Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1946 and lives in Bucharest. He is the father of Mr Marian Predică (“the applicant’s son”), a Romanian national who was born on 11 August 1983 and who died on 5 October 2003 while he was serving his prison sentence.

On 20 March 2000 the applicant’s son had been arrested under suspicion of having committed theft; he was taken into custody in the Gaeşti Correctional Institution for Minors on 2 November 2000. At that time, a medical examination was carried out, the report stating that he was clinically healthy. A copy of the results of a medical examination dated 18 June 1999, with similar conclusions, was attached to the medical file. A subsequent medical examination carried out on 12 March 2001 did not note any chronic or acute illness.

On 25 August 2001 the applicant’s son was transferred to Jilava Prison, and on 11 September 2003 he was transferred to Rahova High Security Penitentiary. He was placed in cell no. 626.

On that date, a medical examination was carried out, stating that the applicant’s son was clinically healthy and that he did not show symptoms of any medical condition. The medical record showed no indication as to the existence of any illness that would require treatment.

According to the same medical file, for the duration of his stay in Rahova Penitentiary, the applicant’s son never asked for any medical assistance.

In the morning of 1 October 2003, at 10.15, in answer to repeated calls by one of the prisoners, the guards went to cell no. 626, where prisoner T.P. reported that the applicant’s son needed to be taken to hospital urgently, as he had lost consciousness and had started to shake.

The supervising officers transported him to the consulting room of the penitentiary. Following an examination performed at 10.27, it was concluded that the detainee was in a generally altered state, disoriented in time and space; a “suspicion of (medical) intoxication” was noted by the doctor, who also recommended that he be taken to Rahova Surgery Hospital urgently. There, at 10.40 he was diagnosed with “convulsions/symptoms of grand mal seizures” (criza comitiala). A consultation by a specialist was recommended.

As the condition of the patient kept deteriorating, artificial respiration was applied. The applicant’s son was then transported to the nearest emergency hospital, Bucharest University Hospital, where he was hospitalised at 11.15 in a coma. The diagnosis upon arrival was “intercerebral haemorrhage, left temporoparietal, with panventricular inundation”. The doctors noted that there were no signs of trauma on the cranium or vertebra.

The patient underwent laboratory tests, tomography and surgical and neurosurgical tests. As there was no indication that neurosurgical intervention was necessary, he was moved to another ward, where his breathing was assisted with a mechanical ventilator and his heart beat maintained by perfusion.

In spite of the medical care provided, the applicant’s son never came out of the coma. His hospital medical record stated that he died on 5 October 2003, at 13.30,

“due to a cardiac arrest, [while] under artificial respiration and perfusion with adrenaline. Severe damage to the cerebral trunk. Intercerebral haemorrhage, left temporoparietal, with panventricular inundation and compressive effects on the cerebral trunk.”

The medical certificate attesting the death of the applicant’s son was issued on 8 October 2003. It stated that the direct cause of death was an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, with serious “cranial and facial trauma due to an aggression”.

The preliminary necropsy report issued on 14 October 2003 by the Institute of Forensic Medicine “Mina Minovici” contained the following conclusions:

“The death of Marian Predică was violent. It was caused by an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, consequences of a trauma – cranial-cerebral and facial, with fracture of the nasal bones, facial ecchymosis and left occipital excoriation.

The necropsy revealed excoriation and echhymosis in the left thoracic and pelvic areas.

The traumatic lesions could have been produced by a blow with a solid object to the facial area, followed by falling and hitting a hard surface, with impact to the occiput and the left hemicorp.

The traumatic lesions could have been inflicted between one to three days prior to the day of hospitalisation.

There is a direct causal link between the cerebral traumatic lesions and the death of Marian Predică.”

The final medical report issued on 4 December 2003 confirmed the preliminary observations, stating in addition that the traumatic injuries could have been inflicted “several days prior to the day of hospitalisation on 1October 2003” and concluded that “the cerebral lesions necessitated medical care, to be provided immediately”.

On 21 September 2006 the prosecutor requested the forensic expert from the Institute of Forensic Medicine to answer, on the basis of statements given by the victim’s cellmates describing the incident on the morning of 1October 2003, whether “it was possible that during a seizure, the victim could have bashed against various objects around him and thus self inflicted all the injuries detected at autopsy (including the facial lesions)”. The supplementary medical report issued stated that, “considering the morphology and the topography of the traumatic lesions, it could not be excluded that all the injuries were sustained in the same context – by falling and hitting a hard surface, several days before the date of death, possibly by hitting against a metal bed in the course of a grand mal seizure of epileptic aetiology, as it transpired from the investigation data forwarded by the prosecutor”. No deficiencies in the medical care provided to the victim prior to his death were detected.

The applicant alleged that he had last seen his son on 25 September 2003, when the latter had attended a hearing before the High Court of Cassation and Justice. At that time, he had borne no visible signs of violence. Before his incarceration and upon his transfer to Rahova Penitentiary, he had been healthy, as the medical examinations carried out in the penitentiary also confirmed.

The applicant was informed about his son’s death on 6 October 2003; he, his wife and other son were allowed to take the body from the Institute of Forensic Medicine on 9 October 2003. According to the applicant, none of the family members could recognise the body, as the face was disfigured, the hair had been shaved off, the hands bore the marks of handcuffs and the left hand had a lesion in the handcuffed area. The identity of the deceased was allegedly confirmed based on a particular mark on the left hand.

On 5 October 2003, the Bucharest Military Prosecutor’s Office received a phone call from G.I., an officer at Rahova Penitentiary, informing it of the death of the detainee and asking the competent authority to establish the cause and the circumstances of his death.

A preliminary inquiry was carried out with respect to alleged criminal acts perpetrated by the twenty penitentiary guards charged with the supervision of the detainees.

The military prosecutor in charge questioned the officers that had been on duty while the applicant’s son was detained at Rahova Penitentiary, in order to establish whether there had been any incidents between the detainee and his cellmates and whether there had been any incidents when force or other immobilizing methods were used with respect to the detainee. The guards reported that no incidents had occurred in cell no. 626 and that they had not noticed any injuries on the detainee’s face. Similar statements concerning the lack of any incidents in their cell were given by some of the applicant’s son’s cellmates.

One of the cellmates, V.O.C., stated in his deposition given before the military prosecutor on 17 June 2004, that he had heard that Predică Marian had been beaten by “mascati” (masked special intervention officers) when he had returned from a visit or from the court because he had spoken disrespectfully to them.

On 26 January 2004, the military prosecutor decided not to indict the guards, as there were no suspicious circumstances regarding the applicant’s son’s death. The case was referred to a civilian prosecutor for a further investigation to be carried out with respect to his cellmates (see paragraphs 20-22 below). The decision was confirmed by the hierarchically superior prosecutor on 5 August 2004.

The decision was contested by the applicant before the Military County Court of Bucharest. On 24 March 2005, the complaints were dismissed as inadmissible. However, that decision was quashed on 14 July 2005 by the Superior Military County Court of Bucharest and the case was remitted to the first instance.

On 23 September 2005, the case was referred to the Bucharest 5th District Court, which gave judgment on 8 November 2005, declining jurisdiction in favour of the Bucharest County Court.

The applicant’s complaints were allowed on 21 February 2006 by the Bucharest County Court, which ordered the case to be remitted to the Prosecutor’s Office for further investigation. The court held that the investigations had been improperly conducted throughout the proceedings.

Upon an appeal on points of law, the judgment was quashed on 20 April 2006 by the Bucharest Court of Appeal, in so far as the first-instance court had not provided grounds for its decision and had not specified exactly what evidence should be added to the file. The case was consequently remitted back to the first instance.

The Bucharest County Court rendered judgment on 20 October 2006. Assessing the evidence before it, it held that the criminal investigation conducted has not proved to be effective within the meaning of Articles 2 and 3 of the European Convention of Human Rights. The court further allowed the applicant’s claims and ordered the case to be remitted to the Prosecutor’s Office, as a further investigation needed to be carried out with respect to the criminal act of homicide as defined under section 174 of the Romanian Criminal Code. The court summarised the facts for the timeframe of 11 September (day of incarceration) to 1 October 2003, on the basis of the evidence adduced. It held that there was no proof of any altercation having occurred between the applicant’s son and his cellmates during that time. In the official register of the penitentiary there was no record of any disciplinary measures having been applied to him.

The court criticised the fact that the prosecutors had discontinued the investigations in general, without making any reference to a specific criminal act, such as homicide, ill-treatment or torture – as defined respectively by sections 174, 267 and 267 – 1 of the Romanian Criminal Code. There was no concrete information on the circumstances of the applicant’s son’s death or on the persons to be held responsible for it in the evidence already adduced in the case, “even though his death had undoubtedly been violent”.

The court also mentioned that in assessing the adduced evidence, the fact that the investigation authorities were attached to the military, while the European Court of Human Rights had repeatedly stated that such criminal inquiries conducted by a military prosecutor could not be regarded as effective, could not be overlooked.

It further held that

“None of the accused who attended, together with Marian Predică, the hearing before the High Court of Cassation and Justice on 25 September 2003 was questioned, in so far as they could have been witnesses to a conflict between Marian Predică and the guards of the Penitentiary (especially the accused V.L.).

None of the guards belonging to the Special Intervention Unit on duty on 25 September 2003 and afterwards, until 1 October 2007, was ever questioned.

The contradictory conclusions of the numerous medical reports are to be clarified by the Superior Commission of Forensic Medicine”.

This decision was upheld on an appeal on points of law lodged by the twenty incriminated penitentiary guards. On 3 April 2007 the Bucharest Court of Appeal held that the first-instance court’s reasoning was exhaustive and legally sound.

The proceedings are currently pending before the judiciary police, delegated by the Prosecutor’s Office to carry out the investigation (see paragraphs 25, 27 below).

Concerning the investigation carried out with respect to the applicant’s son’s cellmates, the prosecutor decided on 10 March 2004 to discontinue the proceedings, as there was no indication of any criminal act having been committed in the file. The hierarchically superior prosecutor, however, quashed this decision on 28 May 2004, indicating that a further investigation should be conducted with respect to the offences listed under section 183 of the Romanian Criminal Code, namely, hitting or causing injury to a person resulting in death.

The prosecutor questioned the persons who had been detained in the same room as the applicant’s son, and other individuals. They declared that the applicant’s son had not been attacked by other prisoners or by the prison officers. Some of them also stated that on 1 October 2003 the applicant’s son had had a seizure and had hurt himself while falling between the beds and that he had immediately been taken to the consulting room.

On 3 November 2006 the prosecutor decided not to indict, finding that “the death was the consequence of [the applicant’s son] accidentally injuring himself during a grand mal seizure of epileptic aetiology”.

The decision was upheld on 28 December 2006 by the hierarchically superior prosecutor. His decision was contested by the applicant before the Bucharest County Court, which gave judgment on 18 October 2007.

The court quashed the prosecutor’s decision not to indict, holding that it was necessary to adduce more evidence in the case, namely, the video recordings from the place of detention for the relevant period of time.

The Prosecutor’s Office appealed. In a judgment given on 12 February 2008, the Bucharest Court of Appeal held that the prosecutor needed to establish and clarify the circumstances in which the victim had died, as there was evidence of a homicide having been committed. To that end, the prosecutor was ordered to produce and assess certain pieces of evidence, namely, to identify and watch all video recordings from the hallways of the penitentiary and from the victim’s cell; to identify and question as a witness V.L. and a certain N.N. (mentioned in the Amnesty International report on Marian Predică’s death, see paragraph 30 below); to identify other medical documents regarding the victim’s state of health, prior and subsequent to incarceration.

The case was remitted to the prosecutor for further investigation.

On 17 December 2009, the prosecutor initiated the criminal investigation in rem with respect to the offences listed under section 183 of the Romanian Criminal Code.

By two consecutive decisions of 22 February and 1 April 2010 the prosecutor decided to delegate the competent police officers to conduct the criminal investigation in conformity with the courts’ requirements, as stated in their judgments of 20 October 2006 and 12 February 2008 (see paragraphs 18 and 24 above). He also concluded that at the time of the impugned events, Rahova Penitentiary had not had a video surveillance system in place.

The prosecutor also mentioned the fact that the Superior Commission for Forensic Medicine had validated the autopsy report of 4 December 2003, adding that:

“[...] the trauma could have been produced by hitting with or against ... a hard surface (active blows to the facial area followed by a fall with cranial impact, the fatal lesions having been caused by the counter blow), with the following amendments: considering the type of the traumatic lesions, their morphology and their layout, including on an anterior and posterior plan, the possibility that they could have been sustained solely as the result of a fall during an epileptic seizure can be excluded; the other trauma could have been produced by hitting with or against... hard objects, in the same context as the fatal injuries to the cephalic extremity.

No deficiencies in the provision of medical care have been detected.”

While delegating the judiciary police to carry out the criminal investigation, the prosecutor also decided that the case should be registered in the archives of the Police Service Homicide Division, under “criminal cases with unidentified perpetrators”.

With the exception of the proceedings lodged by him before the domestic courts contesting the prosecutors’ decisions not to indict, the applicant was not involved in the investigation and alleged that he was hence forced to go to considerable lengths to obtain any relevant information regarding the progress of the proceedings.

The criminal investigation is still pending.

In the report of 11 March 2004 named “Death in suspicious circumstances of Marian Predică”, Amnesty International summarily presented the circumstances of the applicant’s son’s death while in custody. The report also included the statements given to representatives of the NGO by the director of the Penitentiary and by N.N., an alleged acquaintance of Marian Predică.

The relevant parts of this report read as follows:

“Marian Predica, born on 11 August 1983, was arrested on 20 March 2000 and sentenced to a prison term of one and a half years for stealing car radios and spare wheels [...]

According to information from Ion Predică, Marian’s father, on 6 October 2003 at around 8.30am two police officers from Section 23 came to his home and asked him to go urgently to the Rahova Penitentiary. At the Rahova Penitentiary he was told by the doctor that his son had died and that his body was at the Municipal Hospital. He asked the doctor how it had happened and she reportedly replied that Marian Predică had slipped and had a brain concussion [...]

On 7 October at around 7.30am Ion Predică went to the Institute of Forensic Medicine (Institutul de Medicină Legală – IML) to inquire about the cause of death of his son and was told that his son’s body had not yet arrived. On the next day Ion Predică returned to the hospital but was unable to obtain any information about the cause of death of his son. At the Hospital Directorate he was told that this information was confidential because Marian Predică had died in detention. Together with his sons, Ion Predică went back to IML where the forensic doctor reportedly told them that on his son’s body there had been signs of injuries suffered as a result of some violent act.[...]

On 3 November 2003 a representative of Amnesty International visited Rahova Penitentiary and spoke to the director. [...]When questioned whether Marian Predică’s hair had been shaved off as a disciplinary punishment, the director denied that such punishment is practical in the penitentiary. According to the director, his hair had been shaved in preparation for a brain scan at the Municipal Hospital. When the Amnesty International representative questioned the director why the family had not been notified that Marian Predică had been hospitalized, her reply was that there is no legal obligation to notify them in such circumstances. Their only duty is to provide the medical treatment.[...]

Amnesty International’s representative also spoke to N.N. who was arrested together with Marian Predică. They were initially held at Găeşti and then in Jilava. [...]. He is sure that Marian Predică was beaten by the special intervention unit in Rahova after the hearing in the Supreme Court. The special intervention unit – also referred to as the masked unit – reportedly raids cells of detainees and beats anyone who complains. After the hearing on 25 September 2003 N.N. had been playing in the waiting room with a piece of rope when two masked officers handcuffed him and held him by the arms and the neck. He was then returned to prison where he was taken to the barber and had his hair shaved off. At the time of the interview in November 2003, N.N.’s hair was very short. This is reportedly a usual punishment [...]”

In a letter of 6 November 2003 sent to the Court in his own case, G.I., a detainee at Rahova Penitentiary and applicant before the Court in application no. 25867/03, described what happened – to his knowledge – in November 2003 in the Penitentiary, as follows:

“In November 2003 in this penitentiary, the detainee Predică Marian was brutally beaten and killed [...] by the special intervention forces (mascaţi), who are criminals, beasts with human faces [...] the following witnesses can confirm what I have just stated: M.T.C., T.C., V.L., V. M., P. D. All these witnesses are, together with Predică Marian, parties in the same criminal proceedings”.

The parties were invited to submit comments with regard to this statement.

In their observations on the merits, the Government expressed their view that the statement could not be included in the present file, in so far as the applicant had never mentioned G.I. or put him forward as a potential witness to be heard in the domestic trial.

Subsequently, in their letter of 26 May 2010, the Government informed the Court that the statement had been sent to the Prosecutor’s Office responsible for the criminal investigation, in so far as the circumstances revealed therein should be taken into consideration.

The applicant considered that the statement should be included in the present file, as it was “a protest statement sent to the Court”, seen by G.I. as the only authority able to help the victim’s family. In reply to the Government’s argument, the applicant held that he could not have known the names of detainees who had information on his son’s death, and thus had not been able to put their names forward as witnesses; moreover, the identification of potential witnesses was not his duty, but primarily the duty of the State.

Bearing in mind the particular circumstances in which the impugned statement was given and submitted by G.I., the Court sees no valid reason why it should not be included in the present file and considered together with all the other documents in the assessment of the present case.

Romanian Criminal Code, in its relevant parts, reads as follows:

Homicide shall be punished by detention from 15 to 25 years and the loss of certain rights.

Should one of the acts in sections 180-182 (hitting or injuring) result in the victim’s death, the penalty shall be imprisonment from five to fifteen years.

Subjection to ill-treatment of a person being detained, in detention or in the execution of a security or correctional measure, shall be punished by imprisonment from one to five years.

(1) An act deliberately causing a person pain or intense suffering, either physically or mentally, in order to obtain from that person or from a third party information or confessions, to punish him/her for an act committed by him/her or a third party or that he/she or a third party is suspected of having committed, to intimidate or exercise pressure on him/her or on a third party, or for any other reason based on a form of discrimination, regardless of its nature, when such pain or suffering is applied by an agent of public authority or by any other person acting in official capacity or upon instigation or with the express or tacit consent of such persons shall be punished by imprisonment from 2 to 7 years.

(2) If the act in para. (1) results in any of the consequences in section 181 or section 182, the penalty shall be imprisonment from 3 to 10 years.

(3) Torture that results in the victim’s death shall be punished by life imprisonment or by imprisonment from 15 to 25 years.

(4) An attempt to commit the offences in the present section is punishable.

(5) No exceptional circumstance, whatever its nature may be, regardless of whether it is a state of war or the threat of war, internal political instability or any other exceptional state, can be invoked to justify torture; the order of the law or command of legitimate authority cannot be invoked either.

(6) The acts in para.(1) shall not constitute offences of torture if the pain or suffering are the exclusive result of legal sanctions and are inherent to these sanctions or caused by them.”

The provisions of the Romanian Criminal Procedure Code prescribing civil actions lodged within criminal proceedings and the procedure for contesting a prosecutor’s decision not to indict are summarized in the case of Cobzaru v. Romania (no. 48254/99, § 36, 26 July 2007).


No violation of Art. 6-1;Violation of Art. 10

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1970 and lives in Yekaterinburg. At the material time she was a journalist and the editor-in-chief of the newspaper D.S.P. (“D.S.P.” is a Russian abbreviation meaning “For Official Use Only”).

In late September 2001 the applicant's newspaper published in the same issue several items concerning the large-scale misappropriation of budgetary funds allegedly committed by Mr V., the head of the Sverdlovsk Regional Government, for the benefit of Mr K., an employee of the Moscow representative office of the Sverdlovsk Region.

The first article, entitled “Gay scandal in the White House” (“Гей-скандал в «Белом доме»”), appeared under the name of “Sergey Petrov”. It opened with the following passage:

“Once upon a time there lived the head of the Sverdlovsk Regional Government Mr V. He had everything: his position, high esteem and respect. And also the governor's love.

But V. fell in love ... not with the governor or with his work, but with a twenty-five year-old employee of the region's representative office in Moscow, Mr K.

How does one become a homosexual? Where does this “love” come from?

We are simple unsophisticated people ... And we cannot imagine the scene that took place between them in the sumptuous building of the region's representative office in Moscow ... Rumour has it that the governor, on having learnt certain details, was furious ... and even fired K. from his position.

But love, as we know, can overcome any obstacle. It finds not only a time, but also a place.”

The article further asserted that, under the terms of an order signed by Mr V. in 1997, the regional railway company had extinguished its outstanding regional tax liability by purchasing a three-room flat in Moscow:

“The flat was bought in Moscow at the following address: 9 Orshanskaya St., building 1, flat no. ...

Initially the flat was even entered in the Government's balance sheet. However, after a while V. made a gift of the flat ... No, please do not think that he gave it to Mr K... [He gave it] to Mr K.'s father. Apparently, as a 'thank-you' for the upbringing of his son...”

The author concluded in the following manner:

“It might have been a private matter if it were not for two 'buts'.

[Firstly,] two public figures, rather than private individuals, were linked together by Shakespearean passions in this story. In the instant case: the head of the Sverdlovsk regional government, V., and a member of the regional parliament, K...

Secondly, the flat was purchased at our expense, at the expense of our budget. Two billion roubles disappeared in 1997 into thin air. To date there has been no reimbursement or sanctions on the part of the tax authorities. The [character from a well-known Soviet picaresque novel] blushed a lot as he was stealing official property, but his like-minded accomplice V. never blushes.

And yet, to this day the entire budget of the region is channelled through his hands. How can we ensure that he handles that money honestly?”

On the left-hand column of the page the newspaper reproduced the text of a letter which the deputy director of the Sverdlovsk regional police had sent to the chairman of the Sverdlovsk regional audit commission. The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in Moscow, and asked the experts of the audit commission to assist by verifying the accounts of the railway company, the Sverdlovsk Regional Government and the private company that had acted as middleman in the transactions.

The third item, at the bottom of the page, was an article entitled “History of the flat on Orshanskaya [Street]. Embezzlement of public funds: a step-by-step guide for beginners” (“История квартирки на Оршанской. Пошаговая стратегия для начинающих казнокрадов”). It described, in chronological order, the financial and real-estate transactions between the railway company and the intermediary company, as well as the orders signed by Mr V. and the sale of the flat to Mr K.'s father.

On 12 October 2001 the prosecutor's office of the Sverdlovsk Region, acting on requests from V. and K., initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media, offences under Articles 129 § 2 and 130 § 2 of the Criminal Code.

The investigator commissioned a linguistic and cultural expert examination of the articles in question. On 6 November 2001 the expert came to the conclusion that they contained allegations that V. and K. were homosexuals who had engaged in sexual intercourse in the representative office of the Sverdlovsk Region. The expert considered that the articles had sought to present a negative image of V.:

“Tolerance towards the customs and mores of others is, in general, uncharacteristic of the Russian mentality, which is also evident in the attitude towards 'sexual minorities'. The Russian popular mindset and the Russian language retain a rigidly negative, rude and discourteous attitude to people of non-traditional sexual orientation (homosexuals and lesbians).”

The expert noted that the author of the first publication had “a preference for emotional value-judgments”. The report concluded:

“In this context the information on the sale and purchase of a flat in Moscow at the expense of the budget becomes sensational and seeks to persuade the reader to view V. as a dishonest manager, embezzler of public funds, and, in addition, an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful. The pragmatic aim of the articles ... is to undermine [readers'] trust in V. and K. as politicians...”

In late November 2001 counsel for the applicant privately commissioned a linguistic expert examination of the articles. The expert found that the word “homosexual” had no negative connotations and, therefore, could not be held to damage or undermine the honour and dignity of others. He noted that Russian society in recent years had become more tolerant towards homosexuality and a disclosure of someone's homosexuality in the mass media was not necessarily damaging to his reputation. Counsel asked the investigator to admit the report in evidence, but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination.

On 29 and 30 November 2001 the applicant was charged with criminal libel and insult disseminated via the mass media.

Following the applicant's indictment, she and her counsel filed a number of requests. They pointed out that the indictment did not identify which information the prosecution considered untrue. As the actual scope of the investigation had been limited to the allegations about V.'s homosexuality, the applicant insisted that its scope be extended to include the misappropriation of budgetary funds. Alternatively, if the charges were to be based exclusively on the allegations about V.'s and K.'s homosexuality, the applicant requested that a medical examination of V. and K. be carried out in order to establish their sexual orientation. On 3 and 28 December 2001 the investigator refused all the requests. He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary.

On 28 December 2001 the final bill of indictment was served on the applicant and the case was referred for trial. The applicant was charged with criminal libel and insult on account of her having disseminated the information that “V. and K. [were] homosexuals and lovers who [had] engaged in a homosexual act in the building of the region's representative office in Moscow”. The charges did not refer to the allegations of misappropriation of budgetary funds.

The case was referred for trial to the Verkh-Issetskiy District Court of Yekaterinburg, which decided to conduct the trial in private. The applicant and her counsel asked for a public hearing, while the victims and the prosecution stated their objections to giving further publicity to the case. The District Court maintained its decision to hear the case in private, noting that it related to the victims' private life.

The applicant pleaded not guilty. She claimed that she had been convinced of the accuracy of the information on K.'s homosexuality because she knew him in person. She also requested leave to adduce in evidence certain material comprising witness statements about a same-sex relationship between V. and K.; the court refused this request.

The court examined the witnesses, who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper.

On 22 April 2002 the District Court gave judgment. It did not make any findings as to whether the information on V.'s and K.'s homosexuality was true or false. Instead, it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants. Relying on the conclusions of the linguistic expert examination of 6 November 2001, the District Court found as follows:

“Indeed, it has been established beyond doubt that the editor-in-chief of D.S.P., Ya. V. Porubova, deliberately published ... [the impugned articles] which she had drafted. In these articles she stated that the Chairman of the Sverdlovsk Regional Government, Mr V., and a member of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region, K., were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is to say, she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims. In an attempt to slander the victims, she arranged for the printing of 500,000 copies of the newspaper and distributed them in the Sverdlovsk Region. The investigating authorities correctly characterised her actions as libel under Article 129 § 2 of the Criminal Code, i.e., dissemination via the mass media of information known to be untrue and damaging to other persons' honour, dignity and reputation.

In addition, Mrs Porubova related in these articles untrue information to the effect that [V. and K.] were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is, she deliberately assessed the personal qualities and conduct of the victims [in terms] which were grossly degrading to their human dignity and which contradicted society's prevailing approach to the treatment of individuals. Such treatment of the victims must be considered obscene and damaging to their dignity. In order to make the first issue of the newspaper appear important and sensational, she undermined the honour and dignity of the victims in the mass media. Therefore, the investigating authorities correctly characterised her actions as an offence under Article 130 § 2 of the Criminal Code.”

The applicant was found guilty as charged and sentenced to one and a half years' correctional work, with retention of fifteen percent of her wages for the benefit of the State.

On 4 September 2002 the Sverdlovsk Regional Court upheld the conviction, endorsing the reasons given by the trial court.

Subsequently, the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the Russian legislature on 30 November 2001.

Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression as well as freedom of the mass media.

Article 129 § 1 of the Criminal Code of the Russian Federation defines criminal libel as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person's reputation. Article 129 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to two years.

Article 130 § 1 of the Criminal Code defines criminal insult as undermining the honour and dignity of the victim in an obscene manner. Article 130 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to one year.

Article 137 of the Criminal Code establishes that it is a criminal offence to collect or disseminate information about an individual's private life without his consent or to make such information public through the media.

Article 18 of the RSFSR Code of Criminal Procedure (in force at the material time) established that a trial could be conducted in private, in particular with a view to preventing information about intimate aspects of the parties' lives from being disclosed.


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant, Mr Mate Čular, is a Croatian national who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr T. Vukičević, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

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

On 6 April 1984 the police authorities seized, from a Mr Z.K., 160,000 former Yugoslav dinars (YUD) that belonged to the applicant, under suspicion that the two of them had received it as a bribe. The applicant submits that he wanted to use the money to buy 4,870 kg of pickled (metal) sheet (dekapirani lim), which he intended to use in his recently opened locksmith's business.

On 12 November 1989 the competent State Attorney indicted the applicant and Z.K. before the Zagreb Municipal Court (Općinski sud u Zagrebu), charging them with the criminal offence of accepting a bribe. On 20 February 1995 the Zagreb Municipal Court discontinued the criminal proceedings, the State Attorney having dropped the charges against the accused. However, the sum seized was not returned to the applicant.

For that reason, on 28 November 1995, the applicant brought a civil action against the State in the Zagreb Municipal Court. In the period between 1984 and 1995 there were several changes to and denominations of domestic currency (see below under Relevant domestic law). So, the applicant initially sought the amount of 0.016 Croatian kunas (HRK) together with the statutory default interest accruable since 6 April 1984.

During the proceedings, on 7 November 1997, a court-appointed financial expert prepared a report according to which, taking into account the inflation rate, the value of YUD 160,000 in 1984 was equal to the value of HRK 22,170.50 at the time that he had prepared his report.

On the basis of that report, the applicant amended his claim and sought HRK 22,170.50 together with the statutory default interest accruable since 6 April 1984.

On 15 December 1997 the Municipal Court ruled in part for the applicant. It held that, by seizing and not returning to the applicant YUD 160,000, the State had enriched itself without cause, and awarded him HRK 22,170.50 together with the statutory default interest accruable since 7 November 1997. The remainder of the applicant's claim, concerning the statutory default interest accrued between 6 April 1984 and 7 November 1997, was dismissed.

Following appeals by both parties, on 15 February 2000, the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case. It held that the first-instance court had erred when it had adjusted the applicant's claim and awarded him the contemporary value of YUD 160,000, because, under the relevant legislation, he was entitled only to the nominal amount.

In the resumed proceedings, on 31 May 2001, the Zagreb Municipal Court awarded the applicant HRK 0.01 (as the amount awarded – HRK 0.016 – could be expressed to only two decimal places), together with the statutory default interest accruable since 28 November 1995. The remainder of the applicant's claim was dismissed and he was ordered to pay the respondent HRK 2,900 for the costs of the proceedings. In the applicant's submission, the sum he was awarded, including the accrued statutory default interest, was HRK 0.03.

On 16 December 2003 the Zagreb County Court dismissed the applicant's appeal and upheld the first-instance judgment.

On 19 February 2004 the applicant lodged a constitutional complaint against the second-instance judgment alleging a violation of his constitutional right to equality before the courts.

The Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint on 5 June 2007 and served its decision on his representative on 9 July 2007.

The Act on the Change of the Value of the Dinar (Zakon o promjeni vrijednosti dinara, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 83/89) of 21 December 1989 established the new value of the Yugoslav dinar (YUD) so that one new dinar corresponded to 10,000 old dinars.

By the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia (Odluka o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, Official Gazette of the Republic of Croatia no. 71/1991), which entered into force on 23 December 1991, the Republic of Croatia introduced its own currency, Croatian dinar (HRD). The Yugoslav dinar (YUD) was replaced by the Croatian dinar at an exchange rate of YUD 1 to HRD 1.

On 13 May 1994 the Decision on the Termination of the Validity of the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia and on the Manner and Time of Calculation of Sums Expressed in Croatian Dinars into Kunas and Lipas (Odluka o prestanku važenja Odluke o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, te o načinu i vremenu preračunavanja iznosa izraženih u hrvatskim dinarima u kune i lipe, Official Gazette of the Republic of Croatia no. 37/1994) entered into force, introducing the Croatian kuna (HRK) as the currency of the Republic of Croatia. It provided that the Croatian dinar should be replaced by the Croatian kuna at an exchange rate of 1,000 dinars to one kuna.

The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which was in force at the material time, provided as follows:

ENRICHMENT WITHOUT CAUSE

“(1) When a part of the property of one person passes, by any means, into the property of another person, and that transfer has no basis in a legal transaction or a statute [that is, it is without cause], the beneficiary shall be bound to return that property. If restitution is not possible, he or she shall be bound to provide compensation for the value of the benefit received.

(2) ...

(3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist.”

“When returning what has been received without cause, the beneficiary shall also be bound to return any profit or benefit accrued, and to pay the default interest, and to do so, if he or she was in bad faith, from the day of the enrichment, or otherwise from the day the request [for the return of the property] was made.”

DEFAULT INTEREST

“(1) The creditor shall have a right to default interest irrespective of whether or not he sustained any damage on account of the debtor's default.

(2) If the damage sustained by the creditor on account of the debtor's default is greater than the amount received as default interest, he or she shall have a right to claim damages up to the full amount of the compensation due.”

MONETARY OBLIGATIONS

“When an obligation has for its object a sum of money, the debtor is bound to pay the number of monetary units in which the obligation is expressed [that is, its nominal value], unless the law provides otherwise.”


Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings

The applicants, Temer Tanrıkolu, İbrahim Bağdu, M. Emin Tanrıkolu, Mehmet Tayşun, A. Menaf Akyol, M. Emin Tayşun, Lokman Akyol, Hamo Tayşun, Ramazan Atak, Hıdır Şengil, Methi Tayşun, Abdurrahman Mungan, M. Sait Çek, Faruk Dilek, Ramazan Tanrıkolu, Hasan Arsu and Abdulaziz Arsu, are Turkish nationals, who were born in 1977, 1948, 1960, 1956, 1950, 1953, 1971, 1950, 1960, 1977, 1973, 1975, 1964, 1974, 1975, 1949 and 1973 respectively. They all live in Silopi in south-east Turkey.

Between November 1992 and February 1993 the applicants were taken into police custody in Silopi by policemen on suspicion of aiding and abetting an illegal organisation, namely the PKK.

At the end of their police custody, the applicants were brought before the Şırnak Magistrate's Court in Criminal Matters and were subsequently placed in detention on remand.

On an unspecified date in 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment. He accused the applicants of aiding and abetting an illegal organisation, and called for them to be sentenced pursuant to Article 169 of the Criminal Code.

The applicants were all released pending trial.

On 6 February 1996 the Diyarbakır State Security Court, which was composed of three judges including a military judge, found the applicants guilty as charged and sentenced them to different terms of imprisonment, ranging between two years and six months and three years and nine months.

On 9 June 1997 the Court of Cassation, upholding the Diyarbakır State Security Court's reasoning and assessment of evidence, dismissed the applicants' request for appeal.

A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).


Remainder inadmissible;Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo).

On 28 April 1993 the applicant married F.M., an Albanian national. The couple had a child, I.B., who was born on 20 January 1997. In 1998 the applicant and F.M. separated.

F.M., together with her daughter, moved to her parents’ house in Vlora, Albania.

On 6 May 1999, using forged documents, the applicant’s wife married another person without being divorced from the applicant.

It appears that on 15 September 1999 the Vlora District Court annulled F.M.’s second marriage. On an unspecified date she married H.I., an Albanian national who resided in Greece.

During the years that followed F.M.’s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant’s consent.

F.M. and her parents prohibited the applicant from having contact with his daughter. Since his separation from F.M., the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003.

On 24 June 2003 the applicant brought divorce proceedings before the Vlora District Court.

On 26 June 2003 the applicant requested the Vlora Police District to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent.

Despite the applicant’s requests to the Vlora Police District, it appears that his wife took the child to Greece on 15 January 2004, using an official certificate in which the applicant’s daughter had been registered with the name I.M., using F.M.’s surname.

The applicant’s wife was not present at the hearings. The latter’s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee.

On 4 February 2004 the Vlora District Court decreed the parties’ divorce. The court granted custody of the child to the applicant, having regard to the wife’s lack of interest in the child’s life, the instability of her residential arrangements and her long periods of separation from the child.

On 19 March 2004 the divorce and custody decisions became final.

On 5 April 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court’s judgment of 4 February 2004.

On 13 July 2004 the Vlora Bailiffs’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania.

On 15 August 2004 and 13 January 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter.

On 11 January 2005, when questioned by the bailiffs, F.M.’s father declared that F.M. and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to F.M.’s home on three occasions between January 2005 and May 2005.

In May 2005 the Selenice District Police Station informed the bailiffs that F.M. and her daughter were not living in Athens and that F.M.’s father had moved to an unknown address in Tirana.

In July 2005 the Bailiffs’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece.

The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania (Avokati i Popullit) and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision.

On 14 August 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction.

On 13 October 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant’s daughter.

On 15 December 2003 the applicant initiated criminal proceedings against A.C., a Civil Status Office employee. He accused her of falsifying various documents that had enabled F.M. to remove I.B. from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter’s surname.

On 26 January 2004 the Vlora District Court decided to discontinue the proceedings.

On 22 August 2006 the Government informed the Registry that on 31 March 2006 the Vlora Court of Appeal had repealed the custody judgment of 4 February 2004 on the grounds that F.M. had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending.

On 23 August 2006, following the Registry’s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome.

The proceedings had been brought by F.M.’s lawyer and held in the applicant’s absence.

At present, Albania has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Article 11 of the Convention on the Rights of the Child of 20 November 1989, ratified by Albania on 27 February 1992, requires States Parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, States should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

This Agreement, signed on 17 May 1993, was ratified by Albania pursuant to Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no. 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters.

The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis.

In cases where a parent’s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities.

Failure to abide by a final decision concerning custody of children may be punishable under Article 127 of the Criminal Code.