Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment;Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

The applicants are brothers, born in 1964 and 1967 respectively. It appears that the first applicant currently resides in Germany, and the second applicant lives in the Irkutsk Region, Russia.

The facts of the case, particularly those surrounding the period of the applicants' detention in custody, are partially in dispute between the parties.

The facts as presented by the applicants are set out in Section B below (paragraphs 10 - 62). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 63 - 76). The documentary evidence submitted by the parties is summarised in Section D below (paragraphs 77 - 95).

Prior to the events described below, the first applicant, an engineer by profession, lived with his wife and two children in Staraya Sunzha, a suburb of Grozny. The second applicant, a school teacher by profession, lived in Kazakhstan and moved to Chechnya in 1999 with his wife and two children.

In early October 1999 hostilities started in Chechnya between the Russian armed forces and Chechen rebel fighters. The city of Grozny and its suburbs formed the target of wide-scale attacks by the Russian military. In October 2000 a housing agency in Grozny certified the destruction of the first applicant's flat as a result of the hostilities.

Fearing the attacks, the applicants moved their families and valuables to their parent's house (hereinafter “the house of the Chitayev family”) at 28 Matrosov Street in the town of Achkhoy-Martan. According to the applicants, the items of their property stored in the house had included the first applicant's tape-recorder, a hi-fi system, a video camera and the second applicant's TV set and a video player. Other items of electronics and clothing were also stored in the house. The documents and purchase receipts in respect of the valuables were kept separately in a suitcase. Most items were stored in one of the rooms of the house and in the cellar.

On 15 January 2000 officers from the Temporary Office of the Interior of the Achkhoy-Martan District (временный районный отдел внутренних дел Ачхой-Мартановского района – “the Achknoy-Martan VOVD”) searched the house at 28 Matrosov Street for firearms. According to the applicants, the search was not officially authorised or documented. The officers took with them a new packaged cordless telephone set with batteries and an antenna.

On 18 January 2000 the second applicant complained to the head of the Achkhoy-Martan VOVD that the search had been unlawful and asked for the telephone set to be returned. It appears that at the beginning of March 2000, after the applicants' father had submitted a request to the district military prosecutor, the telephone set was returned.

On 12 April 2000 at about 8 or 9 a.m. several officers of the Achkhoy-Martan VOVD again arrived at the house at 28 Matrosova Street. The applicants and their families were at home at that moment. The officers searched the house, without producing any warrants or official justification for their action. They seized several items of electronic equipment belonging to the applicants, documents for equipment and personal documents of some of the family members. The officers then asked the applicants to come with them to the Achkhoy-Martan VOVD for a few hours to help them to deal with paperwork.

According to the applicants, once they got into the car, the officers told them that they were under arrest and started to beat them. The applicants were taken to the Achkhoy-Martan VOVD and put into separate cells.

On the same day, at about 12 noon, the applicants' house was again searched. About 30 servicemen in two cars had arrived at the house and taken away all the electronic equipment found in the house, including a printer, TV sets and video equipment. No official justification for the search and seizure had been presented. The applicants submitted a list of items seized at their house (see paragraph 77 below).

Between 12 and 28 April 2000 the applicants were detained in the Achkhoy-Martan VOVD. While in custody they were questioned about the activities of the Chechen rebel fighters and about kidnappings for ransom, but denied their involvement in any crimes.

During the detention and interrogations, which took place in a cell situated on the third floor of the Achkhoy-Martan VOVD premises, the applicants were subjected to various forms of torture and ill-treatment. In particular, they were fettered to a chair and beaten; electric shocks were applied to various parts of their bodies, including their fingertips and ears; they were forced to stand for a long time in a stretched position, with their feet and hands spread wide apart; their arms were twisted; they were beaten with rubber truncheons and with plastic bottles filled with water; they were strangled with adhesive tape, with a cellophane bag and a gas mask; dogs were set on them; parts of their skin were torn away with pliers.

The first applicant was interrogated on the first day of detention and told to sign a confession. When he refused, the interrogators fettered him to a chair and kicked him. They put a gas mask on his face and released cigarette smoke into it. The first applicant lost consciousness and was brought back to his cell. The following day he was again taken for questioning to the same room. Wires were applied to his fingertips and the interrogators turned the handle of a device, which they called a “lie detector”, and which gave the first applicant electric shocks.

The second applicant was also interrogated on the first day of detention. He was brought to a room in which there were two officers, who told him to confess that he had been a rebel fighter and that he had been involved in kidnappings. When the second applicant refused to sign a confession, he was placed against the wall, handcuffed, and his mouth was covered with adhesive tape. One of the interrogators started beating him on his back and genitals, while the other held a machine-gun and threatened to shoot him if he moved. The second applicant was beaten for an hour and then taken back to his cell.

On several occasions during the detention the personnel of the Achkhoy-Martan VOVD came into the cells and beat all inmates, including the applicants.

There were no toilets in the cells, and the detainees were taken out to the toilets one by one. They were forced to run all the way to the toilets and if they were slow, they were beaten with rifle butts and chased with dogs. In the toilets they were not allowed enough time. Sometimes they were not allowed to go to the toilets and had to urinate and defecate in the corridor in full view of the guards.

The cells were unheated and damp and the applicants were constantly suffering from cold.

According to the applicants, on 28 April 2000 they and some other detainees were taken out of the Achkhoy-Martan VOVD, blindfolded and put into a vehicle. The guards told them that they were going to execute them. Instead, the detainees, including the applicants, were transferred to another detention centre. Later they found out that the place was the Chernokozovo detention centre (следственный изолятор с. Чернокозово – “the Chernokozovo SIZO”). The detainees, including the applicants, were forced out of the vehicle, ordered to prostrate themselves and beaten. They were then taken to cells.

The applicants were not subjected to a medical examination upon their admission to the Chernokozovo SIZO, as prescribed by the relevant legislation.

At the beginning of their detention in the Chernokozovo SIZO, the applicants were questioned every two days and later about once a week. They were forced to run to the interrogation room with their heads lowered and their hands across their heads, while the guards beat them on their backs. There was an iron table, a chair and a hook on the wall in the interrogation room. The interrogators, who never drew up any transcripts of interrogations, put pressure on the applicants to force them to confess or simply beat them. The interrogators also kicked the applicants with boots, rifle butts and mallets on different parts of their bodies, in particular their knee caps, threatened the applicants with a knife pressed against their fingers, put tarpaulin gauntlets on the applicants and then tied their hands to the hook and beat them, squashed the applicants' fingers and toes with mallets or a door of a safe, tied the applicants' hands and feet together behind their backs (“swallow” position), strangled the applicants with adhesive tape or a cellophane bag, and applied electric shocks to the applicants' fingers.

The applicants were also beaten by the guards when they were taken out of their cells for a few minutes' “exercise”.

The applicants' lawyer, Mr Sharip Tepsayev, was only given access to them once during the entire period of their detention in the Chernokozovo SIZO, namely at some point in May 2000. The applicants were allowed to meet with him one by one, in the presence of a police officer. They were required to speak Russian during the meeting and the lawyer could only ask them how they were doing.

During their detention in the Chernokozovo SIZO the applicants were kept in separate cells, except for several days in late July 2000, which they spent in the same cell.

The second applicant spent a month and a half in cell no. 5 and another month and a half in cell no. 20. For the remainder of his detention the second applicant was in cell no. 27. That latter cell was designated for three people, whilst no less than six inmates were detained in it. The second applicant had to sleep on the floor on a mattress which was given to him.

According to the applicants, the conditions of their detention improved in June 2000 after the guards had been replaced by a new shift and after the representatives of the International Committee of the Red Cross (“the ICRC”) had visited the Chernokozovo SIZO on 14 June 2000. The second applicant managed to talk to the representatives of the ICRC personally, in a confidential meeting, because he spoke English.

There were two more visits by the representatives of the ICRC in August 2000. Those visits enabled the applicants to exchange messages with their families. In January 2001 the ICRC office in Nalchik, Kabardino-Balkaria, issued the applicants with certificates confirming that they had been visited by the ICRC in Chernokozovo on 14 June, 11 August and 23 August 2000.

On 19 September 2000 the applicants were brought back to the Achkhoy-Martan VOVD and informed that they had been charged with kidnapping and participation in an unlawful armed group under Articles 126 (2) and 208 (2) of the Russian Criminal Code. According to the applicants, it was the first time that they had been officially informed of the charges against them.

On 5 October 2000 the applicants were released from detention subject to a written undertaking not to leave their place of residence.

On 6 October 2000 the applicants were brought by their relatives to the Achkhoy-Martan hospital. They were examined by a general practitioner, a neuropathologist and a surgeon. The first applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and post-traumatic stress disorder, chronic bronchitis, chronic two-sided pyelonephritis, asthenoneurotic syndrome, hypochromic anaemia, numerous blunt injuries to the head, body and extremities, and chronic pneumonia in the left lung. The second applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and posttraumatic stress disorder, numerous blunt injuries to the head, body and extremities and a trauma of the left knee-cap, chronic pneumonia in the left lung and chronic left-sided pyelonephritis. The doctors noted down that the traumas and other medical conditions had apparently been sustained in the Chernokozovo SIZO between April and October 2000.

In letters of 9 October 2000 the prosecutor's office of the Achkhoy-Martan District (Ачхой-Мартановская районная прокуратура – “the district prosecutor's office”) informed the applicants that criminal proceedings in case no. 59212 opened against them under Articles 126 (2) and 208 (2) of the Criminal Code had been discontinued on 9 October 2000, as their involvement in the imputed offences had not been proven. The letters stated that the applicants had been relieved of their obligation not to leave their place of residence and that they could appeal against the decision of 9 October 2000 to a superior prosecutor or to a court within five days.

From 12 April 2000 onwards the applicants' relatives, both orally and in writing, applied repeatedly to various official bodies concerning the searches in their house and seizure of their property, as well as the applicants' arrest on 12 April 2000 and their subsequent detention. After the applicants had been released, they joined their relatives in these efforts. They were supported by human rights NGOs. These attempts yielded little result. On several occasions, the applicants' family members received copies of letters from various authorities directing their complaints to the district prosecutor's office, the Achkhoy-Martan VOVD or the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor's office”).

On the evening of 12 April 2000 the applicants' relatives went to the Achkhoy-Martan VOVD and enquired about the applicants' whereabouts. They were informed that the Chitayev brothers had been asked to help with paperwork and would soon return home. The applicants did not return that day.

On 14 April 2000 the applicants' father went to the Achkhoy-Martan VOVD to find out where his sons were. The officials informed him that the brothers had been detained on suspicion of having kidnapped Russian soldiers for ransom. The suspicion was allegedly based on military uniformed overcoats found in the house. The applicants' father replied that these were old-style Soviet military overcoats, no longer used in the army, that his sons had brought them home after their service in the Soviet army and that he had used them for various household needs.

On 22 April 2000 the Memorial Human Rights Centre, acting on behalf of the Chitayev family, requested the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) to clarify the reasons for the applicants' arrest on 12 April 2000 and complained that the searches, seizures and arrests had been unlawful.

By letter of 18 May 2000 the Ministry of the Interior replied to an enquiry of a deputy of the State Duma sent on the applicants' behalf. The letter stated that criminal proceedings against the applicants had been instituted by the district prosecutor's office on suspicion of the applicants' involvement in criminal offences under Articles 126 (2) and 208 (2) of the Russian Criminal Code. It continued that on 21 April 2000 the case file had been forwarded to the Chief Department of the Prosecutor General's Office for the Northern Caucasus (Главное управление Генеральной прокуратуры РФ на Северном Кавказе – “the Prosecutor General's Office for the Northern Caucasus”) to be joined with other cases related to the military actions in Chechnya and indicated that further information could be obtained from that Office.

On 20 May 2000 the republican prosecutor's office informed the applicants' brother that the criminal investigation against the applicants was being conducted by the Prosecutor General's Office for the Northern Caucasus, and that therefore further enquiries should be addressed there.

On 22 May 2000 the applicants' father submitted a complaint about the seizure of property to the head of the Achkhoy-Martan VOVD. The latter replied in an undated letter that the items allegedly seized at the house of the Chitayev family were not registered as being kept in the Achkhoy-Martan VOVD. The letter further stated that the prosecutor's office of the Achkhoy-Martan District had instituted criminal proceedings against the applicants, but did not indicate the date on which the proceedings had been commenced. It continued that in the context of those proceedings “an inspection of the scene of the incident” had been carried out in the house of the Chitayev family, in accordance with the relevant provision of the national legislation. Furthermore, a report on the results of that “inspection” was kept in the file of the criminal case against the applicants and the items seized during the “inspection” in the house of the Chitayev family were listed in that report. The letter concluded that the seized property should be kept in the case file and invited the applicants' father to apply to the republican prosecutor's office for any information regarding the proceedings against the applicants.

On 4 July 2000 the applicants' brother complained to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic about the applicants' unlawful detention on 12 April 2000 as well as the searches and seizures in the house of the Chitayev family.

On 26 July 2000 the deputy head of the Achkhoy-Martan VOVD informed the applicants' father that the applicants had been detained on 17 April [rather than on 12 April] 2000, pursuant to Article 122 of the Russian Code of Criminal Procedure.

On 28 July 2000 the same officer of the Achkhoy-Martan VOVD informed the applicants' father that the items seized in his house had been attached to the case file of the criminal investigation, and that the decision regarding the release of those items could only be taken by an official in charge of the investigation, or a competent court.

On 1 September 2000 the applicants' father sent a request concerning the lawfulness of the searches and seizures in his house and the applicants' detention on 12 April 2000 to the republican prosecutor's office.

On 7 September 2000 the republican prosecutor's office replied to the applicants' father that the applicants had been arrested in connection with the criminal charges brought against them under Articles 126 (2) and 208 (2) of the Russian Criminal Code, namely kidnapping and participation in an illegal armed group, and that the period of their remand in custody had been extended until 9 October 2000 by the republican prosecutor, but did not specify the date of the extension order. The applicants' father was invited to apply to the district prosecutor's office for information on the results of the investigation in the applicants' criminal case.

On 18 October 2000 the republican prosecutor's office informed the applicants' brother that, following his complaint concerning the unlawfulness of the searches and seizures in the house of the Chitayev family, as well as the applicants' detention, the division of internal security of the Achkhoy-Martan VOVD had commenced an internal inquiry (служебная проверка) into the seizure and destruction of “radio equipment and transmitting devices and personal property” belonging to his brothers. The letter further stated that the applicants had been released from detention on 4 October 2000 subject to an undertaking not to leave their permanent place of residence.

On 1 June 2001 the applicants' brother applied to the district prosecutor's office for information concerning the items seized in their family house in April 2000.

On 5 October 2001 the SRJI, acting on the applicants' behalf, complained to the republican prosecutor's office, giving a detailed description of severe ill-treatment of the applicants and the alleged procedural violations during the applicants' detention in the Achkhoy-Martan VOVD and the Chernokozovo SIZO from 12 April until 5 October 2000. The letter referred to the medical documents in support of the complaints regarding ill-treatment and requested that criminal proceedings in connection with the applicants' allegations be instituted. A copy of the letter was forwarded to the Prosecutor General's Office. The latter replied on 25 October 2001 that the complaint had been forwarded to the republican prosecutor's office.

On 29 October 2001 the applicants' brother requested the Achkhoy-Martan VOVD to provide him with an update concerning the internal inquiry into the seizure of the property in April 2000. On 3 January 2002 he filed another request concerning the update on the complaints concerning the property and the arrest and detention of his relatives. No reply was received to any of these requests.

On 22 November 2001 and on 24 January 2002 the SRJI again wrote to the republican prosecutor's office, referring to their letter of 5 October 2001. On 29 January 2002 they requested the same information from the district prosecutor's office.

In early 2002 all male members of the Chitayev family received a summons to appear at the district prosecutor's office on 7 January 2002. The first applicant was outside Chechnya at that time, but the second applicant and the applicants' father and brother appeared. They were invited to talk to an investigator of the prosecutor's office one by one.

According to the second applicant, the prosecutor of the Achkhoy-Martan District and an investigator of the same office proposed that he should write a statement withdrawing all claims against the Achkhoy-Martan VOVD concerning the lawfulness and conditions of detention. In case of refusal, they threatened to re-open the criminal proceedings against both applicants. The second applicant was allowed to consult his relatives, whereupon he decided to sign the requested statement.

By letter of 7 January 2002 the investigator of the district prosecutor's office replied to the SRJI that following the examination of their complaint, the prosecutor's office had decided to dispense with criminal proceedings. The letter did not state the reasons for that decision, but informed the SRJI of the possibility of appealing against it to superior prosecutors or to a court. A copy of the decision of 7 January 2002 was not enclosed.

On 14 March 2002 the SRJI challenged the decision of 7 January 2002 before the republican prosecutor. They enclosed a copy of their complaint of 5 October 2001, referred to the pressure put on the second applicant to repudiate his statements concerning the ill-treatment and reiterated their request that a criminal investigation into the applicants' allegations of ill-treatment in the Achkhoy-Martan VOVD and the Chernokozovo SIZO be opened.

In a letter of 18 March 2002 the acting prosecutor of the Achkhoy-Martan District informed the SRJI that the district prosecutor's office had studied the complaint concerning “illicit methods of investigation” applied to the applicants and decided not to open criminal proceedings in the absence of evidence of a crime in the actions of the personnel of the Achkhoy-Martan VOVD. The letter further stated that the second applicant had been invited to the district prosecutor's office where he had confirmed the fact of his detention at the Achkhoy-Martan VOVD and the Chernokozovo SIZO, but had denied that “illicit methods of investigation” had ever been applied to him, whilst the first applicant could not be questioned because he had left the Chechen Republic. The letter went on to say that no objective information proving the allegations of ill-treatment had been obtained, and that the SRJI had already been informed of the results of the examination of their complaint by letter no. 105 dated 7 January 2002.

On 24 April 2002 the applicants' brother applied to the republican prosecutor's office for information on the developments in the internal inquiry commenced in connection with his complaints about the searches and seizures in their house. It does not appear that any reply from the authorities followed.

On 6 May 2002 [erroneously dated 2001] the republican prosecutor's office replied to the SRJI's complaint of 14 March 2002, informing them that an internal inquiry had been carried out in connection with their request that the decision of 7 January 2002 be quashed. The letter stated that “the decision of the district prosecutor's office to dispense with criminal proceedings in respect of the applicants' complaint concerning ill-treatment by the personnel of the Achkhoy-Martan VOVD and Chernokozovo SIZO [during their detention between 12 April and 5 October 2000] was well-founded and lawful and that [the applicants'] complaints were found to be unsubstantiated”.

At some point the SRJI requested the district prosecutor's office to send them a copy of the decision of 7 January 2002 concerning the refusal to institute criminal proceedings in connection with the applicants' allegations of ill-treatment during their detention from 12 April until 5 October 2000. On 24 March 2003 the district prosecutor's office replied that the SRJI had been notified of the results of the examination of their complaint and of their right to appeal and that, according to the Russian Code of Criminal Procedure then in force, the investigator was not obliged to forward a copy of such decision to a person who had sought the institution of proceedings. The reply also stated that the second applicant had been apprised of the document in question.

On 15 January 2000 officers of the Achkhoy-Martan VOVD carried out a passport check in the town of Achkhoy-Martan. During the check in the house at 32 [rather than 28] Matrosova Street, the applicants' father voluntarily surrendered an FT-26 radio station and accessory equipment, technical documentation in foreign languages for that radio station, a personal military card of serviceman B., who had previously been kidnapped by unidentified persons, a camouflage cloak, a bullet-proof vest and 11 registration plates for cars and tractors. Following the voluntary surrender of the items, a formal note (акт) was drawn up on the same date, and on 4 February 2000 an investigator of the Achkhoy-Martan VOVD decided not to open a criminal investigation in this connection.

On the basis of the information obtained during the check of 15 January 2000, on 12 April 2000 the applicants' house was “inspected” (осмотр) by a police officer of the Achkhoy-Martan VOVD, Mr S. Vlasenko, in the presence of attesting witnesses. During that “inspection” police officer Vlasenko found eight military overcoats and four military jackets, all bearing numbers and personal details of federal servicemen, details from a radio transmitting device, tapes with recordings of Shamil Basayev's interview, a video recording of a documentary called 'Nokhcho Chechnya – the Day of Freedom', photographs of exhumations, photographs of the first applicant armed, a computer and diskettes with information concerning tapping of radio and telephone conversations of the members of the Government of Chechnya in 1998, lists of mobile telephone numbers of the top-ranking officials of Chechnya and leaders of the illegal armed groups, outlines of eavesdropping transmitters, and other materials that, in the Government's submission, “could be indicative of the applicants' participation in illegal armed groups.”

On 17 April 2000 the prosecutor's office of the Achkhoy-Martan District instituted criminal proceedings against the applicants under Articles 126 (2) (aggravated kidnapping) and 208 (2) (participation in an illegal armed group) of the Russian Criminal Code on the basis of the results of the check of 15 January 2000 and the inspection of 12 April 2000. The case file was assigned the number 26009 and then 59212.

On the same date the applicants were apprehended pursuant to Article 122 of the Russian Code of Criminal Procedure, then in force, and placed in detention in the Achkhoy-Martan VOVD.

On 18 April 2000 the district prosecutor's office quashed the decision of 4 February 2000 on the ground that the investigation into the circumstances of the disclosure of the items during the check on 15 January 2000 had been incomplete and the materials of that check were included in the file of the criminal proceedings opened against the applicants.

On 19 April 2000 the district prosecutor's office ordered that a preventive measure in the form of custody be taken against the applicants for their suspected involvement in kidnapping and participation in illegal armed groups. These orders were then forwarded for execution to the Chernokozovo SIZO.

On 20 April 2000 both applicants were formally charged with criminal offences under Articles 126 (2) and 208 (2) of the Criminal Code.

Since 25 April 2000 Mr Tepsayev, a member of the Nazran (Ingushetia) Bar Association, had been admitted to the criminal proceedings against the applicants as their defence counsel.

On 26 April 2000 the applicants were transferred to the Chernokozovo SIZO and underwent a medical examination, as required by relevant legal acts. The first applicant was diagnosed with a head trauma and subsequently received medical assistance in this connection. The examination revealed no other injuries on the applicants. While in detention, the second applicant received medical treatment in respect of chronic gastritis.

On 4 October 2000 the applicants were released subject to an undertaking not to leave their place of residence.

On 9 October 2000 the district prosecutor's office discontinued the criminal proceedings against the applicants with reference to the absence of sufficient evidence proving their involvement in the imputed offences.

On 23 November 2000 the decision of 9 October 2000 was set aside by the republican prosecutor's office and the criminal proceedings against the applicants were resumed.

On 20 January 2001 the district prosecutor's office again discontinued the criminal proceedings against the applicants in view of the fact that the applicants' involvement in the imputed offences had not been proven.

On 29 October 2003 the decision of 20 January 2001 was quashed by the republican prosecutor's office and the case forwarded for additional investigation. It appears that the proceedings are pending at present and that in the context of these proceedings some investigative steps were taken in respect of the second applicant in 2005.

Among a considerable number of other documents, the applicants submitted an undated list of items seized from their house, countersigned by their mother, two attesting witnesses and police officer S. Vlasenko from the Achkhoy-Martan VOVD. The document listed a Sony TV set, a Panasonic TV set, a Toshiba TV set, a Funai TV set, a Funai video recorder, a Panasonic video recorder, a Sony tape recorder, a Lexmark printer, a “Rus” film projector, a power adapter, a heater with two sets of exchangeable details, video and audio tapes, two briefcases of documents, and an “Elektronik” charging device.

They also submitted written eye-witness statements from their father, sister and three neighbours confirming the search and seizure of the Chitayevs' property as well as the applicants' apprehension on 12 April 2000.

In order to be able to assess the merits of the applicants' complaints, at the admissibility stage the Court invited the Government to submit documents from the file of the criminal investigation opened against the applicants as well as documents from the inquiry into the applicants' complaints concerning their ill-treatment and lawfulness of their detention, as well as those relating to the searches in the house of the Chitayev family and the seizure of their property. The documents submitted by the Government, both before and after the case was declared partly admissible, may be summarised as follows.

A handwritten document with an illegible title, drawn up on 15 January 2000 by a police officer of the Achkhoy-Martan VOVD, recorded the seizure of an FT-26 radio station and accessory equipment, technical documentation for that radio station, a camouflage cloak, a bullet-proof vest, eight registration plates for cars and tractors and a personal military card of serviceman B. It was indicated in the document that a copy of it had been given to the applicants' father. The document was signed by the police officer who had drawn it up and the applicants' father. In a report of 15 January 2001 the same police officer informed his superiors of the seizure of the aforementioned items at the house at 28 Matrosov Street in Achkhoy-Martan and indicated that they had been surrendered by the applicants' father.

The Government did not furnish the Court with any documents concerning the search of 12 April 2000.

By a decision of 17 April 2000 an investigator of the prosecutor's office of the Achkhoy-Martan District ordered that criminal proceedings against the applicants be instituted under Articles 126 (2) and 208 of the Criminal Code on the basis of the results of the “operative measures” taken in the house of the Chitayev family at 32 [rather than 28] Matrosov Street in the town of Achkhoy-Martan on 12 April 2000.

Two reports issued by an investigator of the district prosecutor's office in April 2000 [the date of issue is illegible] stated that the applicants had been apprehended on 17 April 2000 pursuant to Article 122 of the Code of Criminal Procedure. The reports indicated that clear traces of a criminal offence had been found in the applicants' house, constituting a ground for their apprehension, and stated that it had been necessary to prevent them from absconding or obstructing the establishment of the truth. The reports also indicated that the applicants were suspected of having been involved in kidnappings and of participation in illegal armed groups in 1996-2000, that they had been informed of their rights as suspects and that the prosecutor of the Achkhoy-Martan District had been notified of the applicants' apprehension on the same date. The reports were signed by the investigator and the applicants.

By two decisions of 19 April 2000 the investigator of the district prosecutor's office ordered that a measure of restraint in the form of custody be taken against the applicants. The orders referred to the objects seized in the house of the Chitayev family on 12 April 2000 and stated that the applicants were suspected of involvement in kidnappings of Russian servicemen in the period 1996-2000 and that in view of the gravity of the charges and the danger of the applicants' obstructing the establishment of the truth if at large, the applicants should be detained on remand. The orders also stated that the applicants had been informed about their right to challenge this measure of restraint in a court. They were signed by the investigator and applicants and countersigned by the district prosecutor and sent for execution to the head of the Chernokozovo SIZO.

Two decisions of 20 April 2000 issued by the investigator of the district prosecutor's office ordered that the applicants be formally charged with the kidnappings of Russian servicemen for ransom, and participation in illegal armed groups, in the period 1996-2000. The decisions stated that the applicants had been notified of the charges against them and that the substance of the charges as well as the procedural rights of the accused had been explained to them. The decisions were signed by the investigator and the applicants, but the signature of the applicants' defence counsel was missing.

A decision of the district prosecutor's office dated 20 January 2001 ordered that the criminal proceedings against the applicants be discontinued. This document outlined in detail the main procedural steps taken in the course of the criminal proceedings against the applicants. It stated, inter alia, that the applicants had been apprehended on 17 April 2000, that on 19 April 2000 their remand in custody had been authorised, that on 20 April 2000 they had been charged with criminal offences under Article 126 (2) and 208 (2) and that on 7 August 2000 the period of the applicants' detention on remand had been extended for 5 months and 22 days until 9 October 2000.

A decision of the republican prosecutor's office dated 29 October 2003 set aside the decision of 20 January 2001 and ordered that the criminal proceedings against the applicants be resumed and an additional investigation be carried out.

The Government produced a number of certificates (справка) issued by the head of the Chernokozovo SIZO on 21 October 2003.

The certificates stated that upon the applicants' arrival at the Chernokozovo SIZO no injuries had been found on them. The first applicant had been diagnosed with a craniocerebral injury and, while in detention, he had sought medical assistance on seven occasions in this connection and had been prescribed certain medication, whilst the second applicant had applied for medical assistance on five occasions in connection with influenza and chronic gastritis and had also been prescribed medical treatment.

Another document listed the cells in which the applicants had been detained. The document stated that the first applicant had been kept in cells nos. 10 (measuring 18 square metres), 2 (14 square metres), 23 (18.8 square metres), 3 (12.8 square metres) and 10 (18 square metres) and the second applicant had been detained in cells nos. 5 (measuring 13.2 square metres), 20 (12.2 square metres), 3 and 27 (7 square metres each). The document continued that the sanitary conditions in the cells had been in conformity with the relevant requirements, that all cells had been equipped with running water and toilets. The document also stated that the applicants had always been provided with individual sleeping berths and that the number of persons detained together with the applicants had been in accordance with the relevant regulations.

The remaining certificates stated that no physical force or special devices had been used against the applicants between 26 April and 25 September 2000, that the applicants had not sent any letters or complaints during the said period, that the administration of the Chernokozovo SIZO had provided them with relevant legal information and advice, including access to legal documents, and that on 2 June 2000 they had been attended by their lawyer, Mr Tepsayev.

A number of letters from various higher courts in Russia stated that during the period 1999-2003 no criminal proceedings against the applicants had been pending in the courts of the respective regions of Russia and that the applicants had not complained about unlawful detention or about the actions of the personnel of the Achkhoy-Martan VOVD or the Chernokozovo SIZO.

In a handwritten explanation, given at the prosecutor's office of the Achkhoy-Martan District on 29 December 2001, the second applicant stated that he and the first applicant had been detained and taken into custody in the context of criminal proceedings against them instituted on suspicion of their involvement in kidnappings and participation in illegal armed groups and then released on an undertaking not to leave a specified place of residence and that the criminal proceedings against them had subsequently been discontinued. The second applicant also stated that there had been grounds for their detention, as military overcoats had, indeed, been found in their house, and that there had been no procedural or any other violations of their rights during the detention. He further stated that he had not signed any untrue statements and had no complaints to make against the officers of the Achkhoy-Martan VOVD or Chernokozovo SIZO or investigators of the district prosecutor's office.

On 7 January 2002 an investigator of the prosecutor's office of the Achkhoy-Martan District, based on the results of the investigation in connection with a complaint lodged by the SRJI on the applicants' behalf, decided to dispense with criminal proceedings. The decision stated that on 17 April 2000 the prosecutor's office of the Achkhoy-Martan District had opened criminal case no. 59212 against the applicants on suspicion of their having committed criminal offences under Article 126 (2) and 208 of the Criminal Code. It further stated that:

“The criminal proceedings were instituted as a result of the discovery, during the planned operative measures on 12 April 2000, of eight military overcoats of servicemen of the Russian armed forces ..., a personal military card of serviceman B., documents and tape records with information on [the applicants'] involvement in kidnappings of servicemen and participation in illegal armed groups.

On 12 April 2000 a police officer of the Achkhoy-Martan VOVD, Vlasenko S.M., carried out an inspection of the scene of the incident ... which was reflected in a report. The inspection was carried out in the presence of two attesting witnesses, the owner of the house and two officers of the VOVD.”

The decision further indicated that the applicants had been apprehended pursuant to Article 122 of the Code of Criminal Proceedings on 17 April 2000, that on 19 April 2000 their detention on remand had been authorised and that on 20 April 2000 they had been formally charged with the aforementioned offences and notified of their procedural rights. The decision pointed out that the applicants had waived their right to legal assistance, but they had nevertheless been provided with a lawyer, Mr Tepsayev. The decision went on to say that on 4 October 2000 the applicants had been released subject to a written undertaking not to leave a specified place and that on 20 February [rather than January] 2001 the criminal proceedings against them had been discontinued for lack of evidence of their involvement in the imputed offences. It further stated:

“During the preliminary investigation into the said case no searches were carried out.

There were no procedural violations during the preliminary investigation, which is confirmed by the materials of case no. 59121.

[The applicants] did not sign any confessions ..., this fact being confirmed by the absence of any such documents in the file of case no. 59212 and [the second applicant's] explanations.

There were no procedural or any other violations in respect of [the applicants] during the investigation or their detention in the Achkhoy-Martan VOVD or Chernokozovo SIZO, which is confirmed by the materials of case no. 59212 and [the second applicant's] explanations.

In the light of the above, no evidence of any of the offences prohibited by the Russian Criminal Code can be established in the actions of the investigators of the district prosecutor's office who had been in charge of the investigation in criminal case no. 59212, or in those of the officers of the Achkhoy-Martan VOVD or Chernokozovo SIZO.”

The decision thus concluded that the SRJI's request concerning the institution of criminal proceedings upon the applicants' complaints should be rejected and ordered that the persons concerned be informed of that decision and notified of their right to challenge it before the prosecutor's office of the Achkhoy-Martan District or in a court. The decision made no comments as regards the SRJI's reference to medical documents certifying the applicants' injuries.

On 2 May 2002 a prosecutor at the prosecutor's office of the Chechen Republic drew up a report “on the results of the internal inquiry into the actions of the officials of the prosecutor's office of the Achkhoy-Martan District during the examination of the applicants' complaint about inhuman treatment in the Achkhoy-Martan VOVD and the Chernokozovo SIZO between 12 April and 5 October 2000”. The report stated that the internal inquiry had been carried out in connection with the complaint by the SRJI lodged on the applicants' behalf against the decision of the district prosecutor's office dated 7 January 2002 to dispense with criminal proceedings as regards the applicants' allegations that they had been ill-treated while in detention. The report stated that the internal inquiry had established the following:

“In January 2002 [the second applicant] and his father were invited to the prosecutor's office of the Achkhoy-Martan District in connection with information about the use of illicit methods of investigation in respect of [the applicants]. [The second applicant] personally did not complain that any pressure had been put on him to extract any statements. Therefore he voluntarily gave explanations to investigator Ch. to the effect that no illicit methods of investigation had been applied to him and that he had no claims against law-enforcement bodies.

Neither the investigator nor the prosecutor put any pressure on him to extract this explanation. No threats were made in his respect.... Moreover, he talked to prosecutor A.-K. after he had given his explanations to investigator Ch.

His father refused to give any explanations. Presently he is undergoing medical treatment outside the territory of the republic. He refused to give any explanations, as he is fed up with all this.

[The second applicant] does not know whether [the first applicant] has applied to any human rights organisations. At present [the first applicant] lives in Poland and [the second applicant] has no contact with him.

Apparently, it was his younger brother ... who had met a representative [of the SRJI] in Moscow and provided the information in question. Thereafter he spoke to [his younger] brother and forbad him further from applying to human rights organisations with unverified information.

The investigator of the prosecutor's office of the Achkhoy-Martan District, Ch., who was questioned during the internal inquiry, stated that in January he had carried out an investigation into the allegations by the [representative of the SRJI] to the effect that the illicit methods of investigation had been applied to [the applicants] during their detention in the Achkhoy-Martan VOVD and Chernokozovo SIZO. During that investigation he had questioned [the second applicant] without putting any psychological or physical pressure on him. ... He had not forced [the second applicant] to make any statements, but merely questioned him, and thereafter the latter had read his explanations and signed them. [The applicants' father] had appeared at the prosecutor's office, along with [the second applicant], given oral explanations and then left the prosecutor's office and had not replied to further summonses. That investigation had resulted in the refusal to institute criminal proceedings against police officers who had allegedly applied illicit methods of investigation to [the applicants] during the latter's detention [in the absence of evidence of a crime in their actions].

The prosecutor of the Achkhoy-Martan District, A-K., who was questioned during the internal inquiry, had stated that the district prosecutor's office had investigated the allegations about illicit methods of investigation being used [against the applicants] in early January 2002, with the result that investigator Ch. had decided to dispense with criminal proceedings [in the absence of evidence of a crime]. Officials of the prosecutor's office had not put any pressure on [the second applicant] or his father. [The second applicant] had requested a meeting with the prosecutor after he had given explanations to the investigator. [The second applicant], at the request of a supervising official from the republican prosecutor's office, had confirmed the defamatory nature of the allegations represented in the letter of [the SRJI]. The republican prosecutor's office approved the decision taken by the district prosecutor's office.”

The report thus concluded that investigator Ch.'s decision of 7 January 2002 to dispense with criminal proceedings in connection with the allegations of ill-treatment of the applicants during their detention between 12 April and 5 October 2000 in the Achkhoy-Martan VOVD and Chernokozovo SIZO was lawful and well-founded, that the SRJI's allegations concerning the pressure on the second applicant and his father during the investigation in connection with the SRJI's complaint were groundless and that the SRJI's request to have the decision of 7 January 2002 set aside should be dismissed.

The Chernokozovo SIZO, where the applicants had been detained, received extensive attention from various human rights institutions, including the European Committee for the Prevention of Torture (“the CPT”), for allegations of severe ill-treatment of detainees. On 4 March 2000 the Head of the CPT delegation, Mr Hajek, issued a statement to the Russian officials at the end of the CPT visit to the North Caucasus region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo:

The delegation is satisfied that, at present, persons detained in this establishment are not being physically ill-treated. Further, although conditions of detention in the SIZO leave much to be desired, the delegation has noted that genuine efforts have been made in recent times - and continue to be made - to improve those conditions.

However, the information gathered by the delegation strongly indicates that many persons detained at Chernokozovo were physically ill-treated in the establishment during the period December 1999 to early February 2000. In different locations, the delegation has interviewed individually and in private a considerable number of persons who were held at Chernokozovo during that period. A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usually when prisoners were taken to an investigator's room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physically ill-treated in the investigators' rooms. Investigators were said to have been fully aware of the ill treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegation has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned.

It is also noteworthy that practically all the prisoners interviewed who had been held at the establishment in Chernokozovo during the period January to February 2000 stressed that there had been a distinct change for the better in early February, at the same time as a changeover of staff began to occur. The beatings stopped; further, other improvements had been made, in particular as regards food. Moreover, no allegations of physical ill-treatment were made by prisoners interviewed who had arrived in the establishment after the first week of February 2000.

On 10 July 2001 the CPT issued a public statement concerning the Chechen Republic, under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This step was prompted by the Russian authorities' failure to cooperate with the CPT in relation to two issues: (i) the carrying out of a thorough and independent inquiry into the events in a detention facility at Chernokozovo during the period December 1999 to early February 2000; (ii) action taken to uncover and prosecute cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the current conflict. The statement read, in particular, as follows:

...the information gathered by the CPT's delegation in the course of its February/March and April 2000 visits indicated that a considerable number of persons deprived of their liberty in the Chechen Republic since the outset of the conflict had been physically ill-treated by members of the Russian armed forces or law enforcement agencies. In the report on those two visits, the CPT recommended that the Russian authorities redouble their efforts to uncover and prosecute all cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the conflict. The Committee made a number of remarks of a practical nature intended to clarify the precise form those efforts might take. More generally, the CPT stressed that it was essential for the Russian authorities to adopt a proactive approach in this area.

The response of the Russian authorities to this key recommendation was very unsatisfactory...

As was stressed in a letter sent to the Russian authorities on 10 May 2001, the CPT's concerns in this regard are all the greater given that in the course of the Committee's most recent visit to the Chechen Republic, in March 2001, numerous credible and consistent allegations were once again received of severe ill-treatment by Federal forces; in a number of cases, those allegations were supported by medical evidence. The CPT's delegation found a palpable climate of fear; many people who had been ill-treated and others who knew about such offences were reluctant to file complaints to the authorities. There was the fear of reprisals at local level and a general sentiment that, in any event, justice would not be done. It was emphasised to the Russian authorities that they must spare no effort to overcome this deeply disturbing state of affairs.

On 10 July 2003 the CPT issued a second public statement in relation to Chechnya. It was prompted by allegations of continued recourse to torture and other forms of ill-treatment by members of the law-enforcement agencies and federal forces operating in the Chechen Republic. It also referred to the action taken to bring to justice those responsible as slow and ultimately ineffective. In particular, the report stated:

In the course of the CPT's visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation's doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered.

Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or discovery by an investigating body, prosecutor or court, of evidence that a crime had been committed.

Article 109 provided that the investigating body had to take one of the following decisions within a maximum period of ten days after being notified of a crime: to open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informers were to be informed about any decision.

Under Article 113, if the investigating body refused to open a criminal investigation, a reasoned decision had to be given. The informer was to be notified of the decision and was entitled to appeal against it to a superior prosecutor or to a court.

Article 11 (1) guaranteed the principle of personal inviolability and established that no one could be arrested other than on the basis of a judicial decision or a prosecutor's order.

Under Article 122, an investigating authority could apprehend a person suspected of having committed a criminal offence punishable by imprisonment on one of the following grounds:

if the person was caught in the act or immediately after committing the offence;

if eye-witnesses, including victims, directly implicated the person as the one who had committed the offence;

if clear traces of the offence were found on the person's body or clothes, or with him or in his dwelling.

An investigating authority was required to draw up a report on any apprehension of a person suspected of having committed a criminal offence, indicating the grounds, motives, day and time, year and month of the apprehension, the explanations of the apprehended person and the time the report was drawn up, and to notify a prosecutor in writing within 24 hours. Within 48 hours after being notified of the apprehension, the prosecutor had either to remand the apprehended person in custody or to release that person.

Article 89 (1) authorised imposition of preventive measures where there were sufficient grounds to believe that an accused could abscond from enquiries, preliminary investigation or trial, or obstruct the establishment of the truth in a criminal case or engage in criminal activity, as well as in order to secure the execution of a sentence. The investigator, prosecutor or the court could impose one of the following preventive measures on the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or remand in custody.

Article 90 permitted, on an exceptional basis, a measure of restraint to be taken against a suspect who had not been charged. In such a case, charges had to be brought against the suspect within ten days after the imposition of the measure. If no charges were brought within the period specified, the measure of restraint was to be revoked.

Article 91 required the following circumstances to be taken into account in imposing a measure of restraint: the gravity of the charges and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances.

Article 92 authorised an investigator, prosecutor, or a court to issue a ruling or finding as to a measure of restraint, provided it specified the offence of which the person was suspected or accused and the grounds for imposing such a measure. The person concerned had to be informed of the ruling or finding and at the same time provided with explanations concerning the appeal procedure. A copy of the ruling or finding had to be served immediately on the person against whom a measure of restraint had been taken.

Article 96 set out the grounds for arrest, and authorised public prosecutors, from the level of a district or town prosecutor to the Prosecutor General, to authorise detention on remand.

Article 97 provided that detention on remand during the investigation of criminal cases could not exceed two months. That term could be extended by a prosecutor for up to three months, and further detention could be authorised by a regional prosecutor (or a prosecutor of equal rank) up to a maximum of six months. Extension of detention beyond six months was allowed in exceptional cases only with regard to persons charged with serious criminal offences, and could be authorised by a deputy Prosecutor General for a period of up to one year, and by the Prosecutor General for a period of up to one and a half years. Further extension of detention was not allowed and the person then had to be released immediately.

An appeal against an order extending periods of detention could be lodged with a court in the area of a detention centre in which a detainee was held (Articles 220-1 and 220-2).

Article 58-1 established that if criminal proceedings were discontinued on account of the absence of a crime, of evidence of a crime in the relevant actions, or of evidence of a person's involvement in the imputed offence, competent public officials were under an obligation to take measures to compensate that person for the damage caused by, inter alia, his or her unlawful detention.

Article 87 prescribed that all investigative measures, including inspection, search and seizure, should be documented by a formal record.

Chapter 14 regulated questions relating to searches, seizures and attachment of property. Article 168 provided that a search had to be conducted on the basis of an investigator's reasoned decision and subject to the authorisation of a prosecutor. A search could be conducted without a prosecutor's authorisation for a reason that admitted of no delay, but a prosecutor had to be notified of that search within 24 hours. Article 171 restricted seizures to items and documents that could be relevant to the criminal investigation.

Chapter 15 related to on-site inspections. Article 178 permitted an inspection of the scene of the incident prior to institution of the criminal investigation for a reason that admitted of no delay. In that case, the investigation then had to be opened immediately after the inspection. Article 182 required that a record be made for the inspection. That record had to describe the investigator's actions and all items seized during the inspection.

This law provides that any citizen has the right to file a complaint with a court when he or she considers that his or her rights have been infringed by unlawful actions or decisions of State agencies, bodies of local self-government as well as institutions, enterprises or their associations, non-governmental organisations or officials and State employees.

Complaints may be filed either directly with a court or a higher State agency which has the obligation to review the complaint within a month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

Mr. Albert Benthem, who was born in 1927, lives at Noordwolde (municipality of Weststellingwerf), where he used to own and run a garage.

On 5 April 1976, he applied to the municipal authorities, in accordance with the Nuisance Act 1952 (see paragraphs 19-22 below), for a licence to bring into operation an installation for the delivery of liquid petroleum gas ("LPG") to motor vehicles. The installation comprised a surface storage tank with a capacity of 8 cubic metres.

The application was made public in order to enable those wishing to object to do so. On 2 June 1976, three neighbours expressed their fear of fire and an explosion being caused by lightning.

On 11 August 1976, the municipal authorities granted the licence, subject to fifty-six conditions which they considered would counter the dangers in question. They referred to a letter in which an official of the Groningen Labour Inspectorate had indicated that he agreed with such a course.

On 9 August 1976, the Regional Health Inspector had written to the municipal authorities to advise them to refuse a licence; in his view, the proximity of houses involved excessive risks. On 17 September, he lodged an appeal with the Crown (Kroonberoep; see paragraphs 24-26 below).

The municipal authorities informed Mr. Benthem of the appeal on 6 October 1976. They stated that since it had no suspensive effect, he could erect the installation. However, they added that if he did so, they would not be liable for any financial losses he might sustain in the event of the licence being cancelled.

The Chairman of the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) - to which Division it fell to investigate the matter and then advise the Crown - sought information from the Minister of Public Health and Environmental Protection (sections 26 and 32(c) of the Council of State Act; see paragraphs 24 and 25 below). This information was supplied, in a letter of 7 February 1977, by the Director General for Environmental Protection; he expressed the view that the appeal was well-founded as he considered that further conditions ought to be attached to the licence.

After a hearing in the presence of the parties, during which the applicant was heard on 22 December 1977, the Chairman of the Division asked the Director General for additional information.

The latter explained, in a letter of 18 May 1978, that the situation had changed: greater importance was now attached to the dangers involved in storage and delivery. He shared the view of the Chief Inspector of Public Health that, pending revision of the current officially-recommended standards, there should not be more than twenty-five houses within a radius of 150 metres from the gas tanks and dispensers, nor less than 25 metres between the installation and the nearest houses.

The Director General therefore concluded that the licence sought by Mr. Benthem should be refused, as these conditions were not satisfied.

At a hearing held on 12 September 1978, the applicant argued that the Chief Inspector’s "interim position", as well as being inadequately motivated, was not based on sufficiently sound technical grounds. Having been asked by the Chairman of the Division to elaborate on his opinion, the Director General provided, on 30 November 1978, further details concerning the safety hazards; he stated that, pending the results of a study (which was being undertaken because of the many appeals outstanding), a cautious attitude should be adopted when granting licences. He thus confirmed his earlier position.

On 8 June 1979, the Administrative Litigation Division sent to the Minister of Public Health and Environmental Protection an opinion recommending that the licence be refused; a draft of the Decree to be adopted was attached thereto.

On 30 June 1979, by a Decree in the same terms as the draft, the Crown quashed the municipal authorities’ decision. It considered that a different view should be taken regarding the distance between an LPG installation and the neighbouring houses and that, in the particular circumstances, the risks could not be eliminated merely by the imposition of additional conditions.

As a result, the municipal authorities issued an order directing Mr. Benthem to cease operating his installation. He lodged an appeal against this decision, but it was confirmed by the Crown by a Decree of 13 June 1980. A second decision - dated 10 October 1980 and providing for the closure of the installation by the authorities themselves - was quashed, on formal grounds, by the Judicial Division (Afdeling Rechtspraak) of the Council of State on 26 July 1982. According to information which was given to the Court at the hearings and was not contested, the installation was not closed down until February 1984. At the beginning of that year, Mr. Benthem had been declared bankrupt.

The Nuisance Act 1952 prohibits, in the absence of a licence, the erection, bringing into operation, exploitation, extension or modification of certain installations which may be a source of danger, damage or nuisance to their surroundings (section 2 (1)).

The installations concerned are listed in a Decree, and they include those for delivering LPG.

Licence applications, which are submitted to the municipal authorities, are first of all notified to the public, who may make oral or written objections. Certain government bodies - such as the Regional Health Inspector - are also given an opportunity to express their views.

The decision lies with the municipal authorities (section 4). They may refuse a licence only if the erection, bringing into operation, exploitation, extension or modification of the installation would result in danger or, as regards property, industry or health, damage or serious nuisance, and if such danger, damage or nuisance could not be sufficiently averted by the imposition of conditions (section 13 (1) in the version in force at the relevant time).

Once issued, a licence covers both the original holder and his assignees (section 14). It may be granted by the municipal authorities for a limited period or subject to conditions binding upon the licensee (sections 16 and 17).

After the persons and authorities involved have been informed of the decision, the applicant for the licence, anyone who duly raised objections and the government bodies concerned may lodge an appeal with the Crown within a certain period (section 20, which was then in force). The Crown determines the appeal on the advice of the Administrative Litigation Division of the Council of State (section 29).

An appeal has no suspensive effect but, under section 60 (a) of the Council of State Act (Wet op de Raad van State), the appellant may ask the Chairman of the Division to defer implementation of the decision or to order interim measures.

At the close of the proceedings, the Crown will confirm, amend or quash the initial decision.

Under the Constitution, the person of the King - or the Queen - is inviolable. The King takes his decisions on the responsibility of a Minister, who has to countersign them.

The expression "the Crown", when decision-making powers are being exercised, is commonly used to denote the King together with the Minister or Ministers.

The Crown gives rulings in administrative litigation which is brought before it on appeal. In carrying out this function, the Crown will not take a decision until the Administrative Litigation Division of the Council of State has investigated the matter and prepared a draft decision (section 26 (1) of the Council of State Act).

The members of the Division, whose number is fixed by the Crown but cannot be less than five including the Chairman, are chosen by the Crown from amongst the members of the Council of State and on its recommendation. The Administrative Litigation Division is to be distinguished from the Judicial Division which itself decides cases falling within its competence.

The Chairman of the Administrative Litigation Division calls for the necessary official reports and informs the Minister concerned thereof (section 32 (c) (1)). The interested parties may submit such documentary evidence as they consider necessary (section 34). A public hearing enables them, if they so wish, to argue their cases (section 45). Like the Chairman of the Division, they may call witnesses or experts, put questions to them and comment on any evidence given (sections 41 (4), 46 (5) and (6) and 48).

The Division deliberates in camera (section 51); it may carry out on-site inspections (section 52), ask for additional official reports, on which the interested parties may comment (section 54), and hold further hearings (section 55).

It then draws up a draft Royal Decree, which it submits to the Crown together with its advice (section 56). The Minister concerned has six months to inform the Division of any objections he may have and ask it to reconsider the case (section 57).

After receiving the Division’s advice or further advice, the Crown issues a Royal Decree within six months. This time-limit may be extended by three months (section 58 (1)). After it has expired, the Crown must decide in accordance with the Division’s advice (section 58 (a)). Prior to that, it may depart from the advice, but only if the Minister concerned has first consulted the Minister of Justice or, where the latter is himself concerned, if he has first consulted the Prime Minister (sections 57 and 58 (2) (a) and (b)). In practice, the Crown very rarely takes this course.

The Crown’s decision, against which no further appeal is available, may be based on considerations of law or of expediency.

The Decree, which incorporates the reasons therefor, is immediately sent to the interested parties and the Division. It is then made available for one month for public inspection at the Secretariat of the Council of State (section 59 (2)). If the Decree departs from the advice, it is published in the Official Gazette (Staatsblad) together with the Minister’s report, which contains the Division’s draft and the Minister’s correspondence with the Division and with the Minister of Justice or the Prime Minister (section 58 (3)).


Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva

The applicant was born in 1932 and lives in Byshiv.

On an unspecified date in April 1998 he lodged an action against a collective farm B., seeking damages for a discrepancy in the calculation of compensation for his professional illness that had been paid since 1982. On 9 April 1998 the Makariv District Court (“the District Court”) opened proceedings.

In a judgment of 28 December 1998 it dismissed the applicant's action. On 6 April 1999 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed that judgment and ordered a fresh hearing.

On 20 April 2000 the District Court ordered an accounting expert examination. It held the next hearing on 2 June 2003.

On 4 July 2003 the Makariv Department of State Insurance Fund for Industrial Accidents and Diseases (“the Fund”) joined the proceedings as a second respondent and B. was replaced by its legal successor, private company L.

On 21 October 2003 the District Court dismissed the applicant's claim for damages that after a modification amounted to UAH 16,018 (EUR 2,563). On 9 January 2004 the Court of Appeal upheld that judgment. On 9 February 2004 the applicant appealed in cassation.

On 17 May 2006 the Supreme Court rejected his appeal in cassation.

According to the Government, in the course of the proceedings, the applicant filed one procedural request and three appeals, one of which did not meet procedural requirements. Out of the sixteen hearings scheduled between April 1998 and May 2006, six were adjourned for unknown reasons, two were adjourned either at the applicant's request or due to his failure to attend, one was adjourned due to one of the respondents' failure to attend, one was adjourned for the parties to reach a friendly settlement, and two were adjourned for other reasons beyond parties' control.


The applicants, Mr Süphan Çintosun and Mr Şeyhmus Çintosun, are Turkish nationals who were born in 1960 and 1936 respectively and live in Diyarbakır. They are represented before the Court by Mr M. Vefa and Mr B. Deyar, lawyers practising in Diyarbakır.

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

Until September 1993, the applicants lived in Kayabaşı hamlet of Dağcılar village in Silvan, Diyarbakır, where they own property. Following an armed clash between the security forces and the PKK militants in a nearby area, the security forces came to Kayabaşı and required the inhabitants to establish a village guards system – a security system designed to protect villages against possible terrorist attacks by the PKK.

Upon their refusal, the security forces evacuated the hamlet. The applicants had to move to the city centre of Diyarbakır, where they currently live.

On an unspecified date, the security forces set fire to the houses and the cultivated fields in the hamlet.

Following the incidents, the applicants filed applications with the administrative and military authorities, asking for an authorisation to return to their hamlet, or in the alternative, to continue to cultivate their fields. They also requested to be remedied for the incidents. The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them.

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes.

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.

On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.

In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.

The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.

A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI)