ITEMID: 001-109130
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAVIN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary and non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 6. The applicant was born in 1972 and lives in Kharkiv, Ukraine.
7. As submitted by the applicant and established by the domestic courts (see paragraphs 22 and 28 below), in the afternoon of 18 October 1999 the applicant attended at the Dzerzhynskyy District Police Station, at the investigator’s summons, as a witness in a fraud-related criminal investigation. At about 7 p.m., officer K. questioned him. Not being satisfied by the applicant’s explanations and seeking to obtain his confession to the fraud, K. tied the applicant’s hands behind his back with a belt, made him sit on a chair and punched him at least eight or ten times in the head. Thereafter K. took the applicant into the corridor, threw him face down against the floor and raised his tied arms behind his back seven or eight times. K. also kicked the applicant several times in the ribs.
8. According to K.’s report to the police unit on duty, later found to be knowingly false (see paragraph 22 below), he had apprehended the applicant in the street for swearing in public. As a result, an administrative offence report was drawn up and the applicant was arrested. According to the police records, he was released at 8.40 p.m. on 18 October 1999. As it was later established, the applicant was in fact held in the room for detainees until 9 a.m. on 19 October 1999.
9. In addition to the aforementioned account established by the court, the applicant alleged that two other police officers, under the leadership of K., had also beaten him.
10. According to the medical documentation, the applicant had been in good health before the aforementioned events of October 1999.
11. On 21 October 1999 he was examined by a doctor who documented the following injuries: multiple bruises on the face, scalp, left ear, neck and chest, as well as a closed head injury with concussion of the left frontal lobe and an intracerebral haematoma. The doctor concluded that these injuries had been caused by blunt objects and could have dated from 18 or 19 October 1999.
12. On the same date, 21 October 1999, the applicant was admitted to a neurological hospital, where he underwent treatment until 23 November 1999.
13. The head injury sustained by the applicant in October 1999 had negative consequences for his health. As a result, he was hospitalised many times during the years to follow. In particular, he underwent in-patient treatment on that account during the following periods: from 17 January to 7 February 2000, from 9 to 30 January 2001, from 18 April to 6 May 2002, from 12 to 22 November 2002, from 11 to 25 April 2003, and during subsequent unspecified periods.
14. In 2002 the applicant was recognised as falling into the third category of disability (the mildest) on account of the residual effects of the head injury and post-traumatic encephalopathy.
15. From 2004 onwards his condition was classified as a disability of the second category (more serious), as the post-traumatic encephalopathy had worsened.
16. From October 1999 eight forensic medical expert examinations were carried out with a view to verifying the applicant’s ill-treatment allegation (see paragraph 17 below). According to the examination reports the applicant had sustained a craniocerebral injury with subarachnoid haemorrhage, brain concussion, and numerous haematomas on various parts of the head, neck, back and chest. All the examinations found the applicant’s account as to the time and origin of his injuries to be plausible. While originally the injuries were classified as grievous, the experts later reclassified them as being of medium severity. Their consequences were described as follows: lasting health deterioration, namely, a cerebral cicatrix, liquor hypertension syndrome, right-side sensory and motor impairment, and a convulsive disorder, which all together had led to the loss by the applicant of thirty per cent of his general working capacity and fifty per cent of his professional working capacity. The last forensic medical examination, which was conducted between 5 May and 14 June 2007, established that the applicant’s disability was a direct result of the injuries sustained by him in October 1999.
17. From 19 October 1999 the applicant lodged numerous complaints with prosecution authorities concerning unlawful detention and torture by the police.
18. During the period from 1999 to 2008 the prosecutors refused on six occasions to institute criminal proceedings against the police officers, having discerned no indication of a crime in their actions. All these decisions were subsequently quashed by higher-level prosecution authorities as premature, unlawful and based on a perfunctory investigation not aimed at establishing the truth.
19. Meanwhile, on 20 December 1999, the Dzerzhynskyy District Prosecutor’s Office opened a criminal investigation in respect of infliction of grievous bodily injuries on the applicant by unknown persons. Subsequently, on 2 December 2002, the charge was re-classified as “infliction of injuries of medium severity”. The investigation was stayed several times for failure to identify the offenders.
20. On 27 March 2006 the Ordzhonikidze District Prosecutor’s Office (hereafter – “the Ordzhonikidze Prosecutor”) applied to the Dzerzhynskyy District Court (“the Dzerzhynskyy Court”) for discontinuation of the proceedings regarding the infliction of bodily injuries of medium severity on the applicant by unknown persons as being time-barred.
21. On 6 July 2006 the Dzerzhynskyy Court rejected that application as unfounded and premature. It noted that the investigation had failed to comply on many occasions with the instructions of the Kharkiv Regional Prosecutor’s Office and the General Prosecutor’s Office.
22. On 30 July 2008 the Ordzhonikidzhe Prosecutor instituted criminal proceedings against K. under Article 365 § 2 of the Criminal Code on suspicion of abuse of power, associated with violence and degrading treatment. That investigation established the facts as they are summarised in paragraphs 7 and 8 above.
23. On 23 January 2009 K. was formally charged, and the applicant was assigned victim status.
24. On 27 January 2009 the applicant brought a civil claim within the criminal proceedings seeking compensation for pecuniary and nonpecuniary damage.
25. On 29 January 2009 the Ordzhonikidzhe Prosecutor refused to open a criminal case against the other two police officers in respect of the applicant’s ill-treatment, having discerned nothing criminal in their actions.
26. On 19 February 2009 the case was referred to the Ordzhonikidzhe District Court (“the Ordzhonikidzhe Court”) for trial.
27. The court adjourned its hearings several times because K. was receiving medical treatment for excessive hypertension, proctologic problems, and an accidental fall.
28. On 2 March 2010 the Ordzhonikidzhe Court upheld the investigation’s findings and found K. guilty as charged. It held that K. had breached the applicant’s rights under Articles 28 and 29 of the Constitution, as well as Article 365 § 2 of the Criminal Code. The court, however, released K. from criminal liability as the statutory limitation period of ten years had expired.
29. On 9 March 2010 the Ordzhonikidzhe Court modified the abovementioned ruling in order to specify that K. was released from both criminal liability and punishment. It also decided to leave the applicant’s civil claim without examination.
30. Both K. and the public prosecutor appealed. K. submitted that the criminal proceedings against him should be terminated for lack of evidence of his guilt. The public prosecutor emphasised that K. had committed a serious premeditated crime in the course of his professional activities, thus undermining the authority of the law-enforcement bodies and the State. He noted that K. had never admitted his guilt, had not drawn any conclusions, had not compensated the applicant for any pecuniary or non-pecuniary damage, and showed no remorse about what he had done. The public prosecutor therefore considered that a guilty verdict would be the right outcome to this case.
31. On 1 July 2010 the Kharkiv Regional Court of Appeal rejected both appeals.
32. At the time of the events of October 1999 K. held the post of detective officer («оперуповноважений») in the Dzerzhynskyy District Police Department.
33. On 15 June 2000 he was promoted to the post of senior detective officer («старший оперуповноважений»).
34. At a later unspecified date K. was promoted to the post of Deputy Chief of the Zolochevskyy District Police Department.
35. On 23 January 2009, after the formal charges were brought against K., the Ordzhonikidze Prosecutor suspended him from his duties.
36. On 2 March 2010 the Ordzhonikidzhe Court issued, in addition to the aforementioned judgment (see paragraph 28 above), a special ruling by which it informed the Kharkiv Regional Police Department of the termination of the proceedings against K. as being time-barred and indicated that he should be restored to his post within the law-enforcement authorities.
37. K. apparently continues to work in the police force.
38. Articles 28 and 29 of the Constitution of Ukraine are cited in Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 121, 21 April 2011.
39. Article 166 of the Criminal Code (1960) provided for three to eight years’ imprisonment with a prohibition on holding certain office or carrying out certain activities for a period of up to five years as punishment for abuse of power, associated with violence or degrading treatment of the victim.
40. Following the entry into force of the new Criminal Code in 2001, its Article 365 § 2 provided for the same punishment for this offence, except that the bar from office was limited to three years.
41. Articles 1 and 2 of the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”)” (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005).
42. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by inclusion of the following point:
“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”.
43. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 September 2009 [CPT/Inf (2011) 29] read as follows:
“14. ... the frequency and consistency of the allegations received by the CPT’s delegation during the 2009 visit suggest that methods of severe ill-treatment/torture continue to be used with impunity by Internal Affairs officers. It is clear that continued determined action, bringing together in a joint effort all relevant State agencies, is needed to combat this phenomenon. ...
16. ... The CPT recommends that a firm message of “zero tolerance” of ill-treatment continue to be delivered at regular intervals to all Internal Affairs staff. It should be made clear that the perpetrators of ill-treatment and those condoning or encouraging such acts will be subject to severe sanctions.”
44. Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, which were adopted on 30 March 2011, provide for the following among the general measures for the prevention of impunity:
“... 7. States should ... establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity, or adopt other appropriate disciplinary measures. ...”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-79612
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KILIC v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Ferhat Kilic, is a Turkish national who lives in Copenhagen. He is represented before the Court by Mr Ulrik Rasmussen, a lawyer practising in Copenhagen.
The applicant was born on 2 May 1987 in Turkey. In order to join his father, who had lived in Denmark since 1986, on 22 September 1990 the applicant entered Denmark together with his mother. At the relevant time the applicant was three years old. He spent most of his childhood and youth in Denmark. It appears that twice during the years from 1999 to 2001 he spent eight months in Turkey. He left school after seven years’ schooling and has never had any affiliation to the labour market.
His parents, two siblings, his paternal grandmother and two uncles also all live in Denmark. Every second year, the applicant has been on holiday for a longer period in Turkey, where his mother’s family and two paternal aunts live. The applicant’s family in Denmark owns a house in Turkey with several apartments, which are used by the family upon their visits to their country of origin. He speaks Turkish and Danish.
By a City Court judgment of 25 March 2003 the applicant was convicted of two independent assaults. As to the first assault, jointly with another perpetrator, the applicant had overturned a cyclist, beaten and kicked him, including on the head, resulting in the victim being badly injured, i.e., among other things, he broke his knee cap. As to the second assault, the applicant had been caught in the act of burglary by the house owner in question, upon which the applicant beat and kicked the latter, including on the head. The applicant was sentenced to forty days’ imprisonment suspended on probation. The judgment was appealed against to the High Court of Eastern Denmark (Østre Landsret).
By a City Court judgment of 6 May 2003 the applicant was again convicted, inter alia, of two independent assaults of respectively a headmaster and a police officer. He was sentenced to spend four months at a detention centre for children and young persons and thereafter twelve months at an institution for youth persons. The applicant appealed against the judgment to the High Court of Eastern Denmark.
On 6 August 2003 the High Court confirmed both City Court judgments. It decided, however, to fix a joint sentence, thus maintaining the sentence set out in the City Court’s judgment of 6 May 2003.
On 14 August 2003 the applicant and his cousin were arrested and charged, inter alia, with attempted robbery, aggravated assault and manslaughter. They were detained on remand the following day.
On 9 November 2004 they were convicted by the High Court of Eastern Denmark sitting with a jury. It found it established that on 9 August 2003, when the applicant was sixteen years old and his cousin seventeen, jointly they had threatened a young man, an Italian tourist, with a knife in order to steal his money. Although the young man was stabbed by the applicant’s cousin, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant’s cousin stabbed him several times, the injuries inflicted resulting in the victim’s death.
By the same judgment, the applicant was also convicted of: burglary committed on 22 January 2003 with regard to goods equal to an amount of approximately 6,400 euros (EUR); and four counts of escape from detention centres for children and young persons, namely in the periods from 8 July 2003 until 10 July 2003, when he was arrested by the police; from 28 July 2003 until 6 August 2003, when he was again arrested by the police; from 6 August 2003 until 10 August 2003, when he was arrested by the police; and from the afternoon on 13 August 2003 until later on the same day, when he was arrested by the police.
According to a psychiatric report of 8 December 2004, the applicant was not found to be mentally sick but he did have character flaws such as abdication of responsibility. Since his childhood he had behavioural problems and since puberty he had abused hashish.
In its judgment, the High Court of Eastern Denmark sentenced the applicant to eight years’ imprisonment. In addition, he was expelled from Denmark for an indefinite time to be implemented after the sentence had been served.
The applicant’s cousin, who was also convicted of additional offences to attempted robbery, aggravated assault and manslaughter, was sentenced to ten years’ imprisonment and expulsion from Denmark for an indefinite time.
Upon appeal, the Supreme Court (Højesteret) confirmed the sentences on 15 March 2005. With regard to the order to expel the applicant and his cousin, the majority of six judges held as follows:
[The applicant’s cousin] was born in Denmark, whereas [the applicant] arrived as a threeyearold. They have spent their youth and had their schooling in this country where also their parents and siblings live. Thus, they have a strong connection with the Danish society and to people living here. At the same time, however, they have a [significant] connection with Turkey and Turkish culture. They speak Turkish and approximately every second year they have visited Turkey where they have a big family. Both have been previously convicted, and have now been sentenced to longer prison terms, inter alia, for manslaughter, attempted robbery and aggravated assault. Having taken all considerations into account, in our view neither the elements mentioned in section 26, subsection 1 of the Aliens Act (Udlændingeloven) nor Article 8 of the Convention speak decisively against [their] expulsion. Accordingly, we vote [for their expulsion].
The minority of one judge held as follows:
In my view, when taking all the elements mentioned in section 26, subsection 1 of the Aliens Act into account, the connection which the applicant and [his cousin] have with Turkey and Turkish culture, is not of such an extent and character that it has decisive weight when compared to their strong connection to the Danish society and people living here. In my opinion, the latter speaks significantly against expelling the applicant and his cousin from Denmark. Accordingly, notwithstanding the serious crimes committed, I vote [against their expulsion].
The relevant provision of the Aliens Act (Udlændingeloven) applicable at the time read as follows:
“An alien who has lawfully stayed in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if:
(i) the alien is sentenced to minimum 4 years imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration.
...
(vi) the alien is sentenced, pursuant to ... Articles ...[manslaughter, aggravated assault , robbery, etc] of the Penal Code to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.”
1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:
(i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years;
(ii) the duration of the alien’s stay in Denmark;
(iii) the alien’s age, health, and other personal circumstances;
(iv) the alien’s ties with persons living in Denmark;
(v) the consequences of the expulsion for the alien’s close relatives living in Denmark;
(vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and
(vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.
2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.


ITEMID: 001-75631
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GRIDIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1961 and lives in Aleksin in the Tula Region.
5. On 11 October 2001 the Sovetskiy District Court of Tula granted the applicant’s claim against the Tula Regional Department of the Federal Employment Service and awarded him RUR 5,294.69 (EUR 197). On 16 April 2002 the Tula Regional Court upheld the judgment on appeal.
6. On 23 May 2002 the Sovetskiy District Court altered the judgment, indicating that the award was payable by the Ministry of Finance at the expense of the Treasury.
7. On 12 February 2003 the Tula Regional Department of the Ministry of Finance applied for supervisory review of the judgment. On 31 August 2004 the Tula Regional Court refused their application.
8. On 3 December 2004 the Treasury paid the amount outstanding to the applicant’s bank account.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102286
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TUMAYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants are:
(1) Ms Khava Tumayeva, born in 1947;
(2) Ms Aset Khatuyeva, born in 1983;
(3) Ms Ms Kheda Gigayeva, born in 1979;
(4) Ms Rukiyat Tumayeva, born in 1981; and
(5) Ms Zinaida Tumayeva, born in 1954.
6. The applicants are Russian nationals, who live in the village of Valerik in the Achkhoy-Martanovskiy District of the Chechen Republic.
7. The first applicant is the mother of Mr Shamkhan Tumayev, born in 1982. The second applicant is Shamkhan Tumayev's common-law wife; they are the parents of two minor children. The third and fourth applicants are Shamkhan Tumayev's sisters. The fifth applicant is his aunt.
8. At the material time the Tumayev family lived at 13 Titova Street in the village of Valerik. The second applicant was pregnant with her second child. Shamkhan Tumayev occupied the right wing of the house together with the second applicant and their child, whilst the first and third to fifth applicants occupied the left wing.
9. According to the applicants, at the material time the village of Valerik was under the firm control of the Russian federal troops, who maintained manned checkpoints on the roads at the entry to and exit from the village. Moreover, at the time of the events described below, the village was under a curfew and around forty Russian servicemen were stationed there on a permanent basis.
10. In the applicants' submission, between 18 and 19 September 2004 about a hundred servicemen from units operating under the direction of Ramzan Kadyrov, the then deputy prime minister of the Chechen Republic, arrived in Valerik with a view to carrying out a sweeping operation. They deployed, amongst other things, tanks, armoured personnel carriers and UAZ all-terrain vehicles.
11. At about 2 a.m. on 19 September 2004, around fifteen to twenty armed men in camouflage uniforms arrived at the applicants' house. They spoke unaccented Russian and all but one of them wore black masks. They shouted: “Open the doors! Police!”. The second applicant opened the door. Several armed men entered the premises and put the second applicant onto the floor. Some armed men stayed in the courtyard. The intruders took the keys from the second applicant and confiscated several video cassettes of various movies, a video cassette with a recording of Shamkhan Tumayev's father, and Shamkhan Tumayev's mobile phone from the safe. They also took Shamkhan Tumayev's passport, checked it and brought Shamkhan Tumayev away.
12. In the meantime, the first applicant also opened the door. The intruders immediately asked her to give them a passport. The first applicant inferred that they were servicemen carrying out a passport check. She started looking for her own passport. According to the first applicant, in the meantime the servicemen turned everything upside down. Shortly thereafter they locked the first applicant and her relatives in their part of the house. After a while she heard some movements coming from outside, a shot being fired and the noise of leaving vehicles. The first applicant managed to get outside through the window, whereupon she found out that the intruders had taken away Shamkhan Tumayev, his mobile phone and several video cassettes. Her neighbours told her that they had seen a silvery UAZ-469 vehicle. The first applicant also found two spent cartridges in the yard.
13. Some of the applicants' neighbours and relatives, who had been woken up because of the noise, tried to follow the abductors but the servicemen threatened to kill them, beat them up, put them against a wall and fired several shots above their heads.
14. In the morning of 20 September 2004 the applicants discovered that three more inhabitants of the village of Valerik, including a Mr Kh., had been abducted by the armed men.
15. The description of the events of the night of 19 September 2004 is based on the written statements dated 26 May 2005 by the first, second and third applicants and Z.T., on the written statements of the fifth applicant and A.A. made on 27 May 2005, and on the applicants' hand-written sketch of the premises at 13 Titova Street.
16. The applicants have had no news of Shamkhan Tumayev since 19 September 2004.
17. On 21 September 2004 a group of residents of Valerik, including the applicants, gathered at the administration of Achkhoy-Martan to protest against the abduction of Shamkhan Tumayev.
18. The applicants submitted several printouts from internet media and an article from a local newspaper. The information contained therein may be summarised as follows:
19. On 21 September 2004 an internet newspaper called “Grani.ru” published the following information:
“On 21 September a meeting was conducted in Achkhoy-Martan. According to the news agency “Prima”, participants in the meeting had sought to liberate their fellow resident Shamkhan Tumayev, ... who, according to them, had been abducted by [Ramzan] Kadyrov's forces ...
Several days ago a large number of servicemen of the “battalion” named after Akhmad Kadyrov (the former security service of the former president of Chechnya) had arrived in the [Achkhoy-Martanovskiy] District, which had been followed by “sweeping operations” and abductions of residents of the district.
Two days ago, at about 3 a.m., unknown masked people took 22-year-old Shamkhan Tumayev away by force without giving any explanations. On the same day under similar circumstances, his fellow resident of Valerik, [Mr.] Kh., was abducted.”
20. On the same day an internet newspaper called “Kavkazskiy uzel” reported as follows:
“Today a considerable number of residents of the village of Valerik gathered at the central square of Achkhoy-Martan, Chechen Republic. They wanted the State authorities to liberate their 22-year-old fellow resident Shamkhan Tumayev, who had been abducted by armed men wearing masks on 19 September. The residents of Valerik consider that Tumayev was kidnapped by officers of the battalion named after Akhmed Kadyrov.
Several days before, a large number of servicemen of that battalion (the former security service of the President of the Chechen Republic) had arrived in the [Achkhoy-Martanovskiy] district in some fifty UAZ vehicles, subsequent to which there had been “sweeping operations” and people had been abducted. In particular, on the day of the abduction of Shamkhan Tumayev a [Mr] Kh., 22 years old, had been abducted under similar circumstances.”
21. Similar information to that described above was posted on 22 September 2004 by the news agency “Prima” on its website and published on 27 September 2004 in an article of the local newspaper “Imam” entitled “People are still disappearing” (“Люди продолжают пропадать”).
22. The Government submitted that the domestic investigation had obtained no evidence that any special operations had been conducted in Valerik on the night of the abduction of Shamkhan Tumayev or that any servicemen had been implicated in his abduction.
23. Immediately after the abduction the applicants complained about it to the local police office, and on the morning of 19 September 2004 they complained about the abduction to the police of Achkhoy-Martan.
24. Early in the morning of 19 September 2004 a group of police officers arrived at the applicants' house. They examined the crime scene, took casts of footprints left there and questioned Shamkhan Tumayev's family members.
25. On 20 September 2004 the applicants visited Mr D., the head of the administration of the Achkhoy-Martanovskiy District. Mr D. promised them that he would make a few phone calls in order to gather information on Shamkhan Tumayev's whereabouts. On an unspecified date D. came to the village of Valerik and told the applicants that they should not worry and that their relative would return home.
26. Subsequently all of the applicants applied to various authorities with a request that they be assisted in searching for Shamkhan Tumayev.
27. On an unspecified date the first applicant requested that the military commander's office of the Achkhoy-Martanovskiy District and the prosecutor's office of the Achkhoy-Martanovskiy District (“the district prosecutor's office”) establish her son's whereabouts.
28. On 24 September 2004 the district prosecutor's office forwarded the second applicant's complaint about the abduction of Shamkhan Tumayev to the head of the department of the interior of the Achkhoy-Martanovskiy District (“ROVD”) and requested the latter body to carry out an inquiry into the matter complained of. The letter stated, in particular, that, per the applicant's complaint, at about 2 a.m. on 19 September 2004 unidentified armed persons wearing masks and camouflage uniforms had burst into the applicants' house and had abducted Shamkhan Tumayev. The abductors had arrived in three white UAZ-469 vehicles.
29. On 29 September 2004 the district prosecutor's office instituted an investigation into Shamkhan Tumayev's disappearance under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The case file was assigned the number 38043. The applicants submit that they were not promptly informed of the decision to open the investigation.
30. On 8 October 2004 the ROVD forwarded the first applicant's complaint of the abduction of her son to the district prosecutor's office.
31. On 24 December 2004 the district prosecutor's office informed the applicants that the term of the preliminary investigation of case no. 38043 had been extended until 29 January 2005.
32. On 29 January 2005 the district prosecutor's office informed the first applicant that the investigation into Shamkhan Tumayev's kidnapping had been suspended because of its failure to identify the perpetrators.
33. On 3 February 2005 the first applicant requested that the district prosecutor's office open a criminal investigation into the abduction of her son, grant her victim status in those proceedings and provide her with copies of the related decisions.
34. On 12 February 2005 the district prosecutor's office informed the first applicant of the following. Shamkhan Tumayev had been abducted by around fifteen unidentified armed men in camouflage uniforms driving a VAZ-2131 vehicle, a UAZ-469 and an all-terrain UAZ vehicle. The district prosecutor's office had opened an investigation into case no. 38043 and had taken certain investigative measures. In particular, they had examined the crime scene, had compiled a plan of unspecified investigative steps to be taken, had come up with a number of unspecified versions of the abduction and had interviewed the applicants' neighbours and other residents of Valerik. They had also sent requests to various law-enforcement agencies in the Chechen Republic, Ingushetia, Dagestan and the Stavropol Region. However, Shamkhan Tumayev's whereabouts had not been established. On 29 January 2005 the investigation had been suspended. Nevertheless, unspecified operational and search measures were being taken to resolve the crime.
35. On 25 May 2005 the first applicant requested that the district prosecutor's office inform her of the progress in the investigation into her son's kidnapping. It is unclear whether her request was ever replied to.
36. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 38043, providing only copies of some documents relating to the preliminary ROVD inquiry (see below), the decision to institute the investigation; records of several witnesses' interviews; some of the decisions to suspend and reopen the investigation; the crime scene and site inspection reports concerning the applicants' house and three checkpoints; and copies of several replies from the State authorities to the requests for information on Shamkhan Tumayev and his whereabouts made in the course of the investigation.
37. 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 and in breach of the interests of unspecified parties to criminal proceedings.
38. Most of the documents submitted by the Government were illegible or legible only in part. All pages in the file submitted by the Government contained three separate page numbers; some documents concerning investigative actions dated November 2004 had been placed in the file submitted to the Court before the documents dated October and September 2004. Some copies of interview records were not full, i.e. they contained only the first page with the witness's data and the beginning of their respective accounts of the events, whilst the remaining pages were missing. In at least five copies of interview records, the year “2005” appears to have been written over with the year “2008”.
39. The information concerning the investigation, provided by the Government and contained in the documents submitted by them, in so far as they are legible, may be summarised as follows.
40. On 19 September 2004 the ROVD received the applicants' complaint about the abduction of Shamkhan Tumayev. In the complaint, the applicants had stated that at about 2 a.m. on 19 September 2004 a group of persons in camouflage uniforms and masks driving three white UAZ-469 vehicles had abducted Shamkhan Tumayev and had taken him to an unknown destination.
41. On the same date the ROVD launched a preliminary inquiry into the abduction and inspected the crime scene. According to the crime scene inspection report, no objects of interest for the inquiry were found in the applicants' house. The report did not mention whether or not there had been a disturbance in the house.
42. Again on the same date, ROVD officers obtained a written statement from the second applicant, in which she explained that at about 2 a.m. on 19 September 2004 someone had started knocking on the door of the part of the house where she had been staying with Shamkhan Tumayev and their two-year-old daughter. When she had opened the door, a group of three to four armed men in camouflage uniforms and masks had burst inside and had ordered everyone to lie down. The applicant had inferred that the intruders were servicemen and had complied with the order. Some of the servicemen had then taken Shamkham Tumayev outside and others had ordered the second applicant to open a safe. The servicemen had taken several video cassettes of Indian movies from the safe and had explained that they would check whether they contained any recording of members of illegal armed groups or their terrorist activities. The second applicant had seen about ten servicemen in total and submitted that she had not seen or heard any vehicles in the courtyard or on the street.
43. Upon being interviewed again on the same date, the second applicant confirmed her account of the events given in the written statement and submitted in addition that, immediately after Shamkhan Tumayev's abduction and after the first applicant had managed to get outside, they had alerted their relatives to the abduction. Their relatives had caught up with the abductors and had seen their vehicles.
44. On 19 September 2004 ROVD officers interviewed Mr Sh. T. He submitted that at about 3 a.m. on 19 September 2004 the first applicant had come to his house and had told him about the abduction of Shamkhan Tumayev, following which Sh. T. and three other individuals, I.M., A.T. and R.Kh., had gone in their vehicle in the direction of the neighbouring village of Katyr-Yurt. Whilst they had been driving in KatyrYurt, their car had been stopped by a group of armed men wearing masks, who had checked the vehicle's passengers' identity papers and had ordered them to return home. At about 6 a.m. on 19 September 2004 Sh. T. and his companions had left for Achkhoy-Martan. On their way there they asked servicemen at checkpoint no. 181 whether a convoy of two UAZ vehicles, a silvery Niva and a UAZ all-terrain vehicle had passed the checkpoint on that night, and the servicemen at the checkpoint had allegedly confirmed the passage of those vehicles.
45. On the same date ROVD officers interviewed Mr V.I., residing at 26 Titova Street. He submitted that at about 2 a.m. on 19 September 2004 he had been woken up by the noise of vehicles coming from the street. V.I. had not gone outside. In the morning he had learnt about the abduction of Shamkhan Tumayev.
46. It appears that on the same date, 19 September 2004, the ROVD officers also interviewed the first applicant. She stated that at about 2 a.m. on 19 September 2004 she had been woken up by knocking on the front door. When she had opened it, three masked and armed persons in camouflage uniforms had burst inside and had asked her to give them her son's passport. The intruders had then locked the first applicant and her relatives up. The first applicant had managed to get outside through the window, whereupon she had seen the second applicant, who had told her that the intruders had taken Shamkhan Tumayev away. The first applicant had heard the noise of several vehicles leaving.
47. On 21 September 2004 the ROVD extended the time-limit for carrying out the preliminary inquiry into the abduction of Shamkhan Tumayev until 1 October, owing to the need to carry out unspecified additional investigative actions. It is unclear whether the ROVD took any further investigative steps after 21 September 2004.
48. By letter of 29 September 2004, the district prosecutor's office instructed the ROVD to carry out a preliminary inquiry into the applicants' complaint of the abduction of Shamkhan Tumayev by a group of armed men in masks and camouflage uniforms who had been driving three white UAZ469 vehicles.
49. On 29 September 2004 the district prosecutor's office received the materials from the preliminary inquiry and instituted a criminal investigation into the abduction of Shamkhan Tumayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 38043. The decision stated, amongst other things, that from the materials of the ROVD preliminary inquiry it followed that at about 2 a.m. on 19 September 2004 a group of about 15 armed men in camouflage uniforms and masks, driving a VAZ-2131 vehicle, a UAZ-469 vehicle and an all-terrain UAZ vehicle, had arrested Shamkhan Tumayev and had taken him to an unknown destination.
50. On an unspecified date the district prosecutor's office compiled a plan of investigative steps for case no. 38043.
51. On 30 September 2004 investigator D. of the district prosecutor's office carried out an additional crime scene inspection at 13 Titova Street, but found no objects of interest to the investigation.
52. On 1 October 2004 investigator D. interviewed the applicants' neighbour, N.T., as a witness. He stated that at about 2 a.m. on 19 September 2004 a group of about fifteen armed persons in masks and camouflage uniforms had burst into the applicants' house and had abducted Shamkhan Tumayev. N.T. had learnt about the particular circumstances of the abduction from the applicants at about 3 a.m. on 19 September 2004 and had immediately gone to their house. In the morning on 19 September 2004 several ROVD officers had come to the applicants' house, had inspected the crime scene and had interviewed the applicants and a number of witnesses. During the interviews, the officers had established that the intruders had driven a VAZ-2131 vehicle, a UAZ-469 vehicle and an all-terrain UAZ vehicle, which had been stationed further along Titova Street. The abductors had not parked the vehicles close to the applicants' house because it was situated in a dead end and they would have encountered problems turning around and going back.
53. On 1 October 2004 the first applicant was granted victim status in the proceedings relating to case no. 38043. The decision granting her such status stated that at about 2 a.m. on 19 September 2004 about fifteen armed masked men in camouflage uniforms, who had been driving a VAZ-2131, a UAZ-469 and an all-terrain UAZ vehicle, had arrested Shamkhan Tumayev and had taken him to an unknown destination.
54. On the same date the first applicant was interviewed. She reiterated her earlier submissions concerning the circumstances of the abduction of her son and stated, amongst other things, that, when she had managed to get outside after having been locked up, she had seen the second applicant, who had told her about the abduction. The first applicant herself had heard the noise of the vehicles leaving. Although she had not seen the vehicles herself, her neighbours had told her that the abductors had come in a VAZ2131, a UAZ-469 and all-terrain UAZ vehicles. The first applicant had also stated that the abductors had spoken Russian.
55. On 3 October 2004 the investigators interviewed Mr R.D., an officer of the ROVD. He stated, amongst other things, that on 19 September 2004 he had participated in the inspection of the crime scene and the interviewing of the applicants and witnesses. He confirmed the description of the events given to him by the second applicant in her written statement of 19 September 2004 and also referred to her saying that the abductors' vehicles had not been parked directly at the applicants' house but further along the street because the house was at a dead end and that the abductors would have had problems turning around on their way back.
56. On 7 and 11 October 2004 investigator D. inspected checkpoints nos. 186 and 190 located at the exit from and entry to Achkhoy-Martan. According to the relevant inspection records, no objects of interest to the investigation were found or seized. Both records stated that the checkpoints' vehicle passage logbooks had contained no records concerning the registration of vehicles between 19 and 21 September 2004.
57. On 12 October 2004 the investigators interviewed the first applicant, who reiterated her earlier submissions concerning the abduction of her son, the abductors' having asked for his passport and having locked her up with her relatives. She also stated that she had learnt from her neighbours about the vehicles in which the abductors had come.
58. On the same date the investigators interviewed Sh. T. as a witness. He stated that at about 3 a.m. on 19 September 2004 the applicants had come to his home and had told him about the abduction of Shamkhan Tumayev. Sh. T. had spoken to unspecified people and had learnt from them that the abductors had come in a white armoured Gazel vehicle, a white VAZ-2107 and an all-terrain UAZ vehicle. The above-mentioned unspecified people had not been able to tell Sh. T. whether the vehicles had had licence plates. Those vehicles had gone first in the direction of KatyrYurt but had then turned around and headed in the direction of Shaami-Yurt.
59. The fourth applicant, who was interviewed as a witness on 12 October 2004, stated that at about 2 a.m. on 19 September 2004 a group of armed men in camouflage uniforms and masks had burst into the applicants' house and had taken away Shamkhan Tumayev. After their departure the applicants had not been able to find Shamkhan Tumayev's mobile phone.
60. Between 5 October and 8 November 2004 various State authorities, including the local office of the FSB and the ROVD, replied to the district prosecutor's office affirming that they had no information on Shamkhan Tumayev's whereabouts.
61. On 24 November 2004 the district prosecutor's office wrote to the applicants to notify them that the term of the preliminary investigation of case no. 38043 had been extended for three months.
62. On 25 November 2004 the investigators interviewed the applicants' neighbour, V.T. He stated that at about 3 a.m. on 19 September 2004 he had been woken up by shots being fired. He had dressed himself, had gone outside and had seen the first applicant, who had told him about the abduction of Shamkhan Tumayev. The intruders had come to the applicants' house on foot, having left their vehicles further along the street. They had also locked the first applicant and her relatives up during the abduction.
63. Between 6 October 2004 and 3 February 2005 the investigation interviewed some thirty residents of Valerik as witnesses. They stated, in almost identical terms, that they had learnt about the abduction of Shamkhan Tumayev from their fellow residents of Valerik or from the applicants. In particular, they had learnt that at about 2 a.m. on 19 September 2004 a group of about fifteen armed masked men in camouflage uniforms had burst into the applicants' house and had taken Shamkhan Tumayev away. The abductors had spoken Russian and had arrived in several vehicles, including UAZ-469, VAZ-2131 and an allterrain UAZ vehicle. One witness also mentioned a Gazel vehicle.
64. According to an interview record dated 21 June 2007, on that date investigator D. interviewed the fourth applicant as a witness. She confirmed her previous account of the events concerning the abduction of Shamkhan Tumayev and submitted that she had mistakenly stated during her previous interview that the abductors had taken Shamkhan Tumayev's mobile phone. She had subsequently learnt from the second applicant that Shamkhan Tumayev had sold the mobile phone about a week before his abduction. She also stated that the video cassettes had not been confiscated.
65. According to a further interview record dated 21 June 2007, on that date investigator D. interviewed the second applicant as a witness. She confirmed her earlier description of the circumstances of her husband's abduction and stated that, although she had submitted in her previous interview that the abductors had said that they would seize the video cassettes, they had not taken them in the end. As to her husband's mobile phone, she stated that he had sold it a week before his abduction. Their other relatives had not known about it and had stated to the investigation that it had been taken by the abductors.
66. On 21 June 2007 the investigation interviewed Sh. T. as a witness. He stated that whilst being interviewed on 12 October 2004, he had told the investigators that the abductors had gone first in the direction of Katyr-Yurt and subsequently in the direction of Shaami-Yurt. However, Sh. T. had learnt about that fact on the morning on 19 September 2004 from unspecified residents of Valerik, who had gathered at the local administration's office. Sh. T. had not known who had seen the vehicles move in the above-mentioned direction.
67. On 21 June 2007 investigator D. refused to open a criminal case into the seizure of the video cassettes and the mobile phone from the applicants' house by the abductors of Shamkhan Tumayev. The decision stated that at about 2 a.m. on 19 September 2004 unidentified armed persons in masks and camouflage uniforms, who had been driving a VAZ-2131, a UAZ-469 and an all-terrain UAZ vehicle, had abducted Shamkhan Tumayev from 13 Titova Street. Referring to the statements obtained from the second and fourth applicants on 21 June 2007, the investigator found that there was no evidence that the video cassettes and the mobile phone had ever been stolen. Lastly, it was stated that it was open to the applicants to appeal against the decision to a higher prosecutor or a court under Article 124 or 125 of the Code of Criminal Procedure. On the same date investigator D informed the applicants of the decision.
68. Between 25 June and 16 July 2007 investigator D. interviewed some twenty-one residents of Valerik. According to copies of their interview records, which are identically worded, the witnesses had learnt about the abduction of Shamkhan Tumayev from their fellow residents. Shamkhan Tumayev's abductors had been armed and masked and had worn camouflage uniforms. They had driven a VAZ-2131, a UAZ-469 and allterrain UAZ vehicles without registration plates. The related documents included two records of interviews with an individual called R.S.Yu., who was said to reside at the same address. The interview records were dated 25 and 30 June 2007 and were identical to each other.
69. It appears that on an unspecified date in July 2007 the investigation was suspended.
70. On 7 February 2008 the deputy head of the Achkhoy-Martanovskiy inter-district investigating department within the Prosecutor's Office of the Russian Federation reopened the investigation of case no. 38043. The decision to do so had stated that the investigation had been suspended and reopened on numerous occasions, owing to its failure to identify the perpetrators. The latest decision to suspend the investigation had been issued on 19 July 2007. An examination of the file had revealed that the decision to suspend the investigation had been premature, because not all relevant investigative steps had been taken.
71. On the same date investigator D. wrote to the applicants to notify them about the reopening of the investigation.
72. The Government submitted that the investigation of case no. 38043 was pending.
73. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-23401
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BARBACA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Zdenko Barbača, is a Croatian citizen, who was born in 1931 and lives in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
In August 1989 the applicant obtained his old-age pension which was assessed according to his average wage and years of employment. His pension, as all other pensions in Croatia, was regularly adjusted in line with the increase in wages and the cost of living, pursuant to the 1991 Pension Insurance Act (Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja - Official Gazette no. 53/1991).
A number of Government Decrees (Uredbe Vlade) adopted between 1993 and 1994 restricted the budget allocation for payment of pensions in Croatia. As a result of these restrictions, ever since August 1993 the pension funds have not been brought into line with the increase in wages but only with the increase in the cost of living, contrary to the 1991 Pension Insurance Act.
On 13 February 1997 the Law on Indexing Pensions and Other Payments from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (hereinafter the “The Pension Indexing Act” - Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja - Official Gazette no. 20/1997) was passed annulling the provisions of the 1991 Pension Insurance Act which regulated the adjustment of pensions. The new law did not bring the pensions into line with the increase in wages and cost of living.
On 12 May 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) declared certain provisions of the 1997 Pension Indexing Act incompatible with the Constitution. The decision was published in the Offical Gazette no. 69/1998.
On 30 June 1998 the applicant applied to the Zagreb Office of the Croatian Pension Fund (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba Zagreb) requesting that his pension be adjusted pursuant to the Constitutional Court’s decision. He received no reply.
On 1 September 1998 the applicant lodged a request with the appellate commission of the Pension Insurance Fund. He received no reply.
On 16 December 1998 the applicant filed an action with the Administrative Court (Upravni sud Republike Hrvatske) pursuant to the provisions of the Administrative Procedure Act, asking that the court order the lower administrative bodies to reply to his request.
The Administrative Court twice sought observations from the lower administrative bodies, but received neither a reply nor the case-file in question.
Meanwhile, on 8 December 2000 Parliament enacted the Act on the Increase of Pension Instalments with a view to complying with the Constitutional Court’s decision of 12 May 1998.
According to the Government, after the enactment of the above Act the applicant’s pension has been increased by 20 %.
On 27 June 2002 the Administrative Court ruled in the applicant’s favour and ordered the Croatian Pension Fund’s Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba) to decide on the applicant’s appeal within thirty days.
On 27 September 2002 the Croatian Pension Fund’s Central Office ordered the Zagreb Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, Područna služba Zagreb) to decide on the applicant’s request within thirty days.
On 21 October 2002 the Zagreb Office of the Croatian Pension Fund rejected the applicant’s request.
On 4 November 2002 the applicant appealed against that decision.
It appears that the proceedings are presently pending before the Croatian Pension Fund’s Central Office as the appellate body.
On 30 December 1998 the applicant filed a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of his full pension adjusted in accordance with the Constitutional Court’s decision.
On 2 May 2002 the court declined jurisdiction in the matter and dismissed the action. It found that the relevant administrative bodies had jurisdiction.
On 19 July 2002 the applicant appealed against that decision.
The proceedings are presently pending before the Zagreb County Court (Županijski sud u Zagrebu) as the appellate court.
The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku - Official Gazette 53/1991) provide as follows:
Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to issue a decision within a period of one month after a party lodged a request. In all other, more complex, cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged.
Section 218 (2) enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his request had been denied.
The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima - Official Gazette 53/1991) provide as follows:
Section 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations:
1. If the appellate body does not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days, the applicant may lodge a claim with the Administrative Court.
2. When a first instance administrative body does not issue a decision and there is no right to appeal, the applicant may directly lodge a request with the Administrative Court.
3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days in matters where a right to appeal exists, the applicant may lodge his request with the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings, and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph 1.
The relevant parts of the Act on the Increase of Pension Instalments (Zakon o povećanju mirovina, Official Gazette no. 127/2000) provide that pension instalments are to be increased, in order to comply with the Constitutional Court’s decision of 12 May 1998, according to the financial possibilities of the State. It regulates the indexes to be applied to the increase of pensions in each calendar year.


ITEMID: 001-95035
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CHAYKOVSKIY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 34;No violation of Art. 34
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1943 and lives in Solone Ozero.
6. In April 1993 the administration of Penitentiary no. 314/60, where the applicant was serving a prison sentence at the time, submitted to the Slovyanoserbsk Department of the Ministry of the Interior a list of prisoners, with their former Soviet passports, who, following the collapse of the Soviet Union in 1991, had expressed a wish to become Ukrainian citizens. The applicant's name was among them.
7. A stamp reading “Annulled” was put in the applicant's old Soviet passport.
8. According to a letter written on an unspecified date by the administration of Penitentiary no. 60 to the applicant, the latter acquired Ukrainian citizenship in 1993.
9. On an unspecified date in 1999 the applicant was detained on suspicion of attempted murder and robbery. According to him, he was beaten in police custody. On 10 November 1999 the Kherson Regional Court sentenced the applicant to fifteen years' imprisonment and ordered the confiscation of all of his personal property following his conviction for these offences.
10. On 21 December 1999 the Supreme Court rejected the applicant's cassation appeal against this conviction. However, it reduced the sentence to thirteen years' imprisonment.
11. Shortly after the ruling of the Supreme Court, the applicant was transferred to Penitentiary no. 45 in the Dnipropetrovsk region to serve his sentence.
12. In 2007 the applicant complained to the prosecution authorities about his alleged ill-treatment during the pre-trial investigation in 1999. In reply, he was informed that his complaint had been lodged too late and could not be investigated given the considerable lapse of time and that all the relevant documents had been destroyed.
13. During 2007 and 2008 the applicant unsuccessfully sought the overturning of his conviction through an extraordinary review procedure.
14. In September 2008 the applicant was released on parole.
15. On 15 June 1999 a forensic psychiatric examination was held to establish whether the applicant could be held criminally liable for the charges brought against him. Along with finding the applicant sane, it noted that he had complained of pain in his legs, weakened eyesight and dizziness, had painless concussion caused by a past head injury, had a diminished ankle reflex, and suffered from encephalopathy, a degenerative disease of the brain, caused by a trauma and atherosclerosis.
16. On 17 February 2005 the applicant was examined by a group of disability experts in Penitentiary no. 45 and recognised as falling into the “second category” of invalidity for a one-year period on account of stable moderate hypertension, hypertensive retinal angiopathy of both eyes, ischaemic heart disease, stable stenocardia, diffuse cardiosclerosis, Leriche's syndrome, cerebral atherosclerosis, phaco-sclerosis (cataracts), and chronic hepato-cholecystitis (inflammation of the gall bladder and liver).
17. From 6 to 18 February 2006 the applicant underwent inpatient treatment in the Dnipropetrovsk Hospital at SIZO-3 for obliterating atherosclerosis of the lower limbs, femoropopliteal occlusive disease (obstruction of the arteries), lower limb ischaemia, stable stenocardia and diffuse cardiosclerosis, after which he returned to Penitentiary no. 45 “in a satisfactory condition” and continued his treatment in the penitentiary hospital.
18. In 2006 the applicant complained to the prosecution authorities that although, according to him, he suffered from certain illnesses which he believed made him eligible for early release, on 17 February 2005 the medical experts had wrongly established his diagnoses because they were biased against him. He requested another medical examination to be held in any other region. The prosecution found the applicant's complaint unsubstantiated. The Dnipropetrovsk Regional Department of the State Department for Enforcement of Sentences (hereinafter “the SDES”) offered him the opportunity to undergo another medical examination by independent doctors in the Dnipropetrovsk region, which he refused.
19. On 18 August 2006 the SDES informed the applicant, following his request, that there were no medical reasons to seek his early release before the court and that he was being “provided medical treatment in accordance with the established diagnoses”. The applicant commented that it was not the medical treatment that he was complaining about, but the alleged inaccuracy of his medical diagnoses, due to which he had not been qualified for early release on health grounds.
20. According to the information provided by the applicant, in 2008 the prison doctors treated him for atherosclerosis of the lower limbs with nicotinic acid injections, which he found to be of little help. The applicant alleged that the treatment was insufficient and therefore, following his release in September 2008, he was in need of surgery.
21. On 1 October 2008 a Doppler sonography of the applicant's lower limbs was performed in the Chernigiv Hospital no. 2, which diagnosed him with blockage of the left and right iliac arteries.
22. On 29 December 2005 the applicant wrote to the Court expressing his intention to lodge an application under Article 34 of the Convention.
23. On 18 January 2006 the Registry of the Court provided him with a blank application form and copies of the explanatory documents necessary for lodging his application with the Court.
24. On 13 March 2006 the Registry received from the applicant the application form dated 3 March 2006, in which he maintained that he was unable to send copies of all the documents he needed to substantiate his complaints as the penitentiary authorities had allegedly refused to provide him with those copies.
25. In a letter of 24 March 2006 the Registry of the Court informed the applicant that under Article 34 of the Convention, State bodies are under an obligation not to create obstacles to the effective exercise of the right of individual petition. The letter also stated that the refusal of the prison administration to provide copies of the relevant documents could be examined by the Court from the point of view of compliance of its acts with the obligations of the State under Article 34 of the Convention. The letter also contained a copy of Order no. 13 of the SDES of 25 January 2006 “On Approval of the Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities”.
26. On 28 April and 24 May 2006 the applicant informed the Court that the penitentiary authorities had refused to hand the attachment sent by the Registry of the Court with the letter of 24 March 2006 over to him. He further stated that he still did not have access to copies of all the documents he needed.
27. The applicant complained about the above to the prosecution authorities.
28. On 28 September 2006, following the communication by the Court of the application to the Government, the applicant, at the request of the prison administration, wrote “an explanatory note”, in which he noted, inter alia: that starting from “mid 2006” he had been provided with the possibility to copy documents from his case file by hand; that the attachment sent by the Registry of the Court on 24 March 2006 had never been served on him; and that he had no complaints regarding the dispatching of his correspondence to the Court by the prison authorities.
29. According to the applicant, he was able to copy documents from his case file by hand twice a week for twenty to thirty minutes.
30. From 15 December 2006 to 24 May 2007 the applicant was represented before the Court by a lawyer.
31. On 31 July 2007 the Prosecutor of the Dnipropetrovsk Region found unsubstantiated the applicant's complaint concerning the seizure by the prison administration of the attachment sent to him by the Court. The prosecutor referred to the Prisons' Internal Regulations of 25 December 2003 (see paragraph 41 below), according to which convicts were entitled to keep copies of verdicts and judicial rulings. Thus, since the document at issue had been outside that category, its seizure did not amount to a violation on the part of the prison administration.
32. On 12 March 2008 the applicant received the attachment at issue from the prison administration.
33. On the same day the Dnipropetrovsk Regional Prosecutor's Office reaffirmed its earlier finding that by having seized the above document, the prison administration had not committed any violation.
34. The applicant alleged that on 27 October 2006 the prison duty officer had beaten him with a rubber truncheon, which had resulted in his hospitalisation in the penitentiary hospital on 2 November 2006. According to him, the prison doctor had refused to document his injuries.
35. In May 2007 the applicant complained to the SDES that between 1999 and 2005 over 700 prisoners had allegedly died of starvation in Penitentiary no. 60.
36. The Lugansk Regional Department of the SDES replied to the applicant that his allegation had been investigated and found unsubstantiated.
37. The relevant provisions of the Constitution read as follows:
“Everyone is guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.”
38. Article 113 of the Code on Enforcement of Sentences (2003), following the amendments introduced to it on 1 December 2005, stipulates that prisoners are allowed to correspond with relatives, other persons and organisations. All such correspondence is subject to automatic monitoring and censorship by the prison administration, with the following exceptions, provided for in paragraph 4:
“Proposals, applications and complaints addressed to the Ombudsman of the Verkhovna Rada of Ukraine, to the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or to prosecution authorities, shall not be subject to censorship and shall be dispatched within twenty four hours.”
39. The Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities, approved by Order no. 13 of the State Department for Enforcement of Sentences of 25 January 2006, elaborates the above provision as follows:
“1.5. ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as with other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations or prosecution authorities, shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within twenty-four hours. ...
2.4. Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or prosecution authorities. Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as from other relevant international organisations of which Ukraine is a member or participant, from authorised persons of those international organisations or from prosecution authorities. ...”
40. The relevant provisions of the Internal Regulations of Penitentiaries, approved by Order no. 275 of the State Department for Enforcement of Sentences dated 25 December 2003, read as follows:
“18. ... Prisoners are entitled ... to receive and send letters in unlimited numbers. ...
Prisoners may only dispatch letters and applications via the penitentiary's administration. There are mail boxes on the premises of the penitentiary for that purpose, which are checked by the responsible prison officers on a daily basis. Prisoners in confinement hand letters for dispatching to the administration.
Letters shall be posted in mail boxes or handed to representatives of the administration unsealed. ...
Correspondence received or dispatched by prisoners shall be reviewed.
Proposals, applications and complaints addressed to the Ombudsman of the Verkhovna Rada of Ukraine, to a prosecutor or to the European Court of Human Rights shall not be subject to review and shall be dispatched within twenty-four hours.”
41. The Regulations also allow prisoners to keep with them copies of verdicts and rulings of the courts concerning their case.
42. According to Article 22 of the Code on Enforcement of Sentences (2003), prosecutors supervise the enforcement of sentences with a view to ensuring compliance with the existing legislation.
43. The relevant provisions of the Law on the Prosecution Service (1991, as amended) are summarised in Naumenko v. Ukraine, no. 42023/98, § 93, 10 February 2004.
44. Pursuant to paragraph 1 of Article 17 of the Code of Administrative Justice of 6 July 2005 (which entered into force on 1 September 2005), administrative courts are competent to examine inter alia claims by individuals against authorities concerning the latter's decisions, actions or omissions. Its paragraph 2 excludes from the competence of the administrative courts public-law cases dealt with by the Constitutional Court of Ukraine, disputes adjudicated under the criminal procedure, cases concerning administrative offences, and those concerning the internal activity of corporate entities.
45. According to Article 162 of the Code of Administrative Justice, the administrative court, should it find an administrative claim substantiated, may inter alia declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision.
46. The relevant extracts from Article 55 of the Constitution of Ukraine read as follows:
“Human and citizens' rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers...
... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant ...”
47. Article 3 of the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights reads as follows:
1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court.
2. As regards persons under detention, the exercise of this right shall in particular imply that:
a) if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration;
b) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court;
c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom.
3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.
VIOLATED_ARTICLES: 34
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-85936
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GACESA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mrs Milka Gaćeša, is a Croatian national who was born in 1950 and lives in Karlovac. She was represented before the Court by Mrs S. Čanković, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 December 1990 the applicant’s husband was awarded a specially protected tenancy (stanarsko pravo) of a flat in Karlovac. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat at issue.
In August 1991 their daughter, who was at the time spending her summer holidays with her grandparents in Vojvodina, fell ill. On 21 August 1991 she was admitted to a hospital in Belgrade and on 2 September 1991 underwent eye surgery. The applicant and her husband went to Belgrade to be with their daughter. She was released from the hospital on 9 September 1991. The applicant and her husband then returned to Karlovac, but on 14 September 1991 left again for Belgrade as they were concerned about their daughter’s post-operative recovery.
On 4 October 1991 the town of Karlovac was attacked. On 8 October 1991 Croatia declared its independence.
In these circumstances the applicant and her husband decided to stay in Belgrade. She submitted that with the outbreak of war in the region, they could not have crossed the borders and that they also did not have Croatian citizenship at that time. The applicant also claimed that her husband had informed Croatian Railways, as the owner and the provider of the flat, of their inability to return, and that on 28 October 1991 their flat had been broken into.
On 28 November 1991 Croatian Railways issued a decision authorising a certain L.j. M. – an internally displaced person – to use the applicant’s flat temporarily.
On 20 February 1992 Croatian Railways brought a civil action against the applicant and her husband in the Karlovac Municipal Court (Općinski sud u Karlovcu), seeking termination of their specially protected tenancy. The plaintiff based its action on section 99 of the Housing Act, arguing that the applicants had been absent from the flat for more than six months without justified reason. As the respondents’ residence was unknown, the competent authority appointed a guardian ad litem (skrbnik za poseban slučaj) in the case.
On 17 August 1992 the Karlovac Municipal Court terminated the respondents’ tenancy. On appeal, the Karlovac County Court (Okružni sud u Karlovcu) upheld the first-instance judgment.
Following the guardian’s appeal on points of law (revizija), on 8 June 1995 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the lower instances’ judgments and remitted the case, finding that the applicant had not been properly represented in the proceedings since the guardian ad litem had been appointed only to her husband.
After the applicant returned to Karlovac in 1998 and found out that the action for termination of the tenancy had been brought against her and her husband, she joined, and from then on actively participated in, the proceedings. On 25 October 2000 she informed the court that her husband had died.
In the resumed proceedings, on 9 May 2001 the Karlovac Municipal Court terminated the applicant’s specially protected tenancy, finding that she had been absent from the flat for more than six months without justified reason. As to the applicant’s assertion that her daughter’s surgery and the subsequent escalation of the war had justified her absence, the court held that:
“Having due regard to the concern of the parents regarding the medical treatment of their daughter, the court cannot accept [that the absence was justified], because, judging by the medical documents dating from 1991 or even later, the patient’s condition had not been so critical as to prevent her from returning to Karlovac and continuing her treatment in Croatia. The arguments of the respondents that they could not return to Croatia due to the escalation of war, because they had no documents, cannot be accepted either, since it is common knowledge that at the beginning of the war there was chaos and that one could enter the country in various places, not only at border crossings, and, it is very hard to believe that the respondents had not taken appropriate documents with them on such a long journey.”
On appeal, on 9 December 2001 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first-instance judgment, reasoning as follows:
“The fact that the respondent’s daughter had actually undergone surgery and was hospitalised for a short period of time during September 1991 in Belgrade does not mean (...), that the conditions from section 99 (2) of the Housing Act were met... Notwithstanding whether the medical intervention had to be performed in a hospital relatively far away from the respondent’s residence at the material time, the fact is that the civil action is directed against Milka Gaćeša, that is to say, not against the person who was medically treated, but against her mother... In any event, had the post-operative recovery of the respondent’s daughter actually necessitated parental presence or care, such care could have certainly been ensured by one parent and not both...”
The applicant subsequently lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She complained that her constitutional rights to equality before the law, fair hearing and property had been infringed. On 30 April 2002 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that there had been no violation of any of the constitutional rights relied on.
The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided that a holder of a specially protected tenancy (“the tenant”) had a right to permanent use of the flat for living purposes, to sub-let part of it to someone else and to participate in the administration of the building in which the flat was located. The Housing Act also provided that, in agreement with the provider of the flat, the tenant could exchange it for another flat and, exceptionally, use part of it for business purposes.
Section 67 provided that the members of the tenant’s household could acquire the tenancy after the tenant’s death.
Section 99 read as follows:
“1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months.
2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.”
Under section 105 (1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. The tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat, became res judicata.
In decisions nos. Rev-3839/93-2 of 19 January 1994, Rev-2276/00-2 of 21 November 2000 and Rev-590/03-2 of 17 December 2003, the Supreme Court interpreted section 99(1) of the Housing Act as follows:
“War events per se, without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.”
In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.”
The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy of a socially-owned flat to purchase it from the provider of the flat under favourable conditions.
Section 4 (2) provided that a written request for purchase (the first request) had to be made within one year of the date of the Act’s entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract (the second request) within two years following the first request.
In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4 (2) of the Specially Protected Tenancies (Sale to Occupier) Act as follows:
“Since the plaintiff did not make a request for purchase of the flat to the respondents in a written form until 31 December 19995, as provided by law, [...], the lower-instance courts correctly assessed that the plaintiff had lost his right to request a conclusion of the purchase contract.”
In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court provided a more extensive interpretation of section 4 (2):
“The plaintiff made a request for purchase of the flat to the respondent on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...
The fact that the proceedings for termination of the specially protected tenancy – that ended by the first-instance judgment [...] of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. [...][Those proceedings] did not prevent the plaintiff from making a request to purchase the flat. ...
... The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat.”
The Flats Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8 paragraph 1).
The Flats Lease Act regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies on privately-owned flats or those who did not purchase their flats under the Specially Protected Tenancies (Sale to Occupier) Act. That category is subject to a number of protections, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a protected rent (zaštićena najamnina), the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease.
Pursuant to the Act a landlord may terminate the lease of a protected tenant in the following cases:
if the tenant does not pay the rent or charges;
if the tenant sublets the flat or part of it without permission from the landlord;
if the tenant or other tenants in the flat disturb other tenants in the building;
if another person, not named in the lease contract, lives in the flat for longer than thirty days without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent;
if the tenant or other legal tenants do not use the flat as living accommodation but for other purposes;
if the landlord does not have another flat and is entitled to social welfare benefits or is older than sixty years.
Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.