Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Reminder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violations of Art. 3 (substantive aspect);Violations of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 13+2;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are:

(1) Mr Vakhit Gelayev, born in 1949,

(2) Ms Amint (also spelled as Aminat) Gelayeva, born in 1952,

(3) Ms Zarema Gelayeva, born in 1983,

(4) Ms Pakanat Gelayeva, born in 1928,

(5) Mr Shakhit Gelayev, born in 1925 and

(6) Mr Akhmat Gelayev, born in 1951.

The applicants live in Gikalo, Chechnya. The first and second applicants are the parents of Murad Gelayev (also known as Murat or Edik Gelayev), who was born in 1976. The third applicant is his sister, the fourth applicant is his grandmother, the fifth applicant is his grandfather and the sixth applicant is his uncle.

The facts of the case, as submitted by the parties, may be summarised as follows.

At the material time the settlement of Gikalo in the Grozny district of Chechnya was under the full control of the Russian federal forces; checkpoints of the Russian military were located on the roads leading to and from the village. On 26-27 February 2000 the Russian federal forces conducted a special operation in the village. The operation was carried out with APCs (armoured personnel carriers) and Ural vehicles.

In the morning of 27 February 2000 Murad Gelayev and the second and third applicants were at home at 20, Mira Street, Gikalo. The fourth applicant lived nearby.

At about 7 a.m. the second applicant heard some noise and looked out of the window. She saw armed military servicemen jumping over the fence. Some of the men were wearing masks. When the second applicant went outside, one of the men ordered her to stand up against the wall and pointed his machine gun at her.

Then a large group of the servicemen broke into the house. The second applicant went back inside. There she saw her son, Murad, and her daughter, the third applicant, standing against the wall. The intruders, who were of Slavic appearance and spoke unaccented Russian, demanded that the second applicant give them her son's passport; while she was looking for it, they kept hitting her in the back with rifle-butts and saying: “Hurry up, search faster”. After the second applicant found the passport and handed it over to the men, one of them took it outside, to an APC which was parked next to the house. Shortly after that the man brought Murad Gelayev's passport back. The second applicant attempted to put clothing on Murad, but the servicemen started beating her, Murad Gelayev and his sister with rifle-butts.

After that the servicemen dragged Murad Gelayev outside. The second and third applicants asked the servicemen to release Murad saying that his identity documents had already been checked by them. The servicemen told the applicants that they would release him after a check; the applicants kept begging the men to release their relative and the servicemen beat them with rifle-butts. Then the third applicant ran to the neighbours screaming for help and the second applicant kept following the servicemen. One of them pressed his machine gun against her chest and ordered her to get out of the way.

Meanwhile the fourth applicant, who had been told by her neighbours that the servicemen were raiding her son's house, arrived at the yard and joined the second applicant in attempts to prevent the abduction of Murad Gelayev. A crowd of neighbours started gathering and the servicemen began shooting above the crowd's heads to disperse it. Continuing the beating of the second and fourth applicants in front of the neighbours, the servicemen put Murad Gelayev in a Ural vehicle which was parked next to the house; its registration numbers were covered with mud. A dog, which had arrived with the servicemen, jumped after Murad Gelayev into the body of the vehicle and sat next to him.

When the second applicant attempted to get into the Ural, one of the servicemen pushed her over and she fell to the ground and lost consciousness. As a result of the fall, the second applicant was hospitalised on the same day and stayed in the Gikalo hospital from 27 February to 17 March 2000; she was diagnosed with brain concussion and chest contusion. The fourth applicant was beaten with rifle-butts, dragged aside by two soldiers and shoved into a gap between a wall and a block of concrete.

According to a resident of Gikalo, Mr Sh.Ts., at around 7.20 a.m. on 27 February 2000 he was at home when an APC pulled over next to his house. About ten armed military servicemen, some of them in masks, rushed into his yard. They put him and his brother, Mr V.Ts., against the wall and ordered their female relatives to bring over their passports. After the documents were brought over, one of the men read out the passport information to someone via a portable radio set; a few minutes later Mr Sh.Ts. was told that the passports were in order. After that the witness and his brother were taken in the APC to the village centre and transferred into an “Avtozak” vehicle (GAZ-53 lorry equipped for transportation of detainees). The Avtozak took the two brothers and a number of other male residents of Gikalo to the Oktyabrskiy district military commander's office in Grozny.

According to another resident of Gikalo, Ms Z.S., on the morning of 27 February 2000 she was woken up by the noise of vehicles and dogs' barking. She went outside and saw a group of armed men in camouflage uniforms. They spoke unaccented Russian and were searching the courtyard. Then the men took her brothers, Mr Sul.S. and Mr Sup.S., outside, searched them and put them in a large military vehicle. The servicemen told her that they would take her brothers for an identity check. After that they took the two brothers to the Oktyabrskiy temporary district department of the interior (the Oktyabrskiy VOVD).

According to another resident of Gikalo, Mr V.Ts., at about 7.20 a.m. on 27 February 2000 he arrived at his brother's house. There he saw a military vehicle with about fifteen armed servicemen in camouflage uniforms on it; some of them were wearing masks. The servicemen had specially trained German shepherd dogs with them. The majority of these men were of Slavic appearance, but two of them looked Asian. The servicemen checked the passports; after that one of them spoke with someone via a portable radio set. After that the witness and his brother were taken by the military vehicle to the village centre. There they were transferred to an Avtozak vehicle in which the witness found a number of his fellow villagers, including Murad Gelayev. From there the detainees were taken to the Khankala for one night and then to the Oktyabrskiy district military commander's office.

According to the applicants, as a result of the special operation fourteen residents of Gikalo were detained, and at some point all of them, except for Murad Gelayev and Mr Sul. S., returned home.

Some time later one of Ms Z.S.'s. brothers, Mr Sup.S., returned home and told her that after the sweeping-up operation on 27 February 2000 they had been taken to the Oktyabrskiy VOVD. From there the group of detainees from Gikalo had been taken to Chernokozovo detention centre, and only Murad Gelayev and Mr Sul.S. had remained in the Oktyabrskiy VOVD. According to Mr Sup.S., Murad Gelayev and Mr Sul.S. had been subjected to torture by the investigators in the VOVD; during an interrogation one of the officers had cut off an ear from each of them.

According to Mr V.Ts., after being detained he and his fellow villagers from Gikalo, including Murad Gelayev, were taken in the Avtozak vehicle to Grozny. At about 9 a.m. on 27 February 2000 the men were taken to a building with a basement. There the witness and his fellow villagers were subjected to continued beatings by their abductors, who used shovels and iron pipes. At some point he fainted; he regained consciousness when two military servicemen were dragging him into a basement. In the basement he and all the other detainees from Gikalo, including Murad Gelayev, were stripped naked and subjected to another round of beatings with iron pipes and steel rods, and dogs were set on them. After that the villagers were allowed to put their clothes back on and were taken to Khankala in a Ural vehicle. There the detainees spent the night in the vehicle, handcuffed to a bar and being beaten by military servicemen. In the morning the detainees were taken to the Oktyabrskiy military commander's office, but Murad Gelayev and another detainee were not there as they had probably stayed behind.

According to the sixth applicant, early in the morning of 27 February 2000 he was at home when a large group of military servicemen in masks and camouflage uniforms rushed into his yard. The servicemen dispersed throughout the applicant's household and searched his house, barn and shed. The servicemen forced the applicant into an APC and took him to the outskirts of Gikalo, where he was transferred to an Avtozak vehicle. In the Avtozak the sixth applicant saw thirteen other men from the village, including his nephew Murad Gelayev. The vehicle took the detainees to the Oktyabrskiy VOVD, where the men were forced to stand against the wall and were subjected to beatings by shovels, bludgeons and steel rods. At about 12 p.m. a senior officer arrived at the site and personally kicked each detainee between the legs. After a short break a serviceman with a dog arrived and set the dog on the detainees. Then the detainees were ordered to run to the basement. In the basement they were ordered to take off their clothes; meanwhile Murad Gelayev and Mr Sul.S. were seated at a table and questioned. The applicant heard one of the guards ordering Murad Gelayev to put his hands on the table and hitting Murad's fingers with a truncheon. Next the officer asked the other servicemen if they had a knife. He could not find one in the basement and went outside. Having found a knife, which looked like that of a hunter, he cut off Murad Gelayev's ear, wrapped it in a bandage and put it in his pocket saying: “It's a souvenir for me”. After that he cut Mr Sul.S.'s ear off and gave it to another officer saying: “And here is a souvenir for you”. The latter also put it in his pocket. According to the applicant, after continued beatings he and other detainees were taken to Khankala whereas Murad Gelayev and Mr Sul.S. remained in the Oktyabrskiy VOVD.

The applicants further submitted that at the beginning of May 2000, Mr R.Ya., the head of the criminal search division of the Oktyabrskiy VOVD, had suggested to their fellow villager, Mr Sh.Kha., that he could show him Murad Gelayev who was detained in the building of the VOVD. In addition, around 25 June 2000, a woman who lived in the Lutch neighbourhood in the Oktyabrskiy district of Grozny had visited the Chernokozovo detention centre and had seen two young men being brought there in APCs. One of these men had been Murad Gelayev.

At the material time the Oktyabrskiy VOVD was staffed by officers from the Khanty-Mansiysk Autonomous Region of Russia. From the documents submitted it follows that the Oktyabrskiy VOVD and the district military commander's office were located either in the same building or around the same yard.

In support of their statements, the applicants submitted the following documents: a statement by the second applicant (the date is illegible); a statement by the third applicant dated 23 August 2006; a statement by the sixth applicant (undated); a statement by the fourth applicant (undated); a statement by Mr Sh.Ts. dated 21 September 2006; a statement by Ms Z.S. dated 23 August 2006; a statement by Mr V.Ts. dated 14 August 2006; a statement by Mr U.V. dated 14 August 2006; a copy of the medical certificate issued by the Grozny district hospital confirming the second applicant's hospitalisation from 27 February to 17 March 2000 in the Gikalo hospital dated 14 August 2006, and copies of documents received from the authorities.

The Government did not dispute the facts as presented by the applicants. At the same time they stated that no special operation had been carried out in Gikalo on 27 February 2000 and that the federal forces had not been involved in the abduction of the applicants' relative.

According to the applicants, they complained about Murad Gelayev's abduction to the authorities immediately after the events. However, no reply to their complaints was received.

On 28 August 2001 the Grozny district department of the interior (the Grozny ROVD) refused to open a criminal investigation into the abduction of Murad Gelayev for the lack of corpus delicti.

On the same date, 28 August 2001, the Grozny ROVD opened search file no. 39/01 in connection with the disappearance of Murad Gelayev.

In November 2001 the first applicant spoke with the deputy Chairman of the Representative of the Russian President in the Southern Federal Circuit, Mr V.B., and the latter informed him that his son was alive and detained somewhere in Central Russia.

On 15 June 2001 the Chechnya Ministry of the Interior (the Chechnya MVD) forwarded the fifth applicant's complaint about his grandson's abduction to the Oktyabrskiy VOVD for examination.

On 29 March 2002 the Department of Lawfulness, Law and Order of the Chechnya Administration requested that detention centre IZ-61/1 in Rostov-on-Don inform them whether Murad Gelayev, who had been taken away from his home by a group of federal servicemen, was listed among their detainees. In April 2002 the detention centre replied in the negative.

On 3 April 2002 the first applicant complained to the Chechnya prosecutor about his son's abduction. He stated that Murad Gelayev had been abducted with thirteen other residents of Gikalo during a special operation conducted by a group of federal servicemen in military armoured vehicles; that the servicemen had beaten the detainees and their relatives with rifle-butts; that shortly after the abduction the applicant had found out that his son had been detained in the basement of the Oktyabrskiy VOVD where, in the presence of many witnesses, one ear had been cut off as a souvenir from both Murad Gelayev and Mr Sul.S.; that the men had subsequently been thrown into different pits and beaten in the presence of the head of the Oktyabrskiy VOVD, Major R.E.; that, according to eyewitnesses, on 8-9 May 2000 Murad Gelayev had still been detained in the basement and that in June or July 2000 he had been taken to the Chernokozovo detention centre. The applicant requested the authorities to assist him in the search for his son and to prosecute the perpetrators.

On 4 April 2002 the Grozny prosecutor's office forwarded the first applicant's complaint about his son's abduction to the Oktyabrskiy VOVD for examination.

On 11 April 2002 the Chechnya prosecutor's office forwarded the first applicant's complaint about his son's abduction by federal servicemen during a special operation on 27 February 2000 to the Grozny prosecutor's office for examination.

On 12 July 2002 an investigator from the Gikalo department of the Grozny ROVD questioned the first applicant, who stated that on 27 February 2000 a group of Russian military servicemen had arrested fourteen residents of Gikalo, including Murad Gelayev. According to the witness, Murad Gelayev had been taken to the Oktyabrskiy VOVD, where his ear had been cut off as a souvenir and he had been beaten in the presence of the head of the Oktyabrskiy VOVD, officer R.E; that in July 2000 Murad Gelayev had been taken to the Chernokozovo detention centre and that the applicant had visited a number of detention centres in Chechnya but could not find his son.

On 16 August 2002 the Prosecutor General's office in the Southern Federal Circuit forwarded the first applicant's complaint about the abduction to the Chechnya prosecutor's office. On 4 September 2002 the latter forwarded this complaint to the Grozny prosecutor's office for examination.

On 13 July 2005 the Grozny district prosecutor's office (the district prosecutor's office) instituted an investigation into the abduction of Murad Gelayev under Article 105 § 1 of the Criminal Code (murder). The case file was given number 44065. The decision stated, inter alia, as follows:

“...on 27 February 2000 a group of unidentified armed men in camouflage uniforms in APCs and a UAZ vehicle took Murad Gelayev away to Grozny; after that he disappeared...

In this connection, on 28 August 2001 the Grozny ROVD refused to institute a criminal investigation owing to the lack of corpus delicti....

This decision was unlawful as Murad Gelayev has not returned home and, therefore, there are sufficient grounds to presume that he was killed...”

On 30 July 2005 the first applicant was granted victim status in the criminal case.

On 21 September 2006 the applicants' representatives wrote to the district prosecutor's office and requested to be informed about the investigative measures taken by the authorities and their results. They also requested to be provided with access to the investigation file. On 31 October 2006 the district prosecutor's office replied they were taking operationalsearch measures to establish the whereabouts of Murad Gelayev.

On 21 June 2001 the sixth applicant complained to the Oktyabrskiy VOVD about the disappearance of Murad Gelayev from Gikalo on 27 February 2000.

To verify the applicant's complaint, the VOVD conducted an inquiry into the allegations and in that context the following steps were taken (see paragraphs 42-45 below).

On 30 July 2001 police officers questioned the sixth applicant, who stated that on the morning of 27 February 2000 he had been taken away from home by a group of armed men in camouflage uniforms. The men had put him into an APC and taken him to the outskirts of Gikalo, where he had been transferred into another vehicle in which he had found fourteen of his fellow villagers including Murad Gelayev. The detainees had been taken first to the VOVD and then to Khankala, Murad Gelayev had not been among those transferred to Khankala. From Khankala the sixth applicant had been taken to the village of Chervlyenaya, then to Chernokozovo, Chechnya, and subsequently, along with three other residents of Gikalo, Mr A.G., Mr L.G. and Mr M.V., to the town of Pyatigorsk in the Stavropol Region. The applicant had been released six weeks after the arrest.

On an unspecified date the police investigators also questioned the second applicant, who stated that she did not know the whereabouts of her son since 27 February 2000.

The police investigators obtained a report of a police officer dated 24 June 2001 according to which Murad Gelayev had not been listed as a detainee in the Oktyabrskiy VOVD in 2000.

On 28 August 2001 the VOVD opened operational-search file no. 39/01-BP and took other measures to establish the whereabouts of Murad Gelayev.

On 28 August 2001 the VOVD refused to initiate a criminal investigation into the matter stating that “as a result of the inquiry it was not established that a crime had been committed against Murad Gelayev”.

On 13 July 2005 the above refusal was overruled by the supervising prosecutor and criminal case no. 44065 was opened under Article 105 § 1 (murder).

On 29 July 2005 the investigators questioned Mr S.B., who at the material time worked as the district police officer. He stated that in February 2000 Murad Gelayev had been taken away by armed men in camouflage uniforms who had driven around in APCs. Thirteen other residents of Gikalo had been taken away on the same morning. All of them save for Murad Gelayev and Mr Sul.S. had returned home at some point later.

On 30 and 31 July 2005 the investigators granted the first applicant victim status in the criminal case and questioned him. He stated that on the morning of 27 February 2000 a group of armed masked men had broken into his house and taken away his son Murad Gelayev. He further stated that his son had been abducted with thirteen or fourteen other residents of Gikalo, including the sixth applicant, who at some point later had been released from a detention centre in Pyatigorsk. According to the witness, the abductors had taken Murad and other detainees to the Oktyabrskiy VOVD, where the guards, Mr A. nicknamed “Uzbek”, Mr G., Mr D., Mr V. and Mr I., together with a UAZ driver Mr R., had ill-treated Murad Gelayev and the other detainees. The witness further stated that the sixth applicant had been taken from the Oktyabrskiy VOVD to Khankala and then, on 28 or 29 February 2000, had been brought back to the VOVD where he had seen Murad Gelayev for the last time. The witness provided investigators with all the names and ranks of the senior officers of the Oktyabrskiy VOVD who had served there at the material time and with a phone number of one of them.

On 5 August 2005 the investigators requested the Chechnya FSB to inform them whether any special operations had been carried out by them on 27 February 2000 in Gikalo. The Chechnya FSB replied that no such operations had been conducted and that they had not arrested Murad Gelayev.

On 11 August 2005 the investigators questioned Mr Sh.Ts., who stated that on the morning of 27 February 2000 a group of armed men in camouflage uniforms had broken into his house. The intruders had taken him and his brother Mr V. Ts. and had put them in a vehicle with Murad Gelayev and Mr Sul.S. in it. After that, the detainees had been taken in the direction of Grozny to a building which looked like a gym. There they had been questioned by unidentified men; in the evening of the same day, the witness had noticed that Murad Gelayev and Mr Sul.S. had not been among the rest of the detainees.

On 11 August and 13 August 2005 the investigators questioned Mr V.Ts. and Mr U.V., whose statements about the events were similar to that given by Mr Sh.Ts. The investigators questioned Mr U.V. again on 11 August 2009 and he stated that he had been abducted from home by armed men in camouflage uniforms and masks, who had searched his house and taken him and his brother to the VOVD where they had been subjected to beatings and questionings. He also stated that in his presence one of the abductors had cut off an ear from Murad Gelayev and Mr Sul.S. and that on the same day all the detainees from Gikalo, except for Murad Gelayev and Mr Sul.S., had been transferred to Khankala.

On 12 August 2005 the investigators questioned Mr Sup.S. who stated that on 27 February 2000 he and fourteen other residents of Gikalo had been taken to the Oktyabrskiy district military commander's office, then to Khankala, then to the SIZO (the detention centre) in Chernokozovo where he had been detained until 19 May 2000. According to the witness, his brother Mr Sul.S. and Murad Gelayev had not been taken to these detention places as they had remained in the basement of the district military commander's office.

On 13 September 2005 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.

On 21 June 2006 the above decision was overruled by the supervising prosecutor and the investigation was resumed.

On 14 August 2006 the investigators questioned the sixth applicant, who stated that on the morning of 27 February 2000 he had been at home when he had seen a group of armed men in camouflage uniforms surrounding his house. He had heard them communicating with someone via a portable radio and then someone's order to “take one Gelayev and get out as the locals have started gathering around”. After that the intruders had put him in an APC and taken him to the outskirts of Gikalo, where he had been transferred to another vehicle with fourteen other residents of the village already inside, including Murad Gelayev. Then all the detainees had been taken to the Oktyabrskiy VOVD; Murad Gelayev had been taken out of the vehicle first and had been immediately subjected to beating. After that all the detainees had been taken to a room where they had been beaten with bludgeons and steel rods; as a result the applicant's ribs had been broken. Then the applicant had been taken to a basement, where he had found Murad Gelayev and Mr Sul.S. The intruders had forced the detainees to put their hands on the table and had hit them with bludgeons. After that the applicant had been taken to Khankala, whereas Murad Gelayev and Mr Sul.S. had stayed behind. From Khankala the applicant had been taken to Chervlyenaya, then to Chernokozovo, then to Pyatigorsk in the Stavropol Region. In the remand prison in Pyatigorsk the applicant had met his fellow villagers Mr A.G., Mr L.G. and Mr M.V., who had been taken away from Gikalo on the same date, then two weeks later the applicant had been released.

On 14 August 2006 the investigators again questioned Mr V.Ts., who stated that on 27 February 2000 he had been taken from home by military servicemen who had arrived in an APC. The witness and his neighbour Mr Sh.Ts. had been transferred from the vehicle to an Avtozak lorry, in which they had met a number of their fellow villagers, including Murad Gelayev. The Avtozak had taken the detainees to the Oktyabrskiy VOVD, where they had been subjected to beatings and put into a basement. There the men had been stripped naked and subjected to further beatings by abductors who had kept taking turns to beat the detainees. On the second day of the detention the men had been taken to the military commander's office where they had been made to sign documents by a woman of Asian appearance, with a short haircut, called Tanya. She had taken samples of the detainees' nails and hair, put them in envelopes and sent them for expert evaluation. After that the detainees had been taken in a Ural vehicle to the Avtozak and then to Chervleynaya, where all the men, except for Murad Gelayev and Mr Sul.S., had been detained until 20 March 2000. On the latter date the detainees had been transferred to the Chernokozovo detention centre from which the twelve residents of Gikalo had been released on 18 May 2000.

On 14 August 2006 the investigators again questioned another resident of Gikalo who had been detained on 27 February 2000, Mr U.V., who stated that he could not recall the details of his detention because as a result of the beatings to which he had been subjected in Chernokozovo and other detention centres he suffered from memory problems. On 5 November 2006 the investigators again questioned the witness, but the Government did not furnish a copy of this statement to the Court.

On 15 August 2006 the investigators requested the MVD of Russia to provide information about the officers from the Khanty-Mansiysk Region who had served on 27 February 2000 in the Oktyabrskiy VOVD.

On 15 August 2006 the investigators requested information from various detention centres in the Northern Caucasus concerning the detention of seven residents of Gikalo, including Murad Gelayev and the sixth applicant, who had been apprehended on 27 February 2000. The investigators also requested various prosecutors' offices in Chechnya to inform them whether they had initiated a criminal investigation against any of these residents of Gikalo. On 6 September 2006 the Chechnya Department of the Execution of Punishment replied that the six applicants and four other residents of Gikalo had been detained in detention centre IZ20/2 in Chernokozovo between 20 March and 18 May 2000 and that they had been released as a result of an amnesty. Murad Gelayev had not been detained in this prison. From the replies received from the prosecutors' offices, no criminal proceedings were pending against any of these men.

On 20 August 2006 the investigators questioned the applicants' neighbour Mr A.A., who stated that on the morning of 27 February 2000 a special operation had been carried out in Gikalo; as a result his neighbour Murad Gelayev and thirteen other village residents had been taken away. All of them except for Murad Gelayev and Mr Sul.S. had subsequently been released.

On 20 August 2006 the investigators questioned the applicants' neighbour Ms A.A., who stated that on 27 February 2000 a special operation had been conducted in their settlement, as a result of which Russian-speaking federal servicemen had arrested and taken away Murad Gelayev along with thirteen other residents of Gikalo. The witness stated that the second applicant had tried to prevent the soldiers taking away her son and that the servicemen had subjected her to a beating, as a result of which she had lost consciousness.

On 20 August 2006, and subsequently on 10 August 2009, the investigators questioned Mr Sh.Ts., who stated that on the morning of 27 February 2000 a group of about twelve to nineteen armed Russian military servicemen had arrived at this house on an APC. The soldiers had run an identity check and verified the passport information by calling someone via portable radio. Then they had taken him and his brother Mr V.Ts. in the APC to the Avtozak. In the vehicle he had found several of his fellow villagers, including Murad Gelayev. Then the detainees had been taken to the Oktyabrskiy VOVD. After their arrival at the police station the fourteen detainees had been taken from the vehicle one by one and beaten; then they had been taken to a basement and questioned. After that all the detainees save for Murad Gelayev and Mr Sul.S. had been taken to Khankala. The rest of the witness statement was identical to that given by Mr V.Ts. (see paragraph 57 above).

On 23 August 2006 the investigators questioned Ms Z.S., who stated that her brothers Mr Sa.S. and Mr Sul.S. had been abducted by Russian military servicemen on 27 February 2000 during a 'sweeping-up' operation. She further stated that her brothers had been detained for some time and that one of them, Mr Sa.S., had managed to return home at some point later. He had told her that after the abduction the brothers had been taken to the Oktyabrskiy VOVD, where Mr Sul.S. and Murad Gelayev had been subjected to torture, and that their ears had been cut off by the abductors.

On 23 August 2006 the investigators questioned the third applicant, whose statement about the events of 27 February 2000 and the subsequent development was similar to that given by Ms Z.S. In addition, the applicant stated that during the abduction the intruders had subjected her and the second applicant to insults and beatings and that as a result of it the second applicant had lost consciousness. She stated that she had not sought medical help after the events of 27 February 2000, but that her mother, the second applicant, had spent some time in hospital in Gikalo.

On 4 November 2006 the investigators questioned Mr S.-S.S., who stated that he had been taken away from home on 26 February 2000 by Russian federal servicemen who had been conducting a special operation in his village of Ulus-Kert, and that according to the information received by him from the residents of Gikalo, a similar special operation had been conducted in Gikalo on 27 February 2000 as a result of which two Gikalo residents had disappeared.

On 4 November 2006 the investigators questioned Mr L.G., who stated that on the morning of 27 February 2000 he had been taken away from home by servicemen from the OMON (the special police task force). He had been brought with other detained residents of Gikalo to the Oktyabrskiy VOVD where they had been beaten. According to the witness, at the VOVD he had been questioned by unidentified persons, one of whom had the rank of Major and had been of Asian appearance. The witness and other detainees, except for two young men from Gikalo, had been taken to Khankala. A day or two later they had been returned to the Oktyabrskiy VOVD, but the young men had not been there. The rest of the witness statement concerning his further detention is similar to those given by Mr V.Ts. and Mr Sh.Ts. (see paragraphs 57 and 63 above).

On 6 November 2006 the investigators questioned Mr Sh.Kha., who stated that in April 2000 he had been searching for his brother, who had been arrested in the Oktyabrskiy VOVD on 17 April 2000 and had subsequently disappeared. A few days after his brother's disappearance, the witness had had a conversation with the head of the criminal police department of the Oktyabrskiy VOVD, Mr R.Ya., who told him that “...I have got the right hand of Gelayev [a leader of illegal armed groups]” and suggested to the witness to have a look at the detainee. The witness had refused. He further stated that the police officers who had served in the Oktyabrskiy VOVD at the material time had been there on mission from the police department of the Khanty-Mansiysk Region. He submitted that currently [at the time of the questioning] the police officers who had been in charge of the Oktyabrskiy VOVD in February-April 2000 were working in various Russian cities and provided the investigators with information concerning their current ranks and positions, as well as their places of work.

On 25 November and 2 December 2007 the investigators questioned Mr Sa.S. and Ms L.Z., who stated that on the morning of 27 February 2000 two of their male relatives had been taken away from home by armed men in camouflage uniforms. The intruders had conducted an identity check, then put their two relatives in a lorry and taken them away to an unknown destination. Three months later one of them had returned home, whereas another one, Mr Sul.S., had disappeared.

On 2 December 2007 the investigators questioned Mr B.D., whose statement about the events was similar to those given by Mr Sa.S. and Ms L.Z.

On 3, 4 and 8 December 2007 the investigators questioned Mr R.G., Mr M.A., Ms Z.E., Ms L.D. and Mr I.E., all of whom provided similar statements to the effect that on the morning of 27 February 2000 Murad Gelayev and Mr Sul.S. had been abducted from their homes by armed masked men in camouflage uniforms, who had arrived in armoured military vehicles and conducted an identity check.

On 12 December 2007 the investigators conducted the crime scene examination at the household from which Murad Gelayev had been abducted on 27 February 2000. In that connection no evidence was collected from the scene.

On 5 September 2008 the investigators questioned Mr A.S., who stated that in March 2000 he had been abducted and taken to the Oktyabrskiy VOVD where he had been detained for 81 days and subjected to regular beatings. During his detention in the VOVD he had not seen Murad Gelayev.

On 17 September 2008 the investigators questioned Ms Kh.S., who stated that on 27 February 2000 her neighbour Murad Gelayev had been abducted by officers of law-enforcement agencies. According to the witness, the abductors had been armed and wearing camouflage uniforms; one of them had been of Slavic appearance, had two golden teeth and a short grey moustache. She and the second applicant had tried to stop the officers taking Murad away, but the abductors had started beating the women with rifle-butts. After that the officers had put Murad Gelayev in a military vehicle and taken him away. About fifteen other residents of Gikalo had been abducted around the same date; some of them had later returned home.

On 19, 25 February and 11 April 2009 the investigators questioned two operational-search officers of the Grozny ROVD, Mr M.L. and Mr K.M., and the head of the criminal search division of the Grozny ROVD, Mr V.K. All of the officers stated that according to the information received during the investigation of Murad Gelayev's abduction it had been established that in February 2000 local law-enforcement agencies had been taking steps to identify members of illegal armed groups and that after the abduction Murad Gelayev had been taken to the Oktyabrskiy VOVD.

On 11 March 2009 the Department of the Ministry of the Interior (the UVD) in the Khanty-Mansiysk Region replied to the investigators stating the following:

“... According to order ... no. 750, any information disclosing personal data of the police officers who are participating or participated in the carrying out of counterterrorist or special operations is a secret. Therefore, it is impossible to provide you with lists and photographs of the officers of the UVD of the KhantyMansiysk Region who were on service mission in Chechnya in February 2000.”

Between 21 May and 3 June 2009 the investigators questioned 22 former and acting officers of the UVD of the Khanty-Mansiysk Region who had been on mission in Chechnya in 2000 and had been serving in the Oktyabrskiy VOVD at the material time. All of the witnesses stated that they did not recall the details of their service in the Oktyabrskiy VOVD, that they had not participated in special operations and that they had not detained Murad Gelayev.

On 10 August 2009 the investigators questioned Mr Sh.Ts., who confirmed his previous statements (see paragraph 63 above) and added that after the abduction, in the basement of the Oktyabrskiy VOVD, he had seen Murad Gelayev and that his face had been covered in blood.

The Government submitted that the investigating authorities had sent a number of queries to various State bodies between 2005 and 2009 concerning the possible whereabouts of Murad Gelayev, his criminal record, discovery of his body, his detention in custodial institutions, medical treatment in hospitals and any criminal proceedings against him. As a result, a number of negative replies had been received and the whereabouts of the applicants' relative had not been established. The law enforcement authorities had never arrested or detained Murad Gelayev on criminal or administrative charges and had not carried out a criminal investigation concerning him. No special operations had been carried out against the applicants' relative.

According to the documents submitted by the Government, the investigation was suspended on eight occasions: on 13 September 2005, 28 September and 6 November 2006, 23 December 2007, 3 October 2008, 16 March, 6 May and 28 August 2009. Each decision to suspend the investigation was subsequently overruled by the supervising prosecutors as unlawful and premature. The prosecutors criticised the investigation and ordered that a number of necessary steps be taken. For example, such orders were given to the investigators on eight occasions: on 21 July and 6 October 2006, 23 November 2007, 3 September 2008, 16 February, 2 April, 28 July and 31 August 2009.

The Government further stated that even though the investigation had failed to establish the whereabouts of Murad Gelayev, it was still in progress and all measures envisaged under domestic law were being taken to solve the crime. The investigation had found no evidence to support the involvement of State servicemen in the abduction of Murad Gelayev.

Despite specific requests by the Court, the Government did not disclose the entire contents of the investigation file in criminal case no. 44065, providing only copies of “the main documents” from the file of up to 370 pages.

The applicants complained to the investigators about the illtreatment to which the second and fourth applicant had been subjected by the abductors (see paragraphs 32 and 65 above).

On 24 August 2006 the investigators decided to conduct a forensic medical examination of the second applicant. The text of the decision included the following:

“...The investigators questioned the mother of the disappeared Murad Gelayev- Amint Gelayeva [the second applicant], who stated that ... she had tried to stop the abductors from taking away her son, but she could not stop them as she had been hit several times on the head by a rifle-butt and as a result she had lost consciousness. Subsequently she had been treated at the outpatient department of the Gikalo hospital...

... [it is necessary] to put the following questions to the experts:

- Are there any injuries on the head and the body of A. Gelayeva and if so, how they could have been received, and what is their location, mechanism and the time of their origin?

-What is the degree of the injuries suffered [by the applicant]?

- How could these injuries have been caused?

- Was it possible for the injuries to be received under the above circumstances?”

On 10 October 2006 the investigators refused to initiate a criminal investigation into the applicants' complaints of ill-treatment by the abductors. The text of the decision included the following:

“... the investigators questioned Aminat Gelayeva [the second applicant], who stated that ... when she had attempted to prevent the abductors from taking away her son, the abductors had beaten her and her daughter Zarema [the third applicant], and had hit them several times with rifle butts, as a result of which she had lost consciousness. Subsequently she had been treated at the Gikalo hospital.

The investigators questioned Zarema Gelayeva [the third applicant], who stated that... she and her mother [the second applicant] had attempted to stop the abductors, but they had been subjected to beatings as a result of which her mother [the second applicant] had lost consciousness.

...According to the medical statement provided by the Gikalo hospital, on 27 February 2000 medical assistance had been provided to A. Gelayeva [the second applicant] as no [other] treatment had been possible at the time owing to the military actions...

... According to the forensic medical examination report no. 1086 of 4 October 2006... no bodily injuries or spots on the head or neck of A. Gelayeva [the second applicant] were found...

Thus, the investigation did not establish that A. Gelayeva had received bodily injuries...”

For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).


Violation of P1-1;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant is a limited partnership under liquidation, with its seat in Pécs.

In 1996 the Tax Authority established that the applicant owed some 10 million Hungarian forints (HUF) in outstanding taxes. To secure this claim, on 10 April 1997 it attached a 100%-share the applicant had in another company, which was nominally worth over HUF 103 million. Aware of the applicant’s own intention to sell the share by 30 June 1997, the Tax Authority forbade the transaction but did not proceed to auctioning it within the statutory two-month deadline or afterwards.

In the ensuing two-year-long administrative procedure, the applicant’s tax debt was eventually cancelled and the asset unfrozen. However, by that time the company in which the share belonged had been liquidated – as of July 1997 – and the share had lost its value altogether.

Some time in 1999 the applicant sued the Tax Authority for damages. On 12 December 2000 the Baranya County Regional Court awarded it HUF 103 million. On 13 June 2002 the Supreme Court quashed this decision. On 3 June 2003 the Regional Court again found for the plaintiff.

On appeal, on 6 May 2004 the Pécs Court of Appeal reversed this judgment and rejected the applicant’s action. It held in essence that there had been no causal link between the Tax Authority’s unlawful omission to hold an auction to sell the attached asset within two months from its attachment, as required by section 116(1) of the Enforcement Act 1994, and the damage the plaintiff had sustained. In the court’s view, the burden of proof to show that had there been a timely auction the share could have successfully been sold to a buyer with the requisite liquidity lay with the applicant. However, the applicant could not prove this assertion. The court observed that the buyer suggested by the applicant had never had, according to its books, the capital needed for the acquisition; that the company in which the share belonged had lost all its own capital by early 1997 and been in liquidation as of July 1997; and that its manager had been convicted of fraudulent bankruptcy.

On 16 March 2005 the Supreme Court dismissed the applicant’s petition for review. This decision was served on 22 April 2005. The applicant’s request for a re-opening was to no avail.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He is represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The respondent Government are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 April 2003 the applicant was attacked in his home in the village of Chernogor by two individuals who beat him with a baseball bat, took his money and ran away. He lost consciousness and suffered four fractured ribs and injuries to his chest and lungs.

The police were immediately called to the scene but failed to apprehend the attackers. A preliminary investigation was then opened and, on an unspecified date, two suspects were arrested.

On 14 April 2003 the applicant filed a request with the investigating authorities under Article 60 of the Code of Criminal Procedure of 1974 to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of 50,000 Bulgarian levs (25,565 euros).

On 16 May 2003 the assailants were charged with burglary and theft.

On 20 June 2003 the prosecuting authorities and the assailants concluded a plea-bargain agreement which was approved by the Tutrakan District Court on 25 June 2003. Under the terms of the agreement, the assailants pled guilty to burglary and theft and were sentenced to three years' imprisonment, suspended for five years. The court did not examine the applicant's civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way.

At the relevant time, the victim of any tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor, which would then be stayed awaiting the outcome of the pending criminal proceedings (Article 182 § 1 (d) of the Code of Civil Procedure of 1952), or to file a civil claim for damages in the context of the criminal proceedings instituted by the prosecuting authorities (Articles 6064 of the Code of Criminal Procedure of 1974). In the latter case, the civil claim was examined together with the offender's culpability but could not be a reason for delaying the criminal case as such (Article 64 §§ 1 and 2 of the Code of Criminal Procedure of 1974). If the criminal proceedings were terminated, the civil claim was not to be examined but could be submitted to the civil courts (Article 64 § 3 of the Code of Criminal Procedure of 1974).

Prior to 3 June 2003 a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened. Subsequently, it could only be filed once the case had been brought to trial. However, civil claims that had been filed before the amendment entered into force were to be examined under the old procedure (paragraph 142 of the transitory provisions to the Act amending the Code of Criminal Procedure of 1974).

In a decision of 16 December 2004 (реш. № 7 от 16 декември 2004 г. по конституционно дело № 6 от 2004 г., обн., ДВ, бр. 112/2004 г.) the Constitutional Court held that the amendment of 3 June 2003 struck a fair balance between victims' rights and the public interest in more efficient, faster, and yet fair criminal proceedings. It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings. It further emphasised that victims were entitled to bring an action before civil courts at any time.

At the relevant time, a plea-bargain agreement could be concluded after the preliminary investigation had been finished (Article 414g § 1 of the Code of Criminal Procedure of 1974).

If pecuniary damage had been caused by the offence, an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim (Article 414g § 3 of the Code of Criminal Procedure of 1974).

A plea-bargain agreement was subject to approval by the domestic court, which would then conclude the criminal proceeding with a decision. The decision had the force of a final judgment and was not subject to appeal (Article 414i § 1 and Article 414h § 10 of the Code of Criminal Procedure of 1974).


The applicant, Mr Abdullah Çiftçi, is a Turkish national who was born in 1955 and lives in Ankara. He was represented before the Court by Mr H. Solhan, a lawyer practising in Ankara.

In a letter of 26 July 2000 to the Religious Affairs Department (“the Department”) the applicant complained that under domestic legislation, anyone attending Koranic study classes had to be at least twelve years old (at the material time that was the normal primary-school leaving age). As his son did not satisfy that requirement, the applicant requested dispensation to enrol him in religious-study classes of that kind. In his letter the applicant also referred to Articles 9 and 14 of the Convention.

In a letter of 1 August 2000 the Department replied that section 3 of Law no. 4415 required students enrolling in such classes to have obtained the primary-school leaving certificate and refused the applicant's request.

Section 3 of Law no. 4415, supplementing the Religious Affairs Department (Establishment and Functions) Act (Law no. 633), provides:

“The Religious Affairs Department shall afford those wishing to learn about the Koran and its interpretation and to increase their knowledge of religion the opportunity to attend Koranic study classes, outside the compulsory religious-education lessons at primary and secondary schools, provided that they have obtained the primary-school leaving certificate. ...”


CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant was born in 1949 and lives in Štip.

On 11 November 1996 the applicant, a farmer who reared cows, concluded an insurance agreement (полиса за осигурување) (“the agreement”) with an insurance company (“the defendant”) against a risk of the cows' death under which the latter would be liable to pay the damage, irrespective of the time of the death, if it was caused by reasons other than illness. On 23 November 1996 one of the applicant's cows died. Since the defendant refused to pay for the loss, on 30 January 1997 the applicant brought a claim against the defendant before the Štip Court of First Instance (“the first-instance court”).

On 1 March 1997 the trial judge's wife was employed with the defendant as an assistant to the manager of its branch office.

On 30 January 1998 the first-instance court dismissed the applicant's claim.

The applicant appealed, arguing, amongst other things, that the first-instance court had arbitrarily given weight to evidence in favour of the defendant and that it had refused to examine witnesses as to the cause of death.

On 17 June 1998 the Štip Court of Appeal quashed the court of first instance's decision, instructing it to hear evidence from the vet who had examined the cow in order to determine the cause of the death.

On 28 March 2000 the first-instance court dismissed the applicant's claim, reiterating its earlier findings.

On 20 June 2000 the applicant appealed, arguing that he had never received a copy of the general terms of the contract, and that the cause of death had not been properly established. He also contended that that judge was biased since his wife had started working with the defendant just after the proceedings had started. He asked for the trial judge to be removed if the Court of Appeal were to quash the lower court's decision and remit the case

On 27 November 2000 the Court of Appeal dismissed the applicant's appeal, finding no grounds to depart from the established facts and the reasons given by the lower court. It did not make any comments on the applicant's allegations that the trial judge was biased.

The decision was served on the applicant on 24 April 2001.

The relevant provisions of the then Civil Proceedings Act (Закон за парничната постапка) provided as follows:

“A judge or a lay-judge cannot perform his/ her judicial function if:

he/ she is a party, a statutory representative or a counsel of a party...;

he/ she is permanently or temporary employed by a party to the proceedings;

the party or its counsel is his/ her relative...;

he/ she is a custodian, an adoptive parent, an adoptive child ...of a party;

he/ she participated in the rendering of any decision by a lower court or another body; and

there are other grounds which cast doubts to his/her impartiality.”

Section 66 § 2

“A judge who considers that there are other grounds which put his/her impartiality under doubt should give notice to the President of the court who will decide on his/her exclusion.”

Section 67 §§ 1, 2, 4

“The parties may also challenge the participation of a judge. The party concerned is obliged to challenge (изземање) a trial judge or a lay-judge as soon as it learns about it, but not later than the end of the trial before the first-instance court i.e. until the adoption of the decision. The party concerned is obliged to provide the reasons for challenging a judge's ability to sit in a case.”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant, Ms Klaziena Wilhelmina de Haan, is a Netherlands national born in 1966 and resident in Oude Pekela.

She worked at a dry cleaner’s from 1987. In the spring of 1989 she started to develop physical complaints which caused her to take sick-leave for months at a time. It was alleged that these complaints were caused by chemical substances used in dry cleaning.

While she was not at work the applicant enjoyed sick-pay from the Occupational Association for the Chemical Industry (Bedrijfsvereniging voor de Chemische Industrie) under the Health Insurance Act (ziektewet).

By a letter of 14 May 1990 the Occupational Association for the Chemical Industry informed the applicant that according to the information at their disposal she was no longer unfit for work, and that accordingly her entitlement to sick-pay would be terminated with retrospective effect from 10 May.

The applicant lodged an appeal with the Groningen Appeals Tribunal (Raad van Beroep) on 22 May 1990. On 20 June she filed an additional statement setting out her grounds of appeal.

The Appeals Tribunal followed the simplified procedure known as the permanent-medical-expert procedure (vaste deskundige procedure – see paragraphs 25–28 below).

On 17 August 1990 the applicant was examined by a permanent medical expert (vaste deskundige) attached to the Appeals Tribunal – a general practitioner.

On 11 September 1990 the acting president of the Appeals Tribunal, Judge S., dismissed the appeal.

This decision, which was typed on a pre-printed form, contained the following reasoning:

“In his opinion, which was received at the registry of the Appeals Tribunal on 6 September 1990, the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ...

The Appeals Tribunal considers that it should accept this opinion.

In view of this opinion, as well as the other documents contained in the case file, it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant’s sick-pay.”

On 26 September 1990 the applicant filed an objection (verzet). This caused the decision of the president to lapse provisionally (section 142 (3) of the Appeals Act – see paragraph 29 below).

She filed a statement of the grounds on which her objection was based on 19 November 1990. The grounds of her objection went to the merits of the case.

The applicant received an invitation to take part in a hearing set for 8 August 1991.

By a letter of 24 July addressed to Judge S., the applicant’s lawyer stated that he had learnt that Judge S. would officiate as president of the Chamber of the Appeals Tribunal constituted to hear the case and announced his intention of challenging him.

At the hearing the applicant’s lawyer submitted a written note dated the day before requesting that Judge S. withdraw and, in the alternative, challenging him. It was not alleged that Judge S. was subjectively biased, but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier, based on evidence contained in the case file.

The Chamber of the Appeals Tribunal withdrew to consider the applicant’s challenge in camera. The discussion was presided over by a judge who was not a member of the Chamber (section 62 of the Appeals Act – see paragraph 33 below).

Judge S. did not withdraw. It was decided to reject the challenge, pursuant to the internal policy of the Groningen Appeals Tribunal (see paragraph 34 below).

The Chamber of the Appeals Tribunal thereafter resumed the hearing in the same composition.

On 21 August 1991 the Appeals Tribunal held the objection to be unfounded.

The applicant filed a further appeal (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep) on 6 September 1991.

Relying specifically on Article 6 of the Convention, she complained about the rejection by the Appeals Tribunal of her challenge of Judge S., stating that the latter had lacked objective impartiality. She asked that the case be referred back to the Appeals Tribunal for a rehearing (see paragraph 36 below) under the presidency of a different judge.

As an alternative submission, she asked that her entitlement to sick-pay after 10 May 1990 be recognised.

The Central Appeals Tribunal rejected the applicant’s further appeal on 26 April 1993.

In so far as its judgment concerned the applicant’s challenge of Judge S., it referred to another judgment delivered the same day in which the same problem of functional impartiality was addressed.

That judgment contained the following reasoning:

“The Central Appeals Tribunal construes the [relevant] case-law of the European Court of Human Rights ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [hoofdgeding] has been involved in preparatory decisions which were independent in nature and had a purport of their own, and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general cannot be reconsidered when the main issue is dealt with.

The procedure according to the Appeals Act, as called into question by the applicant, concerns a judge who, within a single instance on appeal, within the framework of continuous judicial construction [rechtsvinding] in the stage before as well as after the objection, which, if filed in due time, causes the preceding decision to lapse in accordance with section 129 [of the Appeals Act], is involved in a decision with the same purport, given in relation to the same legal question and on the basis of the same standards.

In view of these essential differences the Central Appeals Tribunal is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above-mentioned case-law of the European Court of Human Rights. The Central Appeals Tribunal will not address the question whether the Court’s case-law, which has been formed in the field of criminal law, may be transposed to other fields of law without further ado.”

The following is a rendering of the relevant domestic law and practice at the time of the events complained of.

The Health Insurance Act sets up an insurance scheme which is compulsory for all employees (section 20). Under this scheme, an employee has a right to sick-pay in the event of inability to perform his or her work due to illness, pregnancy or disability (section 19). In the event of illness or disability the employee may receive sick-pay for a period of up to fifty-two weeks (section 29 (2)). Provision for illness or disability continuing beyond this period was made under a different Act, the Occupational Disability Insurance Act (Wet op de arbeidsongeschiktheidsverzekering), which is not relevant to the present case.

Pursuant to section 2 of the Social Security (Organisation) Act (Organisatiewet sociale verzekeringen) it falls to the occupational associations to implement certain social-security legislation, including the Health Insurance Act.

One occupational association exists for each of the various sectors of economic life. An occupational association is an association (vereniging) under private law set up by employers’ and employees’ organisations considered by the Minister of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be sufficiently representative of the sector concerned; its purpose is defined as being to implement the relevant social-security legislation, it must be a non-profit-making body and its statutes must satisfy certain requirements (section 4 (1) of the Social Security (Organisation) Act).

An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs (section 7 (1) of the Social Security (Organisation) Act).

The Appeals Tribunals – which have in the meanwhile been abolished (see paragraph 38 below) – were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation, including the Health Insurance Act (at the relevant time, section 75 of the Health Insurance Act).

A Chamber of an Appeals Tribunal comprised three members. Its president was always a judge appointed for life: the president of the Appeals Tribunal concerned or a vice-president or acting president (sections 5 and 116 (1) of the Appeals Act). The other two members were appointed for six years by the Minister of Justice, from lists of persons put forward by organisations of employers and employees (sections 9 and 10).

In addition, every Appeals Tribunal had a number of permanent medical experts at its disposal. These were physicians (section 131 of the Appeals Act). They were appointed for one year at a time by the Minister of Justice (section 132 (1)). Upon appointment, they swore that they would report according to their conscience (section 133). They were not allowed to be connected to any organisation concerned with social-security matters, or to act as permanent medical experts in cases in which they had previously been involved in another capacity (section 134).

In the event of a dispute between an occupational association and an employee with regard to the latter’s fitness for work, the permanent-medical-expert procedure provided for by the Appeals Act was followed (section 75 (2) of the Health Insurance Act).

When an appeal was lodged against a decision of an occupational association concerning an employee’s fitness for work, the president of the Appeals Tribunal appointed a permanent medical expert (section 135 of the Appeals Act). The registry of the Appeals Tribunal informed the occupational association in question of the lodging of the appeal; the occupational association was then required to submit the relevant documents in its possession, normally within three days (section 136). These were included in the case file, which was then forwarded to the permanent medical expert.

The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant, unless it appeared from the case file that their opinions corresponded to his own; he also examined the appellant (section 137).

He then drew up an opinion which he submitted to the president of the Appeals Tribunal (section 140).

The president of the Appeals Tribunal, or an acting president as the case might be, gave a reasoned decision which was pronounced in public (section 141).

Both the appellant and the occupational association could file an objection with the Appeals Tribunal against the decision of the president (section 142 (2) of the Appeals Act).

As a consequence of the filing of such an objection, the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded (section 142 (3)).

Before the Court’s judgment in the case of Feldbrugge v. the Netherlands (judgment of 29 May 1986, Series A no. 99), such an objection could only be based on certain formal grounds (ibid., p. 10, § 19).

After that judgment the presidents of the Appeals Tribunals established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired (Nederlands Juristenblad – Netherlands Law Review – 1986, p. 869).

The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal (section 142 (2) and (6)).

A decision dismissing the objection had to be reasoned (section 142 (7)).

Pursuant to section 61 (1) of the Appeals Act, a party to proceedings before an Appeals Tribunal was entitled to challenge a member of the Chamber called upon to hear the case “on the ground of facts or circumstances which might prevent [the member concerned from forming] an impartial opinion” (die een onpartijdig oordeel zouden kunnen belemmeren). A member of the Chamber was entitled to withdraw for the same reason (section 61 (2)).

After a hearing of the party concerned, the challenge was decided on in camera by the other members of the Chamber, chaired by the president of the Appeals Tribunal or his or her deputy. No appeal lay against the ensuing decision (section 62 (1) of the Appeals Act).

It appears from the decision in the present case (see paragraph 15 above) that the Groningen Appeals Tribunal had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible.

The Central Appeals Tribunal was, and is, composed entirely of judges appointed for life (section 32 of the Appeals Act). At the relevant time it always sat in Chambers of three (section 39). Its hearings are public (section 64).

A further appeal against the decision or judgment of an Appeals Tribunal lay to the Central Appeals Tribunal, unless the law provided otherwise (section 145 of the Appeals Act).

The procedure normally involved a complete re-examination of the case, including a hearing (section 148). The Central Appeals Tribunal could confirm the decision of the Appeals Tribunal, with different reasoning if necessary, or do what the Appeals Tribunal ought to have done (section 149); it could also refer the case back to the Appeals Tribunal if it saw fit (section 150).

However, according to section 75 (2) of the Health Insurance Act, no appeal lay against a decision given by an Appeals Tribunal in objection proceedings such as those in issue.

In its judgment of 24 July 1958 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports, RSV) 1958, no. 102) the Central Appeals Tribunal nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed, if incorrect standards had been applied, or to the extent that the decision appealed against was unreasonable.

The General Administrative Law Act entered into force on 1 January 1994.

It replaced the Appeals Tribunals by administrative-law divisions of the Regional Courts (arrondissementsrechtbanken).

An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection (bezwaarschrift) to that body (section 7:1 of the Administrative Law Act).

An appeal lies to the Regional Court (section 8:1). The Regional Court may appoint a medical expert to examine the appellant (section 8:47 (1)). It must hold a hearing, unless the parties to the case waive their right to be heard (sections 8:56 and 8:57).

A further appeal lies to the Central Appeals Tribunal (section 18 of the Appeals Act, as amended). The restrictions set out in paragraph 37 above no longer apply.


Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

In April 1970 the applicant, then aged 21, was convicted of manslaughter, qualified as such on the grounds of diminished responsibility, and sentenced to life imprisonment. Medical evidence adduced at the trial showed that the applicant suffered from a mental abnormality induced by alcohol.

On 27 July 1993 the applicant was released on life licence for the third time subject to the condition, amongst others, that he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem. He had been recalled to prison twice previously and had since been transferred to open prison conditions in 1989.

On 1 July 1996 the police were called to the home of the applicant's partner, M., who is a deaf mute. She was taken to hospital where she received treatment for injuries to her face and back.

On 2 July 1996 the Secretary of State revoked the applicant's licence and recalled him to prison. By a letter dated 4 July 1996, the Secretary of State indicated that the licence was revoked on the grounds that the applicant had caused M.'s injuries after drinking at least eight cans of lager. This was so stated in the report by the applicant's probation officer who had met with M. on 2 July 1996. The case was referred to the Parole Board which confirmed the revocation of the applicant's licence on 12 July 1996.

On 8 November 1996 the Parole Board's Discretionary Lifer Panel (“the DLP”), chaired by a High Court judge, met to consider the applicant's representations against recall. It considered the applicant's written and oral representations, the views of two probation officers, the oral evidence of M. and the submissions of the applicant's solicitor and counsel for the Secretary of State.

In her oral evidence M. gave evidence to the effect that it had been she and not the applicant who had been responsible for her injuries. A prison officer, who had attained a stage 1 British Sign Language qualification and was training towards stage 2, attended the hearing and acted as interpreter for M.

In its written decision of 12 November 1996 the DLP stated, in its reasons for rejecting the applicant's representations, that it had accepted the evidence which indicated that the applicant had been responsible for M.'s injuries, rather than the account put forward on behalf of the applicant. It expressed the opinion that, in order to minimise the risk posed by the applicant to members of the public, the applicant needed to carry out further work in respect of alcohol, anger and relationships. This was communicated to the applicant in a letter dated 15 November 1996 by the Secretary of State, who informed the applicant that his next Parole Board review was set for November 1998.

The applicant and M. married in prison on 6 February 1997.

The applicant applied for legal aid to challenge the DLP's decision by judicial review. On appeal, legal aid was granted for the limited purpose of seeking further evidence and counsel's opinion. On 15 March 1997, counsel advised that an application for judicial review would be unsuccessful and legal aid was not extended.

While in prison, the applicant attended courses in anger management, relationships, alcohol awareness and men and violence run by the Manchester Probation Service. These had been completed within eight months of his recall.

On 7 December 1998 the applicant had a further hearing before the DLP. Despite expressing some reservations, the DLP concluded that the applicant had made significant and sufficient progress since his previous review and recommended to the Secretary of State that he be released on licence. The applicant was released on 17 December 1998.

Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty's pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. (The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”) from 1 October 1997.)

Section 39 of the 1991 Act allowed the Secretary of State to revoke a discretionary life prisoner's licence where it appeared to be expedient in the public interest to recall him to prison. Once recalled, the prisoner had to be informed of the reasons for his recall and could make representations in writing.

According to section 32(2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners.

The Parole Board's chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the DLP. The DLP always held an oral hearing when considering whether to release a discretionary life prisoner whose tariff had expired or whether to recall a discretionary life prisoner whose licence had been revoked. It was the duty of the Secretary of State to release the prisoner if the DLP directed his release.

According to the Parole Board Rules 1992, which came into force on 1 October 1992, a prisoner was entitled, among other things, to an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing.

When deciding under section 39 that recall should be confirmed, the DLP often gave guidance as to the timing of the next review. It normally recommended a further review in two years but an earlier date could be given in appropriate cases, with reasons. Where no guidance was given, the Secretary of State decided the date of the next review. Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date, the date of the review could be brought forward.

A discretionary life prisoner may request the Secretary of State to refer his case to the Parole Board after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34(5)(b) of the 1991 Act, now section 28(7)(b) of the 1997 Act).


BAJRAKTAROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant, Mr Risto Bajraktarov, is a Macedonian national who was born in 1937 and lives in Štip. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 April 1984 the Štip Municipal Court convicted the applicant of several offences and sentenced him to seven years and one month’s imprisonment. The court also ordered confiscation of the proceeds gained by the applicant from the offences (“the confiscation order”).

On 20 December 1988 the then Federal Court of Yugoslavia partly quashed the lower court’s decision since the statutory rules on time-barred prosecutions had been wrongly applied.

On 5 October 1989 the Štip Municipal Court stayed the criminal proceedings against the applicant. It did so because the public prosecutor had withdrawn the charges as the prosecution had become time-barred. It also ordered restoration of the confiscated funds to the applicant (“the restoration order”). This decision became final on 24 October 1989.

On 17 December 1990 the Štip Municipal Court partly upheld a request by the applicant for enforcement of the restoration order. It ordered restoration of the confiscated funds, but refused to award interest because no provision for interest had been stipulated in the restoration order. The court also found that the confiscated funds had been transferred to the Municipality of Štip (“the Municipality”) and ultimately to the then Štip Secretariat of the Interior. An appeal by the Municipality was finally dismissed by a court decision of 20 February 1991. The confiscated funds were actually restored to the applicant on 12 April 1993.

On 21 October 1991 the applicant brought a civil action against the Municipality and the State claiming interest on the funds. He claimed interest for the period between the actual confiscation of the funds and their restoration.

On 8 April 1993 the Štip Municipal Court rejected the applicant’s claim as premature. It established that on 17 May 1990 the applicant had sought compensation for wrongful conviction before the then Skopje Secretariat for Justice and Administration (“the Secretariat”) only in respect of his earnings and other rights deriving from his employment, but that he had not claimed interest on the confiscated funds. On 19 August 1993 the Štip District Court upheld that decision.

On 8 February 1994 the Supreme Court allowed an appeal by the applicant on points of law and quashed the lower courts’ decisions. It found that his claim should not be regarded as a request for compensation for wrongful conviction and that, accordingly, he had not been required to apply to the relevant Ministry.

On 12 May 1994 the Štip Municipal Court ruled partly in favour of the applicant, allowing his claim only in respect of unpaid interest on the national-currency funds. It dismissed his claim for statutory interest on the foreign-currency funds. It further established that the foreign currency funds had actually been restored to the applicant on 12 April 1993.

On 30 November 1994 the Štip District Court partly upheld the lower court’s decision and remitted the dismissed part for reconsideration.

On 26 September 1995 the Supreme Court granted a request by the public prosecutor for the protection of legality (барање за заштита на законитоста) and quashed the lower courts’ decisions. It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds.

On 15 December 1995 the Štip Municipal Court, after having obtained an expert report, upheld the applicant’s claim and ordered the Municipality and the State to pay him interest on the confiscated funds.

On 7 March 1996 the applicant requested the Štip Court of First Instance to enforce that decision. On 8 July 1996 the latter ordered the Public Payment Office (Завод за Платен Промет) to transfer the award to the applicant’s account.

On 14 May 1997 the Supreme Court quashed the lower courts’ decisions and ordered a retrial. It found that they had incorrectly applied the civil-law rules on compensation instead of the provisions of the Criminal Proceedings Act concerning wrongful convictions.

On 23 June 1998 the Štip Court of First Instance dismissed the applicant’s claim in respect of the Municipality and declared it inadmissible in respect of the State. The court found that the applicant had failed to submit his claim to the Secretariat and that, accordingly, he had not been entitled to claim compensation on that ground in the civil proceedings.

On 24 November 1998 the Štip Court of Appeal allowed an appeal by the applicant and remitted the case for re-examination.

On 30 June 1999 the Štip Court of First Instance dismissed the applicant’s claim. It found that the Federal Court of Yugoslavia had not pardoned the applicant or overturned his conviction on the merits, but had quashed it solely because of the time bar. The court therefore concluded that the applicant had not been wrongly convicted and that, consequently, the State had not been liable to pay any damages.

On 14 February 2000 the Štip Appeal Court allowed an appeal by the applicant and ordered a retrial. It held that his claim should not be considered under the rules for wrongful conviction, but as a civil compensation claim.

On 18 April 2000 the President of the Štip Court of First Instance refused a request by the applicant for exclusion of the judge sitting in his case.

On 23 May 2000 the Štip Court of First Instance dismissed the applicant’s claim. It established that the applicant’s compensation claim for interest in respect of his wrongful conviction had been submitted to the Secretariat out of time. It held, inter alia, as follows:

“... the court finds that the applicant’s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds, as a security measure issued within the criminal proceedings, the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section 542(1) of the Criminal Proceedings Act, a plaintiff [the applicant] can claim compensation before the authorised State body and is entitled to receive compensation within three years of the date on which a decision staying the proceedings becomes final. In the instant case the decision of 5 October 1989, by which the criminal proceedings ... were stayed, was served on the applicant on 20 October 1989 and became final on 24 October 1989. On 7 September 1993 the plaintiff submitted his claim for unpaid interest on the confiscated funds to the Secretariat for Justice and Administration. On 30 September 1993 the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction. It transpires that the deadline for the plaintiff’s claim was 24 October 1992. The application lodged on 7 September 1993 was therefore time-barred ...”

The court further found that the funds had been confiscated in lawful judicial proceedings. The Federal Court of Yugoslavia had neither pardoned the applicant nor found substantial procedural deficiencies. It had quashed the applicant’s conviction merely because of the time bar. The court therefore went on to conclude that the State could not be held liable for damage sustained by the applicant. On 13 November 2000 the Štip Court of Appeal dismissed an appeal by the applicant in which he had, inter alia, expressed doubts about the impartiality of the first-instance court judge.

In December 2000 the applicant lodged an appeal with the Supreme Court in which he restated his arguments that his claim should be considered under the civil-law rules on compensation.

On 6 March 2001 the public prosecutor submitted observations to the Supreme Court supporting in part the applicant’s appeal related to his claim against the State. It stated that interest should be calculated as of the day when the restoration order had become final until restoration actually occurred.

On 29 November 2001 the Supreme Court dismissed the appeal by the applicant on points of law and upheld the lower courts’ findings that the damage had derived from the criminal proceedings and that, accordingly, compensation should have been sought under the rules related to wrongful conviction. This decision was served on the applicant on 27 February 2002.


The applicant is a British national, born in 1951 and living in London.

He is represented before the Court by Mr N.S. Ahluwalia, a lawyer practising in London.

A.

The facts of the case, as submitted by the parties, may be summarised as follows.

I. Recourse No. 633/95 before the Supreme Court

On 12 July 1995 the applicant applied to the Supreme Court of Cyprus for a declaration that Cyprus Airways and the Government, the major shareholder of that company, had breached the Constitution in refusing to employ him and employing others instead (recourse No. 633/95).

On 10 April 1997 the applicant asked the Chief Registrar of the Supreme Court whether legal aid was available for actions alleging infringement of constitutional rights, such as recourse No. 633/95. On the same date the Chief Registrar informed the applicant that “legal aid is not available for civil cases”.

The applicant represented himself in the proceedings.

On 19 September 1997 the Supreme Court rejected the applicant’s recourse as inadmissible. The court found that Cyprus Airways was in every respect a private company. As a result, its decisions did not fall within the ambit of Article 146 of the Constitution. The refusal to employ the applicant was, therefore, wrongly challenged by means of a recourse to the Supreme Court.

II. Case No. 5807/95 before the Nicosia District Court

In 1993 the applicant instituted proceedings before the Supreme Court seeking the annulment of the Ministry of Labour's decision to issue work permits to six foreign pilots employed by EuroCypria Airlines, a subsidiary of Cyprus Airways (case No. 701/93). On 19 April 1995 the Supreme Court found in favour of the applicant.

Relying on the above decision, the applicant instituted proceedings before the Nicosia District Court for damages against the Government (case No. 5807/95). He was represented by counsel who acted on a “no fee” basis. On 26 June 1998 the court rejected the action.

The applicant’s counsel lodged an appeal. The proceedings are still pending.

III. Case No. 1676/94 before the Larnaca District Court

On 29 August 1993 the newspaper Alithia published a letter by EuroCypria Airlines worded as follows:

“With reference to your article in connection with Charalambos Nicholas, we confirm once again that our intention is to ‘Cypriotise’ [give priority to Cypriot employees] as soon as possible. Within the bounds of safety and operations of the company, for us to achieve this aim, the recruitment of suitable, qualified pilots is an absolute necessity. … We have offered employment without exception to each and every qualified suitable Cypriot pilot who has applied and today we employ eight such pilots … . The recruitment of ab initio Cypriot pilots has already commenced and we will continue this policy until all the foreigners in our company are replaced. With regard to Mr Nicholas's specific case, the reasons he was not selected are known to both himself and the Government agencies concerned through correspondence dating from 1991. As for the rest it is against our policy to discuss individual cases in the press”.

On 11 May 1994 the applicant instituted proceedings for defamation against EuroCypria Airlines before the Larnaca District Court (Case No. 1676/94). He alleged that it transpired from the publication in question that

(a) he was an unqualified and inexperienced pilot and not suitable to fly aircrafts,

(b) he was so incompetent and/or had such disadvantages as a person and as a professional so as to jeopardise the safety of the flights and the operation of the company, or any other airline company,

(c) he was not selected for employment, not because there were other persons more qualified than him, but because he was totally useless and/or incompetent and/or an ignorant professional pilot and

(d) he was generally a dangerous and suspicious person and could not be trusted.

The applicant applied for damages and an injunction preventing the defendants from continuing to publish defamatory statements. The applicant was represented by counsel.

A hearing was fixed for 16 February 1996. On that date the applicant failed to appear and the court dismissed the action.

On 21 May 1996 the applicant’s counsel asked for the reinstatement of the action. On 27 June 1996 the action was reinstated. A hearing was fixed for 27 November 1996. It was adjourned on several occasions.

On 27 August 1997 the applicant informed his lawyer, Mr K, that he did not exclude the possibility of engaging the services of another lawyer. On 1 September 1997 Mr K informed the applicant that he was no longer able to represent him. The lawyer invited the applicant to collect the file so he could prepare his case himself. He stated that “no fees (were) expected to be paid by (the applicant)”.

After Mr K’s withdrawal the applicant sent a number of faxes to the court’s registry asking for the case to be adjourned. On 20 November 1997 Mr E, in whose chambers Mr K used to work, appeared before the court on behalf of the applicant and asked for an adjournment. The court adjourned the hearing of the case until 27 February 1998.

On 27 February 1998 none of the parties appeared and the court dismissed the action.

On 1 July 1999 Mr E wrote a letter to the applicant’s representatives before the Court to the effect that his firm had agreed to represent the applicant “on a no fee basis”, that Mr K had withdrawn from the case because he had been appointed a judge and that the case “had a very good chance of success if handled properly”.

B. Relevant domestic law

The law on defamation in Cyprus is found in sections 17 to 24 of the Civil Wrongs Law. The following principles transpire from the case-law:

“In accordance with the principles of legal interpretation applied in England, expressions used in (the Civil Wrongs Law) shall be presumed so far as they are consistent with their context and except as may be otherwise expressly provided to be used with the meaning attaching to them in English Law and shall be construed in accordance therewith. … Time and again it was said that the gist of the torts of libel and slander is the publication of words conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession or to injure his financial credit. The standard of opinion is that of right-thinking persons generally.” (Supreme Court of Cyprus in Paniccos Agathangelou v. S. Mousoulides and Sons, (1980) 1 CLR pp. 272 and 277)

“The meaning of words in a libel case is not a matter of construction as a lawyer construes a contract. It is a matter of the impression an ordinary person gets on a first reading not on a later analysis.” (Lewis v. Daily Telegraph Ltd. (1963) 2 All E.R. p. 151)

“An innuendo properly so called which is an allegation that words were used in a defamatory sense other than their ordinary meaning and which provides a separate cause of action must be supported by extrinsic facts or matters and cannot be found only on interpretation, because if the words bear the interpretation imputed to them they are defamatory in their natural and ordinary meaning.” (Grubb v. Bristol United Press Ltd. (1962) 2 All E.R. p. 380)

According to a letter addressed to the applicant by the Cyprus High Commission on 9 June 1997, the Law Office of the Republic confirmed that “legal aid (was) not available in civil cases. Despite the fact that Article 30.3(d) of (the) Constitution provides that every person has the right to have free legal assistance where the interests of justice so require and as provided by law, such a law has not as yet been introduced”.