently held that a situation of abandonment could arise as a result not only of a lack of material and emotional support, but also of parental behaviour that prejudiced the healthy, balanced development of the child’s personality. With regard to the applicant’s complaint that the courts had separated her from her daughter without first making any recommendation, either to the applicant or social services, as to how the situation could be remedied, the Court of Cassation emphasised that such a decision was a matter for the discretion of the courts concerned, which had deemed any such attempt vain in view of the chronic nature of the applicant’s illness. The court held, lastly, that the issue as to whether or not M.-A. should have given evidence was also a matter for the discretion of the tribunals of fact, so that it had no power to review it.
48. In 1996 the applicant’s daughter was finally adopted by her foster parents. According to information from the applicant, which the respondent Government have not disputed, the applicant has succeeded in having presents delivered to her. On 17 February 1999 M.-A. came of age.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22195
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: EPÖZDEMIR v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Muazzez Epözdemir, is a Turkish national, who was born in 1973 and living in Siirt, Turkey. She is represented before the Court by Mr Güzel, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant married Nihat Epözdemir in 1988 and the couple had three children. In 1998 the applicant’s husband suffered psychological problems as a result of his financial problems and he left their matrimonial home in June 1998. Since that date the applicant has never seen her husband.
On 1 September 1998 the applicant applied to the Siirt public prosecutor with a petition and informed the prosecutor that her husband was missing. She also informed the prosecutor that her husband was suffering serious psychological problems and asked the prosecutor for assistance to find her husband.
On 16 March 1999, more than six months after having been thus informed, the Siirt prosecutor took a decision to discontinue the investigation into the disappearance of the applicant’s husband. As to his reasoning for this decision, the prosecutor stated that the applicant’s husband had not disappeared in suspicious circumstances and that no evidence of a crime had been found in the investigation.
In April 1999 the uncle of the applicant’s husband went to the registry office to obtain a copy of the family’s registry records for an unconnected purpose. He discovered that there was an entry in the records stating that the applicant’s husband had been killed in July 1998.
On 18 April 1999 the uncle went to the office of the Dargeçit public prosecutor to ask for clarification as to how the applicant’s husband had met his death and why the family had never been informed about the death despite the fact that the applicant had informed the prosecutor of her husband’s disappearance. He also asked the prosecutor where the applicant’s husband was buried. The prosecutor said that no one knew where the applicant’s husband was buried and that the authorities had no obligation to hand the body over to the family. The prosecutor further stated that on 23 July 1998, following the applicant’s husband’s death, he had sent the file to the Diyarbakır State Security Court and asked them to make a decision as to whether they wanted to prosecute the applicant’s deceased husband for membership of the PKK but on 13 August 1998 the prosecutor of the Diyarbakır State Security Court had taken a decision not to prosecute the applicant’s husband as he was dead.
The applicant subsequently obtained a copy of the report of the autopsy which had been carried out on 20 July 1998. According to the statement of a village guard which was recorded in the autopsy report, the applicant’s husband had been in a group of PKK terrorists which had been involved in an armed clash with a group of village guards on 19 July 1998. He had been shot and killed and the other members of the PKK team had managed to escape. No other persons had been injured or killed in the clash. According to the autopsy report the applicant’s husband had been killed by five bullets, possibly fired from different weapons.
On 6 May 1999 the applicant asked the Diyarbakır State Security Court for a copy of the investigation file.
On 29 June 1999 the applicant, with the assistance of her lawyer, applied to the Diyarbakır State Security Court and asked for the village guards named in the autopsy report to be prosecuted for her husband’s murder. She also stated that her husband had never been a PKK member and that he had been suffering serious psychological problems. She further stated that it was cruel that the authorities had not informed her about the killing despite the fact that according to the autopsy report her husband had had his identity card on him.
On 6 September 1999 the Diyarbakır State Security Court prosecutor decided not to prosecute the village guards. The prosecutor stated that although it was established that the applicant’s husband was killed by the village guards, it was not possible to establish which one of the four village guards had shot him.
In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Murder is classified as one of the crimes in the second category. However, this does not prevent relatives of victims from lodging criminal complaints with the authorities.
Pursuant to Article 152 of the CCP, if there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.
Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days after notification of this decision to the complainant, with the president of the Court of Assize in whose jurisdiction the public prosecutor who had taken the decision not to prosecute works (Article 165 CCP). The president of the Assize Court may request the public prosecutor to send him or her the investigation file. The president, in order to reach his decision, may also ask for the investigation to be expanded by the local Magistrates’ Court judge (Article 166 of the CCP). If the president concludes that there are insufficient grounds to initiate a prosecution, he or she may reject the appeal (Article 167 of the CCP). If the president agrees with the grounds invoked by the appellant, he or she may decide to order a prosecution. The public prosecutor is obliged to enforce the president’s decision (Article 168 of the CCP).
According to article 463 of the Penal Code, if a person is killed by two or more persons, and if it is not established at the trial which one of these persons caused the death, the prison sentence to be imposed on any of the perpetrators is not more than two-thirds and not less than half of the maximum prison sentence stipulated in the Penal Code for the offence of murder.


ITEMID: 001-120588
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: CÂRSTOIU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Dumitru Cârstoiu, is a Romanian national who was born in 1962 and lives in Bucharest. He was represented before the Court by Mr Ioan Stoicana, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Mrs Catrinel Brumar, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant and his wife, A.A.C., had a child, A., born on 1 April 2005. On 24 November 2006 the Bucharest District Court granted the couple’s divorce and the mother was granted custody of the child. The applicant was ordered to pay child support and was granted the right to have personal relations with the child and contact rights, as follows: at the child’s home on Sundays from 4 p.m. to 7 p.m. and at the applicant’s home on the first and third Saturday of the month from 10 a.m. to 4 p.m.
5. Relations between the parties continued to deteriorate, and the contacts between the applicant and his former wife became increasingly turbulent, even in the presence of the child. It therefore became difficult for the applicant to see A. without a conflict occurring between the adults involved.
6. On 28 May 2008 the applicant brought an action for custody of his child, asking, alternatively, for an extension of his contact rights. He pointed out that he had not seen his son for one and a half years, as his former wife and her family had forbidden all contact. The Bucharest District Court gave judgment on 5 November 2008. It noted that the relations between the parents had deteriorated and that the mother was obstructing all contact between the father and his son, being inflexible and omitting to communicate important information about the child to the applicant.
’s request for modification of the visiting times. It ruled:
“Dismisses the plaintiff’s requests for modification of the right to personal relations with the child, namely to accommodate the minor in [the plaintiff’s] home.”
The court ordered A.A.C. to communicate with the applicant about the child and to allow them to speak on the telephone.
7. The applicant appealed, pointing out that not only had the court dismissed his claims, but it had also restricted his contact rights by no longer allowing him to take his son to his home.
8. On 14 May 2009 the Social Services and Child Protection Directorate of the Bucharest local council (“the Child Protection Authority”), acting at the County Court’s request, visited the applicant’s home, interviewed him, and concluded that he was in terms of his psychological and material situation a fit and proper person to take care of his child.
9. On 25 May 2009 the Bucharest County Court upheld the previous judgment, on the ground that the best interests of the child required that he remain resident with his mother; it gave no answer to the applicant’s representation about the restriction on his contact rights.
10. The applicant appealed on points of law, seeking mainly to be granted custody of the child. He did not expressly complain about the restriction of contact rights perceived by him. The Bucharest Court of Appeal dismissed his claims in a final decision of 11 November 2009.
11. On 19 November 2009 the applicant sought revision of the previous decision, on the ground that by limiting his visiting rights the courts had decided ultra petita, to his disadvantage. On 29 March 2010 the Bucharest County Court dismissed his request as out of time. The applicant did not appeal against that decision.
12. According to the applicant, his subsequent attempts to see the child remained unsuccessful, as, encouraged by the decision of 5 November 2008, the mother refused to allow him to enter her home or to take the child away with him.
13. On 7 September 2009 A.A.C. lodged a request for modification of the contact schedule. On 19 September 2012 the Bucharest District Court set contact hours for the applicant, every other weekend, on Saturdays and Sundays from 5 p.m. to 8 p.m. at the child’s home. Appeal proceedings are currently pending with the Bucharest County Court.
14. During the new custody proceedings, on 3 August 2010 the applicant requested by means of an urgent procedure (ordonanţă preşedinţială) a residence order in his favour, but on 7 October 2010 the Bucharest District Court dismissed that request, on the ground that a change in residence required serious consideration, which could not be done in an expeditious procedure.
The decision was upheld by the Bucharest County Court in a final decision of 27 January 2011.
15. On 14 July 2011 the applicant lodged a new request for interim measures, seeking modification of the contact schedule. In particular, he complained that relying on the judgment of 5 November 2008, A.A.C. had since refused to allow him to take the child to his home.
16. The Bucharest District Court gave its ruling on 28 November 2011. It examined the previous decisions rendered in the matter of residence and contact rights between the parties, and evidence of the recent deterioration of the former spouses’ personal relations, as well as the written answers given by A.A.C. to the questionnaire addressed to her by the applicant through the intermediary of the court, on the manner in which she was allegedly obstructing the exercise of his contact rights. The court also took note that the applicant refused to answer the questions addressed to him by A.A.C. through the court on the manner in which he was exercising his contact rights.
17. On the basis of the evidence in the file, the court noted that custody and contact rights had been established by the decision of 24 November 2006, and that on 5 November 2008 additional requests by the applicant had been dismissed, apart from the right to obtain information about the child and to speak with him on the telephone. The court further observed that on several occasions the applicant had breached the contact schedule by trying to take the child outside the times set in the court order or by not returning the child on time to the mother’s home, and that the mother had been forced to seek help from the authorities (bailiffs and police) to get her child back. It also noted that the applicant had exhibited violent behaviour towards the mother in the presence of the child, and that on several occasions he had tried to take the child from A.A.C. by force.
Relying both on Article 8 of the Convention and on the provisions of the new Civil Code, the court stated that the right to maintain personal relations with the child could not be exercised to the detriment of the child’s best interest. The court reiterated that its role was to decide on a temporary agreement, as the merits of the residence rights were being examined by a different court. It noted the tense situation between the parents, and considered that it was not in the child’s best interest for them to have joint custody or for the applicant’s visiting rights to be extended.
It therefore dismissed the applicant’s request.
18. In a final decision of 18 April 2012 the Bucharest County Court dismissed as out of time the appeal lodged by the applicant against the decision rendered by the District Court on 28 November 2011.
19. From 2008 on, the applicant and A.A.C. lodged several criminal complaints against each other, the applicant accusing his former wife of breaching his right to maintain personal relations with his child by not allowing him contact with his son, by denigrating him in front of the child, and by repeatedly changing the child’s place of residence, while A.A.C. accused the applicant of causing a public breach of the peace when trying to visit A. in her home, and of keeping the child longer than allowed by the court order. They were both fined for their behaviour, the prosecutor and criminal courts acknowledging the bad relations between the parents and finding that both of them had tried, after the divorce, to cut the other parent off from the child, thus failing on several occasions to respect the contact schedule.
In addition, by a prosecutor’s decision of 20 July 2009 the applicant was fined for hitting O.G., who had tried to stop him from forcibly taking the child from A.A.C.’s arms on the way to his kindergarten.
20. In August 2007 the applicant sought the assistance of the Child Protection Authority to persuade the mother to comply with the court decisions granting him contact rights. A social worker visited A.A.C.’s home, assessed it as a suitable home for the child, advised the mother on the importance of allowing the child to maintain normal relations with both parents, and explained to her that the conflicts between her and her former spouse were jeopardising the child’s development.
21. In March 2008 the applicant made a new similar request. A social worker visited A.A.C. and the child in their new home and discussed the situation with the mother, drawing her attention to the child’s right to maintain relations with his father and the extended family, but also to the importance of protecting the child from any form of abuse or neglect. A.A.C. informed the Child Protection Authority that at that moment the applicant was exercising his contact rights at the child’s school, as each visit to her home ended in open conflict between the adults.
22. A.A.C. also sought the Child Protection Authority’s assistance in June 2008, when the applicant refused to return the child to her home after a visit.
23. The applicant and his former spouse continued to complain to the Child Protection Authority about various obstructions to their rights over the child. As a consequence, in April 2009 the experts of the Authority met with the parents to seek a workable solution for the exercise of their respective rights. A further meeting was held in August 2009. On both occasions the parents failed to reach a satisfactory compromise.
24. In various reports on the applicant’s case, the Child Protection Authority found that the child was developing well and that the mother was providing an excellent environment for his upbringing.
25. The former spouses sent each other several notifications, through bailiffs’ offices (on 16 May and 29 October 2008 on behalf of the applicant and on 15 September 2008 on behalf of A.A.C.), asking for the contact schedule established by court orders to be adhered to.
26. The relevant domestic legal provisions are set out in Lafargue v. Romania, no. 37284/02, §§ 64-69, 13 July 2006, and Costreie v. Romania, no. 31703/05, §§ 55-58, 13 October 2009.


ITEMID: 001-72271
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: IGNATIUS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Antero Ignatius, is a Finnish national, who was born in 1946 and lives in Espoo. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.
The applicant’s clients were suspected of, inter alia, alleged dishonesty as debtors in respect of a company that was in the process of being wound-up. However, on 22 September 1994 the public prosecutor decided not to bring charges against them. Meanwhile in early 1994, the company and the tax authorities brought a compensation claim against the applicant’s clients before the District Court (käräjäoikeus, tingsrätten) of Helsinki.
In May 1994 before the court, the applicant in his capacity as counsel presented a document according to which he had, acting for his clients, made a report to the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) on the official receiver of the above company and two tax officials, X and Y, accusing the two last-mentioned of having committed aggravated abuse of office relating to the company’s taxation.
On 10 November 1994 the District Court rejected the compensation claim. The judgment was upheld by the higher courts.
Subsequently, the official receiver and X and Y reported the applicant to the police alleging libel.
On 8 May 1996 the public prosecutor charged the applicant with three counts of libel.
On 10 March 1999 the District Court, having held an oral hearing, convicted him as charged and sentenced him to pay a fine and ordered him to pay damages and legal costs.
The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten). On 17 and 18 January 2001 the court held an oral hearing.
On 15 November 2001 the court rejected the charges concerning the alleged libel of the wound-up company’s official receiver, reduced the sentence to a fine amounting to FIM 3,480 (EUR 585) and reduced the damages to FIM 20,000 (EUR 3,363). The applicant was ordered to pay the legal costs of X and Y amounting to FIM 53,686 (EUR 9,029).
The court thus upheld the conviction insofar as the District Court had found the applicant guilty of having libelled the tax officials by accusing X of having brought considerable pressure on the tax inspection unit with a view to obtaining an unlawful tax assessment and to furthering the commission by the official receiver of certain unlawful acts, for instance, as regards the obtaining of an unreasonably large fee from the company. The applicant was found to have libelled Y by accusing him of having furthered the commission by the official receiver and X of some unlawful acts. As to the alleged libel of the official receiver, the court found that the applicant had had well-founded reasons to make the allegations in question.
The court noted that the public interest required that there be a wide freedom to express criticism in judicial proceedings. It had been the applicant’s fundamental right to express criticism on behalf of his clients in the above proceedings. As to the tax officials in question, the court considered that in their capacity as civil servants they were expected to tolerate criticism directed at their exercise of powers. Nonetheless, the case should be assessed in a different manner when it was alleged that a civil servant had committed an aggravated offence, which was a particularly contemptible offence and one which could lead to a severe sentence and dismissal. The court also noted that the more serious an allegation, the more care must be exercised to ensure the accuracy of it. In the present case, the applicant had not put forward any grounds for his allegations against X and Y.
On 16 May 2002 the Supreme Court refused the applicant leave to appeal.
A person who spreads false information or a false insinuation about another person conducive to causing damage or suffering to that person, or subjecting that person to contempt, or who makes a derogatory comment about another otherwise than in a manner referred to above shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months. Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to above (section 9 (531/2000) of the Penal Code).