ITEMID: 001-88667
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LYANOVA AND ALIYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 2 (procedural aspect);No violations of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;No violation of Art. 13+3;Failure to comply with Art. 38-1-a;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1956 and 1958 respectively. The first applicant lives in the town of Karabulak, the Republic of Ingushetia, the second applicant lives in Grozny.
7. The first applicant used to live in Grozny, at 10 Lyapidevskogo Street. She has six children, three sons and three daughters. Her son Murad Lyanov was born in 1983.
8. The second applicant lives in Grozny, at 2 S. Dudayev Boulevard, apt. 51. Her son Islam Dombayev was born in 1984. She has two other sons born in 1980 and 1997. Before the hostilities she worked for the Ministry of Defence, as did her husband and several close relatives. In 1996 they were forced to leave Chechnya because of separatist attacks on their family, and lived in Ingushetia for several years as internally displaced persons. They returned to Grozny on 29 May 2000.
9. On 28 June 2000 the first applicant and her son Murad Lyanov were at home. That evening two friends of Murad, T. (born in 1982) and Islam Dombayev, came to their house. Murad asked the applicant’s permission to go with them and to spend the night at T.’s home. The applicant agreed because she knew the boys, who lived nearby.
10. The second applicant submitted that her son Islam Dombayev, the first applicant’s son Murad Lyanov and T. had been good friends. The second applicant’s son had a guitar and they often played it in the courtyard of the applicant’s house. They did not normally go out on the street after 9 p.m. because of the curfew imposed by the military. On 28 June 2000 at about 11 p.m. they had gone to T.’s house at 53 Sadovaya Street (also referred to as Pervaya Sadovaya Street), adjacent to their street, to spend the night there. Islam Dombayev had his guitar with him.
11. On 29 June 2000 in the morning the first applicant went to the passport desk of the Leninskiy District Department of the Interior (VOVD) in order to obtain a new passport for her son. She returned home at about 3 p.m. and her daughter told her that Murad had not come home. The first applicant went to see T.’s mother, who told her that her son was not at home either.
12. On 29 June 2000 in the morning the second applicant, worried about her son, asked a group of servicemen in Sadovaya Street if they had seen three young men. The soldiers replied that they had detained them and sent them to Khankala, the main Russian military base in Chechnya. The women found the commander of the unit in an armoured personnel carrier (APC), but he denied knowing anything about the three teenagers.
13. On 30 June 2000 the applicants and T.’s mother went to the Leninskiy VOVD and submitted an application concerning the alleged detention of their sons. On the same day an investigator from that office came to T.’s house and questioned the three women.
14. According to the applicants, in the first few days after the three boys’ disappearance it became clear from the soldiers’ answers that the boys had been detained late at night on 28 June 2000 by a joint group of servicemen of the special police forces (OMON) from Pskov and special mission brigade no. 8 of Interior Ministry troops (referred to below as Obron-8) stationed in the district. The soldiers had detained the teenagers during a night raid, brought them to the headquarters of Obron-8 and the next morning had taken them to the Khankala military base.
15. The applicants submitted a copy of the report dated 29 June 2000 sent by the commander of the Pskov OMON unit, Yu. G., to the head of the Leninskiy VOVD. It read as follows:
“I can report that during the night of 28 to 29 June 2000, [a group of servicemen], together with a reconnaissance unit of Obron-8, staged an ambush in Sadovaya Street, where explosive devices had previously been found, in order to prevent the planting of mines and explosive devices.
At about 11.30 p.m. the group detained three persons covertly moving in the area. A search revealed a number of components and parts of explosive devices, notably:
a warhead from a 152-mm shell with an opening for a detonator;
a round for a portable anti-tank gun, also prepared as an explosive device;
some wires.
One of the detainees attempted to flee. The detainees had no identity documents in their possession. They were taken to Obron-8 headquarters where they were brought to the special [counter-intelligence] unit for questioning. One of the detainees resembled the description of a rebel fighter (“boyevik”) who had attacked roadblock no. 17 on 24 June 2000 using a flamethrower. ... On the morning of 29 June 2000 the individuals concerned were taken to “Pamir” by the servicemen of Obron-8. No shots were fired during their arrest.”
16. On 1 July 2000 an investigator from the Leninskiy VOVD brought the second applicant her son’s guitar. He told her it had come from the commander of Obron-8, G., who alleged that his servicemen had found it in the street.
17. On 8 July 2000 the same investigator told the second applicant that the three boys had been transferred to Khankala and that the Main Intelligence Service (GRU) of the army was in charge of them. He also allegedly told her that he could do nothing in the circumstances and that she should instead contact the military commander of Grozny.
18. The applicants have had no news of their sons since this time.
19. Immediately after the detention of their sons, the applicants and other members of their families started to search for them. On numerous occasions, both in person and in writing, they applied to the prosecutors at various levels, the Ministry of the Interior, the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, military commanders, the administrative authorities, the media and public figures.
20. The applicants personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the north Caucasian area. The second applicant also went to look at the bodies discovered in a mass burial site in February 2001 in the village of Dachnoye, near the Khankala military base.
21. Besides personal visits, the applicants sent numerous letters to the prosecutors and other authorities, in which they stated the facts of their sons’ arrest and asked for assistance and details of the investigation. The applicants submitted copies of letters they had written, all conforming to roughly the same model.
22. The applicants received very little substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters stating that their requests had been forwarded to various prosecutors’ offices. The summary below is based on the letters retained by the applicants and the replies they received from the authorities.
23. On 10 August 2000 both applicants were informed by the Grozny Prosecutor’s Office that it had opened a criminal investigation under Article 126 of the Criminal Code into the abduction of their sons.
24. On 18 August 2000 an investigator from the Grozny Prosecutor’s Office informed the applicants that a criminal investigation file (no. 12113) had been opened following their applications. The investigation had established that the three teenagers had been detained by officers from the Pskov OMON and Obron-8 during an ambush in Sadovaya Street and that they had been taken to Obron-8 headquarters the same night. The servicemen from Obron-8 had refused to appear when summoned and could not be questioned; the whereabouts of the three teenagers therefore remained unknown. A special request had been forwarded to the military prosecutor’s office.
25. On 23 August 2000 a lawyer from the NGO Memorial wrote to the Prosecutor General on the first applicant’s behalf and asked him to ensure that a proper investigation would be conducted into the disappearance of the three minors.
26. On 29 August 2000 an investigator from the Grozny Prosecutor’s Office requested the military prosecutor of military unit no. 20102, based in Khankala, to comply with the request of 9 August 2000 and to ensure that G., the commander of Obron-8, and the other servicemen who had detained three minors in Sadovaya Street on 28 June 2000 would be questioned.
27. On 28 September 2000 the Military Prosecutor’s Office for the north Caucasian area instructed the military prosecutor of military unit no. 20102 to “carefully verify the allegations of involvement by servicemen of Obron-8 in the boys’ disappearance”.
28. On 14 November 2000 the military prosecutor of military unit no. 20102 replied to the first applicant that there were no reasons to conclude that servicemen stationed in the Leninskiy district of Grozny had been involved in the detention of her son and two other men. The lists of detainees maintained by the military prosecutors, the Federal Security Service (FSB), the Ministry of the Interior and the Ministry of Justice contained no reference to the three missing persons. The contingent of Obron-8 (military unit no. 3723) had returned to their home station on expiry of their period of service in Chechnya, and measures were being taken to establish their whereabouts and to question them about the circumstances of the alleged detention.
29. On 9 December 2000 a lawyer from the NGO Memorial wrote to the Chief Military Prosecutor on the first applicant’s behalf. She referred to the latest letter from the military prosecutor and asked why the requests to question the servicemen of Obron-8 had not been acted upon while they were still in Chechnya. The letter asked the Chief Military Prosecutor to intervene and to ensure that a proper investigation would be carried out.
30. On 9 January 2001 the office of the Chief Military Prosecutor replied to Memorial, stating that the investigation was being carried out by the local prosecutor in Chechnya, to whom all requests should be forwarded. The involvement of military servicemen in the disappearance had not been established, and the military prosecutors therefore had no responsibility for the case.
31. On 12 February 2001 the military prosecutor of military unit no. 20102 informed the second applicant that his office was in charge of investigating the criminal case concerning the abduction of her son and two others. He stated that she would be informed of any progress in the investigation.
32. On 19 March 2001 the military prosecutor of military unit no. 20102 forwarded the first applicant’s complaint to the Grozny Prosecutor’s Office and asked that it be included in case file no. 14/33/0065-01, which had been forwarded to that office on 7 March 2001. The letter further stated that the investigation had established no connection between military servicemen and the abduction of the three men, and had been closed under Article 5 § 2 of the Code of Criminal Procedure [absence of corpus delicti].
33. At the end of 2001 and beginning of 2002 the second applicant wrote to the Russian President, the Prosecutor General, members of the State Duma, other public figures and the media. She stated the facts of her son’s detention and disappearance and commented on the lack of progress in the investigation despite the fact that the names and positions of the persons who had detained the three minors were known. She listed the authorities she had previously applied to with her requests. She referred to her family’s ties with the Ministry of Defence and explained that her son could have had no links with the “Wahhabists”, or illegal armed groups. She asked them to help her establish her son’s whereabouts.
34. On 1 June 2002 the Prosecutor’s Office of the Chechen Republic replied to the second applicant. The letter stated that following her request, which had been forwarded by the Security Council, criminal case no. 12113 had been re-examined. The investigation in that case had been twice suspended under Article 195 § 3 of the Code of Criminal Procedure for failure to identify the culprits. Each time these decisions had been quashed by a supervising prosecutor. In November 2000 the investigation had concluded that the kidnapping of Islam Dombayev, Murad Lyanov and [T.] had been committed by the servicemen of Obron-8, and the case had been transferred to the military prosecutors. On 6 March 2001 a military investigator had closed the proceedings on the ground that no servicemen had been involved in the kidnapping, and on 7 March 2001 the file had been transferred back to the Grozny Prosecutor’s Office. The letter further stated that the submissions of Yu. G. and G., commanders of the OMON unit and of Obron-8 respectively, had contained substantial discrepancies which the investigation had failed to clarify “for a number of objective reasons”. On 29 May 2002 the decision of 28 April 2001 by the investigator from the Grozny Prosecutor’s Office to suspend the investigation had been quashed and the case file had been forwarded to that office for further investigation.
35. On 7 June 2002 the second applicant received a similar reply signed by the acting Prosecutor of the Chechen Republic, who added that he would personally supervise progress in the investigation.
36. On 8 August 2000 a criminal investigation (no. 12113) was instituted into the disappearance of the applicants’ sons on the night of 28-29 June 2000.
37. The Government submitted that on 22 August 2000 the second applicant had been granted the status of victim in the criminal proceedings; on 28 March 2001 the first applicant had been granted the same status. The second applicant had been questioned by an investigator from the prosecutor’s office on 22 August 2000 and 25 March 2005. She stated that on the night of 28 June 2000 her son, together with the first applicant’s son, had gone to the house of their friend T., who lived at 53 Pervaya Sadovaya Street in Grozny, where they had intended to spend the night. They had not returned home the next day. The first applicant and T.’s mother made similar statements.
38. On 30 June 2000 an inspection carried out at 53 Pervaya Sadovaya Street showed no evidence that a crime had been committed.
39. On 1 July 2000 the serviceman who had the second applicant’s son’s guitar submitted that he had found it in Pervaya Sadovaya Street on the night of 29 June 2000.
40. On 6 March 2001 the military prosecutor’s office of the United Group Alignment (UGA) terminated the criminal proceedings against the officials of the Ministry of Defence on account of the lack of a corpus delicti.
41. According to the Government’s submissions made prior to the Court’s decision as to the admissibility of the present application, T.’s neighbours E. and A. and more than twenty officials of the Ministry of the Interior and the Ministry of Defence who had been serving in Grozny during the relevant period were questioned in the course of the investigation. They had no information concerning the whereabouts of the applicants’ sons. Although investigative steps had been taken, no other witnesses had been found. The records of the units of the Ministry of Defence deployed in Grozny during the relevant period had been examined but no information had been found concerning the arrest of the applicants’ sons and T. The investigative authorities had also obtained information from other State bodies concerning special operations conducted in Chechnya and had taken other measures in order to establish the applicants’ sons’ whereabouts. Relevant inquiries had been made on 9, 12 and 29 August 2000, 8 and 25 October 2000, 21 June 2002, 1 and 31 July 2002 and 28 March 2005. However, it had not been established that representatives of the State authorities had been involved in the abduction of the applicants’ sons and T. They had not been held in detention facilities either.
42. The following information concerning the progress of the investigation was provided by the Government in their submissions following the Court’s decision as to the admissibility of the present application.
43. The preliminary investigation in criminal case no. 12113 had been suspended a number of times, since the persons to be charged with the offence had not been identified. The applicants had been informed of all the decisions taken. After a number of suspensions and re-openings, the criminal investigation was resumed on 14 February 2005 by the Prosecutor’s Office of the Leninskiy District of Grozny (the Leninskiy District Prosecutor’s Office).
44. On 17 February 2005 the investigative authorities questioned investigator M., who submitted that in the night of 28-29 June 2000 T., Islam Dombayev and Murad Lyanov had disappeared and their relatives had filed an application on that subject with the Grozny Prosecutor’s Office. Officers of the OMON unit presented documents to the effect that a joint group of the Pskov OMON and intelligence unit of Obron-8 had detained three persons who had not had their identification papers with them. The persons had been detained when installing a makeshift explosive device in Sadovaya Street and taken to the premises of Obron-8 in Grozny. There was no information to confirm that the persons detained had been T., Islam Dombayev and Murad Lyanov. In order to establish the whereabouts of the applicants’ sons and T., M. had visited Khankala on several occasions and had met with various officials.
45. On 4 March 2005 the head of the FSB of the Chechen Republic replied that there was no information concerning T., Islam Dombayev and Murad Lyanov in either the register or the archives of the penitentiary system. Similar information was submitted by the penitentiary authorities of the Republic of Kabardino-Balkaria.
46. On 5 March 2005 the deputy head of the FSB of the Chechen Republic replied that the FSB had not conducted any operations aimed at detention of the applicants’ sons and T.
47. On 9 March 2005 the head of the Urus-Martan District Office of the Interior (ROVD) replied that he had no information about either the institution of criminal or administrative proceedings against T., Islam Dombayev and Murad Lyanov or their detention in the temporary detention centre of the ROVD.
48. On 17 March 2005 the head of criminal police of the Shatoy ROVD submitted that the three disappeared persons had not been apprehended or placed in the temporary detention centre of the ROVD.
49. On unspecified dates the heads of the penitentiary authorities of the Krasnodar Region, the Perm Region, the Volgograd Region and the Republic of Ingushetia replied that T., Islam Dombayev and Murad Lyanov were not registered in detention facilities. According to replies from the prosecuting authorities of the Chechen Republic at various levels, criminal proceedings had not been instituted against the applicants’ sons and T.
50. On 21 March 2005 the Leninskiy District Prosecutor’s Office suspended the investigation on account of the failure to identify persons to be charged with the offence.
51. On 23 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the above decision and resumed the investigation.
52. On 28 May 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly.
53. On 11 June 2005 the deputy prosecutor of the Leninskiy District Prosecutor’s Office quashed the above decision and resumed the investigation.
54. On 13 June 2005 the investigating authorities questioned S., who submitted that from May to September 2000 he had been seconded to the Chechen Republic and did not remember that the three men had been arrested. It is not clear who S. was.
55. On 27 June 2005 the senior investigator of the Pskov Prosecutor’s Office questioned as a witness an officer of the Pskov OMON. The officer submitted that the order for the joint operation of the Pskov OMON and Obron-8 in Sadovaya Street had been given by the commander of the joint unit. Four officers of Obron-8 had taken part in the operation, however, he could not remember their names. In the course of the operation they had arrested three men. Following the instructions of the officer on duty they had taken them to Obron-8 headquarters. They had been received by the head of intelligence of Obron-8 in the rank of captain. The witness together with other officers of the OMON had spent the night at Obron-8 headquarters. In the morning the apprehended persons had been taken to Khankala.
56. On 14 July 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly.
57. On 1 November 2005 the Leninskiy District Prosecutor’s Office resumed the investigation. The applicants were notified accordingly.
58. On an unspecified date the Information Centre of the Ministry of the Interior notified the investigating authorities that it had no information concerning the whereabouts of T., Islam Dombayev and Murad Lyanov.
59. On 7 November 2005 the investigator questioned the mother of T., who submitted that after her son’s abduction she had spoken to the Obron privates, who had told her that they had apprehended three men who had been transferred to Khankala. K., the commander of the search group, had also said that the arrested persons had been held in Khankala.
60. On 8 November 2005 the investigator questioned Ms A., who submitted that she had known the Dombayev family since 1995. She had learned about Islam Dombayev’s disappearance on the next day. She did not know who could have abducted him.
61. On 14 November 2005 the investigator questioned Ms N., who submitted that in the summer of 2000 she had heard screaming outside and had gone out into the street. There she had learned from her neighbours about the abduction of Islam Dombayev and his friends.
62. On 16 November 2005 the investigator questioned Mr B., who made submissions similar to those of Ms N.
63. On 25 November 2005 the investigator questioned Ms Z., who submitted that in the summer of 2000 she had learned from the second applicant that her son had been abducted together with two other boys.
64. On an unspecified date an investigator of the Karabulak Prosecutor’s Office questioned the first applicant, who submitted that in the summer of 2000 she had returned to Grozny together with her son Murad Lyanov to obtain a new passport. In the evening of 28 June 2000 T. and Islam Dombayev had come to their home and later had left for a walk together with her son. On the next day she had learned that her son had been abducted by unknown persons in camouflage uniforms.
65. On 16 December 2005 an investigator of the Sverdlovsk Prosecutor’s Office questioned K., who submitted that since 5 May 2000 he had been in charge of the search for missing persons. Officers of the Pskov OMON had told him then that they had arrested three young men and transferred them to officers of Obron-8. After his repeated visits to the premises of Obron-8, a guitar was handed over to him. He had passed it on to the second applicant.
66. On an unspecified date an investigator of the Prosecutor’s Office of the Mozdok District of Alania questioned P., who submitted that from June to August 2000 he had been seconded to 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] located at Usanova Street in Mozdok. He had no information concerning the abduction of T., Islam Dombayev and Murad Lyanov in the night of 28-29 June 2000.
67. On 1 December 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly.
68. On 15 August 2007 the deputy prosecutor of the Leninskiy District of Grozny quashed the above decision and resumed the investigation. The applicants and T.’s mother were informed accordingly.
69. According to the Government, the possible involvement of servicemen of Obron-8 in the abduction of T., Islam Dombayev and Murad Lyanov had been investigated. To that end, the case file had been sent to the military prosecutor’s office. However, neither the victims nor the witnesses questioned had stated from whom exactly they had learned that T., Islam Dombayev and Murad Lyanov had been “apprehended”. Therefore, it appeared impossible to establish the exact circumstances of the event. Officers of the Pskov OMON confirmed their previous statements that on 28-29 June 2000, together with servicemen of Obron-8, they had apprehended three young men aged between 15 and 20 in Sadovaya Street in Grozny and had taken them to Obron-8 headquarters. However, it had not been established by the investigation that the three men were the applicants’ sons and T. Since the involvement of servicemen in the abduction of T., Islam Dombayev and Murad Lyanov had not been confirmed, the investigation was suspended. The applicants and T.’s mother were informed accordingly, however, they did not appeal against the suspension.
70. According to the first applicant, following her request for information on the progress of the investigation of 13 August 2007, on 15 August 2007 the prosecutor of the Leninskiy District of Grozny unofficially provided her with a print-out of the outline of the investigative measures on five pages, the relevant parts of which read as follows:
“Criminal case no. 12113 was opened on 8 August 2000... into abduction of [T.], M. A. Lyanov and I. K. Dombayev in the night of 28-29 June 2000 around 12 midnight in First Sadovaya Street in Grozny... [by] unidentified persons in camouflage uniform...
Commander of [the Pskov OMON], [P. I.], who was questioned on this subject, submitted that on 28 June 2000 at around 9 p.m. servicemen of Obron-8 arrived at their location and informed them about the need to lie in ambush in Sadovaya Street where members of illegal armed groups used to install explosive devices... most frequently. ...[E]ight servicemen proceeded to the street indicated. There they split into two groups of four, concealed themselves and set up an ambush on both sides of the street... In a while a group of three young men passed by. Approximately one minute later the second group informed them by the portable radio transmitter that they had apprehended those young men. When [P. I.] approached them with his group, he noticed the three young men lying on the ground with an artillery shell... and a wire reel near them. After the arrest they had taken the young men to the Obron-8 headquarters and transferred [them] to the head of intelligence of Obron-8 whose name was Volodya. The latter told them that he had reported the arrest to Khankala. The apprehended [persons] did not have identification papers with them. [P. I.] had no information about their religious affiliations.
Similar statements were made by officers of [the Pskov OMON] [V.], [A.] and [K-v].
According to the report of [Yu. G.], the commander of [the Pskov OMON], ... in the night of 29 June 2000 officers of [the Pskov OMON] together with Obron-8 in the course of a special operation in Sadovaya Street apprehended three persons who had with them the components of an explosive device. They took the persons to Obron-8 headquarters and transferred [them] to a special unit. In the morning of 29 June 2000 [officers of] Obron-8 took [the apprehended persons] to “Pamir”... From the report of the head of Obron-8 headquarters [Yu. G.] knew that the apprehended persons had been transferred to Khankala.
The head of Obron-8 headquarters, [Kal-v.], when questioned denied that his servicemen had apprehended and sent to Khankala anybody in the night of 29 June 2000. [He also denied that] an ambush in Sadovaya Street had been set up that night.
[The second applicant submitted that]... official of the Leninskiy VOVD [temporary office of the interior], [K.], had told them that their sons had been apprehended by servicemen of Obron-8 and taken to Khankala. [K.] also handed over to them the guitar of I. Dombayev which, according to him, had been found at Obron-8 headquarters.
[T.’s mother and the first applicant] made similar statements.
[K.] submitted that on 30 June 2000 he formed a part of ... a group that searched for Dombayev and others who had disappeared in the night of 29 June 2000. ...[T]hey established that on 29 June 2000 Islam Dombayev, Murad Lyanov and [T.] had been detained by officers of [the Pskov OMON] and transferred to servicemen of Obron-8. In the beginning of July [K.] seized from private [O.] a guitar which belonged to I. Dombayev and handed it over to his mother. The latter recognised her son’s guitar. Officers of the OMON explained to [K.] that the young men had been apprehended in Sadovaya Street [because they had an] explosive device. The servicemen refused to provide any explanations in this respect.
Officers of [the Pskov OMON] [A.], [K-v], [V.] and [G-v] confirmed that together with servicemen of... Obron-8 in the night of 28-29 June 2000 they had apprehended three [persons] and taken them to Obron-8 headquarters. They had not known the personal particulars [of the persons concerned], and the apprehended persons had not had their identification papers with them. However, while they were being questioned witness [K-v] noted the surnames of the apprehended persons – [T.], Lyanov and Dombayev. They had learned from the servicemen that the apprehended persons had had an explosive device. They had provided explanations concerning the circumstances of the arrest of three persons in the night of 29 June 2000 to the Grozny Prosecutor’s Office...
Witness [G.] (Volodya)... submitted that... since 1998 he had been serving in military unit no. 3723... From June to August 2000 he had been seconded to Grozny as a head of [intelligence unit]. Their unit, [Obron-8] had been located not far from Sadovaya Street... Because of the nature of his post he had always remained at headquarters, had not planned any special operations, and had not previously heard the surnames Dombayev, Lyanov and [T.]...
Taking into account the evidence obtained and having sufficient grounds to believe that servicemen of Obron-8 had been involved in the abduction of Dombayev, [T.] and Lyanov, on 5 November 2000 the Prosecutor’s Office of the Chechen Republic transferred the present criminal case to the Prosecutor’s Office of military unit no. 20102 for further investigation.
The investigation conducted by the military prosecutor’s office established the following.
According to the inspection report of the register of military actions of Obron-8... the entries of 27, 28, 29 and 30 June 2000 contained no information that any persons had been arrested...
According to the extract of the register of military actions of military unit no. 3723 on _8.06 (the year is not indicated, the digit before 8 is missing...), in the course of [an intelligence operation] in Sadovaya Street the mine clearing group had found a mine. The mine was destroyed. A joint operation on passport check had been conducted between 5 and 7 [it is not clear a.m. or p.m.]... Three persons had been apprehended upon suspicion of participation in an illegal armed group.
[Eight servicemen of military unit no. 3723, including [G.], submitted that they did not know anything about the arrest of Dombayev, Lyanov and [T.]. Two of the servicemen added that it had not been within the responsibilities of their unit to effect arrests and that they had not conducted any joint operations with OMON.]
[B.], the commandant of military unit no. 3723’s headquarters submitted that from May to August 2000 he had served as a commander of the military operational reserve of military unit no. 3723 in Grozny [VOrez]. The responsibilities of [VOrez] had included accompanying officials of the Ministry of the Interior during passport checks and “sweeping” operations [зачистка]. Effecting arrests had not been within their responsibilities. Every special operation had been organised according to a military instruction from the headquarters in Khankala. The instructions had been kept at [VOrez’s archives]. Results of the special operations had been reflected in the register of military actions... Not less than fifteen servicemen had participated in every such operation together with a similar number of officials of the Ministry of the Interior. His servicemen had never taken part in an ambush... [The Pskov OMON] had been located not far from them. [However, [B.’s]] servicemen had never interacted with it. He had never met [Yu. G.]. No OMON officers had ever spent a night at his unit’s headquarters. In the end of June 2000 an investigator of the Grozny Prosecutor’s Office of Chechen origin and a woman of Chechen origin had arrived at his unit. They had alleged that his servicemen had apprehended three young men on 28 June 2000, which had been proved by a guitar [at unit headquarters]. He offered him access to all the premises of the unit, but they had refused [to examine them]. However, the investigator had seized a guitar from a serviceman [B. did not remember his surname], which, according to the woman, had belonged to her son. According to the serviceman, he had found this guitar in the street in the course of engineering intelligence... [B.’s] servicemen had not arrested anybody with an explosive device on 28-29 June 2000 and had not taken anybody to their headquarters either... After [B.] had seen the report of the commander of [the Pskov OMON] [Yu. G.] concerning the arrest together with servicemen of Obron-8 of three persons in the night of 29 June 2000, [B.] said that the information contained in the report was not accurate.
The inspection report of the register of encrypted telegrams from [VOrez] of military unit no. 3723 contained no information concerning the arrest of three persons by servicemen on 28-29 June 2000 ...
Following the results of the preliminary investigation, on 6 March 2001 the military prosecutor’s office suspended the present criminal case... in the part related to involvement in the offence of servicemen of [VOrez] of military unit no. 3723 and on 7 March 2001 transferred the case to the Prosecutor’s Office of the Chechen Republic.
In the course of the additional investigation the Grozny Prosecutor’s Office instructed the Prosecutor’s Office of the Pskov Region to take additional investigative steps with officers of [the Pskov OMON], who had apprehended the applicants’ sons, so as to clarify discrepancies between [their] statements and those of Obron-8 servicemen.
Witnesses [P. I.], [Yu. G.] and [D. I.] confirmed their previous statements as well as the fact that on 28-29 June 2000 in Sadovaya Street in Grozny they had arrested together with servicemen of Obron-8 three young men of [Chechen] origin aged between 15 and 20. [Yu. G] also confirmed the contents of his report concerning the arrest in the course of [the operation described].
[Neither the Ministry of the Interior nor other law-enforcement agencies] had any information on the applicants’ sons whereabouts. Requests had also been sent to [detention facilities and law-enforcement agencies of other regions], however, it appeared impossible to establish the whereabouts of the disappeared persons. The investigating authorities had no information that the applicants had visited [detention facilities] in the north Caucasian area.
The preliminary investigation in the criminal case had been suspended on numerous occasions, most recently on 26 March 2002, on account of the failure to identify persons to be charged with the offence...
On 14 February 2005 the decision to suspend the investigation... was quashed, the investigation was resumed. ...[A]t present the investigation is under way.”
71. On 19 June 2003 the second applicant filed a complaint with the Leninskiy District Court of Grozny concerning the inactivity of the Grozny Prosecutor’s Office and the prosecutor’s office of military unit no. 20102.
72. On 22 July 2003 the Leninskiy District Court of Grozny dismissed the complaint. No appeal was lodged against this decision and on 4 August 2003 it entered into force. According to the second applicant, she was not provided with a copy of the decision and had therefore been unable to lodge an appeal.
73. Despite specific requests made by the Court on several occasions, the Government did not submit copies of any documents from the file in criminal case no. 12113. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and the personal particulars of the witnesses], and without the right to make copies of the case file and transmit it to others”.
74. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
5
NON_VIOLATED_ARTICLES: 13
3


ITEMID: 001-94644
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KULIŚ AND RÓŻYCKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants were born in 1956 and 1946 respectively. The first applicant lives in Łόdź.
6. The first applicant owns a publishing house named “Westa Druk” which publishes a weekly magazine, Angora, and its supplement for children, Angorka. The second applicant was the editor in chief of the magazine.
7. On 16 May 1999 Angorka published an article referring to an advertising campaign by a company, Star Foods, for its potato crisps. On the first page of the magazine there was a cartoon showing a boy holding a packet, with the name “Star Foods” on it, saying to Reksio – a little dog, a popular cartoon character for children – “Don’t worry! I would be a murderer too if I ate this muck!” (“Nie martw się – też bym był mordercą, gdybym jadł to świństwo!”). Above the cartoon, there was a large heading reading “Polish children shocked by crisps advertisement, ‘Reksio is a murderer’ (Reksio to morderca)”.
8. The article, printed on the second page of the magazine, read as follows:
“Recently in Star Foods crisps [packets] stickers appeared which terrified parents and their children: ‘Reksio is a murderer’.
In the [packets of] crisps from the company Star Foods, which are stocked on the shelves of almost all shops, stickers appeared recently which terrified parents and children. In the packets there are little pieces of paper bearing the slogan: “Reksio is a murderer”.
Before the stickers appeared in the packets of crisps the company ordered a market study. One of the advertising agencies proposed slogans and sayings used every day by teenagers. Children, however, are terrified by those slogans.
...
Prepared following ‘the Super Express’”
9. The above quoted article on the second page was accompanied by a small cartoon featuring two cats holding a packet with the word “crisps” on it and the dog Reksio in the background. One cat holds a piece of paper with the slogan “Reksio murderer” apparently taken out from the packet and says to the second cat - “surely, he is sometimes unpleasant, but a murderer?!” (“Owszem, nieraz bywa przykry, ale żeby od razu mordercą?!”).
10. On 2 November 1999 Star Foods (“the plaintiff”) lodged against both applicants a civil claim for protection of personal rights. The company sought an order requiring the defendants to publish an apology in Angora and Angorka for publishing a cartoon discrediting, without any justification, Star Foods products. They further sought reimbursement of their legal costs and payment by the applicants of 10,000 Polish zlotys (PLN) to a charity.
11. On 28 May 2001 the Łόdź Regional Court (Sąd Okręgowy) found for the plaintiff. The court ordered the applicants to publish apologies as sought in the statement of claim and to pay PLN 10,000 to a charity. The applicants were also ordered to pay the plaintiffs PLN 11,500 to reimburse the costs of the proceedings. The court considered that the cartoon in question had breached the personal rights of the plaintiff and discredited the products of the company. The words used by the applicants had an unambiguous meaning relating to disgust and repulsion and were strongly pejorative. Accordingly, the court concluded that the applicants had overstepped the threshold of permissible criticism, in particular in a magazine aimed at children. The court dismissed the applicants’ arguments that the cartoon had aimed to criticise the advertising campaign run by Star Foods and not their product. It considered that such an attack on the plaintiff’s personal rights could not have been justified even by the argument that their campaign was ill-considered.
12. The applicants appealed against the judgment.
13. On 21 March 2002 the Łόdź Court of Appeal dismissed the appeal and ordered the applicants to pay the plaintiffs PLN 2,500 to reimburse the costs of the appellate proceedings. It agreed with the lower court’s assessment that the critical statement had not concerned the style of advertisement adopted by Star Foods. Calling the product of the company “muck” was surely not a critical assessment of their advertising campaign but had been aimed at the product, the brand, and the good name of the company. The statement in question “I would be a murderer too if I ate this muck” contained an obviously negative assessment of the taste and quality of the product. Thus, the applicants’ action aimed to discredit, without justified grounds, the product of Star Foods and as such could not enjoy the benefit of legal protection. The appellate court also observed that the applicants had repeatedly relied on the interests of children to justify their actions, while they themselves had repeated, in the supplement for children, the slogan that in their opinion had had a negative impact on children’s emotions and had terrified them.
14. On 12 December 2002 the Supreme Court refused to examine the cassation appeal lodged by the applicants.
15. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
16. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
VIOLATED_ARTICLES: 10


ITEMID: 001-87592
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SCHMIDT v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant, who is living in Vienna, is a practising lawyer by profession.
5. The applicant represented a commercial manager in administrative criminal proceedings before the Eisenstadt Municipal Office for alleged violations of the Frozen Food Labelling Decree (Tiefkühlkostkennzeichnungsverordnung – “the FFLD”). Referring to charges brought by the Vienna Food Inspection Agency (Lebensmitteluntersuchungsanstalt) concerning two samples of turkey meat, the applicant on 13 March 1996 filed observations, stating that:
“Since the samples taken are not labelled as frozen food (contrary to the attempt to play tricks on my client (Schummelversuch) in the expert opinion underlying the criminal charge), they are not covered by Section 1 § 1 (1) of the FFLD.”
6. On 11 June 1996 the Vienna Municipal Office requested the Vienna Bar Association to institute proceedings against the applicant, claiming that his serious and unfounded allegations had tarnished the Vienna Food Inspection Agency’s reputation and were incompatible with a lawyer’s professional duties.
7. Subsequently, on 26 June 1996, the Vienna Bar Association opened disciplinary proceedings against the applicant.
8. On 3 July 1997 he filed observations, submitting that the Vienna Food Inspection Agency had repeatedly applied an extensive interpretation of the provisions in issue. By suggesting that the authority had attempted to play tricks on his client, he had merely sought to express his doubts as to the authority’s legal opinion “with a nod and a wink”, even though there may have been sufficient grounds for instituting proceedings for abuse of authority.
9. By decision of 24 March 1999 the Disciplinary Council (Disziplinarrat) of the Vienna Bar Association discontinued the proceedings. It found that, while the applicant’s allegations may have infringed the profession’s honour and reputation, his statements disclosed only a minor degree of culpability, as they had apparently been made in the context of a heated exchange between him and the authority concerned.
10. On 7 September 1999 the Bar Association prosecutor (Kammeranwalt) appealed. He asserted that the expression “attempt to play tricks on my client”, used by the applicant, insinuated that the authority had been acting fraudulently.
11. Subsequently, on 16 September 1999, the applicant filed observations in which he repeated his defence, namely that his remarks were not meant to be taken literally. He had resorted to innuendo, alluding to an allegedly unlawful practice on the part of the Vienna Food Inspection Agency. He alleged in particular that the latter used its position to pursue its aims in the field of food inspection policy.
12. On 14 February 2000 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) granted the prosecutor’s appeal. It quashed the decision of 24 March 1999 and remitted the case to the Disciplinary Council.
13. Having held an oral hearing, at which the applicant was present, the Disciplinary Council on 6 September 2000 convicted the applicant under Section 9 of the Lawyers Act (Rechtsanwaltsordnung) and, relying on Section 16 of the Disciplinary Act (Disziplinarstatut), issued a written reprimand. Moreover, it ordered the applicant to pay the costs of the proceedings.
14. The Disciplinary Council held that the applicant had used a defamatory and disparaging expression. Pursuant to Section 9 of the Lawyers Act a lawyer, when defending the interests of his client, was entitled to address the perceived incorrectness of any official document in an appropriate manner. The applicant’s statement had transgressed the limits of acceptable conduct. In the submissions at issue he had failed to indicate any facts or circumstances which would have justified the use of the expression “attempt to play tricks on my client”. The applicant would have been free to institute proceedings for abuse of authority (Amtsmißbrauch), had there been grounds for such a suspicion. In conclusion, the Disciplinary Council found that the applicant had infringed the profession’s honour and reputation.
15. On 15 December 2000 the applicant lodged an appeal against the decision and on 17 January 2001 the Bar Association prosecutor submitted his observations in reply.
16. Following another oral hearing, the Appeals Board dismissed the applicant’s appeal on 7 May 2001. It confirmed that the applicant had transgressed the limits laid down in Section 9 of the Lawyers Act. The impugned statement had been defamatory and had disparaged the staff of the Vienna Food Inspection Agency. Since that statement had been made in writing, it had been well-considered. Therefore, it could not be said that the applicant had acted with a minor degree of culpability.
17. On 2 August 2001 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, that there had been a violation of Article 10 of the Convention, submitting that the Food Inspection Agency’s charges against his client had been objectively wrong. By using the impugned expression, he had merely sought to emphasise his argument.
18. By decision of 21 June 2004 the Constitutional Court dismissed the applicant’s complaint. It found that the interference complained of had served the aim of maintaining the authority and impartiality of the judiciary and that the disciplinary authorities had duly balanced the applicant’s rights under the Convention against the profession’s interest in safeguarding its standards of professional duties. Hence, they had given ample reasons why there had been no violation of the applicant’s right to freedom of expression. The decision was served on the applicant on 23 July 2004.
19. Section 9 of the Austrian Lawyers Act (Rechtsanwaltsordnung) regulates the professional duties incumbent on lawyers. When representing a client, a lawyer is entitled to make use of any means of defence which are not contrary to his mandate, his conscience or the law.
20. According to section 1 (1) of the Disciplinary Act (Disziplinarstatut), a lawyer who acts in breach of his/her professional duties or, through his/her conduct within or outside his/her professional activity, infringes the profession’s honour or reputation, is deemed to have committed a disciplinary offence which must be dealt with by the Disciplinary Council.
21. Section 16 (1) of the Disciplinary Act, in the version applicable at the material time, provided for the following disciplinary penalties: a written reprimand, a fine of up to 45,000 euros, a prohibition on practising as a lawyer for a period not exceeding one year and removal from the Bar roll.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-83882
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PETROPOULOU-TSAKIRIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture);Non-pecuniary damage - award
JUDGES: Loukis Loucaides
TEXT: 5. The applicant is of Roma ethnic origin and lives in Nea Zoe, in Aspropyrgos (western Attica), in a Roma settlement.
6. On 28 January 2002, between 11 a.m. and 1 p.m., the Police Directorate of western Attica, on the initiative of Aspropyrgos police station, conducted a large-scale police operation in the Roma settlement of Nea Zoe. The operation was aimed at arresting persons who, according to information obtained by the police, were involved in drug trafficking. Thirty-two police officers and one judicial official took part in this operation, in the course of which eleven Roma dwellings were searched and four individuals arrested.
7. The applicant, who was two and a half months pregnant, was in the settlement at the time of the operation.
8. The applicant and other Roma women were rounded up by the police for a body search. According to her statement, whilst the police operation was taking place the applicant waited her turn to be searched by the police who were searching other residents of the settlement. She noticed that certain police officers were taunting a disabled Roma who was a relative of hers.
9. As she moved to approach the police officers, she was forcefully pushed back by one of them while another one kicked her in the back, in spite of the fact that she had shouted that she was pregnant. As a result of the kick, the applicant felt an intense pain in the abdominal area and started bleeding. Although the bleeding was obvious to all the police officers present, the applicant was not taken to hospital. Not having any personal documents – as she was at the time an unregistered stateless person – and being alone, she felt she could not go to the hospital on her own for fear of being refused treatment.
10. The next day she informed members of the Greek Helsinki Monitor that she had been kicked by a police officer and that she was bleeding. One of them then rushed her to Elena Venizelou Maternity Clinic, where she was admitted immediately. She underwent a number of medical tests.
11. On 1 February 2002 the applicant suffered a miscarriage and was kept under medical supervision until 5 February 2002, when she was discharged from the hospital.
12. According to the version of events given by the Government, the police officers who participated in the police operation of 28 January 2002 did not use force against civilians. Neither the four persons arrested nor any other individual who was in the settlement during the operation had been assaulted or subjected to racial abuse. The presence of a judicial officer guaranteed the police officers' proper conduct.
13. According to the medical report drawn up at the end of the examination, “the applicant was admitted to the hospital on 29 January 2002, 10 weeks pregnant, with haemorrhaging from her uterus (risk of spontaneous abortion). On 2 February 2002 there was a complete expulsion of the foetus and on 4 February 2002 her uterus was cleaned”.
14. On 1 February 2002 counsel for the applicant lodged a criminal complaint with the Athens public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her. In the complaint the applicant joined the proceedings as a civil party seeking damages, asked to be examined by a forensic doctor and named three persons who could testify as witnesses. She also included the address and telephone numbers of her lawyers.
15. On 10 February 2002 the Athens public prosecutor sent a letter to the commander of Aspropyrgos police station requesting that a preliminary inquiry (προανάκριση) be launched into the allegations contained in the applicant's criminal complaint so as to identify the unknown perpetrators, who would be charged with inflicting serious bodily harm under Articles 308 § 1 (a) - 309 of the Greek Criminal Code.
16. On 11 March 2002 two witnesses named by the applicant submitted a written testimony to the police officer in charge of the preliminary inquiry. On the same date the applicant submitted a written memorandum to the police requesting that the police officers from Aspropyrgos police station be excluded from conducting the preliminary inquiry since officers from that station had participated in the operation in question and it was most likely that one of them had ill-treated her.
17. By a letter dated 12 March 2002 the commander of Aspropyrgos police station informed the Athens public prosecutor of the applicant's request and asked him to make a decision and issue the relevant order as to whether he should continue to conduct the preliminary inquiry. It cannot be ascertained from the case file whether the public prosecutor replied. However, Aspropyrgos police station continued with the preliminary inquiry.
18. On 1 May 2002 two police officers, the head of the security division of Aspropyrgos police station and the head of the anti-crime unit of Elefsina police station respectively, testified before the police officer conducting the preliminary inquiry. Both officers stated that they did not have any knowledge of ill-treatment inflicted upon the applicant.
19. On 28 November 2002 the investigation file was forwarded to the Athens public prosecutor. In the covering letter the Aspropyrgos police station commander repeated the applicant's request that the police officers serving at his police station be prevented from conducting the preliminary inquiry.
20. On 10 September 2003 the Athens public prosecutor requested the Elefsina magistrate (πταισματοδίκης), the competent judicial authority, to summon the applicant and any other witnesses she wished to call.
21. On 16 January 2004 a court bailiff visited the settlement where the applicant lived in order to summon her and another woman to testify before the Elefsina magistrate on 26 January 2004. The court bailiff stated that she was unable to find either the applicant or the other witness and that she had been informed by police officers from Aspropyrgos police station that the two women had moved to “an unknown address”.
22. On 26 January 2004 the Elefsina magistrate returned the case file to the Athens public prosecutor.
23. On 3 July 2004 the Athens public prosecutor closed the file with the indication “Perpetrator unknown”. The authorities did not inform the applicant or her legal representatives that the file had been closed. On 28 July 2004, when making an enquiry at the Athens public prosecutor's office, the Greek Helsinki Monitor was informed that the case had been closed.
24. On 1 September 2004 the Greek Helsinki Monitor sent a letter to the Aspropyrgos police station commander, enclosing a copy of the bailiff's statement and enquiring as to how the police officers could have been aware of the applicant's change of address.
25. In his reply dated 6 September 2004 the Aspropyrgos police station commander commented on the court bailiff's reference to Aspropyrgos police station's having informed her that the applicant had moved to “an unknown address”. According to the station commander, the reference was general and vague and thus could not be confirmed and the records of the police station did not contain any relevant information.
26. In the meantime, on 5 March 2002, responding to the publicity that had been generated, the Chief of the Greek Police launched an informal investigation in order to clarify whether the police operation of 28 January 2002 had involved unlawful or excessive use of force by members of the police. The investigation was conducted under the direct supervision of the Deputy Director of Police, A.V., who had been actively involved in the police operation of 28 January 2002. As he stated in his report: “[T]he general supervision and coordination of the police actions had been orally assigned by the commander of the Police Directorate of western Attica to the undersigned, who prepared the action plan and personally supervised the police officers' action on the operational level.”
27. Police officer A.V. proceeded to question five senior police officers who had participated in the operation in question. According to their statements, they had not witnessed any of their colleagues ill-treating the Roma residents.
28. On 6 March 2002 the police went to the applicant's settlement in order to serve her with a summons for interview, but did not find her.
29. On 7 March 2002 the report on the findings of the informal investigation was issued. According to the report, the presence of a judicial officer during the police operation guaranteed that, in the event of incidents of police brutality, the public prosecutor would be informed. Furthermore, according to officer A.V.'s findings: “the complaints are exaggerated ... It is in fact a common tactic employed by the athinganoi (Greek word for Roma) to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control.” The report concluded that, given that a criminal investigation had already been initiated, it was advisable to suspend the disciplinary proceedings until either a criminal court had ruled on the case or the alleged perpetrator had been identified. In accordance with this recommendation, the disciplinary proceedings were suspended.
30. The Greek Ombudsman issued a report on 12 October 2004 entitled “Disciplinary/administrative investigations into allegations against police officers”. It stated as follows in relation to investigations into complaints raising serious issues, such as excessive use of force and/or police brutality:
“4. Failure to conduct Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση, – SAI)
The fact that informal investigations are more frequently conducted - informal investigations represent some 66% of the investigations carried out in total - raises the important question whether the methods of investigation used by the Greek Police are adapted to the offences complained of. In a number of cases where an informal investigation was carried out, although the nature of the offence complained of required an SAI, the Ombudsman observed that although there were elements that would have justified disciplinary proceedings against police officers, the Greek Police refused to carry out an SAI. ... Such complaints [concerning allegations of ill-treatment or police brutality] could not be easily rejected on the basis of an informal investigation, given that they are often substantiated with forensic examinations or other medical certificates. ... In the following examples, an SAI was not carried out although the nature of the offences required it: (a) use of physical force: e.g. ... striking and subsequent miscarriage of a pregnant woman of Roma origin ... The Greek Ombudsman observed that the Greek Police omit, on a regular basis, to institute disciplinary proceedings even in cases where the existence of strong objective evidence, such as witness statements, photographs, forensic reports, medical certificates etc., cannot be denied. Such evidence cannot be summarily overruled but needs to be examined thoroughly through the formal procedure of an SAI. Cases with strong evidence requiring an SAI that was never conducted: (a) forensic or medical reports: e.g. ... a pregnant woman of Roma origin suffered a miscarriage after being struck ...”
VIOLATED_ARTICLES: 14
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-79222
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KOLACZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Grażyna Kołaczyk, is a Polish national who was born in 1946 and lives in Warsaw. She was represented before the Court by Mr Adam Włoch, a lawyer practising in Cracow, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 January 1994 the applicant was arrested on charges of trafficking in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of 1969, then in force.
On 3 February 1994 the Zamość District Prosecutor ordered her detention on remand. On 27 May 1994 the applicant was released under police supervision.
On 30 June 1994 the Zamość District Prosecutor lodged a bill of indictment against the applicant and four other persons. The applicant was charged with trafficking in children and perjury.
On 13 June 1995 the Warsaw Regional Court discontinued part of the charges against the applicant. On 3 November 1999 the Warsaw Regional Court gave a decision and discontinued the criminal proceedings against the applicant and against her coaccused in so far as they concerned charges under Article IX.
The prosecutor and the applicant appealed.
On 4 February 2000 the Warsaw Court of Appeal, partly amended the contested decision. On 20 October 2003 the Warsaw District Court acquitted the applicant of the remaining charges of perjury. The prosecutor appealed.
The proceedings were terminated on 23 September 2004 by the Warsaw Regional Court. On 24 July 2000, the date on which the application was lodged with the Court, they were pending before the Warsaw District Court.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V.


ITEMID: 001-96383
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SKUGAR AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicants, Mrs Tamara Sergeyevna Skugar, Mrs Lidiya Sergeyevna Dzyuba and Mrs Aleksandra Ivanovna Gavrutenko, are Russian nationals who were born in 1936, 1939 and 1944, respectively, and live in the town of Tarko-Sale in the Yamalo-Nenetskiy Region of the Russian Federation.
On 10 March 1999 the Government adopted regulations on the Unified State Register of Taxpayers (the “Register”). Information on taxpayers was to be entered in the Register on the basis of taxpayer's individual identification numbers (индивидуальный номер налогоплательщика (ИНН), the “taxpayer's number”). The taxpayer's number was a twelve-digit sequence which included two digits for the regional tax inspectorate, the taxpayer's sequential number, and the check value.
On an unspecified date the applicants submitted applications to district tax inspectorate no. 4 of the Yamalo-Nenetskiy Region to have their taxpayers' numbers cancelled on the ground that the numbers “had been assigned to them through ignorance... because that number is a forerunner of the mark of the Antichrist as it is said in the Apocalypse, Revelation, 13:15-13:16”. They claimed that they did not refuse to pay taxes but merely sought an opportunity “to exercise freely the rights of a Russian citizen without the taxpayer's identification number”.
On 28 January 2002, 7 October 2003 and other dates the tax inspectorate responded to their applications in the following terms:
“An individual interacting with the tax authority is not assigned a number, he is merely issued with a certificate showing his status as a taxpayer and the taxpayer's number. And there is an important distinction; the number does not replace the person's Christian name and it does not contain information on the person's family status or relationships with parents, friends or other persons... In any event, the taxpayer's number is, in essence, nothing more than the number of his personal account at the tax authority. Similar numbers were introduced for accounting of payers by the Pension Fund and the Medical and Social Security Fund...
In the final document of the 7th Plenary Session of the Synodal Theological Commission of the Russian Orthodox Church held in Moscow on 19-20 February 2001 the following conclusion, in particular, was made: acceptance or non-acceptance of individual numbers is not, by any means, a religious question or a sinful deed. This is a matter of personal choice that has no religious significance...”
The tax inspectorate informed the applicant that the Tax Ministry had prepared for Orthodox believers a special questionnaire approved by the Orthodox Highest Clergy Council (Архиерейский Собор) on 13-16 August 2000, and invited them to their offices for a discussion. It is unclear whether the applicants attended the discussion and what its outcome was.
In April 2004 the applicants complained to a court, claiming that the taxpayer's number had been “imposed on them contrary to their religious convictions”. They submitted that the interference with their right to freedom of religion was not absolutely necessary, because their demands did not violate other citizens' rights and because before 1994 the tax system had operated without any personal numbers.
On 19 April 2004 the Purovskiy District Court of the Yamalo-Nenetskiy Region gave a judgment on their complaint. Referring to the Constitutional Court's decision of 10 July 2003 (see below), the District Court found that the tax inspectorate had lawfully acted within its competence and that the allocation of the taxpayer's number did not interfere with the claimants' private life or their right to act in accordance with their religious beliefs.
The applicants lodged a statement of appeal. They claimed that the State had violated their right to follow their beliefs by imposing on them a “mark of sin” in the form of the taxpayer's number.
On 17 June 2004 the Yamalo-Nenetskiy Regional Court upheld the judgment on appeal. It emphasised that:
“...the identification number does not replace the person's name and may be used, alongside with other tax accounting data, solely for the purposes of taxation; it does not encroach on the citizen's person or rights.”
On 10 July 2003 the Constitutional Court declared inadmissible a complaint by a group of individuals who claimed that attribution of a taxpayer's number without the taxpayer's consent violated their constitutional rights to respect for their private life and to freedom of religion and belief. It found, in particular, as follows:
“The taxpayer's number is a numerical code consisting of twelve sequential digits... Thus, any appearance in the taxpayer's number of a certain number that might hurt the taxpayer's religious feelings is fortuitous; the taxpayer's number does not replace the person's name and shall be used, alongside with other tax data, solely for the purposes of tax accounting. Accordingly, there is no reason to assert that [Article 84 of the Tax Code] violates the right to freedom of religion or the prohibition on collecting, storing, using and disseminating information about an individual without his or her consent. Besides, the Tax Code does not prevent the taxpayer's number from being changed in cases where the taxpayer's religious convictions so require...
Since [Article 84 of the Tax Code] does not encroach, as such, on the claimants' constitutional rights and freedoms, the present complaint is inadmissible...”
Article 84 § 8 of the Tax Code (Federal Law no. 46-FZ of 31 July 1998) provides:
“Every taxpayer... shall be assigned a unique identification taxpayer's number.
The tax authorities shall mention the taxpayer's number in all documents sent to the taxpayer.
Every taxpayer shall mention his taxpayer's number in all declarations, reports, statements and other documents submitted to the tax authorities...”
By Federal Law no. 137-FZ of 27 July 2006, the following paragraph was added to Article 84 § 8 of the Tax Code:
“Individuals who are not registered as self-employed entrepreneurs shall have the right not to mention their taxpayer's numbers in the submitted documents on the condition that they have listed their personal data enumerated in paragraph 1 of Article 84 [name, date and place of birth, address, passport and citizenship].”
On 7 March 2000 the Holy Synod of the Russian Orthodox Church adopted an appeal to believers concerning taxpayer's identification numbers. It held, in particular, as follows:
“We want to state clearly: fear not the external symbols and signs, for no delusion created by the enemy to human souls may prevail the God's grace that abounds in the Holy Church...
To those who attempt to link the identification numbers with the 'antichrist's mark' we remind that the tradition of the holy fathers understood the marks as a sign certifying deliberate repudiation of Christ... In spite of that tradition it is occasionally claimed that a technological act allegedly may, by itself, create turmoil in the innermost depths of the human soul leading to Christ's oblivion. Such a superstition is at variance with the Orthodox interpretation of the Revelation of St John the Divine, according to which the 'mark of the Beast' will be received by those who deliberately put faith in him 'solely for the sake of his false miracles' (St John Chrysostom). No external mark may harm the spiritual health of the person unless it is a consequence of deliberate treason of Christ and profanation of faith...”
In 1986, the United States Supreme Court issued a judgment in the case of Bowen v. Roy, 476 U.S. 693 (1986), in which the parents of a two-year-old child contended that using a social security number to identify their daughter would “steal her soul” and violate their native American religious beliefs. By a majority, the Supreme Court found against the parents, holding as follows:
“Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern... Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.
As a result, Roy may no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures...
The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms, and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously, or any covert suppression of particular religious beliefs...
We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons... In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude... Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden [of proof] when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest...”
A subsequent case before the United States Supreme Court, Employment Div. v. Smith, 494 U.S. 872 (1990), concerned two individuals who were fired from their job for ingesting peyote for sacramental purposes at a ceremony of their Native American Church. The Supreme Court affirmed its approach, finding as follows:
“Although a State would be 'prohibiting the free exercise [of religion]' in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons...
The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'... To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' – permitting him, by virtue of his beliefs, 'to become a law unto himself,'... – contradicts both constitutional tradition and common sense.”


ITEMID: 001-23031
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NEE v. IRELAND
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Gary Nee, is an Irish national, who was born in 1974 and lives in London. He was represented before the Court by Ms E. Joyce of James B. Joyce & Co., solicitors practising in Galway, Ireland.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s father (PK) and mother were not married when he was born and did not subsequently marry. PK did not have any other children. PK died intestate on 21 November 1987, leaving an estate with a net value of IR£ 32,641.26.
On 24 May 1988 the applicant’s solicitor wrote to the solicitor acting for PK’s parents pointing out that the applicant was PK’s son and noting that in May 1975 PK had paid a lump sum to the applicant’s mother in response to her maintenance requests. The applicant’s solicitor requested a declaration recognising PK as the applicant’s father. It was accepted that under Irish law the applicant could not, as a child born outside wedlock, inherit on his father’s death intestate (O’B v. S (1984 IR 316)). However, he wished to complain to this Court about that unequal treatment and, in default of receiving the requested declaration, the applicant would issue proceedings to obtain a declaration of paternity from the courts. In June 1988 the applicant’s solicitor received a negative response to his request.
Letters of administration were granted to the deceased’s brother on 17 May 1989.
On 26 June 1989 the applicant’s solicitor wrote to the Chief State Solicitor requesting a declaration recognising that the applicant was PK’s son so that the applicant could take a case to this Court about the differing treatment on intestacy of children, in default of which the applicant would issue proceedings. On 30 June 1989 the Chief State Solicitor responded that according to section 35 of the Status of Children Act 1987 (“the 1987 Act”) the Attorney General, for whom the Chief State Solicitor acted, could only be introduced to the proceedings by way of court order without which the Attorney General had no role in the matter.
On 7 December 1989 the applicant issued proceedings in the Circuit Court against PK’s mother and against the Attorney General. He claimed that his inability to inherit on intestacy was discriminatory and that he was desirous of bringing proceedings before the European Court of Human Rights. He sought a declaration, pursuant to section 35 of the 1987 Act or pursuant to the equitable jurisdiction of the Court, to the effect that PK was his father. In May 1990 an order was made striking out the applicant’s claim against the Attorney General and identifying the Administrator of PK’s estate as the sole appropriate defendant.
By letter dated 30 May 1990 to the Chief State Solicitor, the applicant put the Attorney General on notice that the terms of any declaration of parentage would be relied on by him in an application before this Court.
On 1 May 1991 the applicant issued amended proceedings in accordance with the court order of May 1990.
The applicant was unsuccessful before the Circuit Court and appealed to the High Court. In December 1993 the High Court ordered that blood samples be taken from the applicant and from PK’s mother and brother. The matter was finally heard on 30 January 1998 and, by judgment delivered on that day, the High Court declared, pursuant to section 35 of the 1987 Act and to its equitable jurisdiction, that PK was the father of the applicant. It ordered the Administrator of the estate of PK to pay to the applicant the costs of the proceedings.
At common law, an “illegitimate” child had no succession rights to either of his parents. The Legitimacy Act 1931 gave an “illegitimate” child and his mother limited reciprocal succession rights on the other’s intestacy. The Succession Act 1965 did not change the position.
Section 67 of the 1987 Act provided that the estate of a deceased is to be distributed in specified portions between any surviving spouse or “issue”. By judgment of 20 January 1984 (O’B v. S (1984 IR 316)), the Supreme Court found that the word “issue” did not include children who were not the issue of a lawful marriage, the latter having therefore no right to inherit on the intestacy of a natural parent. It also found that sections 67 and 69 of the 1965 Act did not infringe the principle of equality guaranteed by Article 40(1) of the Irish Constitution.
The 1987 Act was enacted on 14 December 1987 and came into force on 14 June 1988. The purpose of this legislation was to equalise the rights of children whether born within or outside marriage and Part V of the 1987 Act makes the relevant amendment to the law relating to, inter alia, succession on intestacy. Upon the death intestate of a parent, a non-marital child would have the same intestacy rights as a child born to married parents. Section 29(5) of the 1987 Act makes it clear that the changes to the rights of inheritance on intestacy of children brought about by the 1987 Act “shall not affect any rights under the intestacy of a person dying before the commencement of Part V” of the 1987 Act.