Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

The applicant, Mrs Björk Eiðsdóttir, is an Icelandic national who was born in 1974 and lives in Reykjavík. At the material time she worked as a journalist for Vikan, a weekly magazine.

In 2007 there was a public debate in the print and televised media in Iceland on whether the regulations pertaining to strip clubs should be made stricter or whether such clubs should be banned. In June 2007 a magazine named Ísafold published an article discussing the links between such clubs and prostitution. It maintained that the conditions of strip club dancers originating from eastern Europe could be compared to human trafficking as defined in the relevant United Nations instruments.

Subsequently, Vikan published in its issue no. 31 interviews with three east European women who worked at a strip club called Goldfinger owned by Mr Y. They had stated that they were happy working for Mr Y and that the critical remarks made about strip clubs could only be explained by the envy of certain other women. In the same issue, Vikan published the interviews of two anonymous strip dancers who described negative aspects of their jobs, namely that it was accompanied by prostitution and drug addiction.

Thereafter Vikan was contacted by a young Icelandic woman, Mrs Z, who offered to tell her story. She was a former strip dancer who had worked at several strip clubs and had worked for Mr Y. She said that she had felt offended at seeing strip dancing being portrayed as a glamorous career. Mrs Z met the applicant for an interview, which the applicant tape recorded and then typed up on the basis of the recording. The applicant sent the typed version to Mrs Z by e-mail for confirmation and consent to publish the story. Mrs Z responded in the affirmative.

On 23 August 2007 Vikan published in its issue no. 34 an article based on the interview conducted by the applicant with Mrs Z. An introduction referred to the above-mentioned coverage in issue no. 31. In the interview, Mrs Z described her work as a striptease dancer in various establishments, notably at Goldfinger owned Mr Y. The article, which had a number of sub-headings, comprised, inter alia, Mrs Z’s description of prostitution which she was reported to have said went on unhindered in these establishments, for example at Goldfinger; her drug addiction after she had started working as a striptease dancer; and threats she had been subjected to in connection with her work. The front cover of the magazine displayed a photograph of Mrs Z, which was also found on the first inside page of the magazine next to an editorial by Mrs G.E.A., the magazine’s editor, dealing with the above-mentioned article. Photographs of Mrs Z also featured on the title page of the article, next to its main text and a photograph of Mr Y.

Alongside the latter photograph it was stated that the magazine had contacted him and had asked his opinion about Mrs Z’s account that he “encourage[d] girls who work[ed] for him to engage in prostitution and act[ed] as an intermediary in this respect”. It was further stated:

“[Mr Y] totally rejected this. ‘I can categorically state that not one of my girl employees is encouraged to engage in prostitution. But, on the other hand, I cannot prohibit acts by them in their free time.’ When it was put to him that prostitution reportedly took place within the walls of his club, his answer was that this was not, to his knowledge, true to fact. ‘This is simply a tremendous lie and it seems that those who are successful must always be slandered. I have always tried to act as fairly as I possibly can towards my girls. I have been active in this branch for nine years, and I would not have retained my employees if I had asked them to do something against their will, ... [Mr Y] also was of the view that Vikan’s account of these matters was prompted by vicarious considerations, as Vikan was published by the same company as Mannlíf and Ísafold, against which he said that he had initiated legal proceedings. [Mr Y] was emphatic that no falsehood should be published about him or his business, and finally stated: ‘I hope to God that you will not have any troubles on account of what you publish in your magazine.’”

On 5 and 6 September 2007 Mr Y lodged defamation proceedings against the applicant, the editor, Mrs G.E.A., and Mrs Z before the Reykjavík District Court. In his writ, in which he set out the four judicial claims described below, he requested that the following statements published by Vikan in the relevant issue, be declared null and void (dauð og ómerk):

A. “I ended up working for [Mr Y], but there was a lot of prostitution at his clubs, and huge pressure was placed upon the girls who worked for him to engage in such activities.”

B. “[Mr Y] has always been strongly involved in prostitution which occurs inside his clubs. After dancing in private was banned, the prostitution has simply been carried out behind curtains allegedly used for the purpose of talking to the clients in private.”

C. “It varies a lot whether the clients pay [Mr Y] himself for the service or deal directly with the girls...”

D. “I have overcome my fear of those men, although I have certainly been threatened with death and for a while I was too afraid to leave the house.”

E. “The girls he employs come here temporarily for three months at a time and are treated as if they were in prison.”

F. “In between, they are really under house arrest in the building apart from a period of time during which they are permitted to go outside.”

G. “The reason for this is that girls were discovered to have found clients for themselves outside the club without [Mr Y] receiving a share of the fee; he wants to control the prostitution himself.”

A. “Prostitution the rule rather than the exception.”

B. “Threatened with death.”

C. “Brought to Iceland without any suspicion of what was going to happen.”

A. “Threatened with death if she told anyone.” [Published as a heading on the front page.]

B. “[Mrs Z] worked as a stripper and tells the Vikan reporter all about the prostitution and the threats to her life.” [Published in a summary in the table of contents.]

C. “[Mrs Z] says the prostitution is allowed to continue unhindered and that it is conspicuous inside the striptease clubs.” [Published in a summary in the table of contents.]

“[Mrs Z.] is incredibly brave to have the courage to step forward and tell her story despite having been threatened with death ... .”

Mr Y argued that the responsibility for the statements in judicial claim no. 1 lay mainly with Mrs Z or, in the alternative, with the applicant as the author of the article. The latter was responsible for the remarks in judicial claim no. 2 and the defendant G.E.A., as the magazine’s editor, was responsible for the remarks in judicial claim no. 3. Alternatively, in the event that the court did not accept this claim, Mr Y requested that the applicant be held responsible as the author of the article referred to in the heading and summary in question.

In addition, Mr Y requested an order that the respondents, jointly and severally, be ordered to pay him 5,000,000 Icelandic krónur (ISK) in respect of damages and ISK 800,000 to cover the cost of publishing the judgment in the case in three newspapers and also in the following issue of Vikan.

In disputing the above claims, the applicant and the editor of Vikan argued inter alia:

“Most people would agree that the plaintiff is a controversial individual because of the activities in which he has been involved in Reykjavík and Kópavogur. The debate relating to the connection between striptease dancing and prostitution is tenacious, not least because abroad such operations are often run side by side, openly and in a legal manner, but also because of the nature of these activities. As an example of the persistence of such rumours in Iceland, a report on human trafficking in Iceland (court document no. 7), by the US Embassy in Iceland, dating from 2006, could be mentioned. At page 3 of the report, it is stated that during its compilation, a member of the embassy staff was offered sexual services at the restaurant Goldfinger. It is an established fact that the operation of pole-dancing establishments comprises obtaining girls, for the most part foreign nationals, for the purpose of dancing scantily clad or nude in front of the clients of the establishment, or in private cubicles, and, as indicated by the term, it is hard to observe everything that goes on inside such closedoff spaces. Furthermore, the plaintiff has admitted in public that there have been incidents at Goldfinger where clients were offered sexual services, cf. an interview with the plaintiff on Channel 2, 1 June 2007 (court document no. 6). Because of the mystique, among other things, which to most people, surrounds such activities as well as persistent rumours regarding prostitution and human trafficking, the defendants felt that a discussion of this matter would be of interest and relevance to the general public. The defendants refer, for example, to a news item contained in court document no. 9, which cites the Chief of Police in Reykjavík as stating in his report regarding a licence for Goldfinger that European research has shown striptease dancers to be subjected to various kinds of abuse and, in many cases, they become the victims of human trafficking or other crimes. The defendants feel that the plaintiff has to accept and tolerate controversial discussion with regard to the operation of Goldfinger .... The presentation of the plaintiff’s case, however, is characterised by the shortcoming that he appears to identify himself with the operation of all the poledancing establishments in Iceland.”

In the course of the oral proceedings before the District Court, Mr Y and Mrs Z concluded a judicial settlement agreement, whereby he withdrew his action against her. He maintained his claims against the applicant and the editor.

By a judgment of 4 April 2008 the District Court found that several of the statements originating from Mrs Z had been defamatory and that she in principle could be held liable but the action against her had been withdrawn. In contrast, the applicant and the editor could not be held liable and so the District Court dismissed Mr Y’s action against them.

Mr Y then appealed against the District Court’s judgment to the Supreme Court.

The applicant and the editor referred to their arguments before the District Court and disputed that the allegations that had formed the subjectmatter of Mr Y’s defamation action had constituted defamatory statements and innuendos against him. In any event, with regard to judicial claim no. 1, according to section 15 of the Printing Act, the respondents could not be held responsible for the affirmations made by Mrs Z in the interview and who ought to be considered as their author. As to judicial claim no. 2, the disputed sub-headings had not contained innuendos directed against the appellant’s honour or allegations to the effect that he had organised prostitution or other illicit activities. The interview had been conducted with Mrs Z who had spoken unreservedly about her experience of working as a striptease dancer in a number of striptease establishments. In processing the interview the applicant had used sub-headings in order to divide the text into chapters for clarification and to highlight each topic separately. She had only referred to the interviewee’s words and had made no independent contribution. The same or similar considerations applied to judicial claims nos. 3 and 4. The conditions for liability under section 26 of the Damage Compensation Act no. 50/1993 had not been fulfilled. The respondents had not made any allegations that exceeded their constitutionally protected right to freedom of expression (Article 73 of the Icelandic Constitution).

By a judgment of 5 March 2009 the Supreme Court rejected Mr Y’s appeal in so far as it concerned the editor. In so far as it concerned the applicant, it upheld judicial claim no. 1, items A to C and E to G, and judicial claim no. 2, item A. It ordered the applicant to pay the appellant ISK 500,000 (approximately 3,000 euros (EUR)) in compensation for nonpecuniary damage and ISK 400,000, plus interest, for his costs before the District Court and the Supreme Court. Its judgment contained the following reasons:

“The main issue in dispute in the present case is whether the respondents are liable on the basis of section 15 (2) and (3) of the Printing Act, No. 57/1956 for statements that [the applicant] had cited from the interviewee and whether headings and references which the respondents themselves had created, which they maintained was done in close connection with the words used by their interviewee, fell within the provision on freedom of expression in Article 73 of the Icelandic Constitution. The grounds of the case of each party are sufficiently described in the judgment which is being challenged. As indicated therein, the plaintiff based his claim for the annulment of the remarks in judicial claim no. 1, items A to G, on the premise that they contained defamatory innuendos regarding his character, which are the responsibility of the [applicant] as the author of the article, see section 15 (2) of Act No. 57/1956. The title page of the article stated that its text had been prepared by [the applicant]. She confirmed at the court hearing that she had been the author of the article and had also formulated the sub-headings. She had determined the wording of the sub-headings, which, like the article, contained a near-verbatim rendering of [Mrs Z]’s statements. This was indeed her ([Mrs Z]’s) account. [The applicant] stated that she had tape-recorded the interview, used the recording as a foundation for the article and had sent the result to [Mrs Z]. Subsequently [Mrs Z] had confirmed by email that this was an accurate rendering of her account. When comparing the manuscript of the interview and its tape-recording, on the one hand, and the article in question with its subheadings, on the other hand, it is however clear that this is not a verbatim rendering of the interviewee’s statements. However, it is also clear that the [applicant] in the main accurately rendered the substance of what her interviewee had said. As mentioned above, she had later confirmed that her story had been accurately rendered. Since the [applicant] is, as stated on the front page [...], the author of the text and has admitted to having written the article and its sub-headings, she is considered to be the author of the article and the sub-headings in the sense of section 15 (2) of Act No. 57/1956 and as such bears responsibility for this work. It is of no consequence whether [Mrs Z] may also be regarded as the author of the article in the sense of this provision of the law.

By the remarks identified in items A, B, С and D of judicial claim no. 1 of his claim, the plaintiff [Mr Y] is alleged to be guilty of offences under Article 206 of the Penal Code [...], by organising for his own profit prostitution among the girls working for him on his premises and by exerting pressure on them for this purpose. The words in items Ε and F, however, convey the suggestion that Mr Y had deprived the girls who worked for him of their freedom, which constituted an offence under Article 226 of the Penal Code. The main text under the sub-heading ‘Prostitution the rule rather than the exception’ contained, inter alia, the words specified in items A and B of judicial claim no. 1, as well as other allegations relating to [Mr Y] and his striptease premises, Goldfinger. It is clear from the relationship between the main text and the heading, that the heading is directed against [Mr Y]. The same applies to this heading as to the remarks in judicial claim items A, B., С and G above. The remarks identified in items A, B, C, E, F and G of judicial claim no. 1 and the sub-heading referred to in item A of judicial claim no. 2 constitute a violation of Article 235 of the Penal Code. They do not comprise an expression of opinion or values but statements of fact that are not covered by Article 73 of the Icelandic Constitution with respect to freedom of expression. In accordance with Article 241 (1) of the Code they are declared null and void by the court.

The words mentioned in item D of judicial claim no. 1 were directed against unspecified persons, not against the appellant [Mr Y]. The sub-headings in items B and C of judicial claim no. 2 were of a general nature; nor did the text below those headings appear to link them to [Mr Y]. Therefore, the [applicant] is acquitted with respect to those judicial claims. The words indicated in judicial claim nos. 3 and 4 of the claim, for which the respondent [editor, G.E.A.] bears responsibility according to section 15 (3) of Act No. 57/1956, are also of a general nature and she is therefore acquitted with respect to these judicial claims.

The reasoning and conclusions of the present judgment are to be published in the first issue of Vikan that appears after its delivery. However, the claim in respect of expenses for further publication are rejected.

Under section 26 (1)(b) of the Damage Compensation Act No. 50/1993, [Mr Y] is awarded compensation, to be paid by [the applicant] with respect to the abovementioned defamatory statements, in an amount of ISK 500,000, plus interest [...], which is deemed actionable. In accordance with this conclusion, the [applicant] is ordered to pay the appellant legal costs before the District Court and the Supreme Court [...]. In other respects, legal costs are not recoverable.”

Article 73 of the Constitution of the Republic of Iceland, Act No. 33/1944, read:

Article 73

“Everyone has the right to freedom of opinion and belief.

Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression.

Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.”

The Penal Code No. 19/1940 contained in Chapter XXV, entitled “Defamation of character and violations of privacy’, the following relevant provisions:

Article 234

“Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment of up to one year.”

Article 235

“If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment of up to one years.”

Article 236

“The making or spreading of an injurious allegation against a person’s better knowledge, this shall be subject to up to 2 years imprisonment.

If an allegation is published or spread in a public manner, even where the person spreading the allegation did not have a probable reason to believe it to be correct, this shall be subject to fines or up to 2 years’ imprisonment.”

Article 241

“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party.

A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter’s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”

Section 26(1) of the Tort Liability Act No. 50/1993 provided:

“A person who

a. deliberately or through gross negligence causes physical injury or

b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party

may be ordered to pay non-pecuniary damages to the injured party.”

The Printing Act No. 57/1956, Chapter V on the liability for the contents of publications, contained the following relevant provisions.

Section 13

“Any person who publishes, distributes, or is involved in the publishing or distribution, of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law.”

Section 15

“As regards liability for newspapers or magazines other than those listed in section 14, the following rules shall apply:

The author is subject to criminal liability and liability for damages if he or she is identified and either resident in Iceland when the publication is published or within Icelandic jurisdiction at the time proceedings are initiated.

If no such author is identified, the publisher or editor are liable, thereafter the party selling or distributing the publication, and finally the party responsible for its printing or lettering.”

The Code of Ethics of the Icelandic Journalists Association included the following provisions:

Article 1

“A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association, paper or newsroom. A journalist shall avoid any actions which could undermine the public opinion of journalists’ work or damage the interests of the profession. A journalist shall always exhibit fairness in dealings with colleagues.”

Article 2

“A journalist is aware of his or her personal responsibility for what he or she writes. He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech, even when he or she is acting outside his or her profession. A journalist will respect the confidentiality of his or her sources.”

Article 3

“A journalist will exercise care in his or her gathering of material, the use of the material and presentation to the extent possible, and show due consideration in sensitive matters. A journalist shall avoid any actions which could cause unnecessary distress or dishonour.”


Remainder inadmissible;No violation of Art. 6-1

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1959. Formerly a resident of the village of Goyskoye of the Urus-Martan District in the Chechen Republic, he is currently living in the town of Nazran in Ingushetiya. He is a lawyer at the Memorial Human Rights Centre.

In April 1996 the applicant was appointed head of the administration of Goyskoye. In June 1996 the district administration stopped paying his salary because of lack of funds.

In August 1996 Chechen rebel fighters took power in Grozny, the capital of the Chechen Republic.

In December 1999 the Russian federal government regained control over the Urus-Martan District. In spring 2000 the district administration was re-established and the applicant applied for payment of his salary. He states that the administration promised to pay his salary as soon as the money arrived from the federal budget.

In December 2000 the Urus-Martan Town Court (“the Town Court”) started functioning, but it was located in Gudermes, the administrative centre of the Gudermes District of Chechnya, about 80 km from Goyskoye. The applicant submitted that he could not go to Gudermes to lodge his claim because of the poor overall security situation and a curfew imposed by the military. Moreover, he had no money for travel and accommodation there.

On 25 June 2001 the applicant again applied to the district administration for payment of his salary. On 15 July 2001 he received a reply from the head of the administration dated 4 July 2001 in which the latter informed him that the salary would be paid as soon as funds were available.

Sometime after July 2001 the Town Court moved from Gudermes to Urus-Martan.

On 9 October 2001 the applicant brought a court action with the Town Court against the district administration for payment of salary arrears over the period between June 1996 and April 1997.

On the same date he lodged a formal request for reinstatement of time-limits for lodging his claim. It read as follows:

“Courts started functioning in the Chechen Republic in December 2000. Therefore, I could lodge a claim against the administration of the Urus-Martan District for salary arrears due for my work as head of administration of Goyskoye in 1996 only from that moment. However, in the beginning the court was located in Gudermes and it was difficult to go there because of numerous checkpoints, curfew and lack of money for travel. Furthermore, on numerous occasions I have applied to the administration of the Urus-Martan District with requests to pay me the salary arrears, considering that my claims were lawful. On 4 July 2001 I received a letter signed by the head of the administration of the Urus-Martan District, from which it emerged that the payment of salary arrears had again been postponed. Until the last moment I hoped that the salary arrears would be paid to me voluntarily, as it was an obligation of any state authority.

For the above reasons I missed the time-limits for lodging a claim against the administration of Urus-Martan for salary arrears.

Taking into consideration the above statements and in accordance with Article 105 of the Code of Civil Procedure of RSFSR I request [the Town Court] to restore the procedural time-limit for lodging a claim for salary arrears.”

On 16 October 2001 the Town Court held a hearing in the applicant’s case. According to the record of the hearing, the applicant gave the following explanation as regards his failure to comply with the timelimits:

“I applied to a court only on 9 October 2001 as I did not know that law established the time-limits for applying to a court. I request the court to reinstate the time-limits for applying to a court and to recover salary arrears ...”

The defendant accepted the applicant’s salary claims only for the period between June and August 1996 and submitted that the applicant would receive the arrears as soon as funds were available.

On the same date the Town Court adopted a judgment in the case, which in its relevant part provided as follows:

“... [Mr Itslayev] applied to the court only on 9 October 2001 because he did not know that law established the time-limits for applying to a court and he requests the court to reinstate the time-limit for applying to the court and to recover salary arrears ...

The defendant’s representative submitted that ... the Administration of the UrusMartan District agreed to pay the applicant salary arrears for the period between June and August 1996 as soon as the funds were available.

Having regard to the parties’ submissions and having read the materials of the case, the court comes to the following conclusion:

... According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In violation of this statutory provision, the applicant did not apply to a court between December 2000, when the courts started functioning in Chechnya, and 9 October 2001. The court considers that the applicant’s arguments that he had missed the time-limits because the head of administration of the UrusMartan District had promised to pay him salary and that he was not aware of time-limits are unsubstantiated.

Therefore the court comes to a conclusion that the applicant missed the time-limit without any valid reason and that there are no grounds to restore it.”

The applicant alleged that the presiding judge had relied on an order from “higher” authorities not to accept claims similar to that of the applicant’s for examination on the merits and that he had to seek advice from judge B. of the Supreme Court of the Chechen Republic (“the Supreme Court”). The applicant also indicated that the presiding judge had been appointed for a period of one year and therefore he could not be considered independent.

The applicant provided the Court with a copy of the decision delivered by the Town Court on 17 October 2001 in a case of a certain M., who had claimed from the district administration salary arrears due to his wife. He submitted that his wife had been killed in April 2001 and that he was in a very difficult financial situation because he had borrowed money to bury her. The Town Court restored the time-limit for lodging his claim and examined it on the merits. It held as follows:

“... the court finds that the plaintiff missed the time-limit for a valid reason, because no courts were functioning in Chechnya between August 1996 and December 2000, and between January and July 2001 the court was based in Gudermes and he could not have applied there for lack of funds ...”

On 6 November 2001 the applicant lodged an appeal with the Supreme Court against the judgment of 16 October 2001. In so far as he contested the application of time-limits in his case, the applicant made two arguments.

In the first place he submitted that he had applied for the reinstatement of time-limits because the Town Court requested him to do so. However, Article 211 of the Labour Code could not be applied in his case, as the antiterrorist operation was still going on in the Chechen Republic. On 15 July 2001 he had received a letter from the head of the district administration by which he was informed that his salary arrears would be paid as soon as funds were available. Therefore his right had been infringed at the end of July. The three-month time-limit had started to run from the end of July and he had applied to the court in due time.

Secondly, assuming that he had missed the time-limit, the Town Court could and should in accordance with Article 105 of the Code of Civil Procedure accept that he had missed the time-limit for valid reasons which were as follows:

“(a) I was appointed head of a rural administration in April 1996 and worked in this position in very difficult conditions, sometimes at risk to my life.

(b) I think that it is a matter of honour for the Russian state to pay at least salary arrears to heads of administrations of communities which were appointed in that period and who had worked with federal authorities.

(c) On numerous occasions I have applied orally to the Administration of UrusMartan. And when I was told that there were no funds, that I would have to wait and that I would be paid, I continued to wait, believing the authorities and understanding the situation which existed in the Republic.

(d) The Town Court should not have punished me, as it did, and taken the side of those who in that period killed and continue to kill people who work for the state. As a matter of fact, the Urus-Martan Town Court have now punished me for my work for the state in 1996.

(e) There existed no legal conditions in the Chechen Republic to apply Article 211 of the Labour Code in labour disputes involving state authorities because of the circumstances which existed in previous years.”

The applicant requested the appeal court to take into account the above circumstances, to quash the judgment of 16 October 2001 and deliver a new decision in his case.

On 26 February 2002 the Supreme Court, comprising judges B. and A. and presided over by Judge S., upheld the judgment of 16 October 2001. It held as follows:

“... Having regard to the materials of the case and to the submissions by the plaintiff, the Civil Chamber finds that the judgment is lawful and reasoned.

According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a court within three months of the date when an employee knew or should have known about the violation of his right. However, since December 2000 the plaintiff has not made such an application to a court.

The [Town] court has thoroughly examined the submitted evidence and reasonably found that the reasons advances by the plaintiff for missing the time-limit were not valid and refused to restore the time-limit.”

The applicant was present at the hearing. He alleged that Judge B., to whom, the Town Court judge had allegedly referred, was a member of the court. Furthermore, according to the applicant, his appeal was not examined in a public hearing, but took place in one of the rooms in the Supreme Court building.

Article 211 of the Russian Labour Code of 1971 (in force at the material time) provided in its relevant part that an application concerning the settlement of a labour dispute had to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In instances where the periods established in that Article lapsed for justifiable reasons, they could be reinstated by a court.

Article 105 of the Russian Civil Procedure Code of 1964 (in force at the material time) provided in its relevant parts that in cases where individuals missed the statutory time-limits for reasons which the court considered valid, the time-limits could be restored by a court. An application for reinstatement of time-limits had to be lodged with a court with jurisdiction to take a procedural decision on the matter, and had to be examined in a hearing. A claim in respect of which the time-limits had expired had to be lodged together with the application for reinstatement of the time-limits.

Ruling of the plenary session of the Supreme Court of the Russian Federation of 22 December 1992 No. 16 (applied until 17 March 2004) “On Some Issues related to the Application by Courts of the Russian Federation of Legislation when resolving Labour Disputes” provided in relevant parts of paragraph 8 that a judge could not refuse to accept a claim for consideration on the ground of expiration of time-limits, as Article 211 of the Labour Code did not provide for such a possibility. Where a court considered that the time-limits had not been respected for valid reasons, it had to restore them. In cases where a court, after having thoroughly examined the materials of the case, established that the time-limits had not been complied with for a non-valid reason, it had to dismiss the claim.


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

Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant was born in 1959 and lives in Negotino.

On 22 November 2001 the public prosecutor requested an investigating judge of the Negotino Court of First Instance (“the trial court”) to open an investigation against the applicant on the count of forgery of a notice convening a meeting of shareholders of a company, N., in which he was also a shareholder (“the notice”). The applicant was accused of having deceived a considerable number of shareholders into signing the notice by misleading them in the belief that there would be only one item on the agenda, instead of eight, as was actually the case. The investigating judge heard the applicant and 47 witnesses. After the investigation had been completed, on 29 May 2002 the public prosecutor lodged an indictment against the applicant.

The trial court fixed twelve hearings, including that of 6 May 2004, which the applicant did not attend, although he had been summoned properly. During the trial, the court again heard oral evidence from the applicant, who had a court-appointed lawyer, and the 47 witnesses and admitted other documentary evidence. On 31 May 2005, in the presence of the applicant's lawyer only, the trial court convicted the applicant and sentenced him to four months' imprisonment suspended for one year. It did not rely on the statements made by the witnesses before the company's management denying that they had been informed about the remaining items on the agenda. The court rejected the applicant's defence as self-serving and the testimony of 6 defence witnesses as inconsistent and implausible.

On 13 July 2005 the applicant who, at the relevant time, was not represented by counsel, appealed against that decision. He did not request to be notified of the date of the session (седница) of the Court of Appeal.

On 2 November 2005 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. The court decided in private. The public prosecutor was present, but not the applicant. The court addressed the public prosecutor's written submission of 17 October 2005 and her oral pleadings requesting that the applicant's appeal be dismissed.

The decision was served on the applicant on 21 November 2005.

On 19 January 2006 the public prosecutor informed the applicant that there were no grounds for lodging a request with the Supreme Court for the protection of legality (“legality review request”).

Under section 361 (1) and (3) of the Criminal Proceedings Act (“the Act”) (Закон за кривична постапка), the chairman of the adjudicating panel of the Court of Appeal will appoint a judge rapporteur. The latter, in cases involving offences automatically subject to prosecution by the State, will forward the case file to the public prosecutor, who will examine and return it without delay. After receiving the case file, the chairman will fix a date for the session (седница) of the adjudicating panel. The public prosecutor will be notified thereof.

Section 362 (1) and (3) of the Act provides for notification of the date of session to be given, inter alia, to the defendant and his lawyer, the victim (as a plaintiff, тужител) and the private prosecutor (приватен тужител) if, within the period prescribed for the appeal or reply to the appeal, they so request or propose that a hearing (section 364 of the Act) be held before the second-instance court. Such notification may be given to parties who have not made such a request if their attendance would contribute to establishing the facts. The session starts with the presentation of a report prepared by a judge rapporteur. The panel may seek additional explanations from the parties attending the session. Parties can propose, with the aim of supplementing the report, that some documents from the case-file are read. They can also specify their arguments submitted in the appeal or reply to the appeal.

Section 364 (1) and (2) of the Act provides that the second-instance court will hold a hearing (претрес) only if new evidence needs to be produced or evidence re-produced, or if the case does not need to be remitted for fresh consideration. The defendant and his or her counsel, the public prosecutor, the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second-instance court.

Under sections 403-410, the public prosecutor can submit a legality review request in respect of a final decision. The public prosecutor is always apprised of the session of the Supreme Court, which decides the legality review request. If the court accepts the legality review request submitted in favour of a person convicted, it cannot amend the final decision to his or her significant disadvantage in respect of the legal qualification of the crime and penalty imposed. If the legality review request is lodged against the person convicted, the court can only acknowledge the violation without amending the final decision.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1970 and lives in Malta.

The applicant was one of the parties to civil proceedings instituted against, inter alia, him (as possessor), concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments, namely John Bugeja et proprio et nomine v Caral Ltd and for any interest they might have Paul Muscat [the applicant] and Joseph Muscat. In these proceedings the address of the applicant (the then defendant in the proceedings) was correctly marked as “Olinda Hotel, St. George’s Road, St. Julians”, and the claimant’s address correctly marked as “43, George Borg Olivier Street, St Julians”.

By a judgment of 31 October 2002, the first-instance court found against the defendants and ordered the property to be returned to the claimant. The defendants had forty days to vacate the property.

Caral Ltd, the holder of the emphyteusis and main defendant, did not appeal. In consequence, the rescission of the emphyteusis and the eviction of Caral Ltd became final.

On 20 November 2002 the applicant appealed. The appeal application was signed by Dr M., the Assistant Advocate for Legal Aid. On the same date, through the assistance of Dr M. (in his capacity as Assistant Advocate for Legal Aid), the applicant requested legal aid (Article 911 of the Code of Organisation and Civil Procedure “COCP”). In both the appeal application and the legal-aid request, signed by Dr M., the addresses of the applicant and the respondent were inverted.

On 28 January 2003 the applicant was granted legal aid and Dr A. and Ms T. were nominated as advocate and legal procurator respectively for this purpose. The applicant was informed that he should enquire at the court registry for details of those nominated. It would appear that he did not make an enquiry at the relevant time.

On 29 April 2003 the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at “Olinda Hotel, St. George’s Road, St. Julians” (the applicant’s address). In consequence, he marked the notification as undelivered “riferta negattiva” (see Relevant domestic law) and noted that the venue was derelict.

No further attempts at notification were made.

On 20 November 2003, at the first appeal hearing conducted in the absence of both parties, the appeal was declared to have lapsed (been deserted), on the basis that no notification of the appeal application had been made to the respondent within the peremptory one-year period.

On 7 September 2004 the applicant lodged an application with the ordinary courts requesting the revocation of the decision of 20 November 2003, in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by the Assistant Advocate for Legal Aid.

By a decision of 15 September 2004, the applicant’s request was rejected as unjustified on the basis that it had been the applicant, through his legal representative, who had supplied the erroneous address and during the rest of the year the applicant had not taken any steps to rectify the error.

On 1 November 2004, the applicant lodged another application with the ordinary courts, requesting the revocation of the decision of 20 November 2003. He argued, inter alia, that the error had been made by the Legal-Aid Office and not by himself, and that he had never been given a copy of the procedural acts presented in his name, which would have enabled him to rectify the error. On 4 November 2004 the applicant’s case was dismissed as it was substantially the same as his previous request.

On 27 June 2005 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall). Referring to the European Court’s judgments under Article 6 §§ 1 and 3 (c), he complained that the decision of 20 November 2003 and the decisions confirming it denied him the right to a fair trial, to legal assistance and to access to court as guaranteed by Article 6 of the Convention. He therefore requested the court to revoke the said decision.

On 4 May 2009 the Civil Court rejected the applicant’s claims. Having considered the evidence, the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time (after the appeal application against the decision of November 2003) the applicant was not in contact with the Assistant Advocate for Legal Aid but with legal counsel who had acted for him previously, and maybe Dr A., his appointed advocate for legal aid. However, neither of these advocates advised the applicant to verify the acts of the proceedings. Thus, neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified. In consequence, the Civil Court found that the applicant was mostly responsible for causing the case to lapse, as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control. Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings. Moreover, unlike in the case of Czekalla v. Portugal (no. 38830/97, ECHR 2002VIII) the error in the present case did not make the appeal null and void, and it could have been avoided if the applicant had been careful to monitor the state of his case.

On 11 May 2009 the applicant appealed to the Constitutional Court. He argued, inter alia, that in view of an error on the part of an agent of the State, the application of “lapsed” status (desertion) provisions to his case had had disproportionate consequences.

On 30 October 2009 the Constitutional Court dismissed his claims on the merits. It reiterated that throughout an entire year the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings. The case was the applicant’s and not the lawyer’s and therefore it was the applicant’s responsibility to show assiduous interest in what was going on and to follow the case scrupulously. The error in the present case was a minor one and could have been corrected. It was, therefore, irrelevant who had originally made the mistake. A simple check could have easily been made with the court’s registry. However, nothing had been done, and in consequence only one attempt to notify the respondent had been made.

As to the application of Article 963 (see Relevant domestic law) of the Code of Organisation and Civil Procedure (“COCP”), the Constitutional Court held that the provision used the word “may” and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified. In any event, in the present case, it had appeared that notwithstanding the first failed notification (riferta negattiva) nothing had been done to request a second notification. It followed that the court’s decision not to make use of the provision had been justified. Moreover, procedural rules safeguarded the interests of both parties and those of legal certainty.

At the time of the present case, Article 963 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, regarding desertion of causes, read as follows:

“(1) Saving the provisions of sub-article (3) and of articles 416 and 420, the written pleadings in any cause shall be closed, in first instance, within the peremptory time of six months, and, in second instance, within the peremptory time of one year.

(2) The time shall commence to run, in first instance, from the day on which the sworn application is filed, and, in second instance, from the date of the application of appeal for the reversal or variation of the judgment appealed from.

(3) If it is found that the written pleadings in any cause set down for hearing are not closed, the court may order such cause to be again placed with the causes the pleadings whereof are not yet closed and fix for the closing of the pleadings of that cause a peremptory time not exceeding one month.

(4) Notwithstanding the provisions of sub-article (3), the pleadings shall be deemed to be closed if the party not served with the pleading necessary for the close of the record appears at the trial and does not raise the question that the pleadings are not closed and proceeds or knowingly allows others to proceed to further acts without raising such question.”

In 2007, sub-article 3 above was amended to read as follows:

(3) If, even where the peremptory times referred to in sub-article (1) shall have lapsed, it is found that the written pleadings in any cause are not closed, the court shall once only give such orders which it may deem fit so that such pleadings may be closed as soon as possible in order to avoid that such cause be deserted by reason of some failure to notify or by reason of the failure of performance of a procedure or formality.

(3A) The desertion of a cause shall be declared by means of a decree delivered in open court if, after the orders referred to in sub-article (3) shall have been given, the written pleadings are not closed.

Following the 2005 amendments, Article 178 of the COCP, regarding the signing of pleadings, read as follows:

Article 178

“The written pleadings and the applications whether sworn or not shall be signed by the advocate and also by the legal procurator, if any.”

According to Maltese practice, once an advocate or legal procurator pays the dues relevant for the notification (notifika) of an act, the bailiff will attempt to deliver notification to the address indicated. Subsequently, the bailiff must record the outcome of his attempt in the court file. Thus, an individual can learn whether the bailiff has successfully notified the other party or otherwise by virtue of a note (ir-riferta) that the bailiff sticks on the back of the document in the case file, which may be consulted in the registry. In the event that notification was unsuccessful, the stamp on the back of the document will be in red (riferta negattiva). If notification is successful the stamp on the back of the document will be in blue (riferta pozittiva). In the case of a “riferta negattiva”, the bailiff normally notes down the reason why notification was unsuccessful. Further notification will require payment and the relevant instruction depending on the bailiff’s written comments. Article 188 (1) of the COCP reads as follows:

“The officer charged with the service of an act shall, on the same day when he serves or unsuccessfully seeks to serve the act, or, at the latest, on the following day, draw up a certificate stating whether the service was effected or not. In the affirmative, the certificate shall state the name and surname of the person on whom service was effected and, if the act was not served directly on the person on whom service was to be effected, the name and the surname of the person to whom the copy was delivered and the place where the act was served; in the negative, the certificate shall state the reason why service was not effected.”

Article 925 of the COCP, concerning the duties of legal-aid representatives, reads as follows:

“(1) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall:

(a) act in the best interest of the person admitted to the benefit of legal aid, and may not demand any form of payment from that party;

(b) appear in court when the case of the person admitted to the benefit of legal aid is called;

(c) make the necessary submissions and file the requisite notes, applications, replies, notices, applications, and other written pleadings as circumstances require.

(2) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid, until the same has been finally disposed of, even though the period of his appointment may have expired.”

In the judgments of Nardu Balzan Imqareb v Commissioner of Police, of 4 July 2006 and Nardu Balzan Imqareb v the Registrar of Courts, of 18 May 2006, both cases decided by the Civil Court (First Hall) in its Constitutional Jurisdiction, in the same single judge formation, the Civil Court entered into the admissibility and where necessary the merits of the applications, notwithstanding that the applications to the court had been presented by the claimant without the assistance of a lawyer. However, the Civil Court did not deal specifically with the respondents’ objection that the application was null and void, on the basis that it had not been signed by an advocate, as required by law and confirmed by the judgment in Bruce Clark v The Registrar of Courts of 28 March 2006.


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1946 and lives in Ankara.

On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place.

Following the applicant’s request, on 27 June 1995 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable.

On 18 March 1996 the Court of Cassation upheld that judgment.

On 18 February 1998 the amount of 4,560,000,000 Turkish liras (TRL) was paid to the applicant.

The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


Remainder inadmissible;Violations of Art. 3;Violation of Art. 13;No violation of Art. 34;Pecuniary and non-pecuniary damage - awards

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

The applicant was born in 1983 and lives in Moscow.

On 29 June 2001 the applicant and his school friend Mr N. were spending the evening together. At about 11.30 p.m. they went to Mr N.’s place as Mr N., who is a diabetic, needed an insulin injection. After that they took a taxi to the applicant’s place.

While walking through the courtyard they were assaulted, near house no. 16/18 on Shcherbakovskaya Street in the Eastern Administrative District of Moscow. The attacker called out to them from behind and, before they could turn round, they received strong blows to their heads, fainted and collapsed on the ground. A considerable sum of money, a gold bracelet and a cell phone were stolen from them.

Neighbours called the Sokolinaya Gora police station. At 1.40 a.m. on 30 June 2001 the police officers Mr Zharov and Mr Volkov arrived at the scene. They served in the 2nd police battalion of the Eastern Administrative District of Moscow, whose main task was to provide security to businesses and private property under commercial contracts. In addition to that, they acted as neighbourhood patrol officers.

According to their statements, they saw two young men on the road whom they believed to be drunk. One of them was sitting, the other lay still. Some vomit could be seen. The policemen claimed that they reported the situation to the officer at the Sokolinaya Gora police station and told him that an ambulance or specialists from a sobering-up centre should be called.

The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house no. 16/18. According to the Government, the policemen left the applicant and N. “on a grass plot”; the applicant claimed that they had been put “in the rubbish dump”. At that moment the private security co-ordinator (дежурный по отделу вневедомственной охраны) informed the officers that an alarm had gone off and instructed them to check it out. They reported it to the officer at the police station and left the scene.

At about 7 a.m. janitors Ms E. and Mr B. spotted two young men some three or four metres away from the rubbish bins and attempted to wake them up. However, both were unconscious, the dark-haired one (Mr N.) mumbled incoherently. They called for an ambulance.

At 8 a.m. Doctor P. arrived in the first ambulance. On seeing two victims, he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek. When Mr N. regained consciousness, Doctor P. helped him climb into the van and took him to Moscow City Hospital no. 1.

In the meantime, a second ambulance arrived with Doctor Ch. He loaded the still unconscious applicant into the van and took him to Moscow City Hospital no. 33.

Upon arrival at the hospital at 9.05 a.m. the applicant was diagnosed with alcohol intoxication. Injuries and abrasions on his wrists and forehead were noted. Two hours later he was examined by a neurosurgeon.

Until 5 p.m. on 1 July 2001 the applicant remained, still unconscious and also undressed, on a trolley in the hospital corridor.

At 6.30 p.m. emergency surgery – bilateral trepanation of the skull – was performed on him.

On 8 July 2001 the applicant’s mother invited a private doctor to examine her son. The doctor determined that the applicant was in a life-threatening condition. An ambulance transferred the applicant in a state of coma to the Burdenko Military Hospital in Moscow.

From 9 July to 27 July 2001 the applicant was in a coma. On 25 July 2001 tracheotomy (creation of a surgical airway in the cervical trachea) was performed and a cannula was inserted.

After he woke up from the coma, he was transferred to the neurosurgery unit where he stayed in a critical state until 10 August.

Until the removal of the cannula in October 2001 and then in December 2002, the applicant underwent several operative procedures for osteomyelitis of the skull.

On 1 October 2001 a medical panel recognised the applicant as having disability of the second category.

In 2002 the applicant developed post-traumatic convulsive disorder. On 13 June 2003 he had a seizure and fainted. He was taken to Burdenko Hospital and operated upon for a pus abscess in the skull.

On 30 June and 1 July 2001 the Sokolinaya Gora police station received from Hospitals nos. 1 and 33 reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr Yermakov to check the reports. Subsequently the internal inquiry (see below) revealed that Mr Yermakov had not taken any measures for the purpose of inspecting the crime scene, identifying witnesses or interviewing the victims.

On 6 July 2001 Mr Yermakov forwarded the materials to the Investigations Department where the case was assigned to the operational officer Mr Abdryayev. Mr Abdryayev did not take any procedural decision regarding the materials until 17 July 2001.

On 18 July 2001 the head of the Sokolinaya Gora police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports. Both Mr Yermakov and Mr Abdryayev were disciplined. On the same day the crime scene was examined for the first time. On 20 July 2001 a criminal investigation into the assault on the applicant and Mr N. was opened.

On 20 September 2001 the investigator Mr Drozdov issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified. The only items of evidence referred to in the decision were statements by the police officers Volkov and Zharov, by the ambulance doctor and by Mr N.

On 16 October 2001 the investigator Mr Solomkin decided to re-open the investigation.

By letter of 29 October 2001, a deputy to the Presidential Envoy in the Central Federal Region wrote to the applicant’s mother that her complaint about the prolonged investigation had been examined by the Internal Security Department of the Ministry of the Interior. It had been established that the inquiry had not been properly conducted, that no one had visited or examined the crime scene, and that no other investigative steps had been taken. Operational police officers Mr Yermakov and Mr Abramov had been reprimanded.

On 16 November 2001, 6 January, 19 April, 13 June and 15 August 2002, decisions to suspend the proceedings were issued because the perpetrator(s) could not be identified. Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures, such as interviewing caretakers in the neighbouring buildings and the night watchman in the Korona café and examining the list of calls made from the stolen cell phone.

On 12 September 2003 the case was transferred to the Main Investigations Department of the Moscow City Police.

In a letter of 27 February 2004 the Investigations Committee of the Ministry of the Interior acknowledged that the investigation of cases nos. 073041 and 1056 (see below) had been improper, noting as follows:

“Thus, it has been established that at the initial stage the investigation of case no. 73041 was carried out at a low professional level and in breach of the rules of criminal procedure. On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified. Certain officers of the Sokolinaya Gora police station of the Eastern Administrative District in Moscow were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation. Investigation of case no. 1056 [medical negligence] was also held back because of significant failures.

Having regard to deficiencies in the investigation and in compliance with the directions of the Moscow city prosecutor’s office, additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible.”

On 2 April and 13 May 2004 public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken.

On 4 June 2004 the case was referred to the Eastern Administrative District prosecutor’s office and assigned to the investigator Mr Volk, who was in charge of particularly important cases. On 20 July 2004, 30 January, 18 August and 5 October 2005, and 27 March 2006 Mr Volk suspended the investigation on the ground that the perpetrator(s) of the assault could not be identified. Those decisions were reversed by supervising prosecutors.

The most recent decision by Mr Volk on suspending the investigation which has been made available to the Court is dated 17 July 2006. It took stock of the evidence that had been collected in the case.

The decisions indicated that the statements had been taken from both victims – the applicant and N. – who had not remembered the attacker, their friends who had not seen the attack, and also the police officers, janitors and doctors who had seen the victims after the attack. The forensic experts had established that the applicant had sustained “serious bodily injuries” and N. “light bodily injuries”.

The applicant’s mother told the investigator that shortly after the crime she had visited the Sokolinaya Gora police station. One of the police officers who had curly hair and the nickname “Pushkin”, had described to her that the victims had been found near the Korona café. The applicant’s mother had gone to the café and talked to the employees who had told her that on the night of 29 to 30 July 2001 three police officers nicknamed “Sasha”, “Sidor”, and “Kostya” had been heavily drinking in the café and had been aggressive to the point of seeking a fight with the bartender. However, they had not witnessed any fights between the officers and her son or Mr N. The investigator also took testimony from seven officers from the Sokolinaya Gora police station who claimed they were unable to remember visiting the café on that particular night and did not know anyone nicknamed “Sidor” or “Pushkin”. Three of them denied that they had ever been to the Korona café and the other four acknowledged that they had gone there from time to time.

Mr N.’s mother stated to the investigator that in the hospital her half-conscious son had mumbled incoherently about “cops” hitting him on the head. When she came to visit him two days later, she stumbled upon two men in civilian clothing by her son’s bed, one of them was shaking her son and asking him whether he had remembered the “cops” who had beaten him. She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the Sokolinaya Gora police station, Mr Drozhzhin and Mr Konovalenko. Between themselves, they called each other “Pushkin” and “Dimon”. They told her that they were investigating the assault on her son. The investigator interviewed Mr Drozhzhin, who denied that he had ever visited Mr N. in hospital. Mr Konovalenko was not available for questioning.

The investigator found that it was impossible to identify the persons responsible for the assault. On 30 November 2006 a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the Sokolinaya Gora police station.

On 6 January 2002, following on the applicant’s mother’s complaint about an improper performance of their duties by the police officers Mr Zharov and Mr Volkov and by Doctor K., who had not rendered assistance to the applicant that was appropriate for his condition, certain material was severed from the main criminal case for a separate inquiry.

On 13 March 2002 an investigator with the Izmaylovskiy District prosecutor’s office, on the basis of statements by Mr N., the applicant’s mother, Doctors P., Ch. and K., and the officers Zharov and Volkov, decided that there was no indication of a criminal act because Doctor K. had correctly diagnosed the applicant and had taken all the required measures, and because the officers had “erred in good faith as to Mr Vasilyev’s and Mr N.’s capacity to take care of themselves”.

On 15 March 2002 a supervising prosecutor quashed that decision. She found that the conclusion about the police officers’ good-faith error contradicted the facts of the case, as the applicant had been unconscious when they had arrived. She decided on the institution of criminal proceedings under Article 293 § 2 of the Criminal Code (criminal negligence leading to the victim’s death or grave injury). The investigation was assigned to the Izmaylovskiy District prosecutor.

On 15 June and 26 July 2002 the investigation was discontinued for a lack of indications of a criminal offence. These decisions were set aside by higher-ranking prosecutors.

On an unspecified date the officers Zharov and Volkov were formally charged with abandonment of the applicant and N. in danger, an offence under Article 125 of the Criminal Code.

On 5 September 2002 the applicant was granted the status of a victim in the proceedings.

On 27 November 2002 the applicant asked the investigator to amend the legal characterisation of the officers’ actions. He pointed out that the officers had been on duty and had acted in breach of requirements of the Police Act. For that reason they should have been charged with criminal negligence leading to grave consequences, an offence under Article 293 § 2 of the Criminal Code. On the same date the applicant asked the investigator to recognise his status as a civil party. His application bore a handwritten acknowledgement of receipt by the investigator, dated 28 November 2002. It is not clear what response the investigator gave to the applicant’s requests.

On 29 November 2002 the bill of indictment was served on Mr Volkov and Mr Zharov. The prosecution’s case under Article 125 of the Criminal Code was that they had been the patrolling police officers on duty when they had arrived at the scene and found two unconscious men. Being aware that the men had been helpless and unable to care for themselves, Volkov and Zharov had not fulfilled their legal duty, under the Police Act, the Regulation on Police Patrols and the internal instructions, to protect victims of offences or accidents, intoxicated persons unable to move, and other vulnerable individuals. Even though they had a realistic possibility of providing assistance, they had failed to examine or identify the victims, call an ambulance, administer first aid or take them to a hospital, locate witnesses or secure the crime scene. Instead, they had moved the victims to the side and had falsely reported to the officer at the Sokolinaya Gora police station that all the required measures had been taken.

On 24 January 2003 the Izmaylovskiy District Court of Moscow scheduled the opening of the trial for 7 February 2003. The judge allegedly told the applicant that his request to join the proceedings as a civil party would be examined at a later stage.

Hearings were held on 20 February, 25 March, 30 April, 23 June, 28 July and 24 September 2003.

The trial court took testimony from a neighbourhood resident, the janitors Ms E. and Mr B., ambulance doctors P. and Ch., who described the circumstances in which they had discovered the applicant and Mr N. The senior operational officer Mr K., who had been on duty at the Sokolinaya Gora police station on the night of 29 to 30 June 2001, stated that no telephone call concerning two young men on the Shcherbakovskaya Street had been recorded in the log. However, he had been replaced for one hour by the officer Mr Vancharin. He also testified that the police officers serving in the private-security department (отдел вневедомственной охраны) had to give priority to the orders of the security co-ordinator rather than the orders of the officer-on-duty at the police station.

The officer Mr Vancharin confirmed that he had taken a call concerning the young men but had not recorded it in the log because it had not been placed through the emergency line. He had radioed to the patrol officers from the private-security department and told them to verify the information. They reported back that they had found two drunk men and that the situation was under control. In response, he instructed them to continue patrolling. The security co-ordinator testified to the court that at 1.44 a.m. he had received an alarm signal and had dispatched the officers Volkov and Zharov to check it out.

On 29 September 2003 the District Court acquitted both police officers, having made the following assessment of the evidence:

“...[T]he court considers that it has not been shown that the defendants Volkov and Zharov acted in the knowledge of the fact that [the applicant and his friend] were in a state that was dangerous for their life and health because they could not know it, as they only spent a few minutes on the scene in the night time and as no injuries were visible. They decided that [the applicant and his friend] were in a state of alcohol or drug intoxication...

In support of their claim that Mr Volkov and Mr Zharov made a false report [to the officer-on-duty] the prosecution referred only to the testimony by the witness Mr Vancharin, who was a police officer but who was not authorised to take any reports. However, he was replacing the officer-on-duty, in breach of the regulations of the Sokolinaya Gora police station...

Upon receipt of such information, an officer-on-duty has an obligation to record it in the registration log, to check it and to record the results of the check. The court considers that the officer-on-duty, upon receiving information from Volkov and Zharov that the situation was under control, was required to verify it and obtain credible information about the situation. Mr Vancharin, however, did not do that and did not relay that information or the results of the check to the actual officer-on-duty... The court therefore lends credence to the testimony by Mr Volkov and Mr Zharov... because in these circumstances Mr Vancharin had no interest in telling the truth.”

On 17 February 2004 the Moscow City Court upheld the judgment on appeal in a summary fashion.

On 14 August 2001 the chief medical officer of the emergency care unit informed the applicant’s mother that an internal inquiry had established that the ambulance doctor had diagnosed the applicant on the basis of his friend’s statements. As a result, he had underestimated the gravity of his condition. The doctor had been severely disciplined.

On 8 November 2001 and 8 February and 2 August 2002 the public prosecutors at various levels informed the applicant’s mother that the doctors of Hospital no. 33 had committed no prosecutable offence and refused to institute criminal proceedings.

By letter of 4 January 2002, the deputy head of the Moscow Health Protection Committee confirmed that a review of the medical care administered to the applicant at Hospital no. 33 had not identified any defects or shortcomings.

Further to a complaint by the applicant’s mother, on 5 March 2003 the first deputy to the Moscow City prosecutor cancelled the decision of 2 August 2002, by which the institution of criminal proceedings had been refused, and instructed the Preobrazhenskiy District prosecutor to open a criminal investigation into the offence under Article 124 § 2 of the Criminal Code (failure to render medical assistance to a patient resulting in grave damage to his health).

On 15 June 2003 a composite medical study was commissioned for the purpose of determining whether the applicant’s health could have been harmed by belated and inadequate medical treatment at Hospital no. 33.

On 7 July 2003 a panel of six experts from the 111th Centre for Forensic Medicine of the Ministry of Defence began their work.

On 4 September 2003 the investigator Mr Kirichevskiy suspended proceedings because the person responsible could not be identified.

On 1 December 2003 the experts’ panel returned their findings based on the applicant’s medical record (no. 23304) from Hospital no. 33, materials of the criminal case and information from attending physicians. The experts found, in particular, that an incomplete and contradictory description of the applicant’s injuries upon his arrival at Hospital no. 33 made it impossible to determine the exact origin, time and cause of his injuries. It could only be established that he had been hit on the head with a heavy blunt object. Moreover, a subsequent examination at Burdenko Hospital revealed two broken thoracic vertebrae which had gone unnoticed at Hospital no. 33, where an X-ray examination had been indicated but never carried out.

The experts determined that, given the grave condition in which the applicant had been admitted, he should have been examined immediately by a neurosurgeon and other specialists for differential diagnosis of craniocerebral injury and intoxication and for decisions on urgent treatment. However, a neurosurgeon examined the applicant more than two hours later upon his arrival and in the following thirty-two hours no specialists saw him and no medical tests, not even the basic blood and urine tests, were carried out. Even the applicant’s temperature was not taken. The experts determined as follows:

“From the moment of arrival (at 9.05 a.m. on 30 June 2001) and until the beginning of preparation for surgery (at 5.30 p.m. on 1 July 2001) the [applicant] was not adequately and objectively examined, the real clinical diagnosis was not made... and appropriate medical treatment was not indicated... Prolonged passive observation of the [applicant] not accompanied by clinical examination led to drastic deterioration of his condition and, as a consequence, to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post-traumatic and post-surgery complications for the [applicant]...

In the post-surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which, most likely, pre-determined subsequent development of suppurative inflammation of post-operative wounds, arachnoid membranes and medullary substances, osteomyelitis of the right parietal bone, etc...”

The experts also noted that there had been no objective basis for diagnosing the applicant with alcohol intoxication. Neither the ambulance doctor in his notes nor his colleagues in subsequent entries in the medical record mentioned alcohol breath. A reference to alcohol breath appeared for the first time in the partly illegible and incomplete report of a medical examination of 30 June 2001. However, that examination was carried out in breach of the applicable regulations. No treatment for intoxication was indicated and the intoxication diagnosis did not feature in any other documents. The credibility of the intoxication diagnosis was further undermined by the fact that the amount of alcohol allegedly found in the applicant’s blood would have been lethal.

The experts concluded as follows:

“The extent of damage resulting from the [applicant’s] prolonged stay in a medical institution without adequate medical assistance cannot be fully ascertained. It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life-saving indications...

The present study identified a number of defects in the medical care dispensed to [the applicant] at Hospital no. 33 of Moscow – in particular, unjustified conservative treatment, incomplete examination, belated and incomplete diagnosis, belated surgical intervention, inadequate medical measures – which failed to arrest development of the grave post-traumatic process and contributed to an unfavourable outcome and the [applicant’s] disability. However, it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist.”

At some point in 2003 it transpired that the applicant’s medical record from Hospital no. 33 was lost. It had been removed by the investigator Mr Solomkin from the hospital in 2001 and produced to the experts for examination. It was then returned to the investigators, who were no longer able to locate it.

On 12 January 2004 a deputy Moscow City prosecutor reversed the decision suspending the proceedings and asked that those responsible for delays and procedural violations be disciplined. On 17 February 2004 an internal inquiry established that the investigator Mr Kirichevskiy had unlawfully decided to discontinue the proceedings before the medical examination had been completed. The investigator received a reprimand and his superior was demoted.

On 3 February 2004 the investigator Mr Shakhov from the Investigations Department of the Eastern Administrative District Police took up the case. He wrote to the applicant’s mother that those responsible for the loss of the medical record had been disciplined.

On 20 April 2004 the investigator Mr Shakhov commissioned a new medical study by the same experts and with the same questions. The previous study was considered inadmissible because it had been completed at the time when the proceedings had been suspended. On 17 May 2004 the new study was completed. The experts returned the same findings. They also noted that their task had been hampered by numerous corrections of entries, in particular dates and times, in the medical records from Hospital no. 33 and because of inexplicable contradictions in those entries.

On 20 May 2004 the investigator Mr Shakhov issued a decision suspending the proceedings on the ground that the authorised investigation period had expired. On 19 June 2004 the decision was annulled by a supervising prosecutor.

The investigation was transferred to Mr Buvin who suspended the proceedings on the same ground on 1 September and 19 November 2004. A public prosecutor set aside his decisions on 13 October and 18 December 2004.

On 18 January 2005 the investigator noted that the initial forensic examination had not determined the extent of correlation between the deficiencies in the medical assistance provided to the applicant at Hospital no. 33 and the damage to his health. He appointed a new medical examination by the experts from the Health Protection Department of the Moscow Government and suspended the proceedings in the case.

On 30 May 2005 the experts returned their findings which were based, in the absence of the original medical records, on the materials of the case file and extensive quotations from the original records in the text of the initial expert examination. The experts found that the applicant had suffered from a vascular pathology which had resulted in a subdural hematoma against the backdrop of a head trauma and alcohol intoxication. In their view, at the moment of the applicant’s admission to Hospital no. 33, no urgent surgery was required. The hematoma was allowed to grow over a period of time under constant supervision by medical specialists who awaited the most propitious moment for brain surgery. The experts concluded that the findings of the initial examination had been “objectively untenable” and that the diagnosis and surgery had been carried out in a timely and precise fashion. On the same day the public prosecutor ordered the proceedings to be resumed.

Further decisions concerning the discontinuance of the proceedings on various procedural grounds were issued on 18 January 2005 (annulled on 30 May) and 31 May 2005 (annulled on 24 June).

On 15 August 2005 the investigator decided to commission a further forensic examination with a view to eliminating the discrepancies between the findings of the first and second experts’ reports. It was entrusted to the Russian Centre for Forensic Medicine at the Federal Agency for Health Protection and Social Development. However, the Centre refused to conduct the examination in the absence of the original medical records. The director of the Centre’s First Department stated to the investigator that an examination on the basis of the case-file materials and previous findings by other experts would be “methodologically incorrect and in breach of the existing practice of expert examinations”.

On 6 September 2005 the investigator granted the applicant the status of a victim in the proceedings and recognised his mother as his legal representative.

On 28 April and 19 July 2006 the investigator Mr Volk decided to discontinue the proceedings on the ground that no offence had been committed. The decisions were set aside by supervising prosecutors.

The most recent decision on discontinuance of criminal proceedings, which the Court has in its possession, was made by the investigator Mr Volk on 29 November 2006. He took stock of the existing evidence, including the testimony by the doctors Mr K., Mr Ts. and Mr B. from Hospital no. 33, the ambulance doctors, the applicant’s friend Mr N., the applicant’s mother, and the applicant himself. The findings of the first and second forensic studies were extensively quoted, as were the reasons given by the federal centre for forensic examination for refusing to conduct a “conciliatory” study in the absence of the original documents. The investigator reached the following conclusion:

“Despite the existence of substantial discrepancies in the above-mentioned findings by two experts’ commissions as to the origins and development of [the applicant’s] disease and the professional level of treatment that was administered to him, neither commission could state that there was a link of causality between the treatment administered to [the applicant] and the consequences in the form of serious damage to the victim’s health.

In these circumstances, the investigation finds that there are no objectively verifiable factual indications that Doctors K., Ts, and B. from Hospital no. 33 failed to render medical assistance to [the applicant] without valid reasons, thus resulting in serious damage to his health, that is, that they committed the offence under Article 124 § 2 of the Criminal Code.”

On the same date a supervising prosecutor quashed that decision and instructed Mr Volk to remedy the shortcomings in the investigation and, in particular, to locate the original medical documents.

Article 124 of the Criminal Code defines the offence of non-provision of medical assistance to a patient as failure to provide medical assistance, without valid reasons, by the person who had a legal obligation to render such assistance. Paragraph 2 of the Article concerns the situation in which such failure resulted in the patient’s death or grave damage to his health.

Article 125 concerns the offence of abandonment in a life-threatening situation, which is defined as the deliberate act of abandoning without assistance a person who finds himself or herself in a situation that endangers his or her life or limb and who is incapable of taking measures for self-preservation because of his or her young or old age, illness or helplessness, provided that the offender had the possibility of rendering assistance to that person and also a duty to take care of him or her.

Article 293 defines the offence of professional negligence as non-performance or improper performance of professional duties entailing a substantial violation of the rights and legitimate interests of citizens.

Section 10 provides that the police have, in particular, the duty to render assistance to victims of criminal and administrative offences and accidents, and to persons in a helpless state or in a state that is dangerous for their life or limb.

On arrival at the crime scene, a police patrol must render assistance to the victims, call an ambulance if necessary, identify possible witnesses and eye-witnesses to the crime, secure the site, report to the officer-on-duty and proceed in accordance with his instructions (paragraph 135).

While administering first aid or transferring the victim to a medical institution, the police officer must examine the victim’s clothing and exposed areas of the body with a view, in particular, to identifying him or her. If the victim shows no visible signs of life, the officer must firstly ascertain whether he is alive or not, without altering his position or that of surrounding objects (paragraph 141).

Private-security departments attached to the police force are created for the protection of private property (paragraph 1). Private-security forces comprise police officers as well as technical and support staff (paragraph 4). Officers of private-security departments are recruited by the Ministry of Internal Affairs (paragraph 9) and they have the same rights as those conferred on the police officers under the Police Act, including the right to carry weapons and the right to arrest offenders (paragraph 8).

Before 10 July 2003 the Code of Criminal Procedure provided that a civil claim could be lodged after the institution of the criminal proceedings but before the end of the pre-trial investigation (Article 44 § 2). After the amendments introduced by Federal Law no. 92-FZ of 4 July 2003, the time period for lodging a civil claim was extended up to the beginning of final pleadings in the first-instance court.