ITEMID: 001-105825
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 10
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant company was established in 1990 and has its seat in Bratislava. It is a multimedia publishing house.
6. The applicant company’s legal predecessor, A., was the publisher of a popular national daily newspaper.
7. A. employed, among others, reporters B. and C.
8. On 14 June 1999 B. received an anonymous phone call informing him of an incident taking place at that very moment involving individuals D. and E. The incident was said to be taking place in a public restaurant and is described below.
9. At that time, D. was a Member of Parliament, a municipal mayor and the president of a political party. E., for his part, was vice-president of the Police Corps of the Slovak Republic.
10. In the days that followed, A. and another publisher printed a series of articles about the incident. The details are described in paragraphs 21 to 25 below.
11. The behaviour of E. in the context of the incident was subsequently investigated by the Police Inspection Service, in particular as regards the allegations that he had wet his pants and threatened to organise civic disturbances (see below).
On the basis of a report issued on 6 July 1999, E., the personnel of the restaurant and a number of witnesses having been interviewed, no impropriety on the part of E. was established.
12. At a later point E. left the police force on his own initiative.
13. Both D. and E. subsequently successfully sued A. for libel. The proceedings concerned by the present application are those instituted by E. They are described in paragraphs 26 to 44 below.
14. Following the proceedings, in 2004, A. was merged with the applicant company.
15. In the anonymous phone call mentioned in paragraph 8 above, the caller informed B. that D. and E. were sitting in a public restaurant and that D. had previously urinated on the terrace of that restaurant.
16. In a matter of minutes, B. arrived at the restaurant, where he saw D. and E. as they were about to leave. He ordered a drink and observed them. Judging by the way they were walking and holding each other up, B. had the impression that they were under the influence. In total, B. had spent up to ten minutes in the restaurant before D. and E. left.
17. B. then interviewed the waitress and some of the diners, following which he left and wrote the first of the articles described below.
18. The following morning B. revisited the restaurant, re-interviewed the waitress and photographed the location of the incident.
19. In the subsequent days contact and a meeting were arranged between F., an eyewitness to the incident, and B., who was assisted by C. and another colleague.
20. Contact and a meeting between E. and B. were also arranged with a view to obtaining E.’s position. In that meeting, E. admitted having been at the restaurant with D. but denied any impropriety. He requested that his name not be disclosed, as that would ruin his career in the police force.
21. On 16 June 1999 the paper in question printed an article entitled “[D.] ‘introduced himself’ in [the restaurant] on Monday”. The article included the following text:
“‘[D.] is sitting in [the restaurant] rollicking drunk’, one of our readers reported to the editorial office [of the newspaper] on Monday evening. As we checked with our own eyes, it really was true. The president [of the political party] was really sitting in the restaurant named and his appearance revealed that our reader had not done him an injustice. [D.] was accompanied by an individual who claimed to be a high-ranking police official. ‘Gentlemen brothers’ (páni bratia) [D.] boomed as he staggered from the terrace to the bar. Then, as if he wanted to take flight with his arms outstretched, [he] gave an order for departure and headed for the stairs. His friend even offered to help him out, but [D.] refused. ‘Come with me’ [he] called out to the forty or so diners present. Where, he did not say. But none of the diners stood up. As alleged by several eyewitnesses, only shortly before our arrival [D.] had urinated off the terrace of the restaurant onto the pavement. According to our findings the president [of the members of the party] arrived at the restaurant [...] already in an inebriated state: ‘when he arrived he already looked a state; he only had a few cognacs here’, we were told by one of those present, who does not wish to be named. Contented, [D.] was finally driven off [in his car] by his driver, who had been hanging about outside nervously the entire time waiting for the president to have his fill of fun ...”
22. On 22 June 1999 the paper printed an article entitled “Have the leader and high-ranking police officer planned a coup? An eyewitness to [D.]’s running wild has spoken out”. The article included the following text:
“[The paper] was the first to report that last week the president of [the political party] [D.], while intoxicated, urinated off the terrace of a Bratislava restaurant [...] onto the pavement. For publishing this information, [D.] wants to sue our paper and claim 1,000,000 [Slovakian korunas]. We bring you now the account of an eyewitness to [D.’s] running wild on Monday: ‘I was sitting with my friends at the bar. [D.] arrived with a man who claimed to be a high-ranking police officer. [D.] came up to the bar, obviously under the influence, ordered two beers and [the two] went to sit on the terrace. [...] On the terrace, they were served by a waitress. They were drinking cognac. After a while one man who had been sitting with them left and said that the policemen had wet [himself] on the chair. The policeman himself then walked from the terrace to the interior of the restaurant and we really saw that he was completely wasted. He came back a moment later and fell asleep in his chair’. The witness added, ‘the policeman also told [D.]: ‘I will ensure that there are civic disturbances within two weeks, don’t worry about anything, but you have to provide me with support’. [D.] rejoined: ‘Don’t worry, you are under my protection.’ We laughed at that because [D.] must have misunderstood the meaning of support, since he started urinating off the terrace. [He] and the policeman were holding each other up. The concrete railing is relatively high, so he had difficulty, he was standing on tip toes, he was doing what he could’, the [witness] recalls as [D.] answered the call of nature. [...] [The witness] also recalls that the policeman’s head had dropped and had had to be supported by a plastic chair [...]. [The paper] has found out that [D.] was in fact in the company of a high-ranking police officer. His identity is known to our paper.”
23. On 23 June 1999 the paper printed an article entitled “[The Minister of the Interior] has entrusted the investigation of the scandal to the Police Inspection Service. [D.] went on the rampage with the police vicepresident”. The article included the following text:
“[The paper] has established the identity of the high-ranking police officer who accompanied the leader of [the political party] [D.] to the restaurant last week [...]. [D.] went on the rampage in this establishment with the vice-president of the police [corps], colonel [E.]. Shortly after the incident the president of the [political party] declined to disclose the identity of the man, identifying him in the media as a friend. The Minister of the Interior [...] has already charged the Police Inspection Service with investigating the scandal. ‘I cannot believe things went that far. If they did, then I will act according to the findings of the investigation. Everyone is the master of their own fate’ the Minister stated for the paper. He did so in reply to our question as to whether the vicepresident would be removed from office should the information that we had been published in our daily be confirmed. Let us be reminded that, according to an eyewitness to the incident, the president of [the political party] and the vicepresident of the police [corps] were drinking cognac on a terrace. ‘After a while one man who had been sitting with them left and said that the policeman had wet [himself] on a chair. The policeman himself then walked from the terrace to the interior of the restaurant and we really saw that he was completely wasted’, the witness recalled. According to him, the vice-president [E.] also held [D.] up when the latter, standing on tip toes, urinated off the terrace onto the pavement. The witness likewise heard [E.] suggest to [D.] that within two weeks he would ensure that there were civic disturbances. [He] asked the president of [the political party] for ‘support’. [E.] confirmed to the paper yesterday that he had been drinking in [the restaurant] with [D.]. However, he refutes the claim that he had wet [himself]. He also claims that he has never planned any civic disturbances with [D.]. The president of the police stated for the paper that: ‘If it were proven that what you have written is true, I, as president [of the police corps], would be very sorry. That’s all I have to say.’”
24. The articles mentioned above were also published in the on-line version of the newspaper on 16, 22 and 23 June 1999.
25. Some of the information from the articles mentioned above was used in an article published on 24 June 1999 in a newspaper in the Czech Republic entitled: “[D.] did not urinate onto the people alone, he was assisted by the vicepresident of the police force”.
26. On 21 March 2001 E. sued A. in civil courts for libel, demanding publication of a correction and an apology and claiming the equivalent of some 23,000 euros (EUR) in compensation for damage to his reputation.
27. E. admitted having been at the restaurant and having consumed alcoholic beverages in a moderate quantity with D. at the given time but contested the truthfulness of all the other facts alleged in the articles. He argued that his personal integrity had been interfered with and that he had been falsely discredited, in particular in the sphere of his service ranking, his civic dignity and his family life.
28. On 18 October 2001, 16 September 2002, 31 October 2002, 16 December 2002 and 12 June 2003 the Žilina District Court (Okresný súd) held hearings. At the latter hearing, the District Court invited the parties to adduce further evidence and instructed them that once the evidence-taking was closed, they would have only a limited possibly to adduce further evidence in the event of an appeal. The parties declared that they had no further evidence to adduce, following which the evidencetaking was closed and a judgment was given.
29. In the judgment of 12 June 2003 the District Court found for the claimant. It ordered A. to publish in the abovementioned newspaper an article correcting the inaccurate information, accepting that such information was false and apologising to E.
A. was also ordered to pay the amount claimed (see paragraph 26 above) together with the claimant’s legal costs.
30. The District Court had examined testimonies by D., his driver G., the claimant’s wife, B., C., F., another diner at the restaurant, H., and two other witnesses.
31. The District Court had also examined the contents of the court file concerning the libel action by D. on the basis of the same facts and the case file concerning disciplinary proceedings against E.
Reports by the National Institute of Meteorology and a sworn expert on toxicology had also been taken into account.
32. The District Court considered untrustworthy the submissions of B. and C., the authors of the articles, one of whom had witnessed a part of the reported incident, and F., on whose statements B. and C. had mostly relied.
33. The District Court considered that D., E. and the remaining witnesses either did not confirm or actually contested the reported facts as to the behaviour of D. and E.
34. In conclusion, A. had failed to establish the truthfulness of the facts and the articles could not be considered a justified critique.
35. The District Court observed that there were opposing interests at stake, in particular, the freedom of expression under Article 10 of the Convention and the right to respect for private life under Article 8 of the Convention.
36. Weighing the right of E. to have his personal integrity protected against the right of A. to freedom of expression, the District Court found that the articles had significantly, and without acceptable justification, damaged E.’s position in his employment, family and society in general.
37. A. appealed, arguing that the District Court had erred in the assessment of the facts and in the application of the law. In particular, the District Court had failed to explain why it considered untrustworthy the evidence of B., C. and F. It also contended that the District Court had arbitrarily considered H., who had had no clear recollection of the relevant events, to be the key witness for the defence, while the key witness had in fact been F., who confirmed that E. had been intoxicated, that he had spoken of receiving protection [from D.], that E.’s head had dropped and had to be supported by a plastic chair and that E. had had a damp patch on his trousers, giving the impression that he had urinated in them.
A. requested that the discrepancy in the testimonies be explained by means of a face-to-face witness meeting.
38. The Žilina Regional Court (Krajský súd) called a hearing of the appeal for 3 February 2004. A. was summoned through the intermediary of its lawyer but excused itself and agreed to the hearing’s taking place in its absence.
39. On 3 February 2004 the Regional Court held a hearing at which it questioned the claimant (see paragraph 44 below). Neither A. nor its lawyer was present.
40. Following the hearing, on the same day, the Regional Court upheld the first-instance judgment but reduced the amount of damages to the equivalent of some EUR 12,250.
41. The Court of Appeal found that neither B. nor C. nor F. had seen or directly testified that E. had urinated in his trousers, that he had incited civic disturbances and that he had held D. up while the latter had urinated from the terrace of the restaurant.
42. The Court of Appeal relied on the principle of “truthfulness of information”, consisting of the following elements. Information intended for publication was to be verified by at least two but ideally more credible and mutually independent sources with care adequate to the circumstances. The law could only protect the journalists if they could establish the truthfulness of the impugned material as well as their bona fides in publishing it and the presence of a public interest in the matter.
43. Under the applicable procedural rules it was not permissible at the appellate stage to take new evidence, at the request of the parties, which had not been adduced at the first-instance level. The Court of Appeal found that it therefore could not call a face-to-face witness meeting as requested by A. It followed that, in the given evidentiary situation, the conclusions of the first-instance court as to the essence of the claim were justified.
44. However, the Court of Appeal considered the existing evidence insufficient to justify the award of damages made by the first-instance court. It was therefore necessary to take new evidence of the court’s own motion by hearing the claimant and, eventually, to reduce the amount of the award. It held it established that the greatest loss that the claimant had suffered had been in the area of his employment.
45. On 7 October 2004 the applicant company lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd), directed against the decision of the Court of Appeal.
46. The applicant company pointed out that the Court of Appeal had considered as decisive whether or not the defendant could establish the truthfulness of the reported facts. This was, however, not compatible with the principle of freedom of expression, which also extended to untrue information.
47. The applicant company submitted that B. had verified the facts by witnessing the incident in person and that B. and C. had verified the facts by interviewing witness F. and the claimant. They had thereby acted bona fides and in accordance with journalistic ethics. What also was of relevance was that the claimant had been a public figure. The ordinary courts, however, had completely omitted to carry out an assessment of these essential components of the concept of freedom of expression.
48. The applicant company considered the amount of the damages awarded to be excessive, referring to the judgment of the Court in the case of Marônek v. Slovakia (no. 32686/96, ECHR 2001-III), where the equivalent of some 5,850 European Currency Units worth of damages in a libel case had been considered excessive.
49. The applicant company contended that it had been incompatible with the guarantees of a fair trial and, in particular, the equality of arms principle for the Court of Appeal to base its ruling on damages solely on the additional evidence provided by the claimant, as this evidence had not been adduced by the parties, it had served only one of the parties and – as it had been taken at the appellate level – the defendant had had no opportunity to contest it. Moreover, this evidence was not impartial by definition and the Court of Appeal had failed to corroborate it by other evidence, which was contrary to the established judicial practice.
50. As regards the finding that the claimant’s greatest loss had been in the sphere of his employment, the Court of Appeal had failed to take into account that the disciplinary proceedings against the claimant had in fact ended in his favour.
51. According to the applicant company, the ordinary courts had erred in the assessment of the witness evidence, in particular that provided by F., by arbitrarily selecting elements benefiting the claimant. In so far as the testimony of F. was concerned, in addition, the ordinary courts had failed to support their findings with adequate reasoning.
52. On 16 March 2005 the Constitutional Court declared the complaint inadmissible. Observing that it was not a court of a third or fourth instance, the Constitutional Court found no indication of any unlawfulness or constitutionally relevant arbitrariness in the proceedings and decisions of the Court of Appeal. As to the complainant’s specific argument that the Court of Appeal had taken new evidence (see paragraph 44 above) without informing the complainant and giving it an opportunity to comment, the Constitutional Court found that the complainant had failed to exhaust ordinary remedies by raising this argument by way of an appeal on points of law under Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”).
The decision of the Constitutional Court was served on the applicant company on 28 April 2005.
53. The status of international human rights treaties in Slovakia is defined in Article 7 § 5, the relevant part of which reads as follows:
“International treaties on human rights and fundamental freedoms .... which have been ratified and promulgated in the manner required by statute take precedence over statue.”
54. Article 144 § 1 provides that:
“In the discharge of their function, judges are independent and, in decision-making, they are only bound by the Constitution, constitutional law, international treaties under Article 7 § 5 [of the Constitution] and statute.”
55. The protection of personal integrity is governed by the provisions of Articles 11 et seq. In so far as relevant, these provide:
Every natural person shall have the right to protection of his or her personal integrity, in particular his or her ... civil honour and human dignity, as well as privacy, name ...
...
1. Every natural person shall have the right, inter alia, to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
56. The Code regulates the conduct of the court and parties in civil proceedings so as to ensure the just protection of the rights and legally recognised interests of the parties as well as promoting the observance of laws, honest fulfilment of duties and respect for the rights of other persons (Article 1).
57. Article 18 it provides that parties to civil proceedings have equal standing. The court is duty-bound to ensure they have equal opportunity to assert their rights.
58. Parties to the proceedings have the right to comment on any evidence adduced and taken (Article 123).
59. Under Article 228 § 1 (d), civil proceedings can be reopened where the Court has found a violation of the requesting party’s Convention rights and where serious consequences of the violation have not been adequately redressed by the award of just satisfaction.
60. A Court of Appeal can in principle reassess evidence or take further evidence provided that it can be done without delay (Article 213 § 2, as in force at the relevant time).
61. Under Article 236 an appeal on points of law (dovolanie) lies against final and binding decisions of appellate courts if certain statutory admissibility criteria are met.
62. The general admissibility criteria, that is, those applicable to both judgments (rozsudok) and resolutions (uznesenie), are set out in Article 237.
These comprise situations where: (a) the courts decided in a matter outside their jurisdiction; (b) a person who acted as a party to the proceedings lacked the legal capacity to be a party to court proceedings; (c) a party to the proceedings lacked the capacity to act in court proceedings and was not duly represented; (d) the courts decided on a matter which had been res iudicata or which had already been pending in other proceedings (lis pendens); (e) the proceedings could only commence by way of an action and no such action was actually filed; (f) the courts prevented a party to the proceedings from acting before them; and (g) where the case was decided upon by an excluded judge or where the composition of the court was incorrect.
63. In addition to the above-mentioned general admissibility criteria, special admissibility criteria apply if the Court of Appeal decided in the form of a judgment. These are defined in Article 238.
64. Under paragraph 1 of Article 238 an appeal on points of law is admissible where the appellate court overturned the judgment of a firstinstance court.
65. In accordance with paragraph 2 of Article 238, an appeal on points of law also lies against a judgment of the appellate court in which the latter did not follow the binding legal view previously expressed in the same matter by the court of cassation.
66. Under Article 238 § 3 (a), an appeal on points of law is also admissible against a judgment of an appellate court in which it upholds a judgment of a first-instance court and, at the same time, rules that such an appeal is admissible as the case concerns a matter of particular legal importance.
67. Finally, under Article 238 § 3 (b), an appeal on points of law is also admissible against a second judgment of an appellate court in which it upholds a second judgment of a first-instance court if, in the second round, the first-instance court decided differently than in its first judgment (which had been quashed by the first decision of the Court of Appeal) because it was bound by the legal view expressed by the Court of Appeal in its first judgment. This rule also applies to the third and, as the case may be, subsequent judgments of the Court of Appeal.
68. As to the merits, an appeal on points of law can only be based on the grounds defined in Article 241 § 2, that is to say that the proceedings have been vitiated by an error envisaged in Article 237 (letter (a)), that the proceedings have been vitiated by another error that resulted in an incorrect decision on the merits (letter (b)) and that the decision rests on an error of law (letter (c)).
69. In a decision of 23 July 2003 in an unrelated case no. IV. ÚS 130/03, the Constitutional Court observed that, in relation to evidence-taking, the right to a fair hearing under Article 6 § 1 of the Convention was to be understood so that a party to the proceedings must be provided with the opportunity to take part in the evidence-taking in a manner defined by statute, which means to adduce evidence, to be present when the evidence is being taken, including the right to interview witnesses and parties, and to take a position in respect of evidence adduced and taken. For that reason a party to the proceedings must always have the opportunity to be present at the evidence-taking. Should that not have been the case, the error can be qualified as “judicial conduct that has prevented the party from acting before a court”, thereby constituting a ground for admissibility of an appeal on points of law under Article 237 (f) of the CCP.
VIOLATED_ARTICLES: 10


ITEMID: 001-61647
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CVIJETIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1950 and lives in Split, Croatia.
8. The applicant and her husband were holders of a specially protected tenancy on a flat in Split where they lived. On 23 December 1993 they divorced and the husband left.
9. On 5 February 1994 I.Š. threw the applicant out of the flat and moved in.
10. On 9 February 1994 the applicant filed an action against I.Š. for disturbance of her possessions with the Split Municipal Court (Općinski sud u Splitu).
11. In separate proceedings before the same court, on 7 March 1994, the applicant obtained a judgment declaring her the sole holder of the specially protected tenancy on the flat.
12. In the proceedings against I.Š. on 11 November 1994 the applicant's claim was granted and the court ordered I.Š. to vacate the flat within eight days from the date when the decision became final. It was established that I.Š. had forcefully broken into the applicant's flat and had been living there without any legal ground. The decision became final on 27 February 1995.
13. Given that I.Š. did not comply with the court's order to vacate the flat, on 1 March 1995 the applicant applied for the execution of the decision to the Split Municipal Court. The execution order was issued on 8 March 1995.
14. On 10 August 1995 the Split Municipal Court invited the applicant to pay an advance for the costs of eviction. On 31 August 1995 the applicant informed the court that she had paid the costs.
15. The court ordered the eviction for 26 November 1996. However, on that date the execution officer of the court established that the family B.B. occupied the flat.
16. On 29 November 1996 the applicant again asked the court to enforce the eviction order. The court scheduled eviction for 15 October 1997. However, the eviction was adjourned because the applicant did not appear.
17. On 30 November 1998 the applicant again asked the court to enforce the eviction order.
18. On 5 February 1999 the court invited the applicant to pay an advance for the costs of eviction.
19. On 1 February 2000 the applicant bought the flat and became its owner.
20. On 2 March 2000 the applicant informed the court that she had paid the costs.
21. On 16 May 2000 the applicant asked the court to speed up the proceedings.
22. The court scheduled eviction for 23 October 2000.
23. However, on 21 September and 8 October 2000, respectively the Association of the Homeland War Invalids (Hrvatska udruga vojnih invalida domovinskog rata) and the Ministry of the Homeland War Veterans (Ministarstvo hrvatskih branitelja Domovinskog rata) asked the court to adjourn the eviction.
24. When on 23 October 2000 an eviction officer of the Split Municipal Court attempted to carry out the eviction order he found a number of war veterans obstructing his attempt. Despite the presence of the police the eviction order was not carried out.
25. On 8 May 2001 the court invited the applicant to once more pay an advance for the costs for eviction.
26. On 18 May 2001 the applicant informed the court that she had paid the costs.
27. The next attempt to carry out the eviction order was scheduled for 8 June 2001, but it failed because a physician invited to assist did not appear.
28. On 26 October 2001 the court scheduled the date for eviction for 20 November 2001. However, the parties agreed that the family B.B. vacate the premises before 20 March 2002.
29. On 21 March 2002 the family B.B. left the flat and the applicant moved in.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95000
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LOVYGINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: The applicant, Ms Natalya Vladimirovna Lovygina, is a Ukrainian national who was born in 1973 and lives in Kherson. She was represented before the Court by Mr M. Y. Kiselyov, a lawyer practising in Kherson. 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 14 January 2000 the applicant’s husband, a police officer, was accidentally killed by his colleague, Mr K., during a training exercise. On the same day the Kherson Dniprovsky District Prosecutor’s Office (“the District Prosecutor’s Office”) instituted criminal proceedings concerning the incident.
On 13 July 2000 the Kherson Dniprovsky District Court found that Mr K. had committed an unintentional homicide as a result of careless handling of a weapon but amnestied him under the Amnesty Act. This decision was final.
The internal police inquiry conducted on 16 January 2000 revealed poor organisation of the training exercise of 14 January 2000 and recommended disciplinary sanctions against the organisers.
On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. The criminal case was closed on 30 October 2000 for lack of corpus delicti.
Between 28 November and 29 December 2000 and between 12 February and 29 March 2001 an additional investigation into the case was conducted and the proceedings were closed for lack of a causal link between the death of the applicant’s husband and the behaviour of police officers other than Mr K., who had been found guilty of careless handling of a weapon.
On 16 October 2000 a lump sum in the amount of 18,270 Ukrainian hryvnias (UAH) (3,894.68 euros (EUR)) was paid jointly to the applicant, her daughter and her parents-in-law. The applicant’s daughter started receiving in addition a monthly payment of UAH 284.69 (EUR 60.67) until she reached the age of majority.
On 6 November 2000 the Kherson Region Police Department (the Department”) purchased a two-room apartment in Kherson for the sum of UAH 19,300 (EUR 4,066.07) and granted it to the applicant. According to the applicant she sold it shortly after.
On several occasions, the Department also paid off the applicant’s public utility debts.
In addition to this, the Department provided the applicant with additional assistance, not foreseen by the relevant law. In particular, they helped organise the funeral and provided funds for the funeral itself, catering, instalment of the monument, and so on.
In 2002 the Department arranged a vacation on the Black Sea coast for the decedent’s daughter; in 2003-2005 the applicant, however, refused that offer.
In 2003-2004 the Department purchased school stationery, a school uniform, computer and printer for the applicant’s daughter.
In March 2002 the applicant lodged a civil claim with the Kherson Suvorivsky District Court against the Kherson Regional Police Department (“the Police Department”) claiming 500,000 UAH (EUR 108,597.70) in compensation for non-pecuniary damage. The applicant named Mr K. as a third party.
On 30 July 2002 the court found in part for the applicant and ordered the Police Department to pay her 15,000 UAH (EUR 2,866.09) under Article 440-1 of the Civil Code.
Both parties appealed against the decision. The applicant considered the compensation awarded insufficient. The Police Department argued that the family of the deceased had already received an exceptional allowance and the insurance sum due to them under section 23 of the Police Act and that the Act did not provide for any other payments. It went on to refer to Article 56 of the Constitution and to the Resolution of the Plenary Supreme Court, and to suggest that any compensation other than the Act provided for was payable by the State Treasury from the national budget and not from the Department’s budget.
On 14 November 2002 the Kherson Regional Court of Appeal overruled the disputed decision and dismissed the applicant’s claim on the ground that, in ruling on the defendant’s liability for its employee’s death, the lower court had wrongly based its decision on the general provision in the Civil Code, whereas matters of compensation for insured police officers were governed by special provisions such as Article 23 of the Police Act and the Decrees of the Cabinet of Ministers 627 and 488 of 19 November and 19 August 1992 on compulsory State personal insurance of military personnel, conscripts and Ministry of Internal Affairs staff. The court of appeal observed that these special provisions said nothing about compensating insured persons for non-material damage.
On 29 July 2003 Supreme Court rejected the applicant’s appeal in cassation, having found no misapplication of domestic law by the appeal court.
“Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damage inflicted by unlawful decisions, actions or omissions of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.”
“Moral (non-pecuniary) damage caused to a person or organization by the acts of another person shall be compensated for by the latter unless he/she denies that that moral damage was caused through his/her fault. Moral damage shall be compensated for in monetary or other form upon a court decision regardless of compensation for pecuniary damage.
The amount of compensation shall be determined by a court, bearing in mind the substance of the claims, the nature of the acts which caused the damage, the physical and mental suffering of the victim, and other negative consequences. The amount of compensation cannot be less than [the equivalent of] five minimum salary payments.”
“An organization is under the obligation to compensate for damage caused through the fault of its employees during their working time.”
“Damage caused to a person by the unlawful acts of state and public organizations, and officials carrying out their official duties in the sphere of administrative management shall be compensated for on a general basis (Articles 440 and 441 of the present Code) unless otherwise provided for by laws. Liability for damage caused by organizations as a result of those acts shall be borne under the procedure set forth by laws.”
“Every policeman is subject to state compulsory insurance equivalent to the amount 10 years of his salary in his last position to be paid from the corresponding budgets as well as funds received in accordance with contracts with ministries, institutions, enterprises, and organizations...
In the event of the death of a policeman while acting in his official capacity a lump sum in the amount of the equivalent of 10 years of his salary as well as a monthly pension in the amount of his salary in his last position shall be paid to his family members.
The right to obtain accommodation shall be reserved for the family of the deceased policeman. This accommodation shall be granted within three months to that family as a matter of priority.
Children of the deceased policeman under the age of majority or his dependants reserve the right to be granted benefit payments in connection with accommodation, public utilities, fuel ...”
Under section 2(6) of the order, the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation.
Under section 3(2) of the order, the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation.
“10-1. While examining cases concerning claims for compensation for moral damage on the basis of Article 56 of the Constitution the courts shall keep in mind that if such damage is caused by the unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority, it should be compensated for at the expense of the State or of the bodies of local self-government ...
While deciding on disputes concerning compensation for moral damage caused to citizens by the unlawful decisions, acts or omissions of state bodies, officials or officers, the courts should take into account that these state bodies, officials or officers shall be liable in such cases, unless otherwise provided for in the relevant laws (e.g. Article 9 of the Law of Ukraine “On Criminal Investigation”) ...”


ITEMID: 001-87894
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FILONENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1959 and lives in Kemerovo.
5. As a retired serviceman, the applicant was entitled to a State flat. The flat was not provided, and the applicant brought an action against the Kemerovo Town Council.
6. In the course of the proceedings, on 6 May 2003, the Town Council offered the applicant to settle the case by providing him with a “State housing voucher” – a registered instrument entitling its owner to a housing subsidy. The applicant rejected this and several subsequent similar offers.
7. On 12 May 2003 the Tsentralnyi District Court of Kemerovo ordered the Town Council to
“provide the applicant’s family of four with a dwelling by way of, among other means, State housing vouchers valid for acquisition and construction of dwellings and financed by the Federal budget, and also by way of off-budget financial sources.”
8. This judgment became binding on 23 May 2003.
9. In 2004–06 the Town Council several times offered the applicant the voucher. The applicant refused these offers and asked the District Court to change the mode of enforcement to a cash payment, but on 7 November 2005 the District Court refused this request.
10. On 20 August 2007 a bailiff terminated the enforcement proceedings because the applicant had refused the voucher.
11. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
12. Under section 2 of the Federal Programme “State Housing Vouchers” of 20 January 1998, a housing voucher is a registered instrument entitling its owner to a housing subsidy. The vouchers are issued and liquidated by the Ministry of Finance. An owner of the voucher may open a blocked account in an authorised bank, and the Treasury will credit to this account a subsidy for purchasing property.
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-75604
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VRBANEC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 6. The applicant was born in 1964 and lives in Nedelišče.
7. On 29 November 1981 the applicant was injured in a car accident which was caused by V.D.
8. On 16 May 1988 the applicant instituted civil proceedings against V.D. in the Celje Basic Court, Velenje Unit (Temeljno sodišče v Celju, Enota v Velenju), seeking damages for the injuries sustained.
On 24 March 1994 the court upheld the applicant’s claim in part.
On 28 June 1994 the Convention entered into force with respect to Slovenia.
On 29 June 1994, forward to the applicant’s appeal of 20 April 1994, the Celje Higher Court (Višje sodišče v Celju) quashed the first-instance decision and remitted the case for re-examination.
The decision was served on the applicant on 17 August 1994.
9. Further to the reorganisation of the Slovenian judicial system, the case was transferred to the Celje District Court (Okrajno sodišče v Celju) on 30 December 1994.
On 13 February 1997 the judge to whom the case had been assigned was promoted and the case was consequently reassigned to a new judge.
Between 6 September 1994 and 2 June 1999 the applicant lodged three preliminary written submissions and/or adduced evidence.
A hearing was held on 3 June 1999.
On 30 June 1999 the court delivered a judgment.
The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 December 1999.
10. On 22 December 1999 V.D. appealed to the Celje Higher Court (Višje sodišče v Celju).
On 4 July 2001 the court dismissed the appeal.
The judgment was served on the applicant on 29 August 2001.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-127684
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2013
DOCNAME: CASE OF JANOWIEC AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Peer Lorenzen;Vincent A. De Gaetano
TEXT: 13. The facts of the case, as submitted or undisputed by the parties, may be summarised as follows.
14. On 23 August 1939 the Foreign Ministers of the Soviet Union and Nazi Germany signed a non-aggression treaty (known as “the MolotovRibbentrop Pact”) which included an additional secret protocol whereby the parties agreed on “the question of the boundary of their respective spheres of influence in Eastern Europe”. In particular, they concluded as follows:
“2. In the event of a territorial and political rearrangement of the areas belonging to the Polish State, the spheres of influence of Germany and the USSR [Union of Soviet Socialist Republics] shall be bounded approximately by the line of the rivers Narew, Vistula, and San.”
15. On 1 September 1939 Germany invaded Poland, starting the Second World War. On 17 September 1939 the Soviet Red Army marched into Polish territory, allegedly acting to protect the Ukrainians and Belorussians living in the eastern part of Poland because the Polish State had collapsed under the German attack and could no longer guarantee the security of its own citizens. The Polish army did not offer military resistance. The USSR annexed the territory newly under its control and in November 1939 declared that the 13.5 million Polish citizens who lived there were henceforth Soviet citizens.
16. In the wake of the Red Army’s advance around 250,000 Polish soldiers, border guards, police officers, prison guards, State officials and other functionaries were detained. After they had been disarmed, some of them were set free; the others were sent to special prison camps established by the People’s Commissariat for Internal Affairs ((NKVD), a predecessor of the State Security Committee (KGB)) in Kozelsk, Ostashkov and Starobelsk. On 9 October 1939 it was decided that the Polish officer corps should be billeted at the camps in Kozelsk and Starobelsk and the remaining functionaries, including the police officers and prison guards, in Ostashkov.
17. In early March 1940 Lavrentiy Beria, Head of the NKVD, submitted to Joseph Stalin, Secretary General of the USSR Communist Party, a proposal to approve the shooting of Polish prisoners of war on the ground that they were all “enemies of the Soviet authorities filled with hatred for the Soviet system of government” who were “attempting to continue their c[ounter]r[evolutionary] work” and “conducting anti-Soviet agitation”. The proposal specified that the prisoner-of-war camps accommodated 14,736 former military and police officers, of whom more than 97 per cent were Polish by nationality, and that a further 10,685 Poles were being held in the prisons of the western districts of Ukraine and Belorussia.
18. On 5 March 1940 the Politburo of the Central Committee of the USSR Communist Party considered the proposal and decided as follows:
“I. Instructs the NKVD USSR as follows:
(1) the cases of the 14,700 persons remaining in the prisoner-of-war camps (former Polish army officers, government officials, landowners, policemen, intelligence agents, military policemen, settlers and prison guards),
(2) and the cases of the persons arrested and remaining in prisons in the western districts of Ukraine and Belorussia, numbering 11,000 (members of various counter-revolutionary espionage and sabotage organisations, former landowners, factory owners, former Polish army officers, government officials and fugitives), are to be considered in a special procedure, with the sentence of capital punishment – [execution by] shooting – being imposed.
II. The cases are to be considered without the detainees being summoned or the charges being disclosed, and without any statements concerning the conclusion of the investigation or the bills of indictment being issued to them, in the following manner:
(a) the persons remaining in the prisoner-of-war camps: on the basis of information provided by the Directorate of Prisoner-of-War Affairs, NKVD USSR,
(b) the persons arrested: on the basis of information provided by the NKVD of the Ukrainian SSR and the NKVD of the Belorussian SSR.”
The decision was signed by Joseph Stalin, Kliment Voroshilov, Anastas Mikoyan, Vyacheslav Molotov, Mikhail Kalinin and Lazar Kaganovich.
19. The killings took place in April and May 1940. Prisoners from the Kozelsk camp were killed at a site near Smolensk known as the Katyn Forest; those from the Starobelsk camp were shot in the Kharkov NKVD prison and their bodies were buried near the village of Pyatikhatki; the police officers from Ostashkov were killed in the Kalinin (now Tver) NKVD prison and buried in Mednoye. The circumstances of the execution of the prisoners from the prisons in western Ukraine and Belorussia remain unknown to this day.
20. In 1942 and 1943, first Polish railroad workers and then the German army discovered mass burials near the Katyn Forest. An international commission consisting of twelve forensic experts and their support staff from Belgium, Bulgaria, Croatia, Denmark, Finland, France, Hungary, Italy, the Netherlands, Romania, Slovakia and Sweden was set up. It conducted the exhumation works from April to June 1943. The remains of 4,243 Polish officers were excavated, of whom 2,730 were identified. The commission concluded that the Soviet authorities had been responsible for the massacre.
21. The Soviet authorities responded by putting the blame on the Germans who had allegedly – according to Moscow – taken control of the Polish prisoners and murdered them in the summer of 1941. Following the liberation of the Smolensk district by the Red Army in September 1943, the NKVD set up the Extraordinary State Commission chaired by Nicolay Burdenko, which purported to collect evidence of German responsibility for the killing of the Polish officers. In its communiqué of 22 January 1944 the Commission announced that the Polish prisoners had been executed by the Germans in the autumn of 1941.
22. In the course of the trial of German war criminals before the International Military Tribunal, the Katyn killings were mentioned in the indictment as an instance of a war crime (Indictment: Count Three – War Crimes, Section C (2)). On 13 February 1946 the Deputy Chief Prosecutor for the USSR, Colonel Y.V. Pokrovsky, charged the defendants with the execution of 11,000 Polish prisoners of war in the autumn of 1941, relying on the Extraordinary State Commission’s report (Trial of the Major War Criminals before the International Military Tribunal, vol. VII, pp. 425-27). Despite the objections by Soviet prosecutors to the taking of oral evidence, the Tribunal heard evidence on 1 and 2 July 1946 from three witnesses for the prosecution and three witnesses for the defence (Vol. XVII, pp. 270371). At the conclusion of the trial, no mention of the Katyn killings was made either in the text of the judgment of the International Military Tribunal or in the dissenting opinion of the Soviet judge.
23. On 3 March 1959 Aleksandr Shelepin, Chairman of the KGB, proposed to Nikita Khrushchev, Secretary General of the USSR Communist Party, that the documents on the execution of Polish prisoners of war be destroyed:
“Since 1940, records and other materials regarding prisoners and interned officers, policemen, gendarmes, [military] settlers, landowners and other persons from the former bourgeois Poland who were shot that same year, have been kept by the Committee of State Security of the Council of Ministers, USSR. On the basis of decisions taken by the Soviet NKVD’s special troika, a total of 21,857 persons were shot, 4,421 of them in Katyn Forest (Smolenskiy district), 3,820 in the Starobelsk camp near Kharkov, 6,311 in the Ostashkov camp (Kalininskiy district) and 7,305 in other camps and prisons in western Ukraine and Belorussia.
The entire operation to liquidate the above-mentioned individuals was carried out on the basis of a decision by the Central Committee of the Communist Party of the USSR dated 5 March 1940... Since the time the above-mentioned operation was carried out, that is, since 1940, no information has been released to anybody relating to the case, and all of the 21,857 files have been stored in a sealed location.
None of these files are of any operational or historical value to Soviet organs. It is also highly doubtful whether they could be of any real value to our Polish friends. On the contrary, an unforeseen incident could lead to the operation being revealed, with all the undesirable consequences that would entail for our country, especially since, as regards the persons shot in the Katyn Forest, the official version was confirmed by an investigation carried out on the initiative of the Soviet authorities in 1944...
On the basis of the above, it seems opportune to destroy all the records concerning the persons shot in 1940 in the above-mentioned operation ... [T]he reports of the meetings of the NKVD USSR troika sentencing those persons to be shot, and also the documents on execution of that decision, could be preserved.”
24. The remaining documents were put in a special file, known as “package no. 1”, to which only the Secretary General of the USSR Communist Party had the right of access. On 28 April 2010 its contents were officially made public on the website of the Russian State Archives Service. The file contained the following historical documents: Beria’s proposal of 5 March 1940, the Politburo’s decision of the same date, the pages removed from the minutes of the Politburo’s meeting and Shelepin’s note of 3 March 1959.
25. The first applicant, Mr Jerzy-Roman Janowiec, was born in 1929. He is the son of Mr Andrzej Janowiec, born in 1890, who was a lieutenant in the Polish army before the Second World War.
26. The second applicant, Mr Antoni-Stanisław Trybowski, was born in 1940. He is the grandson of Mr Antoni Nawratil, born in 1883, a lieutenantcolonel in the Polish army.
27. Both Mr Andrzej Janowiec and Mr Antoni Nawratil were taken prisoner of war during the Soviet invasion of Poland in September 1939 and sent to the Starobelsk camp in the USSR. Among the prisoners in the camp, Mr Janowiec was listed as prisoner no. 3914 and Mr Nawratil as prisoner no. 2407. They were subsequently transferred to a prison in Kharkov and executed in April 1940.
28. The first and second applicants, Ms Witomiła Wołk-Jezierska and Ms Ojcumiła Wołk, were born respectively in 1940 and 1917. They are the daughter and wife of Mr Wincenty Wołk, born in 1909, who was a lieutenant in a heavy artillery unit of the Polish army before the Second World War. He was taken prisoner of war by the Red Army on the night of 19 September 1939 and held in Kozelsk special camp (listed in position 3 on NKVD dispatching list 052/3 of April 1940). He was killed on 30 April 1940 and buried in Katyn. His body was identified during the 1943 exhumation (no. 2564).
29. The third applicant, Ms Wanda Rodowicz, was born in 1938. She is the granddaughter of Mr Stanisław Rodowicz, born in 1883, who was a reserve officer in the Polish army. He was taken prisoner of war by the Red Army at the Hungarian border on around 20 September 1939 and held in Kozelsk special camp (listed in position 94 on list 017/2). He was killed and buried in Katyn. His body was identified during the 1943 exhumation (no. 970).
30. The fourth applicant, Ms Halina Michalska, was born in 1929 and died in 2012. She was the daughter of Mr Stanisław Uziembło, born in 1889. An officer of the Polish army, Mr Uziembło was taken prisoner of war by the Soviets near Białystok, Poland, and detained in the special NKVD camp at Starobelsk (position 3400). He was presumed killed in Kharkov and buried at Pyatikhatki near Kharkov (now in Ukraine).
31. The fifth applicant, Mr Artur Tomaszewski, was born in 1933. He is the son of Mr Szymon Tomaszewski, born in 1900. The fifth applicant’s father, commander of the police station at the Polish-Soviet border in Kobylia, was arrested there by Soviet troops and taken to the special NKVD camp at Ostashkov (position 5 on list 045/3). He was killed in Tver and buried in Mednoye.
32. The sixth applicant, Mr Jerzy Lech Wielebnowski, was born in 1930. His father, Mr Aleksander Wielebnowski, born in 1897, was a police officer working in Luck in eastern Poland. In October 1939 he was arrested by Soviet troops and placed in the Ostashkov camp (position 10 on list 033/2). He was killed in Tver and buried in Mednoye.
33. The seventh applicant, Mr Gustaw Erchard, was born in 1935. His father, Mr Stefan Erchard, born in 1900, was the headmaster of a primary school in Rudka, Poland. He was arrested by the Soviets and detained at the Starobelsk camp (position 3869). He was presumed killed in Kharkov and buried in Pyatikhatki.
34. The eighth and ninth applicants, Mr Jerzy Karol Malewicz and Mr Krzysztof Jan Malewicz, born in 1928 and 1931 respectively, are the sons of Mr Stanisław August Malewicz. The ninth applicant died in 2011. Their father was born in 1889 and served as a doctor in the Polish army. He was taken prisoner of war at Równe, Poland, and held at the Starobelsk camp (position 2219). He was presumed killed in Kharkov and buried in Pyatikhatki.
35. The tenth and eleventh applicants, Ms Krystyna Krzyszkowiak and Ms Irena Erchard, born in 1940 and 1936 respectively, are the daughters of Mr Michał Adamczyk. Born in 1903, he was the commander of Sarnaki police station. He was arrested by the Soviets, detained at the Ostashkov camp (position 5 on list 037/2), killed in Tver and buried in Mednoye.
36. The twelfth applicant, Ms Krystyna Mieszczankowska, born in 1930, is the daughter of Mr Stanisław Mielecki. Her father, a Polish officer, was born in 1895 and was held at the Kozelsk camp after his arrest by Soviet troops. He was killed and buried in Katyn; his body was identified during the 1943 exhumation.
37. The thirteenth applicant, Mr Krzysztof Romanowski, born in 1953, is the nephew of Mr Ryszard Żołędziowski. Mr Żołędziowski, born in 1887, was held at the Starobelsk camp (position 1151) and was presumed killed in Kharkov and buried in Pyatikhatki. A list of Starobelsk prisoners which included his name was retrieved from the coat pocket of a Polish officer whose remains, with gunshot wounds to the head, were excavated during a joint Polish-Russian exhumation near Kharkov in 1991.
38. On 13 April 1990, during a visit by Polish President Wojciech Jaruzelski to Moscow, the President of the USSR, Mikhail Gorbachev, handed over to him the documents concerning the Katyn massacre. The official news agency of the USSR published a communiqué which affirmed, on the basis of newly disclosed archive materials, that “Beria, Merkulov and their subordinates bore direct responsibility for the crime committed in the Katyn Forest”.
39. On 22 March 1990 the Kharkov regional prosecutor’s office opened a criminal investigation into the origin of mass graves found in the city’s Lesopark district. On 6 June 1990 the Kalinin (Tver) prosecutor’s office instituted a criminal case into “the disappearance” (исчезновение) in May 1940 of the Polish prisoners of war who had been held in the NKVD camp in Ostashkov. On 27 September 1990 the Chief Military Prosecutor’s Office of the USSR took over the Kharkov investigation under the number 159 and assigned it to a group of military prosecutors.
40. In the summer and autumn of 1991, Polish and Russian specialists carried out exhumations of corpses at the mass burial sites in Kharkov, Mednoye and Katyn. They also reviewed the archive documents relating to the Katyn massacre, interviewed at least forty witnesses and commissioned forensic examinations.
41. On 14 October 1992 the Russian President Boris Yeltsin revealed that the Polish officers had been sentenced to death by Stalin and the Politburo of the USSR Communist Party. The director of the Russian State Archives transferred to the Polish authorities a number of documents, including the decision of 5 March 1940. During an official visit to Poland on 25 August 1993, President Yeltsin paid tribute to the victims in front of the Katyn Cross in Warsaw.
42. In late May 1995 prosecutors from Belarus, Poland, Russia and Ukraine held a working meeting in Warsaw during which they reviewed the progress of the investigation in case no. 159. The participants agreed that the Russian prosecutors would ask their Belarusian and Ukrainian counterparts for legal assistance to determine the circumstances of the execution of 7,305 Polish citizens in 1940.
43. On 13 May 1997 the Belarusian authorities informed their Russian counterparts that they had not been able to uncover any documents relating to the execution of Polish prisoners of war in 1940. In 2002 the Ukrainian authorities produced documents concerning the transfer of Polish prisoners from the Starobelsk camp to the NKVD prison in the Kharkov region.
44. In 2001, 2002 and 2004 the President of the Polish Institute for National Remembrance (“the INR”) repeatedly but unsuccessfully contacted the Russian Chief Military Prosecutor’s Office with a view to obtaining access to the investigation files.
45. On 21 September 2004 the Chief Military Prosecutor’s Office decided to discontinue criminal case no. 159, apparently on the ground that the persons allegedly responsible for the crime had already died. On 22 December 2004 the Inter-Agency Commission for the Protection of State Secrets classified thirty-six volumes of the case file – out of a total of 183 volumes – as “top secret” and a further eight volumes as “for internal use only”. The decision to discontinue the investigation was given “top secret” classification and its existence was only revealed on 11 March 2005 at a press conference given by the Chief Military Prosecutor.
46. Further to a request from the Court for a copy of the decision of 21 September 2004, the Russian Government refused to produce it, citing its secret classification. It transpired from the Government’s submissions that the investigation had been discontinued on the basis of Article 24 § 4 (1) of the Code of Criminal Procedure, on account of the suspects’ death.
47. From 9 to 21 October 2005 three prosecutors from the INR conducting the investigation into the Katyn massacre and the chief specialist of the Central Commission for the Prosecution of Crimes against the Polish Nation visited Moscow at the invitation of the Chief Military Prosecutor’s Office. They examined the sixty-seven volumes of case no. 159 which were not classified, but were not allowed to make any copies.
48. On 8 May 2010 the Russian President Dmitry Medvedev provided the Speaker of the Polish Parliament with sixty-seven volumes of the Katyn investigation files. In total, according to the information submitted by the Polish Government, the Russian authorities handed over to them certified copies of 148 volumes, containing approximately 45,000 pages.
49. In 2003, Mr Szewczyk – a Polish lawyer retained by the first applicant (Mr Janowiec) and by the mother of the second applicant (Mr Trybowski) – applied to the Prosecutor General of the Russian Federation with a request to be provided with documents concerning Mr Andrzej Janowiec, Mr Antoni Nawratil and a third person.
50. On 23 June 2003 the Prosecutor General’s Office replied to the lawyer, informing him that the Chief Military Prosecutor’s Office was investigating a criminal case concerning the execution of Polish officers in 1940. In 1991 the investigation had recovered some 200 bodies in the Kharkov, Tver and Smolensk regions and identified some of them, including Mr Nawratil and Mr Janowiec. Their names had also been found on the list of prisoners in the Starobelsk camp. Any further documents concerning them had been destroyed previously.
51. On 4 December 2004 Mr Szewczyk formally requested the Chief Military Prosecutor’s Office to recognise the rights of Mr Janowiec and Mr Trybowski as relatives of the executed Polish officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr Antoni Nawratil and Mr Andrzej Janowiec.
52. On 10 February 2005 the Chief Military Prosecutor’s Office replied that Mr Antoni Nawratil and Mr Andrzej Janowiec were listed among the prisoners from the Starobelsk camp who had been executed in 1940 by the NKVD and buried near Kharkov. No further materials concerning those individuals were available. Copies of the procedural documents could only be given to officially recognised victims or their representatives.
53. Subsequently the applicants Mr Janowiec and Mr Trybowski retained the services of a Russian lawyer, Mr Bushuev, who asked the Chief Military Prosecutor’s Office for permission to study the case file. On 7 November 2006 the Chief Military Prosecutor’s Office informed him that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case.
54. The lawyer lodged a judicial appeal against the Chief Military Prosecutor’s Office’s refusals of 10 February 2005 and 7 November 2006. He submitted, in particular, that the status as victim of a criminal offence should be determined by reference to the factual circumstances, such as whether or not the individual concerned had sustained damage as a result of the offence. From that perspective, the investigator’s decision to recognise someone as a victim should be viewed as a formal acknowledgement of such factual circumstances. The lawyer sought to have the applicants Mr Janowiec and Mr Trybowski recognised as victims and to be granted access to the case file.
55. On 18 April 2007 the Military Court of the Moscow Command rejected the complaint. It noted that, although Mr Antoni Nawratil and Mr Andrzej Janowiec had been listed among the prisoners in the Starobelsk camp, their remains had not been among those identified by the investigation. Accordingly, in the Military Court’s view, there were no legal grounds to assume that they had died as a result of the offence in question. As to the materials in the case file, the Military Court observed that the decision to discontinue the criminal proceedings dated 21 September 2004 had been declared a State secret and, for that reason, foreign nationals could not have access to it.
56. On 24 May 2007 the Supreme Court of the Russian Federation upheld that judgment on appeal, reproducing verbatim the reasoning of the Military Court.
57. On 20 August 2008 a team of lawyers acting for the applicants lodged a judicial appeal against the prosecutor’s decision of 21 September 2004. They submitted that the applicants’ relatives had been among the imprisoned Polish officers whose execution had been ordered by the Politburo of the USSR Communist Party on 5 March 1940. However, the applicants had not been granted victim status in case no. 159 and could not file motions or petitions, have access to the file materials or receive copies of the decisions. The lawyers also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains.
58. On 14 October 2008 the Military Court of the Moscow Command dismissed the appeal. It found that in 1943 the International Commission and the Technical Commission of the Polish Red Cross had excavated the remains and then reburied them, without identifying the bodies or counting them. A subsequent excavation in 1991 had only identified twenty-two persons and the applicants’ relatives had not been among those identified. The Military Court acknowledged that the names of the applicants’ relatives had been included in the NKVD lists for the Ostashkov, Starobelsk and Kozelsk camps; however, “the ‘Katyn’ investigation ... did not establish the fate of the said individuals”. As their bodies had not been identified, there was no proof that the applicants’ relatives had lost their lives as a result of the crime of abuse of power (Article 193-17 of the 1926 Soviet Criminal Code) referred to in the decision of 21 September 2004. Accordingly, there was no basis for granting victim status to the applicants under Article 42 of the Code of Criminal Procedure. Moreover, classified materials could not be made accessible to “representatives of foreign States”.
59. The lawyers submitted a statement of appeal in which they alleged that the lack of information about the fate of the applicants’ relatives had been the result of an ineffective investigation. The twenty-two persons had been identified only on the basis of the military identification tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examinations to identify the exhumed remains. Furthermore, it was a publicly known fact that the 1943 excavation had uncovered the remains of 4,243 people, of whom 2,730 individuals had been identified. Among those identified were three persons whose relatives had been complainants in the proceedings. The granting of victim status to the complainants would have allowed the identification of the remains with the use of genetic methods. Finally, the lawyers stressed that the Katyn criminal case file did not contain any information supporting the conclusion that any of the Polish officers taken from the NKVD camps had survived or died of natural causes.
60. On 29 January 2009 the Supreme Court of the Russian Federation upheld the judgment of 14 October 2008 in its entirety. It repeated verbatim extensive passages of the findings of the Moscow Military Court, but also added that the decision of 21 September 2004 could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on “rehabilitation grounds”.
61. On 26 March 2008 Memorial, a Russian nongovernmental human rights organisation, lodged an application with the Chief Military Prosecutor’s Office seeking to have the decision of 21 September 2004 declassified. In its answer dated 22 April 2008, the prosecutor’s office informed Memorial that it was not competent to set aside the classified status, which had been approved on 22 December 2004 by the Inter-Agency Commission for the Protection of State Secrets (“the Commission”).
62. On 12 March 2009 Memorial applied to the Commission for declassification of the decision of 21 September 2004, claiming that the classification of the materials of the Katyn investigation was morally and legally unacceptable and that it had also been in breach of section 7 of the State Secrets Act, which precluded classification of any information about violations of human rights. By a letter of 27 August 2009, the Commission replied to Memorial that their application had been examined and rejected, but did not provide further details.
63. Memorial challenged the Commission’s refusal before the Moscow City Court. At a hearing on 13 July 2010 the court read out the Commission’s letter of 25 June 2010 addressed to the presiding judge. The letter stated that the Commission had not made any decision on 22 December 2004 to classify the decision of the Chief Military Prosecutor’s Office of 21 September 2004.
64. Following an in camera hearing, the Moscow City Court rejected Memorial’s application for declassification on 2 November 2010, finding in particular as follows:
“The court has established that on 21 September 2004 the Chief Military Prosecutor’s Office issued a decision terminating the criminal investigation which had been instituted on 22 March 1990 by the Kharkov regional prosecutor’s office of the Ukrainian SSR [Soviet Socialist Republic] in connection with the discovery of the remains of Polish nationals in the wooded zone of Kharkov ...
The investigation characterised the actions of a number of named high-ranking officials of the USSR as an abuse of power with particularly aggravating circumstances under Article 193-17 (b) of the RSFSR [Russian Soviet Federated Socialist Republic] Criminal Code. The criminal case in respect of those officials was terminated on the basis of Article 24 § 1 (4) of the Russian Code of Criminal Procedure (on account of the guilty persons’ deaths). The case in respect of the others was terminated on the basis of Article 24 § 1 (2) (there was no criminal offence).
The Chief Military Prosecutor’s Office sent the draft decision on termination of the criminal proceedings to the Federal Security Service for an expert opinion as to whether or not it contained any confidential or secret information within the meaning of section 9 of the State Secrets Act, since the Federal Security Service had the right to dispose as it saw fit of the information reproduced in the Chief Military Prosecutor’s decision.
A commission of experts from the Federal Security Service found that the Chief Military Prosecutor’s draft decision included information which had not been declassified. In addition, the commission pointed out that the draft decision contained information to which access was restricted ...
On 21 September 2004 an official from the Chief Military Prosecutor’s Office issued the decision discontinuing criminal investigation no. 159. In the light of the above-mentioned findings by the Federal Security Service and on the basis of section 5 § 4 (2, 3) and section 8 of the State Secrets Act and point 80 of Presidential Decree no. 1203 of 30 November 1995, the document was given top secret classification ... Accordingly, there are no legal grounds for granting Memorial’s request that the Chief Military Prosecutor’s resolution classifying the decision of 21 September 2004 be declared unlawful and unjustified ...
In so far as the complainant argued that information concerning violations of the law by State authorities or officials may not be declared a State secret or classified in accordance with section 7 of the State Secrets Act, this argument is without merit because the Chief Military Prosecutor’s decision of 21 September 2004 contained information in the field of intelligence, counterintelligence and operational and search activities which, pursuant to section 4 of the State Secrets Act, constituted a State secret ...”
65. On 26 January 2011 the Supreme Court of the Russian Federation rejected the appeal lodged by Memorial against the City Court’s judgment.
66. Most of the applicants applied repeatedly to different Russian authorities, first and foremost the Chief Military Prosecutor’s Office, for information on the Katyn criminal investigation and for the “rehabilitation” of their relatives in accordance with the provisions of the 1991 Rehabilitation Act (see paragraph 86 below).
67. By a letter of 21 April 1998 sent in response to a rehabilitation request by Ms Ojcumiła Wołk, the Chief Military Prosecutor’s Office confirmed that her husband, Mr Wincenty Wołk, had been held as a prisoner of war in the Kozelsk camp and had then been executed, along with other prisoners, in the spring of 1940. The letter stated that her application for rehabilitation would be considered only after the conclusion of the criminal investigation.
68. Following the discontinuation of the investigation in case no. 159, Ms Witomiła Wołk-Jezierska asked the Chief Military Prosecutor’s Office on 25 October 2005 for a copy of the decision discontinuing the investigation. By a letter of 23 November 2005, the prosecutor’s office refused to provide it, citing the decision’s top secret classification. On 8 December 2005 the Polish Embassy in Moscow asked the prosecutor’s office for an explanation concerning the rehabilitation of Mr Wołk. In a letter of 18 January 2006 the prosecutor’s office expressed the view that there was no legal basis for the rehabilitation of Mr Wołk or the other Polish citizens because the investigation had not determined which provision of the 1926 Criminal Code had been the basis for the repression to which they had been subjected. A similarly worded letter of 12 February 2007 refused a further request to the same effect by Ms Wołk.
69. On 13 March 2008 the Chief Military Prosecutor’s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants. The prosecutor stated that it was not possible to determine the legal basis for the repression to which Polish citizens had been subjected in 1940. Despite the existence of some documents stating that the applicants’ relatives had been transferred from the NKVD camps at Ostakhkov, Kozelsk and Starobelsk to Kalinin, Smolensk and Kharkov, the joint efforts by Belarusian, Polish, Russian and Ukrainian investigators had not uncovered any criminal files or other documents relating to their prosecution in 1940. In the absence of such files it was not possible to decide whether the Rehabilitation Act would be applicable. Furthermore, the prosecutor stated that the remains of the applicants’ relatives had not been discovered among the human remains found during the exhumation works.
70. Counsel lodged a judicial appeal against the prosecutor’s refusal.
71. On 24 October 2008 the Khamovnicheskiy District Court of Moscow dismissed the appeal. While the court confirmed that the names of the applicants’ relatives had featured on the NKVD lists of prisoners, it pointed out that only twenty bodies had been identified as a result of the exhumations conducted in the context of case no. 159 and that the applicants’ relatives had not been among those identified. The court further found that there was no reason to assume that the ten Polish prisoners of war (the applicants’ relatives) had actually been killed, and that Russian lawyers had no legal interest in the rehabilitation of Polish citizens.
72. On 25 November 2008 the Moscow City Court rejected, in summary fashion, an appeal against the District Court’s judgment.
73. On 26 November 2010 the State Duma, the lower chamber of the Russian Parliament, adopted a statement entitled “On the Katyn tragedy and its victims” which read, in particular, as follows:
“Seventy years ago, thousands of Polish citizens held in the prisoner-of-war camps of the NKVD of the USSR and in prisons in the western regions of the Ukrainian SSR and Belorussian SSR were shot dead.
The official Soviet propaganda attributed responsibility for this atrocity, which has been given the collective name of the Katyn tragedy, to Nazi criminals ... In the early 1990s our country made great strides towards the establishment of the truth about the Katyn tragedy. It was recognised that the mass extermination of Polish citizens on USSR territory during the Second World War had been an arbitrary act by the totalitarian State ...
The published materials that have been kept for many years in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the Katyn crime was carried out on the direct orders of Stalin and other Soviet leaders ...
Copies of many documents which had been kept in the closed archives of the Politburo of the Communist Party of the Soviet Union have already been handed over to the Polish side. The members of the State Duma believe that this work must be carried on. It is necessary to continue studying the archives, verifying the lists of victims, restoring the good names of those who perished in Katyn and other places, and uncovering the circumstances of the tragedy ...”
74. The Hague Convention (IV) respecting the Laws and Customs of War on Land of 18 October 1907 (“the 1907 Hague Convention (IV)”), and in particular its annex, Regulations concerning the Laws and Customs of War on Land, provides as follows:
“Art. 4. Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.
They must be humanely treated.
...
Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden
...
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;
...
Art. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”
75. The Geneva Convention relative to the Treatment of Prisoners of War of 27 July 1929 (“the Geneva Convention of 1929”) provided as follows:
“Art. 2. Prisoners of war are in the power of the hostile Government, but not of the individuals or formation which captured them.
They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity.
Measures of reprisal against them are forbidden.
...
Art. 61. No prisoner of war shall be sentenced without being given the opportunity to defend himself.
No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused.
...
Art. 63. A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power.”
76. Article 6 of the Charter (Statute) of the International Military Tribunal (Nuremberg Tribunal) set up in pursuance of the agreement signed on 8 August 1945 by the governments of the United States of America, France, the United Kingdom and the USSR, contained the following definition of crimes:
“...
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
...”
77. The definition was subsequently codified as Principle VI in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, formulated by the International Law Commission in 1950 under United Nations General Assembly Resolution 177 (II) and affirmed by the General Assembly.
78. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), to which the Russian Federation is a party, provides in particular as follows:
“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ...
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ...”
“The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.”
79. The Vienna Convention on the law of treaties (23 May 1969), to which the Russian Federation is a party, provides as follows:
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”
“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”
80. Article 7 of the International Covenant on Civil and Political Rights (“the Covenant”), to which the Russian Federation is a party, reads as follows:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
81. The United Nations Human Rights Committee’s General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004 (2,187th meeting), reads as follows:
“4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in Article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. ...”
82. At its meeting on 3 April 2003 the Human Rights Committee established under Article 28 of the Covenant expressed the following views after consideration of Communication No. 886/1999, submitted on behalf of Ms Natalia Schedko and Mr Anton Bondarenko against Belarus:
“10.2 The Committee notes that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the Covenant.”
83. At its meeting on 28 March 2006 the Human Rights Committee expressed the following views after consideration of Communication No. 1159/2003, submitted on behalf of Mariam, Philippe, Auguste and Thomas Sankara against Burkina Faso:
“6.2 The Committee noted the State party’s arguments concerning the inadmissibility of the communication ratione temporis. Having also noted the authors’ arguments, the Committee considered that a distinction should be drawn between the complaint relating to Mr. Thomas Sankara and the complaint concerning Ms. Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara’s death certificate of 17 January 1988, stating that he died of natural causes – contrary to the facts, which are public knowledge and confirmed by the State party ... – and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. Sankara and her children.
...
12.2 Concerning the alleged violation of article 7, the Committee understands the anguish and psychological pressure which Ms. Sankara and her sons, the family of a man killed in disputed circumstances, have suffered and continue to suffer because they still do not know the circumstances surrounding the death of Thomas Sankara, or the precise location where his remains were officially buried. Thomas Sankara’s family have the right to know the circumstances of his death, and the Committee points out that any complaint relating to acts prohibited under article 7 of the Covenant must be investigated rapidly and impartially by the competent authorities. In addition, the Committee notes, as it did during its deliberations on admissibility, the failure to correct Thomas Sankara’s death certificate of 17 January 1988, which records a natural death contrary to the publicly known facts, which have been confirmed by the State party. The Committee considers that the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of article 7 of the Covenant.”
84. Article 24 § 1 sets out the following grounds for discontinuation of criminal proceedings:
“(1) there was no criminal offence;
(2) the acts did not constitute a criminal offence;
...
(4) the suspect or the defendant died, except in cases in which the criminal proceedings need to be continued for the rehabilitation of the deceased.”
85. Article 42 defines a “victim” as an individual who has sustained physical, pecuniary or non-pecuniary damage as the result of a crime. The decision to recognise the individual as a “victim” must be made by the examiner, investigator, prosecutor or court.
86. According to the preamble, the purpose of the Rehabilitation Act is the “rehabilitation” of all victims of political repression who were prosecuted on the territory of the Russian Federation after 7 November 1917, the term “rehabilitation” being understood as “the restoration of their civil rights, the removal of any other adverse consequences of the arbitrary actions and the payment of compensation in respect of pecuniary damage”.
87. Section 1 defines “political repression” as various measures of restraint, including deprivation of life or liberty, imposed by the State for political motives, as well as any other restriction on the rights or freedoms of those individuals who were recognised as being socially dangerous to the State or political regime on account of their class or social origin, ethnicity or religion.
88. Section 2 extended the application of the Rehabilitation Act to all Russian nationals, former USSR nationals, foreign nationals and stateless persons who were subjected to political repression in the territory of the Russian Federation after 7 November 1917.
89. Section 3 establishes the categories of persons who are eligible for “rehabilitation”. Point (b) concerns individuals who were subjected to criminal repression on the basis of decisions by the All-Russian Extraordinary Commission (Vecheka, ВЧК), the Chief Political Directorate (GPU, ГПУ), the People’s Commissariat for Internal Affairs (NKVD, НКВД), the Ministry of State Security (MGB, МГБ), prosecutors and their collegiate bodies, “special commissions”, the troika and other authorities with judicial functions.
90. According to its preamble, the State Secrets Act (Law no. 5485-I of 21 July 1993) governs the procedure for the identification of State secrets, the classification and declassification of information and the protection of information in the interests of the national security of the Russian Federation.
91. Section 5 contains a list of categories of information that constitute a State secret. It includes, in particular, the following:
“(4) information in the field of intelligence, counterintelligence and operational and search activities, as well as in the field of counter-terrorism:
– concerning resources, means, sources, methods, plans and outcomes of intelligence, counterintelligence and operational and search activities and the financing thereof ...
– concerning persons who cooperated or are cooperating on a confidential basis with the authorities in charge of intelligence, counterintelligence and operational and search activities.”
92. Section 7 contains a list of information which may not be declared a State secret or classified. It covers, in particular, the following information:
“– concerning violations of human rights and freedoms of individuals and citizens ...
– concerning breaches of the law committed by State authorities or officials.”
93. Section 13 governs the procedure for declassifying the information. It also provides as follows:
“The period, during which the State secrets shall remain classified, may not exceed thirty years. In exceptional cases, the Inter-Agency Commission on the Protection of State Secrets may extend this period.”
94. On 2 August 1997 the government adopted Regulation no. 973 on preparing State secret information for transfer to foreign States and international organisations. It provides that a decision on transferring such information may be made by the Russian government on the basis of a report prepared by the Inter-Agency Commission on the Protection of State Secrets (§ 3). The recipient party must undertake to protect the classified information by entering into an international treaty establishing, among other matters, the procedure for transferring information, a confidentiality clause and a dispute resolution procedure (§ 4).
95. Chapter 34 contains a list of crimes against the peace and security of humankind. Article 356 prohibits in particular “cruel treatment of prisoners of war or civilians”, an offence punishable by up to twenty years’ imprisonment.
96. Article 78 § 5 stipulates that the offences defined in Articles 353 (War), 356 (Prohibited means of warfare), 357 (Genocide) and 358 (Ecocide) are imprescriptible.
VIOLATED_ARTICLES: 38
NON_VIOLATED_ARTICLES: 3