ITEMID: 001-67835
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BIRYUKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Yevgeniy Stepanovich Biryukov, was a Russian national who was born in 1938 and lived in Krasnodar. Mr Biryukov died on 13 June 2003 and Mrs N. V. Polyakova, his widow, pursued his application before the Court. The applicant is represented before the Court by N. B. Kolomiets, a lawyer practising in Krasnodar. The respondent Government are represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1991 the applicant worked as a worker in a private company. In June 1996 he was dismissed for absence from work.
On 28 June 1996 the applicant brought proceedings before the Oktyabrskiy District Court of Krasnodar against his former employer requesting reinstatement, pecuniary and non-pecuniary damages and legal costs. On 29 August 1996 the court accepted the case for consideration.
On 18 September 1996 the court held a hearing at which the applicant was requested to produce additional evidence.
The next hearing scheduled for 30 September 1996 was adjourned on the respondent company's request because its lawyer was ill.
On 17 October 1996 the hearing was postponed to 4 November 1996 as the applicant failed to appear.
On 4 November 1996 the hearing was cancelled as the judge was ill.
On 19 November 1996 the respondent asked for additional evidence to be produced by the applicant. The court granted the request and scheduled the hearing for 22 November 1996.
By judgment of 22 November 1996 the District Court found in the applicant's favour and ordered the employer to reinstate the applicant and pay him 10,000 Russian Roubles (RUR) by way of non-pecuniary damages and RUR 5,000 by way of legal costs.
On 28 November 1996 the respondent appealed.
On 20 May 1997 the Krasnodar Regional Court quashed the judgment and ordered a fresh examination of the case.
On 30 June 1997 the case was assigned to another judge of the Oktyabrskiy District Court.
From that date and until the hearing on the merits on 10 February 1999 the case was adjourned fourteen times. Eight of the adjournments were either requested or caused by the respondent, its representative being ill, on vacation or unavailable for other reasons. One of the adjournments which lasted one month was requested by the applicant whereas four of the adjournments related to the District Court itself. None of the adjournments, which occurred after 5 May 1998, exceeded a period of two and a half months.
A hearing on the merits took place on 10 February 1999. By judgment of the same day the district court dismissed the applicant's claim for reinstatement as the employer had by that time been liquidated and ordered the employer's owner to pay to the applicant RUR 18,825.33 of wages lost due to the unlawful dismissal and RUR 1,000 by way of nonpecuniary damages.
On 16 February 1999 the respondent, i.e. the owner of the now liquidated company, appealed and on 30 March 1999 it lodged an additional appeal. On 8 April 1999 the applicant submitted his observations.
On 10 June 1999 the Krasnodar Regional Court disallowed the appeal and upheld the judgment.
On 9 July 1999, following the respondent's request for supervisory review of the judgment, a deputy regional prosecutor ordered a stay of the execution of the judgment pending the supervisory review proceedings.
On 29 July 1999 the Chairman of the Krasnodar Regional Court lodged an application for supervisory review of the judgment and the relevant appeal decision.
On 12 August 1999 the Presidium of the Krasnodar Regional Court quashed the judgment of 10 February 1999 and the decision of 10 June 1999 in so far as they related to the compensation for wages lost due to the unlawful dismissal. The Presidium considered that the court had incorrectly determined the period for the calculation of the lost wages and that it had not indicated grounds for ordering the payment from the owner of the now liquidated company. A new examination of the case was ordered.
Following the quashing of the judgment on supervisory review the case commenced anew before the Oktyabrskiy District Court.
From September 1999 until September 2000 the case was adjourned nine times. Seven of the adjournments were caused by the respondent whose representative was ill, on vacation or unavailable for other reasons. Two of the adjournments, which lasted a total of approximately four and a half months, were caused by the applicant.
By judgment of 14 September 2000 the District Court found in the applicant's favour ordering the respondent company's owner to pay to the applicant RUR 2,750 of lost wages and RUR 500 by way of non-pecuniary damages.
Both parties appealed. On 2 November 2000 the Regional Court quashed the judgment on appeal and remitted the case to the District Court for a fresh examination.
The case was assigned to another judge of the Oktyabrskiy District Court.
The hearing scheduled for 24 November 2000 was adjourned to 6 December 2000 as the applicant did not appear. On 6 December 2000 the applicant did not appear either and the court decided to refuse to entertain his claim and closed the case.
On 1 February 2001 the applicant lodged a request with the District Court for the continuation of the proceedings in the case as he had not been informed of the hearings which he had not attended.
On 16 February 2001 the court granted the applicant's request and scheduled the hearing for 22 February 2001.
On 22 February, 15 March, 11 April and 3 May 2001 the hearings were postponed because of the failure of the respondent's representative to appear.
On 16 and 30 May 2001 an adjournment was granted in view of the illness of the respondent's representative. The court fixed 26 June 2001 as a new date for the hearing.
On 26 June 2001 the hearing was adjourned to 9 July 2001 on the applicant's request.
On 9 July 2001 the court held a hearing at which both parties were heard. The hearing was to be continued the next day but the applicant did not appear.
On 26 July 2001 the hearing was adjourned due to the failure of the lawyers of both sides to attend.
On 13 August 2001 the proceedings in the case were adjourned because the respondent's representative was leaving for vacation.
On 30 October 2001 the hearing was postponed to 12 November 2001 as the applicant requested the court's assistance in gathering additional evidence.
On 12 November 2001 the District Court held a hearing on the merits where the applicant was present. He was awarded RUR 20,072.95 of lost wages and RUR 1,500 by way of legal costs. The applicant's claim for nonpecuniary damages was rejected because it was granted earlier by the judgment of 10 February 1999 which in this part remained in force.
On 20 December 2001 the Krasnodar Regional Court, on appeal, reduced the amount recovered as lost wages to RUR 4,527 and upheld the judgment for the remainder. The applicant's representative was present at the appeal hearing.


ITEMID: 001-78693
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ARTYOMOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Igor Vladimirovich Artyomov, is a Russian national who was born in 1962 and lives in Vladimir.
The applicant has been the leader of the public movement Russian All-Nation Union (Русский общенациональный союз – Russkiy obshchenatsionalniy soyuz) since its inception in the early 1990s.
On 7 December 1998 the Ministry of Justice registered the movement as a public association.
On 23 December 2001, at the sixth general assembly of the movement, members decided to reorganise the movement into a political party bearing the same name. An application for the party’s registration was lodged with the Ministry of Justice.
By a letter of 28 June 2002, the Ministry of Justice refused the application on a number of grounds. The first ground for the refusal was that the adjective “Russian” (русский – russkiy) in the name of the party referred to an ethnic group, whereas section 9(3) of the Political Parties Act prohibited the establishment of political parties based on professional, racial, ethnic or religious affiliations. The applicant contested that particular ground for the refusal before a court of general jurisdiction.
By a judgment of 24 January 2003, the Taganskiy District Court of Moscow dismissed the applicant’s complaint after hearing evidence from several experts called by the defence. The experts concurred that the meaning of the word russkiy was ambiguous, since it could be understood either as denoting anything related to Russia – and in this sense its meaning was closer to the word rossiyskiy (российский) – or as referring to one particular ethnic group, the Russians. A representative of the Ministry of Justice submitted to the court that the word “all-nation” (общенациональный – obshchenatsionalniy) in the name of the applicant’s party also had two meanings, the first being “an association of people belonging to different nations” and the second “an association of the people of one nation”. However, since it was preceded by the word russkiy, these two adjectives had to be read together and understood as “an association of the nation of [ethnic] Russians”. The District Court accepted that interpretation, which was not disputed by the applicant, and found that the applicant’s party was founded on the basis of ethnic affiliation. This amounted to a breach of section 9(3) of the Political Parties Act, even though the party’s articles of association and programme did not indicate protection of the interests of Russians as its main objective.
On 18 September 2003 the Moscow City Court upheld the judgment on appeal, endorsing the reasoning of the District Court.
The applicant challenged section 9(3) of the Political Parties Act before the Constitutional Court, alleging that it was incompatible with the Russian Constitution. The Constitutional Court joined his complaint with those of the Orthodox Party of Russia and Mr Savin.
On 15 December 2004 the Constitutional Court issued Ruling no. 18-P. It noted at the outset the special role of political parties as the only form of public association vested with the right to nominate candidates in elections to State bodies. According to the Political Parties Act, membership of political parties is individual and voluntary and may not be restricted on account of professional, social, racial, ethnic or religious affiliation, gender, social origin, property or place of residence. The court concluded that the right of individuals of any ethnicity or religion to become members of a party whose objectives and goals they shared could not be restricted. It further found as follows.
“The principles of pluralist democracy, a multi-party system and a secular State that form the constitutional basis of the Russian Federation – in so far as they apply to legal regulation of the establishment and functioning of political parties, including conditions for their registration – may not be interpreted or implemented without regard to the particular features of Russia’s historic development, the ethnic and religious structure of Russian society and the specific character of interaction between the State, political power, ethnic groups and religious denominations.
... The principle of a secular State cannot be applied in the Russian Federation in the same way as in those countries that have a single-faith and single-nation social structure and boast a well-developed tradition of religious tolerance and pluralism. In particular, some of those countries have permitted the establishment of political parties based on Christian democratic ideology; in these cases the term ‘Christian’ has moved beyond denominational confines and designates affinity with the European system of values and culture.
In multinational and multi-denominational Russia, owing to the specific modus operandi of leading faiths ..., their influence on public life and their invocation in political rhetoric (which has historically been linked to the ethnic question), public consciousness is more likely to identify the terms ‘Christian’, ‘Orthodox’, ‘Muslim’, ‘Russian’, ‘Tartar’, etc. with specific denominations or ethnic groups, rather than with a system of values common to the Russian [rossiyskiy] people in its entirety.
Furthermore, contemporary Russian society, including political parties and religious associations, has not yet acquired substantial experience of democratic coexistence. In these circumstances, parties based on ethnic or religious affiliation would inevitably strive to assert principally the rights of their respective ethnic and religious communities. Competition among parties based on ethnic or religious affiliation ... could lead to stratification of the multinational people of Russia instead of the consolidation of society, to the opposition of ethnic and religious values, exaltation of some and belittlement of others and, ultimately, to attributing predominant importance not to those values which are common to the entire nation but to those restricted to one ethnic ideology or religion, a result which would be contrary to the Russian Constitution (Articles 13 and 14).
The establishment of parties based on religious affiliation would open the door to the politicisation of religion and religious associations, political fundamentalism and the clericalisation of parties ... The establishment of parties based on ethnic affiliation could lead to a situation where representatives of parties advocating the interests of large ethnic groups – to the detriment of those of small ethnic groups – would predominate in elected governing bodies; a situation which would violate the principle of equal rights irrespective of ethnic origin, established in the Russian Constitution (Articles 6 § 2, 13 § 4 and 19 § 2).
Thus, the constitutional principle of a democratic and secular State, as applied in the particular social and historic context existing in the Russian Federation as a multinational and multi-denominational country, does not allow political parties to be established on the basis of ethnic or religious affiliation.
For those reasons, in the face of unrelenting inter-ethnic and interdenominational tension and the ever-growing political demands of modern-day religious fundamentalism, when any religion-based distinction, once brought into the sphere of politics (and therefore, into the struggle for power), may acquire an ethnic dimension and lead to a division of society along ethnic and religious lines (a division, in particular, into Slavic-Christian and Turko-Muslim elements), the introduction into the Political Parties Act of a ban on the establishment of political parties based on ethnic or religious affiliation is compatible with the authentic meaning of Articles 13 and 14 of the Russian Constitution read together with Articles 19 §§ 1 and 2, 28 and 29 ...”
Finally, the Constitutional Court noted that it was not competent to determine whether in a particular case a party had been established on the basis of national or religious affiliation and whether a party’s name reflected its aims, namely the promotion of ethnic or religious interests, these matters coming within the jurisdiction of the ordinary courts.
The Russian Constitution guarantees plurality of ideologies and political parties and prohibits the activity of public associations which incite social, racial, ethnic or religious discord (Article 13). Article 14 guarantees the secularity of the Russian State and equality of religions. Article 19 establishes the principle of equality before the courts and the law. Article 28 guarantees the right to freedom of conscience and religion. Article 29 guarantees the right to freedom of thought and expression and prohibits the promotion of social, racial, ethnic, religious or linguistic superiority.
The Political Parties Act (Federal Law no. 95-FZ of 11 July 2001) provides as follows:
“(3) The establishment of political parties based on professional, racial, ethnic or religious affiliation is not allowed.
The terms ‘professional, racial, ethnic or religious affiliation’ shall be understood in the present Federal Law as inclusion in the articles of association and programme of the political party of the aims of protection of professional, racial, ethnic or religious interests, as well as reference to those aims in the name of the political party.”


ITEMID: 001-105279
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MATUSHEVSKYY AND MATUSHEVSKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants were born in 1952 and 1956 respectively and live in Lviv.
6. On 4 February 2008 the applicants’ thirty-year-old son, Mr Igor Matushevskyy (“I.M.”), was placed in Lviv Pre-Trial Detention Centre no. 19 (“the SIZO”) following his arrest on suspicion of a drug-related offence.
7. On the same date I.M. was examined by a medical commission which found him to be in good health.
8. On 7 February 2008 a drug specialist found him to be in unstable remission from drug addiction.
9. On 24 April 2008 I.M. was placed in cell no. 153, which was shared by nine inmates. It was his sixth transfer to a different cell in the SIZO.
10. On 22 May 2008 at 6.10 p.m., the inmates of cell no. 153 knocked on the door and informed the prison guard that I.M. had fallen from the upper bed and had fainted. A few minutes later, a medical attendant and the on-duty doctor arrived. According to an entry made by them in I.M.’s medical record, they administered the following injections to him: cordiamin, cortisol, mezaton, caffeine and atropine. He was then transported to the medical unit, still alive. At 6.50 p.m. an ambulance, for which the prison administration had called, arrived; and at 7.02 p.m. I.M. was pronounced dead. According to the medical certificate written by the SIZO administration and the doctors recording I.M.’s death, a closed craniocerebral injury was indicated as the preliminary cause of death.
11. On the same date three of the inmates, as well as the personnel involved, gave written statements concerning the matter to the SIZO’s governor. The detainees explained that there had been no incidents in the cell, that I.M. had accidentally fallen from his bed and that they had unsuccessfully tried to bring him back to consciousness by putting a wet towel on his forehead. According to them, they had promptly called for a doctor, who, in turn, had arrived without delay. The inmates also submitted that a few hours before his death I.M had complained of headache. One of the detainees noted that I.M. had occasionally mentioned that he suffered chest pains.
12. In the evening on the same date, 22 May 2008, the SIZO administration examined the scene and informed the Lviv police and the Lviv Regional Prosecutor’s Office (“the LRPO”) of I.M.’s death.
13. On 23 May 2008 at about 4.30 p.m., the SIZO administration sent a telegram to the applicants informing them that their son had died and that they could collect his body from the Lviv morgue.
14. According to the applicants, at about 10 a.m. on 23 May 2008, before the telegram had reached them (on 24 May 2008), they received an anonymous phone call from a person who had introduced himself as a detainee at the SIZO. He had allegedly stated that I.M. had been killed by SIZO officers.
15. The applicants immediately got in contact with the local morgue, which confirmed that I.M.’s body was there. However, according to the applicants, its staff refused to show them his body.
16. The first applicant also informed the LRPO of the allegations received in the anonymous phone call and sought the opening of a criminal investigation into the matter.
17. On the same date, 23 May 2008, the Lviv Regional Police found that there was no indication of a homicide and terminated the investigation.
18. On 24 May 2008, from 9 a.m. to noon, the first applicant waited outside the morgue while an autopsy of I.M.’s body was going on. He saw some people there (whom he later found out were from the SIZO) and allegedly heard one of them saying on the phone: “Everything is fine, the haematomas have been removed and the bruises behind the ears have been retouched. There is something there with his heart and lungs.” The applicant had the impression that the conversation had been about his son.
19. After the autopsy was completed, the first applicant was allowed to collect I.M.’s body. According to him, he discovered the following injuries on it: I.M.’s chest, shoulders, arms and legs, as well as his groin area, were covered with bruises, his fingertips were bluish in colour, the phalanx bone of the little finger on his left hand was broken, his face was swollen and his nasal bridge was deformed, the hair on his temples was missing as if it had been torn out, and there were bloodstains on his earlobes. The applicant asked the doctor about the injuries and was told that they were the signs of post-mortem lividity.
20. The morgue issued a death certificate to the first applicant indicating that the cause of death had “not been preliminarily clarified”.
21. Later on 24 May 2008, the applicants discovered in their mailbox a letter from an anonymous “detainee”, according to which I.M. had been beaten up by one of the inmates, T., on police instructions with a view to extracting a confession from him, and had died of the injuries he had sustained. It was noted in the letter that the SIZO administration was intimidating the witnesses in order to conceal the real cause of death. However, the witnesses would give truthful testimonies if questioned by the prosecutor in absence of SIZO staff.
22. On 26 May 2008 the first applicant again complained to the LRPO that his son had been killed in the SIZO. On an unspecified date shortly thereafter the prosecutor questioned him as to what made him think that I.M.’s death had been a violent one. The first applicant referred to the information received from the anonymous phone call and letter. He also noted that his son had not made any complaints about his health. Furthermore, on 19 May 2008, the last time that the second applicant had passed over a food parcel for I.M., she had enquired with the SIZO medical staff whether he needed any medicine but had been told that he did not require any.
23. On the same date, 26 May 2008, the assistant to the SIZO governor, who had been on duty when I.M. had died, gave a written statement to the LRPO, according to which: there had been no incidents in cell no. 153 on 22 May; no coercive measures had been applied to any detainees; and he had not seen any injuries on I.M.’s body. The senior security officer on duty made a similar statement.
24. On 28 May 2008 T. and seven other inmates repeated their previous account of the events (see paragraph 11 above) to the LRPO, without specifying what aid they had provided to I.M. before the medical attendant’s arrival, which had been two to three minutes after I.M.’s fall. The inmates from the neighbouring cells, nos. 152 and 154, stated that they had not heard any noise from cell no. 153 on 22 May 2008. The prosecutor also questioned detainee V., with whom I.M. had been sharing cell no. 140 before his transfer to no. 153., and who, according to the applicants, might have had additional information about the circumstances of his death. V. submitted that I.M. had not wanted to encounter T. and had therefore been unwilling to be transferred to cell no. 153. V. had allegedly warned the administration about a possible conflict between T. and I.M., as, according to him, they had been “opposites in the criminal world”.
25. On 29 May 2008 the prosecutor questioned the SIZO governor as regards, in particular, the reasons for I.M.’s frequent transfers from one cell to another. The governor stated that I.M. had had a negative influence on other detainees, without giving further details. He submitted that I.M. had neither opposed his transfer to cell no. 153 nor had he later asked to be transferred to another cell. T. and I.M. had not shared cells before. The governor also contended that he had not received any information about conflicts between them or about any wrongdoing on the part of T. According to him, the atmosphere in cell no. 153 had been calm.
26. On 29 May 2008 T. stated that he had known I.M. since 1998 because they had lived in the same town. According to him, they had been neither friends nor enemies, rather just acquaintances. He also supplemented his earlier statements to the effect that the inmates had tried to bring I.M. back to consciousness by pouring water on him and by rubbing his hands, feet and ears.
27. On 29 May 2008 a toxicologist of the Regional Bureau of Forensic Medical Examinations issued a report, according to which no alcohol had been discovered in I.M.’s blood.
28. On 30 May 2008 another forensic medical report was issued by a histologist following an examination of I.M.’s body tissues. It concluded that the deceased had been suffering from: swelling of the lungs and haemorrhaging, focal serous bronchopneumonia, chronic leptomeningitis, fatty liver disease, chronic persistent hepatitis, signs of chronic nephritis, and atheromatosis of the aorta.
29. On the same date the Galytskyy Police Department refused to open a criminal case regarding the death of I.M. for want of indication of a crime.
30. On 2 June 2008 the Galytskyy District Deputy Prosecutor quashed the aforementioned decision as having been delivered prematurely.
31. On 3 June 2008 the forensic medical expert who had performed the autopsy gave a written statement to the LRPO. He stated that there had been bruises and sores on I.M.’s face, both earlobes, and on the inner parts of both thighs, while no bone fractures or craniocerebral injuries had been discovered. The expert expressed the view that a possible cause of I.M.’s death could have been a heart or lung condition.
32. On the same date detainee V. additionally explained that he had wanted to stay in the same cell as I.M. because the latter had often received food parcels and had shared them with his cellmates.
33. On 3 June 2008 the LRPO refused to institute criminal proceedings against the SIZO staff in respect of I.M.’s death for a lack of corpus delicti in their actions.
34. On 6 June 2008 the Frankivskyy District Court in Lviv terminated the pending criminal proceedings against I.M. given that he had died. It also issued a separate ruling in which it noted that the circumstances of I.M.’s death warranted a criminal investigation (it had been informed by the SIZO administration that I.M. had died because of a closed head injury).
35. On 11 June 2008 the LRPO quashed the decision of 3 June 2008 and resumed the investigation. In particular, it noted that it was still necessary to question the ambulance doctors, to analyse the anonymous letter received by the applicants with a view to establishing its author, to question T. as to whether he had suffered any injuries, and to take steps to find out who had telephoned the applicants on 23 May 2008.
36. On 12 June 2008 the applicants complained to the LRPO that the cause of their son’s death had never been officially established. They pointed out that the accounts of the SIZO governor in that regard lacked consistency. Thus, according to them, he had explained that I.M. had died because he “had fallen from his bed”, subsequently because he “had fallen ill”, and, lastly, because he “had fallen down in the shower”.
37. On 17 June 2008 a forensic medical report was issued, according to which a chemical examination had discovered the presence of an organic substance possibly belonging to a group of amphetamines (psychostimulant drugs) in I.M.’s body. A precise identification of the substance was impossible. At the same time, it was noted in the report that the examination had not revealed any traces of caffeine or atropine, amongst other substances.
38. On 18 June 2008 another forensic medical examination (started on 24 May) was completed. It found the following injuries on I.M.’s body: two sores, one on each side of the nose; three sores under the left eyebrow; a brownish-red sore on the lower part of the right earlobe and a bluish-violet bruise on its upper part; a bluish-violet bruise of 2 x 1 cm behind the left earlobe and a similar bruise measuring 2.5 x 3 cm behind the right earlobe; a triangle-shaped sore on the neck behind the right ear; a bluish-violet bruise of 24 x 24 cm on the inner side of the right thigh and a similar bruise of 15 x 14 cm on the inner part of the left thigh; as well an area of 10 x 20 cm on the front part of the left thigh which was bruised all over. The examination of I.M.’s internal organs revealed a 7 x 9 cm long and 0.4 cm deep area of haemorrhaging in the right temple and a 6 x 7 cm long and 0.3 cm deep area of haemorrhaging in the left temple. The expert concluded that I.M. had sustained the aforementioned injuries while still alive. He classified them as insignificant and having no relation to his death. No bone fractures were discovered. The examination report indicated cardiomyopathy, presumably caused by drug addiction, as the cause of I.M.’s death. It noted that I.M. had been intoxicated by a psychostimulant substance belonging to the amphetamine group which had triggered a heart attack and death. Furthermore, it discovered features of the following conditions: focal serous bronchopneumonia and chronic leptomeningitis, fatty degeneration of the liver, chronic hepatitis and nephritis, atherosclerotic heart disease, thyroid hyperplasia and cardiomegaly. They were also found to have contributed to I.M.’s death.
39. On 26 June 2008 T. was examined by a forensic medical expert, who did not discover that he had suffered any injuries.
40. By a letter of 27 June 2008, the SIZO governor informed the LRPO that an internal investigation had not revealed any drug trafficking in the SIZO. He noted that the psychostimulant substance discovered in I.M.’s body might have been passed to him from the outside with his food parcel, given that he had not shared his food parcels with anybody.
41. On 3 July 2008 the LRPO questioned the ambulance doctor who had pronounced I.M. dead. He submitted that he had not seen any injuries on I.M., but only traces of bleeding from the nose and the left ear. He explained that he had given the “closed craniocerebral injury” diagnosis on the basis of the initial visual inspection, without giving further details.
42. On the same date the LRPO decided that the investigation had not revealed anything criminal in the actions of the SIZO staff or I.M.’s cellmates. It therefore refused to institute criminal proceedings against them.
43. On 8 July 2008 the prosecutor of the LRPO Supervision Department quashed the aforementioned decision as premature and ordered further investigation, the aim of which was to clarify, in particular, how the injuries had been inflicted on I.M. and how the drugs could have appeared inside the SIZO.
44. On the same date the LRPO informed the applicants of the developments in the investigation and invited them to study the case file if they wished to do so.
45. On 14 July 2008 four inmates of cell no. 153 gave further statements regarding the events of 22 May 2008. They noted that on that day I.M. had been exercising, after which the inmates had been taken to the shower area. Upon their return to the cell, I.M. had complained about having a headache. They also stated that they had massaged and rubbed I.M. and had slapped him in the face after his fall to bring him to his senses.
46. On 28 July 2008 the LRPO delivered another decision refusing to open a criminal case against the SIZO administration or I.M.’s cellmates for a lack of corpus delicti in their actions. At the same time, the investigation into the death of I.M. continued, without being targeted against any particular person.
47. On 8 August 2008 the LRPO ordered another forensic medical examination, this time by a commission of experts, with a view to finding answers to the following questions:
- when I.M. had died and what the cause had been;
- whether he had sustained any injuries and, if so, what their nature and origin were;
- whether those injuries could have originated from being hit with blunt objects (such as fists, feet, a stick, etc.), and, if so, what those objects had been;
- whether his injuries could have originated from first aid provided to him (rubbing of his ears, eyes, eyebrows and hands) and, if so, which of the injuries were caused in such a manner;
- whether there was a causal link between I.M.’s injuries and his death;
- whether I.M. had been suffering from any diseases or handicaps and, if so, whether those had had a causal link with his death; and
- whether I.M. had consumed any alcohol or drugs shortly before his death, and, if so, what their impact had been.
48. On 18 September 2008 a microscopic examination of I.M.’s internal organs revealed: subarachnoid haemorrhage in the pia mater surrounding the brain (it was impossible to localise the bleeding with additional precision); punctuate cerebral haemorrhage; and renal haemorrhage.
49. On 27 October 2008 the forensic medical commission of three experts delivered its report. It confirmed that I.M. had died of a heart attack at about 7 p.m. on 22 May 2008. His injuries were estimated as light, with the exception of the subarachnoid haemorrhaging, which was of medium gravity. The haemorrhaging had commenced shortly before death and had originated from the repeated “hitting and shaking” action of blunt objects against the body. It could not be excluded that those objects had been fists, feet or other objects impossible to define. Given that the injuries were to different parts of the body, they could not all have been inflicted at the same time. Some of them – such as the sores on the nose and under the right eyebrow – could have originated from falling against a blunt object. The injuries could not be characterised as having resulted from first-aid efforts. No direct connection was established between I.M.’s injuries and his death. The experts also concluded that, prior to his death, I.M. had suffered from a number of diseases – of the lungs, heart, kidneys and liver – which had been aggravated by a heart attack and had caused his death. They also confirmed that a psychostimulant substance had been found in his body, without commenting on how it was related to his death.
50. On 3 November 2008 the prosecutor of the LRPO Supervision Department quashed the decision of 28 July 2008 as lacking a proper basis and ordered further investigation.
51. On 5 November 2008 the LRPO additionally questioned the toxicologist who had issued the report of 17 June (see paragraph 37 above). The expert specified that the drug discovered in I.M.’s body was not contained in any of the medications given to him by the doctors before his death. It could have stayed in the body for up to five days.
52. On 7 November 2008 the prosecutor repeatedly inspected cell no. 153, together with a forensic medical expert (a member of the commission authoring the report of 27 October 2008 (see paragraph 49 above)) and in the presence of one of the detainees and two attested witnesses. A detailed inventory was produced containing details of all the beds and furniture items and measurements of the distances between them.
53. On 10 November 2008 the LRPO questioned the expert who had participated in the inspection of the cell on 7 November 2008 (see paragraphs 49 and 52 above). Referring to the inspection of the scene, the expert stated that I.M. could have hit himself against the table while falling from the upper bed, then against the bench next to the table, and, finally, against the floor. Most of his bruises and sores, as well as the cerebral haemorrhaging, could have resulted from such a fall. As to the bruises behind both ears, they could have resulted from the intensive rubbing which the inmates had resorted to, having no knowledge as to how first aid should be provided. Lastly, the expert noted that the subarachnoid haemorrhaging could be assessed as being of both light and medium gravity, as the major criterion for the categorisation of such an injury was the effect of time, which was not applicable to the circumstances under examination.
54. On 11 November 2008 another forensic medical expert participating in the commission which had issued the report of 27 October 2008 was questioned by the prosecutor. She noted that the internal bleeding could have resulted from a generalised trauma to the dead body. It could have occurred owing either to blows or to falling against a hard surface.
55. On 12 November 2008 the LRPO again refused to institute criminal proceedings against the SIZO administration or the detainees for a lack of corpus delicti in their actions. On the same date it informed the applicants of that decision and explained to them that they had the right to study the case file at the LRPO’s premises.
56. On 17 November 2009 the lawyer representing the applicants asked the LRPO for a copy of the decision of 12 November 2008. On 17 December 2009 the LRPO granted that request.
57. On 8 February 2010 the prosecutor of the LRPO Supervision Department quashed the decision of 12 November 2008 as based on an incomplete investigation.
58. On 9 April 2010 the LRPO ordered a complex forensic medical examination with a view to finding answers to the same questions as posed on 8 August 2008 (see paragraph 47 above). The investigator noted, in particular, that there had been injuries on I.M.’s body and that initially a closed craniocerebral trauma had been given as a possible cause of his death. It remained, however, to be established whether I.M. had in fact sustained the aforementioned injury and what the cause of his death had been.
59. There is no information on the progress or outcome of the investigation.
60. The applicants submitted to the Court ten colour photos of the dead body of their son, dressed and placed in a coffin. The only visible parts of his body are his face and hands. The bridge of his nose appears to be swollen. There are sores on the upper part of the bridge of his nose and below both eyebrows, and a bruise below his left brow. Both earlobes are covered with what appears to be bloodstains and bruises. There are also bruises and patches of missing hair on both temples. His fingertips and nails are bluish in colour.
61. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment of Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 36 and 38, 4 April 2006.
VIOLATED_ARTICLES: 2
3


ITEMID: 001-59434
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SCHIAPPACASSE v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1961 and is currently residing in Turin. He is an officer in the Italian Army.
8. On 7 August 1990 Mr G.B. filed a criminal complaint against the applicant, stating that in December 1989 the latter, in his capacity as officer, had forced two recruits to give him money. On 20 August 1990, however, Mr G.B. withdrew his complaint, considering that the recruits’ version was not credible.
9. In an order of 25 May 1992, the Cosenza investigating judge committed the applicant for trial, commencing on 13 May 1993 before the Cosenza District Court on a charge of extortion.
10. A number of hearings took place. They were postponed either by reason of legitimate impediment of the applicant, or because of witnesses’ absence, or finally because of lawyer’s strikes. On 17 September 1996 the two recruits were examined. On 18 December 1997 and 5 February 1998, Mr G.B. and three other witnesses were examined.
11. In a judgment of 5 February 1998, filed with the registry on 25 February 1998, the Cosenza District Court acquitted the applicant. This decision became final on 19 April 1998.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78369
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHEYDAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1978 and lives in Derbent, the Republic of Dagestan.
5. The applicant at the material time was performing contractual military service in a military unit in the Republic of Dagestan. On 16 December 1999 he was examined by the Military Medical Commission in Kislovodsk (военно-врачебная комиссия ОВГ г. Кисловодск) and found fit for military service. The only illness recorded was mild myopia of the left eye.
6. On 21 December 1999, at 9.30 a.m., the applicant was taken by police officers to the Derbent Town Police Station (Дербентское ГОВД) to be questioned, apparently as a witness, in connection with an investigation of an incident of violent hooliganism.
7. The applicant submits that during his stay in the police station from 21 to 24 December 1999 he was continuously beaten by up to five police officers who were trying to coerce him to confess of having committed the above offence.
8. The police officers punched the applicant in the area of his left ear and neck. They pushed him down on the floor, kicked him and hit him with a chair-leg. During the beatings the police officers threatened the applicant that a harsh sentence would be imposed on him and that they would physically abuse and sodomise him.
9. On the second day, the police officers tied the applicant up and started to punch him in his face and body and hit him with a chair-leg. They undressed the applicant and tried to seat him with his naked rear on a bottle which they put on the floor, whereupon the applicant agreed to their demands and wrote a confession letter. Furthermore, it appears that there was no transcript of the applicant's arrest drawn up throughout the whole duration of his stay in custody.
10. On 24 December 1999, at 6.00 p.m., the applicant was handed over to three fellow servicemen who accompanied him to his military unit. Upon arrival in his unit the applicant reported to the chief of the headquarters (начальник штаба). At about 8.00 p.m. the applicant was examined by a doctor of the medical unit. The doctor's report contained, inter alia, the following conclusions:
“...A scabbed abrasion of skin, 0.5 x 1.0 cm, and a yellow-green bruise are displayed on the left ear. Palpation of the left part of the body is painful. Yellow-green bruises are displayed on the right side and in the middle of the anterior surface of the chest, 4 x 6 cm and 4 x 5 cm. [P]alpation of the anterior surface of the chest is painful. Diagnosis: Soft tissue bruises on the head and body.”
11. It appears that on 25 December 1999 the applicant was examined by the head of the medical unit who confirmed the findings made in the doctor's report and entered them into the applicant's medical chart.
12. Following the transfer of the criminal case against the applicant to the relevant Military Prosecutor's Office, it appears that the applicant complained orally to the investigator dealing with his case about the ill-treatment in police custody and presented copies of the above medical report and medical chart. It appears, however, that his complaints remained unexamined.
13. On 23 March 2000 the applicant's counsel and his father complained in writing to the Derbent Town Prosecutor (прокурор г. Дербента) that, at the time of his arrest, the applicant had on him certain personal belongings which had not been returned to him and requested that these belongings be returned. They also submitted that following his arrest the applicant had been ill-treated and coerced to confess by police officers, including police officer S.
14. Copies of this complaint were also forwarded to the Dagestan Republic Prosecutor and the Chief Military Prosecutor (прокурор Республики Дагестан и Главный Военный Прокурор). It appears that no reply was received to this complaint. It further appears that the applicant's counsel and his father lodged numerous similar complaints with various prosecutor's offices.
15. By letter of 20 April 2000 the applicant's father was informed by the Regional Military Prosecutor's Office (Военная прокуратура Краснознаменного Северо-Кавказского регионального управления) that the allegations of ill-treatment were being examined in an objective and thorough manner in the course of the court proceedings (see below).
16. By letter of 3 May 2000 the applicant's father was informed by the Military Prosecutor of the Makhachkala Garrison (Военный прокурор Махачкалинского гарнизона) that his complaint about the applicant's ill-treatment had been forwarded to the head of the Derbent Town Police Station.
17. On 22 May 2000 the applicant's counsel and his father inquired with the Derbent Town Prosecutor about the destiny of their complaint of 23 March 2000. The applicant alleges that no reply was received to this inquiry.
18. The Government submitted that the applicant's requests concerning his complaint of 23 March 2000 were examined by the domestic authorities repeatedly in 2004 and 2005. They referred to a copy of the decision of the Derbent Town Prosecutor of 21 January 2005 which read as follows:
“...The Derbent Town Prosecutor's Office, at request of the Prosecutor's Office of the Republic of Dagestan, carried out an inquiry of the arguments set out by Mr Sheydayev in his application to the European Court of Human Rights concerning the violations of his rights and lawful interests by the policemen of the Derbent Town Police Station during his detention [...] between 21 and 24 December 1999.
The inquiry established that on 11 September 1999 the Department of Investigations of the Derbent Town Police had instituted criminal case No 904386 on suspicion of [robbery] and that on 21 December 1999 [the applicant] had been apprehended in this connection.
Investigator [...] A. O., in charge of the case, submitted that [...] during the investigative actions [the applicant] had never complained about the ill-treatment by the policemen of the Derbent Town Police.
Policemen G. and E. who had arrested [the applicant] submitted that [...] during his stay in the building of the Derbent Town Police no physical or mental coercion had been used and that [the applicant] had never made any such complaints.
The parents of [the applicant] confirmed his arguments about the ill-treatment by the policemen.
According to the records of the Derbent Interdistrict Department of Medical Forensic Examinations [...] [the applicant] had not addressed himself to that institution during the period between 1999 and 2000.
From the judgment of Makhachkala Garrison Military Court [of 27 May 2000] it follows that [the applicant's] arguments about the coercion by the policemen were examined during the examination of the case but were rejected by the court as unfounded.
By decision of 29 December 2004 the Deputy of the Derbent Town Prosecutor refused to institute criminal proceedings on account of allegedly unlawful actions in respect of [the applicant] with reference to [lack of evidence of a crime] in the actions of G., S., A.
This decision was quashed by the Prosecutor's Office of the Republic of Dagestan on 14 January 2005 and the case was remitted for an additional inquiry.
's Office of the Republic of Dagestan were complied with fully. In particular, additional interviews of [the applicant's parents, relatives and neighbours] took place. All of them confirmed that they had had hearsay knowledge of the allegations of torture from the applicant. The [applicant's] Chief of Military Unit submitted that during [the applicant's] detention he had been away on mission and that during their first subsequent meeting he had noticed no signs of violence. As regards [the applicant's] fellow servicemen, at the moment of the additional inquiry their location could not be established.
[It was apparently impossible to interview the applicant because he changed his residence and moved from Dagestan to the Moscow Region].
From the report of the medical unit of [the applicant's] military unit dated 24 December 1999 it follows that he had had [certain injuries] the origins of which [the applicant] and his relatives and neighbours, on the basis of [the applicant's] allegations, explained by the police violence during [the applicant's] detention. This was, however, not confirmed by the policemen. It was impossible to interview the applicant because his residence could not be established. It was equally impossible to examine the registry of the persons detained in the Derbent Town Police at the relevant time, the registry of those interviewed and to carry out some other investigative actions because of a serious lapse of time from the time of events in question and the destruction of the relevant documents [...].
The analysis of the available documents shows that the inquiry had failed to obtain sufficient data confirming the arguments of [the applicant] concerning violence by the policemen, apart from the medical report [of 24 December 1999] and the submissions of the relatives and neighbours which should be assessed critically because of [the conflict of interests]. The medical report and the submissions of the above persons are insufficient for the prosecution of policemen. In addition, [the applicant's] arguments were examined by the Makhachkala Garrison Military Court [...] and declared unfounded.”
19. While the applicant was in police custody, the investigating authority conducted an identification parade with the participation of the applicant, two other persons and two attesting witnesses. Following the line-up the applicant was identified as one involved in the incident of violent hooliganism.
20. On an unspecified date, the applicant was charged with hooliganism committed by a group of people.
21. On 25 January 2000 the case was brought before the Makhachkala Garrison Military Court (Махачкалинский гарнизонный военный суд), presided over by judge R.
22. The applicant submits that the presiding judge R. tried to extort a bribe from his father, promising to acquit him in return. It appears that the applicant's father paid the amount demanded by the judge but the judge later changed his mind and demanded more money. The applicant's father refused to pay additional money and demanded that the judge return the amount already paid which led to a conflict between them.
23. In the proceedings before the Garrison Military Court the applicant complained in detail about the ill-treatment during the police custody and submitted that his confession had been made under duress.
24. The court heard four police officers who had been present at the time when the applicant wrote his confession, all of whom denied using physical force against the applicant. They stated that the applicant had made his confession voluntarily.
25. It further heard the doctor who had examined the applicant on 24 December 1999 and the head of the medical unit who confirmed their previous findings.
26. The court also heard the servicemen who had accompanied the applicant from the police station following his release. Serviceman G. submitted that the applicant had had injuries and that he had told them, on their way to the military unit, about having been ill-treated in police custody. Serviceman S., on the other hand, denied these allegations.
27. The court further heard the chief of the headquarters to whom the applicant reported upon his arrival at the military unit who stated that he had not noticed any injuries on the applicant's face from a distance of 3-4 metres. The chief of the headquarters and the commander of the military unit submitted in court that the applicant reported to them about having been ill-treated in police custody.
28. The applicant further challenged the results of the identification parade as inadmissible evidence. The court dismissed this challenge. In doing so, the court took into account the testimonies given by both victims who stated that they had clearly seen the applicant's face at the time of the incident, they had immediately and without hesitation recognised his face, constitution and height during the line-up and that the investigator had not made any hints to them.
29. The first victim added that the other participants had not had a substantially different look from the applicant, while the second victim stated that nobody had ever persuaded her to testify against the applicant. The court finally heard the two other participants of the line-up and one of the attesting witnesses who confirmed these statements.
30. On 27 May 2000 the Makhachkala Garrison Military Court found the applicant guilty as charged and imposed a two-year suspended sentence of imprisonment.
31. As to the applicant's allegations of ill-treatment, the court found:
“According to the entry in the medical file of [the applicant] and the medical report following his examination of 24 December, [the applicant] was found to have bruises on the left helix, the right and the middle zone of his chest.
[...]
Witnesses A., G. and S. – policemen of the Derbent Town Police – stated that no physical or mental coercion had been used in respect of [the applicant], the latter voluntarily told them that on 11 September of that year at 20 p.m. [...] he took part in the beating of the victim and in particular punched him once on the back.
[...]
Having assessed [the applicant's] statements about the beatings by the policemen of the Derbent Town Court as well as the statements of the commander of the military unit, the [...] chief of the headquarters, the head of the medical unit, the court reaches the conclusion that they are partial.
[...]
The statements by [serviceman G.] who said that [the applicant] on 24 December during the trip to the military unit in UAZ car had told him [about the coercion by the policemen] were fully refuted by serviceman S., who accompanied [the applicant] and [serviceman] G. in the said car.
[Serviceman] S. in this respect stated that during that trip in UAZ car at the relevant time no such talk had taken place between [the applicant] and G. and that he had seen no traces of violence on [the applicant's] face.
Having analysed the statements [of serviceman S.] and having compared them to all other evidence in the case, the court finds them objective and unbiased.
[...]
[The doctor] gave the evidence that during the examination of the [applicant's] body he had discovered the bruises on the chest and the helix. This fact, even though it was supported by the medical report, was questioned by the statements of the chief of headquarters and serviceman S.
[The applicant] failed to submit persuasive evidence establishing the causal link between [his] injuries and the actions of policemen A., G. and S. who had been accused of beating to prove in court [this] version of events.
32. As to the applicant's identification, the court found on the basis of the witness testimonies given in this respect that the identification had been conducted in compliance with the law.
33. On 29 May 2000 the President of the Makhachkala Garrison Military Court (председатель Махачкалинского гарнизонного военного суда) pardoned the applicant on the basis of an amnesty act adopted by the State Duma on 26 May 2000.
34. On 27 June 2000 the applicant lodged an appeal against the judgment of 27 May 2000.
35. In his appeal he complained in detail about the ill-treatment in police custody. He also briefly indicated that his identification had been conducted in flagrant violation of the law and that the court's dismissal of his counsel's motion, seeking to exclude the results of the identification as inadmissible evidence, had been unfounded.
36. On 27 July 2000 the North Caucasus Circuit Military Court (Северо-Кавказский окружной военный суд) dismissed the applicant's appeal. The court found, inter alia, the applicant's statement that his confession had been made under physical ill-treatment unsubstantiated. The court also dismissed the applicant's allegations of unlawfulness of his identification.
37. According to applicant, on 17 August 2000 he lodged a supervisory review complaint in which he outlined all of his previous arguments, including the complaint about the alleged ill-treatment with the President of the North Caucasus Circuit Military Court.
38. On 11 November 2000 the President rejected the complaint as groundless and refused to institute supervisory review proceedings.
39. Article 21 § 2 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.
40. Section 117 § 2 (f) of the Criminal Code penalises an act of torture with a sentence of up to seven years' imprisonment.
41. Under Section 286 § 3 (a) and (c) of the Code the abuse of official power with the use of violence or entailing serious consequences is punishable by up to ten years of imprisonment.
42. Under Section 108 and 125 of the 1960 Code of Criminal Procedure (in force until 2002), a criminal investigation could be initiated by a prosecutor ex officio or at the request of a private individual.
43. Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Sections 113 and 209).
VIOLATED_ARTICLES: 3


ITEMID: 001-60309
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DEVENNEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 14 or 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: 8. On 18 August 1992, the applicant began work in the Culloden Hotel, Belfast, as a silver service waiter. This hotel is owned by Moyola Cellars Limited, which is subsidiary of Hastings Hotels Group Limited. Initially the applicant had been doing very well and was optimistic about promotion. On 31 October 1992, the restaurant manager informed the applicant that he was being dismissed forthwith. The applicant was given no reason whatsoever for his peremptory dismissal. Various attempts to get an explanation for the dismissal were unsuccessful. Ultimately the general manager told the applicant on 1 November 1992 that he was dismissed because he did not meet the grade and there was no other reason. Of all the full-time and permanent staff in the restaurant the applicant believes that he was the only Catholic.
9. The applicant made a complaint to the Fair Employment Tribunal that he had been unlawfully discriminated against on the grounds of religious belief or political opinion. The applicant and thirteen of his fifteen siblings are not involved in any politically related activity.
10. By a letter of 22 December 1992, the applicant’s solicitors wrote to the Chief Constable of the Royal Ulster Constabulary (“RUC”) stating that they had been informed that the reason for the applicant’s dismissal from his employment at the Culloden Hotel was an approach made to the Hotel by members of the RUC who had stated that the applicant was a suspect. The solicitors requested that the RUC provide information as to what the applicant was suspected of and on what basis the applicant had been allegedly described as a suspect. The RUC replied to this letter, stating that they were unable to comment on such matters, it not being force policy to do so.
11. On 29 March 1993 the solicitors acting on behalf of the applicant’s employers wrote to the Fair Employment Tribunal.
“We return herewith Notice of Appearance in relation to the application presented by Mr Liam Devenney. On our instructions, the acts of which complaint is made, were done for the purpose of protecting public safety, and in the circumstances by virtue of Section 42 of the Fair Employment Act 1976, the Fair Employment (Northern Ireland) Acts do not apply so that the tribunal does not have jurisdiction to entertain the complaint.”
12. The Fair Employment Tribunal then of its own motion fixed a preliminary hearing for determination of the following issue:
“Whether the tribunal has jurisdiction to consider the applicant’s complaint in view of the provisions of Section 42 of the Fair Employment (Northern Ireland) Act 1976.”
13. On 3 December 1993 the Fair Employment Commission, acting on behalf of the applicant, wrote to the solicitors acting on behalf of the applicant’s employers requesting to know, inter alia, whether the Secretary of State or any other Agency had been approached with a view to obtaining a Section 42 (2) certificate. By reply of 6 December 1993 the employers’ solicitors stated:
“We today received your letter dated 3 December 1993 in relation to the above. You will be pleased to hear that during the writer’s holiday last week a Section 42 certificate was received from the Crown Solicitor’s office (a certified copy of which is enclosed herewith) so that it now seems unnecessary to take any further action, and that you may close your file in this matter.”
14. The applicant stated that he did not know the basis upon which the certificate was issued. He had never been shown, and was not entitled to demand, sight of the information, if any, which was placed before the Secretary of State which led to the certificate being issued. The applicant did not know whether this information was correct or incorrect, whether it was complete or incomplete, and whether it was reliable or not. Nor did he know whether the information provided could reasonably support the view expressed in the certificate.
15. The matter first came before the Fair Employment Tribunal on 3 June 1994. On that occasion the Tribunal declared that the certificate presented did not affect the applicability of the Fair Employment Acts to the dismissal of the applicant by Moyola Cellars Limited, since the certificate referred to an act done by the Hastings Hotel Group.
16. At a resumed hearing on 5 January 1995 the Fair Employment Tribunal were presented with a new certificate signed by the Secretary of State for Northern Ireland and certifying that the decision by Moyola Cellars Limited to terminate its contract of employment with the applicant was for the purpose of protecting public safety and public order. In light of the certificate, the Fair Employment Tribunal found that the Fair Employment Act did not apply to the termination of the applicant’s contract, nor to the decision summarily to terminate the contract and accordingly that:
“there is nothing for this Tribunal to consider in relation to that act [of termination].”
The tribunal dismissed the applicant’s complaints in relation to his dismissal and the manner of his dismissal.
17. By virtue of Section 17 of the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”) it is unlawful for an employer to discriminate against a person on grounds of religious belief or political opinion in relation to employment in Northern Ireland, inter alia, by dismissing him or subjecting him to any other detriment. By virtue of section 24 of the 1976 Act as amended, a complaint of unlawful discrimination may be presented to the Fair Employment Tribunal, which is established by statute to investigate complaints of unlawful discrimination on grounds of religious belief or political opinion.
18. Section 42 of the 1976 Act provides as follows:
“(1) The Fair Employment (Northern Ireland) Acts shall not apply to an act done for the purpose of safeguarding national security or protecting public safety or public order.
(2) A certificate signed by, or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for the purpose mentioned in sub-section (1) shall be conclusive evidence that it was done for that purpose.
(3) A document purporting to be a document such as is mentioned in subsection (2) shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68739
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF UZKURELIENE AND OTHERS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of P1-1
JUDGES: David Thór Björgvinsson
TEXT: 8. The first applicant is Mrs Eugenija Užkurėlienė, born in 1939 and living in Vilnius. The second applicant is Mr Povilas Čyžius, born in 1936 and living in the Kupiškis area in the Panevėžys region. The third applicant is Mr Stanislovas Čyžius, born in 1938 and living in Panevėžys. The fourth applicant is Ms Janina Čyžiutė, born in 1932 and living in the Kupiškis area.
9. The applicants are brothers and sisters. Before the Soviet occupation of Lithuania in 1940 the applicants' father owned 33.87 hectares of land (“the original land”). The land was nationalised by the Soviet authorities in the 1940s. Following the restoration of Lithuanian independence in 1990, the applicants became entitled to a claim in regard to their late father's land under the Restitution of Property Act (“the Act”).
10. On 25 September 1991 the applicants requested that compensation in land be given to them in accordance with the Act.
11. On 10 December 1993 the applicants changed their position, requesting that the original land be returned to them in kind. By letter of the administrative authorities of 31 January 1994 the applicants were informed that part of the original land (8.74 hectares) had already been allocated to a third person, FS, by decision of the Ministry of Agriculture of 30 December 1992. The applicants were informed that that part of the land could thus not be returned to them.
12. On 15 February 1994 the applicants applied to a court, requesting that the decision of 30 December 1992 be quashed. On 20 June 1994 the Vilnius City First District Court rejected the applicants' action. On 18 July 1994 the Supreme Court rejected the applicants' appeal against that judgment.
13. On 22 March 1995 the Supreme Court refused to grant leave for a cassation appeal.
14. On 4 October 1996 the applicants brought a fresh court action, requesting the return of the original land. On 29 June 1998 the Kupiškis District Court rejected the applicants' action. On 15 September 1998 the Panevėžys Regional Court rejected the applicants' appeal against that decision. The applicants submitted a cassation appeal to the Court of Appeal.
15. On 3 May 1999 the Court of Appeal quashed the lower decisions, returning the case for a fresh examination at first instance.
16. On 28 October 1999 the Kupiškis District Court again rejected the applicants' action. On 21 December 1999 the Panevėžys Regional Court upheld the first instance judgment. The applicants submitted a cassation appeal to the Supreme Court.
17. On 22 May 2000 the Supreme Court adopted a final judgment whereby it quashed the decisions of 28 October and 21 December 1999. The Supreme Court concluded that the authorities and the lower courts had been responsible for the delays in restoring the applicants' rights under the Act. It held inter alia:
“From the material in possession it appears that the plaintiffs submitted a request to restore their property rights on 25 September 1991. Pursuant to Article 19 [of the Act], a decision on the request must have been adopted within three months from that date. ... [The] plaintiffs' right to an effective remedy was [therefore] violated. ...
The plaintiffs had submitted enough evidence [enabling the administrative authorities] to adopt a decision on restitution of their property rights, even more so as the case-file contains no evidence that other persons claim restitution of property rights in regard to the land which belonged to the plaintiffs' father. ...
Having regard to the fact that the plaintiffs' property rights have not been restored since 1991 ... [further litigation] would breach the plaintiffs' rights guaranteed by Articles 6 and 13 of the Convention ... ”
18. In the judgment of 22 May 2000 the Supreme Court ordered that the Panevėžys regional administration “take a decision to restore the [applicants'] property rights to the land which belonged to [their father] prior to the nationalisation”.
19. With respect to the applicants' claim about the allocation of part of the original land (8.74 hectares) to FS, the Supreme Court noted that in their original application for restitution of their property rights the applicants had asked for compensation, not for return of the original land, and that they had changed their claim only on 10 December 1993, i.e. almost a year following the authorities' decision of 30 December 1992 to allocate the impugned portion of land to FS. The Supreme Court concluded that thus the applicants could not have this part of the original land returned to them. It also noted however that the applicants were entitled to compensation for the impugned portion of land in accordance with the provisions of the Act.
20. On 20 March 2002 the Panevėžys regional administration made an offer to the first applicant to afford her compensation in land for 5.36 hectares of her late father's former land that could not be returned in kind. The necessary formalities for the transfer of property rights to the first applicant have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers.
21. By a decision of the regional administration of 30 August 2002, the second and third applicants were returned in kind 16.08 hectares of the original land.
22. On the same date the administration allotted the fourth applicant 3.67 hectares of land in compensation for the equivalent part of the original land that could not be returned in kind.
23. On 9 July 2002 the regional administration made an offer for the fourth applicant to be allotted a further 1.69 hectares of land in compensation. On 17 December 2002 and 5 July 2004 the regional administration made an offer to compensate the fourth applicant for a further 1.22 hectares of her father's former land. The formalities for the transfer of property rights to her in this respect have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers.
24. On 17 December 2002 the regional administration made an offer to the second applicant to compensate in land for 0.78 hectares of the original land that could not be returned to him. The formalities for the transfer of property rights to him have not yet been finalised as he did not reply to a number of the administration's letters to sign the relevant documents.
25. On 12 February 2004 all four applicants were returned jointly a further 3.51 hectares of the original land.
26. On 19 July 2004 the regional administration afforded the first and the third applicant a further compensation in land for 1.56 hectares of the original land that could not be returned in kind.
27. The Restitution of Property Act (Nuosavybės teisių ... atkūrimo įstatymas) (of 1991, amended on numerous occasions) provides for two forms of restitution: 1) the return of the property in certain circumstances, 2) compensation in other cases (compensation can be made in land or money).
On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.
In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts.
On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”.
On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action.
Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned.
Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1