ITEMID: 001-80025
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BAYSAYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 6. The applicant, Asmart Magomedovna Baysayeva, was born in 1958 and lives in the village of Pobedinskoye, Grozny district, Chechnya.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The applicant lives in the village of Pobedinskoye in the Grozny district. The applicant's husband, Shakhid Baysayev, born in 1939, worked in the neighbouring village of Podgornoye (also referred to sometimes as Sobachevki) as a mechanic with a municipal transport company. The applicant had been married to her husband for 25 years and had five children.
9. On 2 March 2000 the applicant's husband left for work at about 6.30 a.m. The road to the village of Podgornoye went through a Russian military checkpoint, at that time known as checkpoint no. 53, near which a military unit had been stationed.
10. At about 10 a.m. the same day the applicant heard sounds of shooting and explosions from the road. She went out and saw a convoy of military cars under attack on the road. She later learned that the convoy of the OMON (special police forces) from the town of Sergiyev Posad, Moscow Region, had been under attack. The fighting lasted until about 1 p.m. It was later reported that the troops had been mistakenly ambushed by other detachments of the Russian forces, and in particular by OMON forces from Podolsk and a military unit from the Sverdlovsk Region. As a result of the fighting, more than twenty servicemen were killed and more than thirty wounded. The fighting was followed the same day by a “sweeping” operation (zachistka) in the village of Podgornoye, from where the attack had come.
11. During the fighting and for the remainder of that day until nightfall checkpoint no. 53 remained closed and the road to Podgornoye was blocked. The applicant remained about 500 metres away from the checkpoint until about 8 p.m. that day, but was not able to get through to Podgornoye. Her husband did not come home that night. The applicant has not seen her husband since.
12. The next day at about 5 a.m. she went to the checkpoint and saw the aftermath of the fighting – burned cars from the convoy, soldiers' bodies and blood stains. On that day and in the days immediately following it the applicant questioned numerous witnesses trying to find out about her husband. She did not keep records of these conversations, as at that time she could not have imagined that it would be useful.
13. From the witnesses' statements the applicant learned that the “sweeping” operation in Podgornoye had resulted in a large number of persons – over fifty – being detained by the Russian military. All of them had been taken to the Staropromyslovskiy Temporary District Department of the Interior (VOVD) in Grozny. One of the witnesses told the applicant that he had seen her husband, Shakhid Baysayev, being taken away by the Russian servicemen in the village. The witness described the applicant's husband as being in pain – his appearance suggested that he had been beaten.
14. On 4 March 2000 the applicant met with several men who had been detained in Podgornoye on 2 March and later released. They identified the applicant's husband from a photograph and confirmed that he had been detained by the soldiers at checkpoint no. 53 and then taken away. They had not seen him at the VOVD where they had been taken.
15. Other witnesses told the applicant that her husband had finished work in Podgornoye and had been returning home, but that the soldiers had not let him through because of the fighting. He had returned to Podgornoye and been detained during the “sweeping” operation. Apparently, the applicant's husband had witnessed the killing by the soldiers of two brothers O. and had tried to intervene on their behalf. The soldiers had beaten him up, put a sack over his head and driven him away. In September 2000 the local authorities of Podgornoye village issued a certificate to the applicant confirming that two brothers O. had been killed on 2 March 2000 during a “sweeping” operation in the village. The applicant submitted that she had later found the O.s' house in Podgornoye locked and abandoned and had been told by local residents that their father had been killed by an unknown gunman about a month before the killing of the brothers, and their mother had been suffering from a severe mental disorder since the deaths of her family members. The applicant did not find any of the O.s' relatives.
16. Further witnesses told the applicant that they had seen her husband at checkpoint no. 53 during the fighting, covered in blood.
17. The applicant attempted to find out at the checkpoint whether her husband had been detained there, but the soldiers told her that they had been brought in as replacements after the fighting of 2 March 2000 and were not aware of any detainees.
18. The Government submitted in their memorial of 28 April 2004 that it had been established that on 2 March 2000 in the village of Podgornoye fighting had taken place involving servicemen of the federal forces, which had resulted in the deaths of servicemen of the OMON detachments from Sergiyev Posad. Immediately after the fighting a special operation had been conducted in Podgornoye aimed at identifying members of the illegal armed groups who had participated in the ambush. The detainees had been taken to the Staropromyslovskiy VOVD, but Shakhid Baysayev was not listed among them. Nor was his name on the list of persons who had been detained by other detachments of the Ministry of the Interior in the Northern Caucasus.
19. Starting on 2 March 2000, the applicant applied on numerous occasions to the prosecutors at various levels, the Ministry of the Interior, the administrative authorities in Chechnya, the Special Representative of the Russian President in the Chechen Republic for Rights and Freedoms and to other authorities and public figures. The applicant submitted several dozen copies of her letters stating the facts of her husband's disappearance and asking for assistance and details on the investigation. She also personally visited the Grozny Town Prosecutor's Office (to which she often had to walk – about 35 km one way), the Staropromyslovskiy VOVD and the main Russian military base in Khankala.
20. The applicant received very little substantive information from the official bodies about the investigation into her husband's disappearance. On several occasions the applicant was sent copies of letters forwarding her requests to the relevant prosecutor's office.
21. On 3 March 2000 the applicant went to the Staropromyslovskiy VOVD and talked to its head, Mr D. He called one of the officers, who confirmed that he had seen the man on the photograph – the applicant's husband - but said that he had never been brought to the VOVD. He told the applicant that her husband would be brought to the VOVD on 7 March at 11 a.m. and released. On 7 March 2000 the applicant returned to the VOVD and waited until 5 p.m., but received no news of her husband. She was then told that officer D. had left Chechnya after completion of his mission.
22. On 4 March 2000 the applicant addressed the investigator of the Grozny Town Prosecutor's Office, Mr M., who had apparently been investigating the killing of the brothers O., and asked him to help her find her husband.
23. On 8 March 2000 the applicant addressed the head of the Staropromyslovskiy VOVD and the head of the Staropromyslovskiy District Authority, asking them to help her to find her husband.
24. On 16 March 2000 the applicant attempted to gain access to the military prosecutor's office in Khankala, but was not allowed to enter the compound.
25. On 30 March 2000 the applicant wrote to the Grozny Town Prosecutor, the military commander of Chechnya, the military prosecutor of Chechnya and the mayor of Grozny, asking them to take measures to establish her husband's whereabouts.
26. On 31 May 2000 the Chechnya Prosecutor's Office wrote to the head of the Department of the Interior in Chechnya, asking the department to organise a search for thirty missing persons at the request of their relatives, one of whom was the applicant. The letter asked the department to inform the persons concerned of the results of the investigation. A copy of that letter was forwarded to the applicant.
27. On 1 June 2000 the applicant visited the Grozny Town Prosecutor's Office. The investigator talked to her and asked her to come back in two weeks. When the applicant returned, the investigator told her that her husband had been detained by servicemen of the Podolsk OMON on 2 March 2000 and taken to their base near Podgornoye between 12 and 2 p.m. that day. He also told the applicant that a videotape existed proving this information. The Grozny Town Prosecutor's Office had opened a criminal case under Article 126, part one of the Criminal Code (kidnapping). The applicant submitted that the investigator who gave her this information had stopped working there in September, and that after he had left the case had not progressed.
28. On 28 June 2000 the applicant addressed the Special Representative of the Russian President in the Chechen Republic for Rights and Freedoms and the Prosecutor of the Chechen Republic, asking them to take measures to find out her husband's whereabouts and inform her of any results.
29. Since the applicant did not receive any news of her husband, and knowing the circumstances of his detention, she concluded that he was probably no longer alive. She therefore also started to search for his body in places where persons who had been killed during the conflict were buried.
30. Before 5 May 2000 the applicant, together with servicemen of the Staropromyslovskiy VOVD and the Ministry for Emergency Situations (Emercom), travelled on several occasions to a location near checkpoint no. 53, from where they transported over three dozen bodies.
31. The applicant also accompanied the VOVD servicemen to another location, where dead bodies, apparently dumped by federal servicemen, had been brought. She also went to other villages, including Komsomolskoye and Znamenskoye. The applicant submitted that she had seen about 400 dead bodies, but had not found her husband.
32. On an unspecified date at the beginning of August 2000, at about 5 p.m., the applicant was walking home. On the road not far from checkpoint no. 53 a white “Zhiguli” car stopped near her. A man in the car, wearing military uniform and a balaclava mask, told her in Russian, which he spoke without any accent, to kneel down with her back to the car. When the applicant obeyed, he told her that if she wanted to know who was behind her husband's disappearance she should bring him five thousand roubles the next day.
33. The applicant collected the money. On the next day she saw the same car at the same place. This time a different man was inside. He showed her on a small TV set inside the car extracts from a videotape, in which the applicant recognised her husband. In the footage Shakhid Baysayev was shown lying on the ground, being kicked by a soldier, being ordered to stand up and being escorted by the military. The soldiers were talking to him in a harsh and aggressive tone, threatening him and using obscene language. The screen showed the date of his detention – 02.03.2000. After the applicant had given the unknown man the money, he gave her photographs made from the video. He also gave her a sketch map of four burial places, including that of her husband. The applicant asked for the videotape and was told that she would have to pay 1,000 US dollars for it. She was also told that the tape was known to the prosecutor's office under registration number 49030.
34. The next day the applicant travelled to the Grozny Prosecutor's Office and talked to an investigator. She gave him the map and told him about the videotape on which her husband had been depicted after his “disappearance”. The investigator confirmed that he had known about the tape and that a copy of the tape was probably in the Chechnya Prosecutor's Office.
35. One week later the applicant managed to buy the videotape, having paid 1,000 US dollars for it. The meeting was organised in the same way – a white “Zhiguli” car stopped alongside her on the road and the applicant talked to a man inside. The footage (a copy and a transcript of which were submitted to the Court) is about three minutes long. It shows a group of several dozen soldiers wearing camouflage and with guns and ammunition walking across a field. At one point they cross a small railroad and a low barrier. Then the camera turns towards the direction where they are walking and shows the only civilian, whom the applicant recognised as her husband. He is at first lying on the ground, then a soldier kicks him and orders him to stand up. The soldiers address him with threatening remarks, using obscene language. He is wearing a dark brown sheepskin coat and a yellow fur hat and his clothes are dirty. He is escorted by the soldiers towards partially destroyed buildings, where more soldiers are gathering, all in full gear. The applicant's husband appears for about one and a half minutes, then the camera turns to film the soldiers (who seem to be returning from a mission) and at least six bodies in camouflage on stretchers, some covered with blankets, others exposed. The tape also shows military equipment, some of it burnt, and a bus.
36. On 23 August 2000 the applicant, together with an investigator from the Grozny Town Prosecutor's Office, travelled to the location indicated on the map. The place was within the military compound near checkpoint no. 53, and the military did not let them into the compound.
37. On 7 September 2000 the Grozny Town Prosecutor's Office informed the applicant that the persons responsible for the kidnapping of her husband could not be identified, but that investigative measures were being carried out.
38. On 10 September 2000 the Chechnya Prosecutor's Office informed the applicant that a preliminary investigation was being conducted by the Grozny Town Prosecutor's Office. Her oral statement about the alleged burial place would be verified.
39. On 19 September 2000 the Grozny Town Prosecutor's Office informed the applicant that on 14 September 2000 the criminal investigation into the kidnapping of her husband by unknown persons in camouflage had been adjourned owing to a failure to identify those responsible.
40. On 20 September 2000 the Pobedinskoye village authorities issued a certificate to the applicant confirming that she had applied to the authorities on 3 March 2000 on account of her husband's detention during a “sweeping” operation on 2 March 2000 following the ambush of the “Moscow OMON”. The note confirmed that the “sweeping” operation in Sobachevki had taken place on 2 March 2000 between 12 p.m. and 2.30 p.m.
41. On an unspecified date at the end of September 2000 the applicant, together with investigator M. from the Grozny Town Prosecutor's Office and a police escort, again went to the presumed burial site. They were allowed into the military compound, but the investigator refused to instigate the search, apparently because the location was inexact and the area too big.
42. On 9 October 2000 the Prosecutor General's Office informed the applicant that her request concerning the search for her husband had been forwarded to the Chechnya Prosecutor's Office.
43. On 29 October and 3 December 2000 the Chechnya Prosecutor's Office forwarded the applicant's requests concerning her husband's unlawful detention to the Grozny Town Prosecutor's Office.
44. On 23 November 2000 the Ministry of the Interior forwarded her request to the Department of the Interior in Chechnya.
45. On 9 December 2000 the military prosecutor of military unit no. 20102 forwarded the applicant's request concerning the whereabouts of her husband to the head of the Grozny district VOVD, on the ground that the issue fell outside the jurisdiction of the military prosecutor.
46. In March 2001 the NGO Human Rights Watch issued a report entitled “The 'Dirty War' in Chechnya: Forced Disappearances, Torture and Summary Executions”, which listed Shakhid Baysayev as one of the victims of “forced disappearances” following detention by Russian servicemen.
47. On 23 April 2001 the Grozny Town Prosecutor's Office provided the applicant with a progress report in criminal investigation no. 12048. The note stated that on 10 May 2000 the Office had opened a criminal investigation under Article 126, part 1 of the Criminal Code. The investigation was based on the detention of Shamid [sic] Baysayev by unknown persons in camouflage on 2 March 2000 at about 12 a.m. near the village of Podgornoye. The investigative measures had failed to establish the whereabouts of Baysayev. The investigation was adjourned and later resumed on unspecified dates.
48. In April 2001 the Joint Working Group on Chechnya, comprised of members of the Parliamentary Assembly of the Council of Europe and members of the State Duma, reported that the criminal investigation in the case concerning the disappearance of Sh. Baysayev was continuing, but no progress had been reported.
49. On 28 June 2001 the Grozny District Court granted the applicant's request to declare her husband a missing person.
50. On 17 August 2001 the Human Rights Watch forwarded a copy of the videotape purchased by the applicant to the Prosecutor General's Office.
51. In autumn 2001 the applicant again applied to the Grozny Town Prosecutor's Office. She requested the prosecutors to resume the investigation in the case concerning her husband's disappearance, to identify the persons on the videotape and to obtain witness statements from them in relation to her husband's detention and disappearance.
52. On 29 November 2001 the applicant learned in the Grozny Town Prosecutor's Office that the criminal case concerning her husband's disappearance had again been adjourned. On 7 December 2001 she again applied to the Grozny Town Prosecutor's Office, requesting the resumption of the investigation and the inspection of the alleged burial site.
53. On 8 December 2001 the applicant, together with investigator Leushev and a crime-scene investigator from the Grozny Town Prosecutor's Office, travelled to the location of checkpoint no. 53. There they found the building to which the soldiers had led Shakhid Baysayev on the videotape. At the building they discovered several pieces of clothing and a human bone. At one location near a tree the investigators suggested that the sunken earth indicated a burial place. They started excavations and soon found a piece of brown cloth, resembling a piece of rotten sheepskin coat. The investigators stopped the excavations at that point, collected the items they had found and agreed with the military that they would come back the next day with a video camera. The applicant then returned home using the regular bus service.
54. On 9 December 2001 investigators from the Grozny Town Prosecutor's Office came to the applicant's house and asked her to accompany them to the office. The applicant agreed, thinking that she would have to identify the body of her husband. However, on the way to the office she was told that, the day before, the car in which investigator Leushev and the crime-scene investigator had been travelling had been blown up before it had reached the Prosecutor's Office. Both had been killed in the explosion. The incident was reported in the Russian press.
55. Once at the Grozny Town Prosecutor's Office, the applicant was brought into a room with two officers of the prosecution service, who only gave her their first names – Mikhail and Zukhari. They suggested that the applicant had been involved in the blowing-up of the prosecutors' car. They told her not to insist on further investigations and to stop searching for her husband's body, or risk her own safety and that of her children. The applicant, who perceived the threat to be real, refrained from contacts with the law-enforcement bodies for some time.
56. In 2003 the applicant, acting in person and through her representative the SRJI, tried to obtain information about developments in the case. In response to several requests, the Grozny Town Prosecutor's Office wrote to the SRJI on 15 August 2003 stating that criminal investigation no. 12048 had established that, on the evening of 2 March 2000, Shakhid Baysayev had been caught in the shooting near the village of Podgornoye, had been wounded and had then been driven away by unknown persons. The investigation had been adjourned for failure to identify those responsible. Attached to the letter was a decision granting victim status to the applicant, dated 15 January 2002 and countersigned by her.
57. The applicant submitted that in 2003 she had on several occasions met with an employee of the Grozny Town Prosecutor's Office on the premises of the Zavodskoy District Court. The employee had publicly called her a “murderer” and accused her of being involved in the death of the two officers of the prosecution service in December 2001. This had caused her severe emotional distress.
58. In February 2004 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 12048. In April 2004 the Government submitted about one-third of the file (judging by the page numbers) and stated that nothing else has been disclosed to them by the prosecutor's office. In December 2005 the Court declared the application admissible and reiterated its request to be provided with the entire file. It also asked the Government to provide an update of the investigation since March 2004. In March 2006 the Government submitted an additional 45 pages from the file, produced between March 2004 and February 2006, and containing the decisions to adjourn and reopen the case. The Government stated that disclosure of the remaining documents would be in violation of Article 161 of the Code of Criminal Procedure and would lead to a breach of military secrets and disclosure of the names and addresses of third parties.
59. The Government also stated that in June 2005 the investigation had collected a number of photographs of servicemen of the OMON units from the Moscow Region who had been on mission in Chechnya in March 2000. In June and December 2005 more than sixty-five servicemen from these units had been questioned and had confirmed that on 2 March 2000 they had been in the convoy which had come under attack that day. However they stated that they had not taken part in the subsequent mopping-up operation and that they had not been aware of Mr Baysayev's disappearance. The Government did not submit any documents relating to these interviews.
60. Between 2004 and 2006 the applicant on more than a dozen occasions applied to the Staropromyslovskiy District Prosecutor's Office, the Chechnya Prosecutor's Office and the Prosecutor General's Office with requests for information about the fate of her husband and for news of the investigation. She submitted that during one of her personal visits to the Staropromyslovskiy District Prosecutor's Office, in September 2005, an investigator had yelled at her and told her that he “had enough of her”. After that the applicant had on several occasions requested the senior prosecutors to transfer the investigation to another prosecutor's office, but to no avail. She had received responses from the Staropromyslovskiy District Prosecutor's Office telling her that the investigation had been adjourned or reopened.
61. On 28 October 2005 the applicant wrote to the OMON unit in Sergiyev Posad, stating the circumstances of her husband's disappearance and asking for any information that could help establish his whereabouts.
62. On 9 February 2006 the applicant submitted a complaint to the Staropromyslovskiy District Court alleging negligence on the part of the district prosecutor's office.
63. On 13 February 2006 the applicant requested the district court to declare her husband dead.
64. It appears that the investigation into Shakhid Baysayev's abduction was adjourned and reopened more than twelve times. The investigation was carried out by the Grozny Town Prosecutor's Office, and then by the Staropromyslovskiy District Prosecutor's Office. The investigation did not identify the persons or the detachment responsible for the abduction and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file). The Government submitted in their latest memorial of 14 March 2006 that the investigation was continuing.
65. The applicant also submitted that on 22 March 2004 a prosecutor from the Staropromyslovskiy District Prosecutor's Office had visited her at her home and asked her to sign a statement saying that she had not been subjected to any threats after her application to the European Court of Human Rights. The applicant felt that she was being put under pressure and agreed to write a statement with the following content: “When I lodged the application with the Court in Strasbourg nobody threatened me”.
66. The applicant submitted that she had suffered from a heart condition since the first military campaign of 1994-96, when her daughter and daughter-in-law had been killed and her son had been wounded by the explosion of a shell. At that time the applicant had suffered her first attack of cardiac neurosis. On 2 November 1999 she had been wounded in the leg. Since the “disappearance” of her husband her health had worsened significantly, and she required regular treatment and injections. On 13 February 2004 she had had a stroke. She suffered from restlessness, anxiety and insomnia. The applicant did not submit any medical documents.
67. On two occasions the Government submitted to the Court a part of the investigation file in criminal case no. 12048 which comprised three volumes. They stated that only these documents had been submitted by the Prosecutor General's Office. The documents may be summarised as follows:
68. On 10 May 2000 a prosecutor from the Grozny Town Prosecutor's Office opened a criminal investigation into the abduction of Shakhid Baysayev on 2 March 2000 in Podgornoye by unidentified persons wearing camouflage. The decision referred to Article 126, part 1 of the Criminal Code (kidnapping).
69. The file contains the applicant's letter of 30 March 2000 to the Grozny Town Prosecutor's Office stating the known details of her husband's disappearance and asking for assistance in finding him.
70. On 29 June 2000 the applicant was questioned as a witness. She repeated the circumstances of her husband's detention by the military servicemen of which she was aware and confirmed that she had had no news of him.
71. On 8 September 2000 the applicant was questioned once more. She made detailed submissions about her husband's apprehension, based on the witnesses' statements. According to her, her husband had been put in an armoured personnel carrier and taken to checkpoint no. 53, manned by OMON. The applicant gave evidence about her conversation with Mr D. at the Staropromyslovskiy VOVD. The applicant also stated that she had attempted to get to the checkpoint with another policeman from the VOVD, Major Ch., but that they had been fired upon when they tried to approach. She told the investigators about the videotape depicting her husband's detention and the map of the alleged place of burial, as well as the circumstances under which she had obtained them. She submitted a request to inspect the site. On the same day the applicant was granted victim status in the proceedings.
72. On 21 March 2004 the applicant was again questioned about her husband's disappearance, about the videotape and the map of his alleged place of burial and about the attempts in 2000 and 2001 to find the site as indicated on the map. On the same day the applicant was again granted victim status.
73. On 5 June 2000 the investigators requested the Ministry of the Interior to check whether Shakhid Baysayev had been detained in their facilities. In reply, four District Departments of the Interior in Grozny, the Operational Brigade of the Ministry of the Interior for the Northern Caucasus (based in Northern Ossetia) and the Federal Security Service for Chechnya responded that he had never been detained by them and that there was no information about him in their databases.
74. On 17 June 2000 the Staropromyslovskiy VOVD replied to the investigators and stated that they could not find witnesses to the events surrounding Shakhid Baysayev's abduction and that the latter was reported to be a man of good conduct.
75. It appears that the investigators tried to verify the information about the alleged witnessing by the applicant's husband of the killing of two brothers O. on 2 March 2000. On 22 March 2004 the Staropromyslovskiy District Prosecutor's Office stated that there was no criminal case pending with that office concerning the murder of “brothers A. [the names were similar to the ones indicated by the applicant except for the first letter]”, or the discovery in March 2000 of two unidentified male bodies.
79. On 18 March 2003 the prosecutor of the Staropromyslovskiy District Prosecutor's Office ordered the investigation to collect the videotape stored at the Prosecutor's Office of the Chechen Republic.
80. On 22 March 2003 the videotape was viewed in the presence of the applicant, who recognised the person depicted in it as her husband.
81. In February and March 2004 investigators questioned about a dozen residents of the villages of Podgornoye, where the applicant's husband had been detained, and Pobedinskoye, where he had lived. The residents stated that on 2 March 2000 there had been fighting at around midday, followed by a “sweeping” operation in Podgornoye. Most of the villagers questioned did not know or had not seen Shakhid Baysayev, but they stated that several men from Podgornoye had been detained on that day and later released. They were also aware of the applicant's search for him, because she had come to the village, asked the residents about him and posted search notices with photographs of her husband. Two residents of Podgornoye testified to having seen Shakhid Baysayev on 2 March 2000 in Avtobusnaya Street during the sweeping operation, and one of Baysayev's colleagues testified that he had left the office together with the rest of the workers after the shooting broke out.
82. The Government submitted in their memorial that over fifty witnesses had been questioned during the investigation. Thirteen statements were submitted to the Court.
83. On 9 June 2000 the Grozny Town Prosecutor's Office informed the applicant that a criminal case had been opened by that office into her husband's abduction.
84. On 7 September 2000 the Grozny Town Prosecutor's Office wrote to the applicant and stated that the criminal investigation into her husband's abduction was pending, but that no information about his whereabouts had been obtained.
85. On 10 September 2000 the Chechnya Prosecutor's Office wrote a similar letter to the applicant.
86. On 4 April 2003 the applicant wrote to the Grozny Town Prosecutor's Office asking to be informed of developments in the case.
87. It appears that the prosecutors informed the applicant on several occasions of the adjournment and resumption of the investigation in criminal case no. 12048 – once in 2000, twice in 2004, four times in 2005 and once in 2006.
88. At different stages of the proceedings several orders were issued by the supervising prosecutors detailing the steps to be taken by the investigators. On 9 November 2000 the prosecutor ordered that the site indicated by the applicant be examined with search dogs, that the videotape mentioned by the applicant be obtained and viewed, that the officers in the Sverdlovsk Region who had served at the Staropromyslovskiy VOVD and the servicemen of the Podolsk OMON who had manned roadblock no. 53 be questioned and that the custody records of the Staropromyslovskiy VOVD for 2 and 3 March 2000 be examined. On 3 December 2001 the prosecutor again ordered an investigation of all the circumstances of Mr Baysayev's disappearance. On 15 December 2001 a prosecutor from the Grozny Town Prosecutor's Office ordered criminal case file no. 12048 to be reconstructed following its destruction in a terrorist act of 8 December 2001.
89. On 22 February 2004 the prosecutor of the Staropromyslovskiy District of Grozny ordered the investigators, among other things, to examine the site where Baysayev had allegedly been buried, to obtain and view the videotape, to identify and question witnesses among local residents who lived near the scene of the fighting and who had been detained on 2 March 2000, to view the videotape together with the senior officers of the OMON detachments in order to identify the servicemen, and to identify the military units involved in apprehending the applicant's husband. On the same day the investigation was entrusted to an investigative group composed of four investigators from the Staropromyslovskiy District Prosecutor's Office.
90. On 17 March 2004 the prosecutor of the Staropromyslovskiy District of Grozny noted that the investigation had established that on 2 March 2000 Shakhid Baysayev had been detained by unidentified armed men in camouflage uniform after the fighting in Podgornoye which had involved federal troops. According to the videotape submitted by the applicant, the unidentified men had escorted the applicant's husband to the industrial site near the road where the fighting had occurred. The prosecutor ordered that steps be taken to review the materials of the criminal case concerning the attack on the OMON servicemen, to collect information from the Ministry of the Interior and the Ministry of Defence about the units that had been stationed at the industrial site where Baysayev had been taken, to identify the servicemen depicted on the videotape by viewing it together with the commanders of the relevant units, and to question those servicemen and evaluate their actions.
91. On 13 January 2005 the same prosecutor ordered the investigation to gather personal information about the victim and to forward his photograph and a search request to all the district prosecutor's offices in Chechnya, to the local agencies of the Ministry of Justice and to hospitals, and to take steps in order to identify those responsible.
92. On 14 June 2005 the same prosecutor ordered the investigation to identify and question the servicemen of the OMON unit from Podolsk who might have been involved in apprehending Mr Baysayev.
93. On 5 December 2005 the same prosecutor ordered the investigation to question 63 servicemen of the OMON unit from Podolsk, to question the servicemen of the OMON unit from Sergiyev Posad, to identify the persons depicted in the videotape and to carry out an expert examination of the videotape in order to identify the persons who had apprehended the applicant's husband.
94. The investigation into the case was adjourned and reopened at least twelve times. The last document in the case file is dated 2 February 2006. It extended the investigation into Mr Baysayev's disappearance until 2 March 2006 and again ordered that the servicemen of the two OMON units be questioned and the persons depicted in the videotape identified.
95. The Government submitted letters from the Supreme Court of Ingushetia, the Krasnodar Regional Court, the Rostov Regional Court and the Stavropol Regional Court, dated March 2004. The letters stated that there were no criminal or civil cases in the respective regions in which the applicant was involved or which concerned the kidnapping of her husband. The Supreme Court of Chechnya wrote a letter on 19 March 2004 stating that the applicant had not applied to any court in Chechnya with complaints, but that criminal case no. 12048 was pending before the Staropromyslovskiy District Prosecutor's Office in Grozny, and that the investigation had been extended until 12 May 2004.
96. The applicant submitted a number of press reports concerning the trial of two senior officers of the Ministry of the Interior for criminal negligence entailing grave consequences - 22 deaths and 33 wounded among the policemen of the OMON detachment from Sergiyev Posad, Moscow Region. According to these reports, it had been established that the fighting on 2 March 2000 in Podgornoye occurred when the convoy of the OMON going into Grozny on mission had been attacked by officers of the Staropromyslovskiy VOVD, staffed by policemen from the Sverdlovsk Region, and by the OMON detachments from Podolsk, Moscow Region stationed at the checkpoint in Podgornoye. The fighting was said to have been the result of provocation by the illegal paramilitaries who had managed to feed false information to the troops stationed in Podgornoye about the expected passage of fighters disguised as federal servicemen.
97. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. Since 1 July 2002 the old Code has been replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
98. Article 161 of the new CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings or prejudice the investigation. Divulging information about the private lives of participants in criminal proceedings without their permission is prohibited.
VIOLATED_ARTICLES: 13
2
38
5
VIOLATED_PARAGRAPHS: 2-1
5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-79050
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PRUNEANU v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;No violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1972 and lives in the village of Şipoteni. According to him, he was ill-treated by police on two occasions, in May 2001 and in July 2002.
7. The applicant was suspected of theft of farm animals in his village. On 10 May 2001 he was arrested by six police officers (G.A., C.I., C.V., G.O., A.U. and V.B.) at his home. It does not appear from the submissions of the parties that the applicant had any injury on his body before his arrest or that he was injured in any way during the arrest.
8. According to the applicant, he was taken to the office of the village police inspector, in the Şipoteni Local Council building, and severely beaten by police officers A.U. and V.B. He was punched, kicked and beaten with a wooden baton on his body and on his head until he lost consciousness. Later he was taken by car to Călăraşi police station where he was handcuffed to a radiator. After regaining consciousness he managed to open the handcuffs and escape.
9. The Government contested the applicant's account of events and submitted that after his arrest, he had been taken by car to the Călăraşi police station. However, he jumped out of the car as it was moving and sustained injuries from the impact with the road. He later escaped from the Călăraşi police station.
10. Several days later the applicant went to a hospital where he was admitted for treatment. A medical report of 14 May 2001 stated inter alia that:
“[The applicant] has a yellowish bruise of 6x5 cm around his left eye; swelling of the base of his nose; a scratch of 2x1 cm on the left side of his nose; a scratch of 3x5 cm on his left cheek; a wound of 3x0.4 cm on his skull; a bruise of 20x13 cm on his back; painful chest and ribs; a scratch of 4x3 cm on his shoulder; paralysis of the left side of his face; head trauma and head concussion; perforation of the left tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure]. The injuries were inflicted by blows with blunt objects, possibly on 10 May 2001. They correspond to light corporal injuries and hospitalisation is recommended.”
11. The applicant was in hiding from the police until 10 July 2002, when he was arrested (see paragraph 23 below).
12. On 30 September 2002 the applicant complained to the Ombudsman's Office about the alleged ill-treatment and annexed to his complaint a copy of the medical certificate of 14 May 2001. His complaint was forwarded to the Ungheni County Prosecutor's Office (Procuratura Judeţului Ungheni).
13. On 6 November 2002 the Ungheni County Prosecutor's Office dismissed the complaint without having conducted any investigation. The applicant challenged the dismissal before the Prosecutor General's Office.
14. On 22 November 2002 the Prosecutor General's Office ordered a re-examination of the applicant's complaints.
15. On 28 November 2002 the Ungheni County Prosecutor's Office heard police officers V.B. and C.I., who had been involved in the arrest of the applicant on 10 May 2001.
16. According to V.B., who was one of the officers accused by the applicant of having ill-treated him, the applicant resisted arrest and jumped out of the car on the way to the Călăraşi police station. Since nobody had beaten him up, his injuries must have been caused during his arrest or when he jumped out of the car.
17. According to C.I., the applicant resisted arrest and later ran away from the Călăraşi police station. He had not seen anybody beat him up.
18. On 8 December 2002 the Ungheni County Prosecutor's Office dismissed the applicant's complaint about ill-treatment, finding that he had resisted arrest and had attempted to run away by jumping from the car. Nobody had ill-treated him and there was no evidence to the contrary. The applicant challenged this decision before the Prosecutor General's Office.
19. On 24 January 2003 the Prosecutor General's Office quashed the decision of 8 December 2002, finding it to be unfounded and the investigation superficial and incomplete. It ordered a second investigation during which all the police officers who had participated in the applicant's arrest were to be heard. The applicant's lawyer, relatives and co-detainees were also to be heard in relation to the complaints about ill-treatment, and also, if necessary, the applicant himself.
20. Between 11 and 24 February 2003 a prosecutor interrogated inter alia five of the police officers who had participated in the applicant's arrest on 10 May 2001 and the applicant's wife. The sixth police officer, G.O., and the applicant were not interrogated.
21. The police officers stated that after the arrest the applicant was taken first to the office of the village police inspector, in the Şipoteni Local Council building. They all declared that he had not been subjected to any form of violence, except at the time of the arrest when his hands had been tied behind his back because he had allegedly resisted arrest. Police officer C.I. stated that during his detention in the Local Council building, the applicant confessed to having committed a theft.
While in the Local Council building, the police officers had called the Călăraşi police station and asked for a police car to take the applicant there; however, since no car was available they used one of their own cars.
Police officers G.A., A.U. and V.B. stated that the applicant was accompanied by three police officers in the car: A.U., V.B. and G.O., who was driving. V.B. was in the front seat and the applicant and A.U. were in the back.
Police officer C.V., however, stated that the applicant was accompanied by four police officers in the car, namely G.O., C.I., A.U. and V.B.
One of the five police officers interrogated, C.I., declared that he did not know anything about the applicant's transportation to the Călăraşi police station. The other four police officers stated that the applicant had attempted to jump from the car. Two of them, G.A. and C.V., had been told that by their colleagues.
The police officers accused of ill-treating the applicant, A.U. and V.B., made almost identical declarations, according to which the applicant was in the back seat of the car with A.U. At one moment, he managed to untie his hands, which were secured with V.B.'s belt, and to jump out of the car which was travelling at approximately 70-80 km/hour. They had stopped the car and picked him up and noted that he was bleeding from his head. They took him to the Călăraşi police station and left him there.
The applicant's wife declared that nobody had beaten her husband during the arrest at their home. She had protested against the manner in which the policemen entered their house and had been kicked and punched by V.B., notwithstanding that she was pregnant at the time. Later in the night, at about 2 or 3 a.m., her husband had called her outside. He was in a very bad state with injuries to his face. He had told her that he had been beaten up by A.U. and V.B. during his detention at the Local Council building and had run away.
22. On 25 February 2003 a prosecutor dismissed the applicant's complaint about ill-treatment on the ground that he had sustained his injuries when jumping out of the car and that there was no evidence that he had been ill-treated.
23. On 10 July 2002 between 10 and 11 p.m. the applicant together with an accomplice entered an apartment situated on the third floor (that is second from ground level) of an apartment building and, using force, stole money from its occupant. After the victim started shouting for help, the applicant and his accomplice attempted to run away by jumping off the balcony. The accomplice was able to escape, but the applicant was caught by the police and taken to the Buiucani Police Station.
24. According to the applicant, after falling from the third floor he felt pain in his left leg and he could not therefore run away. At the police station, he had been subjected to torture. While he had confessed about the theft that led to his arrest, the police officers insisted that he also confessed to another 20-30 thefts which he had not committed. He had been suspended on a metal bar and beaten with a baton on his legs, body and neck.
25. The Government contested the applicant's account of the events and submitted that all his injuries had been sustained by his jumping from the third floor.
26. On 11 July 2002 at 12.21 p.m. an ambulance was called to the Buiucani Police Station and at 2.20 p.m. the applicant was hospitalised at the Emergency Hospital. He could not walk and he was transported on a stretcher. A medical report dated 12 July 2002 stated inter alia that:
“[The applicant] has a head trauma with head concussion, an injured lip, bruises and injuries on his face, chest trauma with a fracture of ribs nos. 8, 9 and 10 on the right side, fracture of the tibia of his left foot, contusion of the soft tissues on the back of his neck, contusion of the soft tissues on his knees, fracture of the second finger of his left hand...”
27. On 6 August 2002 the applicant complained to the Prosecutor General's Office about his alleged ill-treatment on 10-11 July 2002.
28. The applicant's complaint was re-directed to the Buiucani Prosecutor's Office. The latter heard police officers R.G. and V.C., who had been involved in the arrest of the applicant on 10 July 2002 and a neighbour of the victim of the theft committed by the applicant.
According to the police officer R.G., the applicant had jumped from the third floor and had broken his legs, hand and neck as a result.
According to the police officer V.C., the applicant had jumped from the third floor and injured his legs. No force was applied to him because he had lost consciousness at the moment of arrest.
According to the neighbour U.I., the applicant was hanging from the victim's balcony and did not want to jump because there were people on the ground waiting for him. Then he, U.I., started hitting his hands to make him jump. Finally, the applicant jumped and was caught by the police.
29. On 6 September 2002 the Buiucani Prosecutor's Office dismissed the applicant's complaint about ill-treatment while finding that his injuries had been caused by his jumping from the third floor. The applicant challenged this decision before the Prosecutor General's Office.
30. On 12 November 2002 the Prosecutor General's Office quashed the decision of 6 September 2002 and ordered a second investigation during which witnesses present at the time of the applicant's arrest were to be heard. In particular, it ordered that the witnesses be asked about the circumstances of the arrest and about the applicant's state at that very moment. The Prosecutor General's Office also pointed to an inconsistency in the decision of 6 September 2002. It noted that while it was found that the applicant had sustained his injuries on the night of 10 July 2002, when he had jumped from the third floor, an ambulance was called for him only on 11 July 2002 at 12.21 p.m.
31. Between 20 and 27 November 2002 a prosecutor from the Buiucani Prosecutor's Office interrogated the applicant, two police officers present at his arrest, the victim of the theft committed by the applicant, three of the victim's neighbours and a paramedic from the ambulance which took the applicant to the hospital on 11 July 2002.
The applicant reiterated his complaints about ill-treatment at the hands of police.
Police officer R.G. stated that the applicant had jumped from the third floor and that he was brought to the Buiucani Police Station. Later an ambulance was called and the applicant was taken to the hospital. He denied having assaulted the applicant in any way.
Officer C.C. declared that he had not been present at the applicant's arrest; however, he had been told by his colleagues that the applicant had jumped from the third floor and had started running away. He was caught by police officer V.C. After arrest, the applicant spent the night at the Buiucani Police Station, where he was interrogated. Nobody had ill-treated him. In the morning he had told the police officers that he had pain in his legs and an ambulance was called.
The victim of the theft, I.T., declared inter alia that the applicant had attempted to pass from his balcony to a neighbouring balcony but that he had fallen down when the window which he was holding had broken. He had seen him lying on the ground encircled by his neighbours who would not let him run away.
The victim's neighbour, C.J., declared that he had seen the applicant falling from the third floor as the window broke. He had tried to run away but was stopped by the neighbours.
A similar declaration was made by another neighbour, C.E.
The paramedic declared that he had seen the applicant at about 12.30 p.m. The applicant had told him that he had fallen from the third floor and that he had headaches and pain in his leg. He did not complain of having been beaten up and he had no visible injuries on his face or body.
32. The prosecutor also requested information from the Buiucani Police Station about the exact time when the applicant was brought there. According to the custody records, the applicant was brought there only on 11 July 2002 at 8.10 a.m. and was taken away by ambulance at 12.40 p.m. on the same day.
33. The prosecutor finally ordered a forensic investigation of the applicant's state and particularly of the manner in which his injuries had been caused. On 2 December 2002 a forensic report was completed by a specialised institution of the Ministry of Health. It stated inter alia that:
“The [applicant's] injuries were inflicted by blows with blunt objects (au fost produse prin acţiunea corpurilor contondente)...
All the injuries ...could have been caused as a result of a fall from the third floor, if the [applicant's] body had hit hard objects.”
34. On 1 December 2002 a prosecutor dismissed the applicant's complaint about ill-treatment on the ground that he had sustained his injuries when jumping from the third floor of an apartment building. The prosecutor relied mainly on the declarations of the police officers that no violence had been inflicted on the applicant during his detention and on the forensic report dated 2 December 2002, which, in his view, confirmed that the applicant's injuries were caused by the fall.
35. The relevant domestic law has been set out in the Court's judgment Corsacov v. Moldova, no. 18944/02, §§ 45-48, 4 April 2006.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-91634
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: VYSOTSKYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: The applicant, Mr Stanislav Maryanovych Vysotskyy, is a Ukrainian national who was born in 1947 and lives in the town of Vinnitsa. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On 15 December 1999 the Staromisky District Court of Vinnytsya awarded the applicant 11,307 Ukrainian hryvnyas (UAH) in salary arrears and other payments against the company, OJSC AK Sater in which the State had had no share since January 1997.
The judgment in the applicant’s favour was not appealed against, became final and the Staromisky District Bailiffs’ Service (“the Bailiffs”) instituted enforcement proceedings.
In 2002 the applicant instituted civil proceedings in the Leninsky District Court challenging the Bailiffs’ inactivity and claiming compensation.
On 19 November 2002 the court ordered the Bailiffs to enforce the judgment. By the same judgment the court dismissed the applicant’s claim for compensation.
On 9 December 2003 the Vinnytsya Regional Court of Appeal dismissed his appeal against that judgment.
The applicant did not appeal in cassation before the Supreme Court.
The judgment of 15 December 1999 remains unenforced.


ITEMID: 001-99984
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MURESAN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Radu Mureşan, is a Romanian national who was born in 1971 and lives in Sălaj. He was represented before the Court by Mr Tudor Crihan, a lawyer practising in Zalău. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was renting a small apartment from S., a former Stateowned company. On an unspecified date, he made an offer to buy the apartment under Law no. 85/1992, but he did not receive an answer to the request. He therefore lodged an action with the Zalău District Court seeking to have S. compelled to sell him the apartment. His action was allowed on 8 May 2003, a decision upheld on appeal by the Sălaj County Court.
4. However, in a final decision of 13 October 2004, the Cluj Court of Appeal allowed an appeal on points of law lodged by S. and dismissed the initial action. The applicant's lawyer was present at the delivery of the said decision.
5. The reasoning of the final decision was completed on 12 November 2004. The case file, including the complete text of the final decision, was returned to the District Court on 26 January 2005.
6. According to the case-file, the applicant obtained a certified copy of the final decision on 3 August 2005.
7. The Romanian Code of Civil Procedure provides that copies of decisions are served on the parties only when this is necessary to start the time-limit for bringing an appeal running. As a consequence, final decisions are not served on the parties, on whom it is incumbent to take the necessary steps to obtain a copy. In practice, copies are obtained from the first-instance court, where the case file, together with the final decision, is archived.


ITEMID: 001-102217
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KULAKOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Oleksandr Petrovych Kulakov, is a Ukrainian national who was born in 1947 and lives in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 March 1996 the applicant, leaving a shop, took a bag belonging to Mr Zh., who later turned out to be an off-duty police officer. According to the applicant he took the bag because of a misunderstanding. Having seen the applicant leaving with his bag, Mr Zh. caught up with him and asked him if the bag was heavy to carry. Receiving a negative reply from the applicant, Mr Zh. punched him once in the face. Mr Zh. later explained to the investigators that when the applicant turned to face him he got the impression that the applicant was going to hit him with a briefcase, and therefore, being in a state of agitation because of the daylight theft of his bag, he had instinctively punched him in the face.
On 29 March 1996 the applicant went to the doctor who noted split skin on the applicant’s eyebrow and two bruises on his cheek. No other injuries were recorded.
On 1 April 1996 the Lviv Zaliznychny District Prosecutor’s Office ordered a medical examination of the applicant.
On 2 April 1996 the medical expert concluded that the applicant had split skin on his left eyebrow measuring 10 by 1 millimetres and two bruises near the left eye and on the left cheek measuring respectively 7 by 5 centimetres and 2 by 1.5 centimetres. The expert classified them as a minor injury.
From 3 to 9 April 1996 the applicant was in a local hospital.
On 10 April 1996 the same medical expert issued an additional opinion. He took into consideration that on 3 April 1996 the applicant was admitted to a local hospital, where he had an X-ray examination that showed a fracture of his cheekbone. The expert reported a fracture of the applicant’s cheekbone and bruises on his face and concluded that the applicant’s injury fell within the category of medium-level injury
On 5 May 1996 the Rivne City Prosecutor’s Office instituted proceedings against Mr Zh. for intentional infliction of medium-level bodily harm.
In January 1997 the investigator in the case ordered a further expert examination of the matter, with a view to resolving the discrepancies between the two expert opinions. The examination was conducted by a commission of experts on 23 April 1997. The commission, comprising the initial expert and two heads of the Regional Forensic and Medical Examinations Office, established on the basis of medical evidence that the applicant had suffered a fracture of the left cheekbone, bruises and concussion. The experts concluded that these injuries amounted to mediumlevel bodily harm with long-term effects on the applicant’s health.
In late 1997 a further expert examination of the applicant’s injury was requested by the Central Forensic and Medical Examinations Office. Between 22 January and 20 April 1998 that office conducted complex medical examination of the same medical evidence and did not confirm the fracture of the applicant’s cheekbone.
Meanwhile, the applicant obtained a number of medical opinions from specialists, who confirmed that he had a cheekbone fracture.
On 18 June 1998, relying on the conclusion of the latest medical examination, the investigator decided to terminate the criminal proceedings against Mr Zh. for want of proof of crime (infliction of medium-level bodily harm) and because further prosecution (for infliction of minor bodily injury) was now time-barred.
By a letter of 26 October 1998, the Head of the Central Forensic and Medical Examinations Office informed the investigator that due to conflicting conclusions on the same X-ray as to the existence or otherwise of the cheekbone fracture a further forensic examination should be conducted.
By a letter of 4 February 1999, the Head of the Central Forensic and Medical Examinations Office asked the investigator for to arrange a visit by the applicant to that office. The applicant arrived in Kyiv but the examination did not take place, as the applicant refused to be hospitalised for this purpose.
By a letter of 26 March 1999 the Head of the Central Forensic and Medical Examinations Office invited the applicant to have an X-ray examination in Lviv since he had not had one in Kyiv. Apparently, such examination was not carried out.
On 15 June 1999 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. on the same grounds as in the decision of 18 June 1998.
On 1 November 2000 Rivne City Court quashed the decision of 15 June 1999.
On 28 February 2001 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. This decision was quashed by the Rivne Regional Prosecutor’s Office on 6 April 2001.
On 7 April 2001 the criminal proceedings were terminated due to prosecution being time-barred.
By a letter of 19 April 2001 the Prosecutor General replied to the applicant’s complaint about the termination of the criminal proceedings. He considered that the decision to terminate the proceedings was well-founded and that Mr Zh. had been acting as a private person, since he had been in plain clothes, had been off duty and had not identified himself to anyone as a police officer.
On 20 June 2001 Rivne City Court rejected the applicant’s complaint against the prosecutor’s decision. The court noted in particular that the seriousness of the injuries sustained by the applicant could not be established conclusively because he had flatly refused to have an additional X-ray examination.
On 3 July 1999 the applicant instituted civil proceedings in Lviv Lychakivsky District Court against medical experts and doctors in Lviv and Kyiv, seeking compensation in respect of non-pecuniary damage resulting from their unlawful actions.
On 26 June 2000 the court found against the applicant, having established that the medical experts and doctors had been acting within their competence.
On 18 September 2000 Lviv Regional Court upheld the decision of the first-instance court.
On 27 September 2000 the Deputy President of the Supreme Court transferred to the President of Lviv Regional Court the applicant’s request for an extraordinary review of his case. This request was refused on 23 November 2000.
On 6 April 2001 the Deputy President of the Supreme Court refused another request by the applicant for an extraordinary review of his case.


ITEMID: 001-59665
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF P.G. AND J.H. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8 in respect of use of listening device at flat;No violation of Art. 8 in respect of obtaining information about use of phone;Violation of Art. 8 in respect of use of listening device at police station;No violation of Art. 6-1 in respect of non-disclosure of material;No violation of Art. 6-1 in respect of use at trial of evidence obtained through listening devices;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. On 28 February 1995 Detective Inspector Mann (D.I. Mann), received information that an armed robbery of a Securicor Ltd cash-collection van was going to be committed on or around 2 March 1995 by the first applicant and B. at one of several possible locations. The police knew where B. lived and began visual surveillance of those same premises the same day. D.I. Mann learnt that B. was suspected of being a drug dealer and that surveillance operations mounted against B. in the past had proved unsuccessful because they had been compromised. It was therefore concluded that B. was “surveillance-conscious”. B. was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery. This was something that all the officers, and particularly the Chief Constable, were aware of when the police operation was being planned.
9. No robbery took place on 2 March 1995. By 3 March 1995, however, the police had received further information that the robbery was to take place “somewhere” on 9 March 1995. Further information as to the location or target of the proposed robbery could not be obtained on 3 March 1995. In order to obtain further details about the proposed robbery, D.I. Mann prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in B.’s flat. Some of the contents of this report were the subject of a successful application for non-disclosure by the Crown on the ground that serious damage would be caused to the public interest were they to be made public.
10. The use of covert listening devices was governed by the “Guidelines on the Use of Equipment in Police Surveillance Operations” issued by the Home Office in 1984 (“the Guidelines”). On 3 March 1995 the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible. Reconnaissance during the night of 3/4 March established that it was feasible.
11. On 4 March 1995 the Chief Constable gave oral authorisation to proceed with its use. However, he did not provide written confirmation as required by the Guidelines because he was on annual leave, so he gave the authority by telephone from home. The Chief Constable stated that the use of the device was to be reviewed on a daily basis. He said that he had asked the Deputy Chief Constable to look after the written formalities and to ensure, inter alia, that there was written confirmation of the message that the installation of the device was feasible. He did not receive this confirmation until 8 March. On 8 March 1995 the Deputy Chief Constable gave “retrospective” written authorisation for use of the listening device.
12. On 4 March a covert listening device was therefore installed in a sofa in B.’s flat before the Deputy Chief Constable had confirmed the authorisation in writing. Conversations between B. and others in B.’s living room were monitored and recorded until 15 March 1995.
13. On 14 March 1995 the police made a request to BT (British Telecommunications PLC) for itemised billing in relation to the telephone number of B. at his flat for the period from 1 January 1995 to the date of the request. The data-protection form was countersigned by a police superintendent in line with BT’s requirements, stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers. While the request was originally made in an effort to identify the unknown third person in the conspiracy (now known to have been the second applicant), the data was also used later in court to corroborate the times and dates recorded by the officers in respect of the covert listening device in the flat.
14. On 15 March 1995 B. and others who were with him in his home discovered the listening device and abandoned the premises. The robbery did not take place. The police had been continuing their visual surveillance of the premises, taking photographs and video footage whilst the audio surveillance was in progress. The applicants were identified by various officers going in and out of the flat and observed on some occasions to be carrying various hold-alls. The police had also been keeping watch on a cache in a rural location and observed the first applicant collecting an item from this location on the evening of 15 March 1995. An officer had earlier inspected the hidden item, which he stated he could tell through the plastic bag was a revolver. It appeared that the vehicle which the first applicant used for transport that evening was a stolen vehicle in which he was subsequently arrested.
15. On 16 March 1995 the applicants were arrested in the stolen Vauxhall car. In the boot of the vehicle were found two hold-alls containing, inter alia, two black balaclavas, five black plastic cable ties, two pairs of leather gloves and two army kitbags. Following legal advice, the applicants declined to comment during interview and refused to provide speech samples to the police. The police obtained a search warrant for the flat and searched it. Fingerprints of the applicants were found, as well as items such as a pair of overalls and a third balaclava. Three vehicles were recovered and examined. The items retained included balaclavas, hold-alls, overalls and a broken petrol cap.
16. As they wished to obtain speech samples to compare with the tapes, the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were examined. Written authorisation was given by the Chief Constable in accordance with the Home Office Guidelines. Samples of the applicants’ speech were recorded without their knowledge or permission. In the case of the second applicant, the conversations that were recorded included, on one occasion, the second applicant taking advice from his solicitor. The Government state that, when the police officer realised what the conversation was about, it was not listened to. That recording was not adduced in evidence at trial.
17. The voice samples of the applicants were sent to an expert who compared them with the voices on the taped recordings of conversations held in B.’s home between 4 and 15 March. The expert concluded that it was “likely” that the first applicant’s voice featured on the taped recordings and that it was “very likely” that the second applicant’s voice featured on them.
18. B. and the applicants were charged with conspiracy to rob Securicor Ltd of monies. B. pleaded guilty in view of the House of Lords decision in R. v. Khan ([1996] 3 All England Law Reports 289). The House of Lords held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means (for example, trespass). The applicants, however, challenged the admissibility of the evidence derived from the use of the covert listening devices at B.’s home on two grounds.
(a) The Chief Constable should not have authorised the use of a covert listening device at B.’s premises because other forms of investigation had not been tried and failed as required by paragraph 4 (b) of the Guidelines, with the result that it would be unfair to admit evidence which ought never to have been obtained.
(b) The covert listening device had been installed and used before written confirmation of the Chief Constable’s authorisation had been received and there was no specific permission for the recordings obtained from the device to be used in evidence.
Before the jury was sworn in at the trial, Judge Brodrick heard evidence by means of a voir dire (submissions on a point of law in the absence of the jury) on matters relating to the admissibility of the challenged evidence. The prosecution conceded that the relevant evidence had been obtained by unlawful means, namely trespass. During this procedure the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence given, in other words claiming public interest immunity. The prosecution argued that the test of admissibility was relevance. The defence argued that the judge had the discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE), and that he should do so because the Chief Constable had failed to abide by the Guidelines.
19. Judge Brodrick decided that some documents, including D.I. Mann’s report, which led to the Chief Constable’s decision to authorise the use and installation of a covert listening device in B.’s flat, were to be withheld from the applicants and their lawyers. The judge kept under review the non-disclosure during the proceedings and at one point some disclosure was made, although not D.I. Mann’s report in its entirety. D.I. Mann also declined to answer questions put to him in cross-examination by defence counsel on the ground that it might reveal sensitive material. Judge Brodrick asked defence counsel whether they wanted him to put the unanswered questions to D.I. Mann under oath, in chambers, and they agreed. The judge proceeded to put the questions to D.I. Mann in private in the absence of the applicants and their lawyers. He heard evidence from D.I. Mann concerning the ability of the police to “control” B. in order to install the device in the flat, which the defence asserted indicated that normal methods of surveillance would have been possible. He also heard D.I. Mann concerning the arrangements made and put into effect for this period. The answers to those questions were not divulged, the judge indicating in open court that the benefit to the defence from the answers given was slight, if any at all, while the damage to the public interest if the answers were made public would be great. Accordingly, he held that D.I. Mann was entitled on public immunity grounds to refuse to answer those questions.
20. Judge Brodrick rejected the applicants’ challenge to the admissibility of the evidence derived from the covert listening devices in B’s flat. In reaching his decision, Judge Brodrick stated:
“61. It follows that I must apply the test set out in section 78 on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered. At most there were one or possibly two breaches of procedure, but neither, in my judgment, could be described as either significant or substantial. It is conceded by the Crown that the installation of the device amounted to a civil trespass. In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private.
62. I was invited to take into account, and I do, that the installation of the device may well amount to an invasion of the general right to privacy under Article 8 [of the Convention]. It is not for me to determine whether there has, in fact, been a breach of Article 8, but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in Article 8 § 2. In those circumstances I cannot see any reason for concluding that the possible breach of Article 8 was either substantial or significant.
63. I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable’s decision breached Article 6 of the Convention ... I am satisfied beyond reasonable doubt that to the extent that there has been a breach of Article 6 it has not in fact deprived these Defendants of the right to a fair trial.”
21. The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents. Judge Brodrick stated:
“75. ... it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained. The fact that they provide relevant evidence, in the sense that they are a reliable sample of speech, which can be clearly attributed to each of these Defendants, weighs more heavily in my judgment. On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them.”
22. The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat, and the searches of the flat and the recovered vehicles. There was also evidence from officers who had been keeping watch on a cache. One officer stated that the item hidden under a tree was in fact a revolver. The first applicant was seen collecting this item on the evening of 15 March 1995.
23. On 9 August 1996 the applicants were convicted of conspiracy to commit armed robbery and were sentenced to fifteen years’ imprisonment. They applied to the Court of Appeal for leave to appeal on grounds relating to the judge’s rulings to admit taped evidence. They did not challenge the judge’s decisions with respect to non-disclosure of certain evidence on public interest immunity grounds. Their applications were refused on 12 November 1996, a single judge finding that the judge’s exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal. Notification of the refusal was sent to them on 10 and 20 December 1996 respectively. It does not appear that the applicants made any complaints to the Police Complaints Authority in respect of the covert listening devices.
24. At the relevant time, guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. They provided, inter alia:
“4. In each case, the authorising officer should satisfy himself that the following criteria are met:
(a) the investigation concerns serious crime;
(b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried;
(c) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;
(d) use of equipment must be operationally feasible.
5. In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.”
25. The Guidelines also stated that there might be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.
26. The Police Complaints Authority was created by section 89 of the Police and Criminal Evidence Act 1984. It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges.
27. Section 78(1) of this Act provides as follows:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
28. The 1997 Act provides for a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1999.
29. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.
30. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
31. The case of R. v. Ward ([1993] 1 Weekly Law Reports 619) dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure:
“In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.”
This judgment also clarified that, where an accused appeals to the Court of Appeal on the grounds that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.
32. Section 45 of the Telecommunications Act 1945 prohibits the disclosure by a person engaged in a telecommunications system of any information concerning the use made of the telecommunications services provided for any other person by means of that system.
33. However, pursuant to section 28(3) of the Data Protection Act 1984:
“Personal data are exempt from non-disclosure provisions in any case in which –
(a) the disclosure is for any of the purposes mentioned in subsection 1 above; and
(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.”
Subsection 1 refers to data held for the purpose of:
“(a) the prevention or detection of crime;
(b) the apprehension or prosecution of offenders; or
(c) the assessment or collection of any tax or duty.”
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1