Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)

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

The applicant was born on 21 November 1967 in Sri Lanka. He is of Tamil ethnicity.

Having been granted family reunification on 3 December 1997, by virtue of the former section 9, subsection 1(2), of the Aliens Act (Udlændingeloven), on 13 December 1997, with a valid passport and visa, the applicant joined his Sri Lankan wife in Denmark. It appears that she had left Sri Lanka in 1992 and stayed in India before, at some unknown time, she was granted asylum in Denmark, apparently due to her connections with the LTTE.

Three children were born to the couple in 2000, 2002 and 2005.

By a judgment of 4 July 2006 by the City Court in Tønder (Retten i Tønder), upheld on appeal on 19 September 2006 by the High Court of Western Denmark (Vestre Landsret), the applicant was convicted of the sexual abuse of a girl who was less than twelve years old. He was sentenced to three years and three months' imprisonment and expelled with a prohibition on returning.

The applicant did not request leave to appeal against the judgment to the Supreme Court (Højesteret).

The applicant finished serving his prison sentence on 20 March 2009.

In the meantime, on 14 June 2007 the applicant requested asylum under section 7 of the Aliens Act and maintained in support thereof, inter alia, that his three siblings, two of whom were dead, had been members of the Tamil Tigers (LTTE). He had not been a member of any organisation in Sri Lanka.

According to an interview report of 11 December 2007 prepared by the Immigration Service, the applicant added that until he turned 30 years of age, he had been a fisherman. Then he had married and been reunited with his family in Denmark in 1997. When the applicant went to school, persons from the LTTE had come up and asked him if he could dig holes, move things and carry out various jobs. The applicant took no part in action, exercises or military training. He assisted the LTTE on a full-time basis for three years. During this period he stayed with the LTTE all the time. Thereafter he moved back to his family without telling the LTTE. Confronted with the fact that he had previously stated that he had no involvement with the LTTE, he maintained that his statement had been translated incorrectly. He had assisted the LTTE from 1990 to 1995 but had not been a member. He did not recall whether he had been wanted by the Sri Lankan authorities but he had been arrested by them ten to fifteen times. When asked why he had not previously mentioned the arrests, he stated that most of the arrests had been of only a few hours' duration but that the last one had lasted some months. It was in 1991 when he was arrested in connection with the mass arrest. He remembered being released after six months as a result of a peace agreement but his memory was not very good. Whenever he had been arrested the authorities asked him whether he was working for the LTTE. He had denied this, although this was the period during which he had worked for the organisation. Confronted with the fact that he had previously stated that he would not risk any harm upon return to Sri Lanka as he was neither wanted nor persecuted, the applicant submitted that this must have been a misunderstanding.

On 21 December 2007 the applicant's application for asylum was refused by the Immigration Service (Udlændingeservice), finding that he lacked credibility and that there was no substantiated risk that he would be subjected to treatment contrary to Article 3 of the Convention upon return.

The applicant appealed to the Refugee Appeals Board (Flygtningenævnet) before which, during an oral hearing held on 20 May 2008, he explained for example that the LTTE had approached him numerous times between 1985 and 1997 to ask him to work for them, which he did, but he had not been a member of the LTTE. The last time he assisted them was in January 1997. The applicant left in December 1997.

By decision of 13 June 2008 the Refugee Appeals Board refused to grant the applicant asylum. It noted that the applicant had expanded his motive for requesting asylum and had submitted various divergent explanations. Moreover, even disregarding the fact that the applicant had made various unclear statements about the dates, number and duration of his detention by the authorities, it could be considered a fact that he was last detained in 1991, which was five or six years before his departure, in connection with a mass arrest; that he was released in connection with a peace agreement; that he was never charged or sentenced; and that he had been able to leave Sri Lanka in 1997 on a valid passport without any problems. The Refugee Appeals Board did not find that the applicant had substantiated being at risk of persecution by the Sri Lankan authorities or the LTTE upon return. Finally, it observed that the general situation in Sri Lanka for Tamils coming from the north and east of the country could not alone justify the granting of asylum, and that the applicant's case had been assessed on its concrete and particular circumstances.

On 11 December 2008, upon the applicant's request, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision.

On 2 March 2009 the Refugee Appeals Board refused the applicant's request to reopen the case.

On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning Tamils from northern Sri Lanka, including the applicant's case.

On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case.

On 16 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows:

... In its decision of 13 June 2008, the Refugee Appeals Board found ... The Refugee Appeals Board still finds that your client's fear of being forcibly recruited by the LTTE or of being subjected to outrages by the LTTE as a result of having fled from the LTTE does not warrant a residence permit under section 7 of the Aliens Act. In this connection, the Refugee Appeals Board emphasises that your client's statements about his alleged connection with the LTTE were extended during the asylum proceedings and were diverging in essential areas. In this connection, the Refugee Appeals Board also refers to the fact that the Sri Lankan military forces defeated the LTTE in May 2009. Moreover, the Refugee Appeals Board refers to the background information available to the Board from which it appears that it is hardly likely that former low-ranking members of the LTTE or persons who have previously supported the LTTE will risk reprisals from the LTTE, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009. Regardless of whether your client's information about his previous activities for the LTTE is considered a fact, the Refugee Appeals Board stills find that your client would not risk persecution or being subjected to outrages as covered by section 7 of the Aliens Act by the Sri Lankan authorities if returned to Sri Lanka, including in connection with his arrival at Colombo airport. The Refugee Appeals Board emphasizes that from his detention in 1991, where his photo was taken, and until his departure in 1997 your client has not been detained or had his picture or fingerprint taken or in any other way been the object of interest from the Sri Lankan authorities. The authorities have thus not carried out any acts aimed at your client that indicated that he was suspected of being a member of the LTTE. In this connection, the Board also refers to the fact that your client departed lawfully from Sri Lanka with his own Sri Lankan national passport for the purpose of family reunification with his spouse. Similarly, the Refugee Appeals Board refers to the background material available to the Board, according to which persons who have previously supported the LTTE on a lower level are generally not of interest to the authorities, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009, and see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009. Against that background the Refugee Appeals Board also finds that the fact that one or more of your client's siblings have been members of or active for the LTTE cannot warrant a residence permit under section 7 of the Aliens Act, according to the background information now available. The fact that as an ethnic Tamil from northern Sri Lanka your client may risk being questioned and investigated by the authorities on entry into the country cannot lead to a revised assessment of the case under asylum law. In this assessment, consideration has been given to the background information available to the Board, according to which the individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka, those without identification or residence in Colombo, and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 2329 August 2009. In this connection the Board refers to its finding that it has not been rendered probable that your client would be an object of particular interest to the Sri Lankan authorities. As in its decision of 13 June 2008, the Refugee Appeals Board still finds that the general situation in Sri Lanka is not of such nature as to warrant in itself the grant of a residence permit under section 7 of the Aliens Act. The Board observes in that connection that it is a condition for a residence permit under section 7 of the Aliens Act that, upon a specific, individual assessment, an alien is deemed at risk of persecution or outrages. The authority of the Refugee Appeals Board is restricted to deciding asylum-relevant issues, and it is thus outside the Board's authority to determine whether an alien who does not meet the conditions of section 7 of the Aliens Act may be issued with a residence permit for other reasons of a more humanitarian nature. Against that background and in accordance with the Board's decision of 13 June 2008, the Refugee Appeals Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. It should be noted that your client's time-limit for departure is still suspended until further notice on the basis of the request of 11 December 2008 from the European Court of Human Rights. If the basis for your client's lawful stay in Denmark lapses, your client must leave the country immediately, see section 33 of the Aliens Act. As appears from the decision of the Refugee Appeals Board of 13 June 2008, your client may be forcibly returned to Sri Lanka if he does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act.

On 18 March 2010, the applicant's representative brought proceedings against the Refugee Appeals Board before the City Court (Retten i Sønderborg) claiming that the Board's decision of 16 March 2010 should be annulled. It appears that the proceedings are still pending.

By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeal Board.

Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.

24's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is updated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases.

Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made.

Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.

Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed.

The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.

In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.

“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”

A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that:

“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”

A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.

In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.

On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.

On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.

In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.

On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.

In its Global Appeal 2010-2011, the UNHCR reported that:

“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.

The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.

Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.

The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.

With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”

In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.

Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home.

The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:

4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.”

4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.”

4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.”

The November 2010 COI Report also set out:

4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.”

4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...

4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”

The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:

“[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed.

The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”

The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:

“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”

In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.

The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.

The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:

- Outstanding arrest warrant

- Criminal record

- Connection with the LTTE

- Bail jumping/escape from custody

- Illegal departure from Sri Lanka

- Scarring

- Involvement with media or NGOs

- Lack of an ID card or other documentation

The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following:

33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.”

33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”

On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.

The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.

“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”

“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”

The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:

“given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”

In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka

(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE);

(ii) journalists and other media professionals;

(iii) civil society and human rights activists;

(iv) women and children with certain profiles; and

(v) lesbian, gay, bisexual and transgender (LGBT) individuals.

It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers.

The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in 1985 and lives in the town of Konotop, Ukraine.

On 22 November 2003, at around 10 p.m., the applicant, who was drunk, together with P. and R., had a quarrel with seven other persons (M., S., Pv., Ps., Z., Kh. and D.). According to the applicant’s own account, D. hit him in the left eye and the applicant hit D. in the jaw. Afterwards they were separated by others. However, according to the court’s findings in the criminal case against the applicant (see paragraph 40), after an attempt to have a fight with Pv., the applicant stabbed D. with a knife. D. brought this to the attention of the traffic police officers Ku. and G., who happened to be passing.

At about 11 p.m. on the same day, the applicant, together with P. and R., was arrested by the traffic police officers, handcuffed and taken to the traffic police station. According to the entries in the traffic police station register, the applicant remained in the traffic police station from 11.30 p.m. until 12.15 a.m. the next day.

According to the applicant, in the traffic police station he was beaten by two officers. One of them hit the applicant about five times on the head. Another one hit him in the face, twice or three times hit him in the chest, and with a truncheon on the left ear, the kidneys and on the legs.

The applicant was subsequently taken to an ambulance station to check whether he was drunk. According to a medical report, the applicant was examined by a doctor at a municipal ambulance station at 11.45 p.m. on 22 November 2003. The applicant was drunk but had no visible injuries. After that the applicant was handed over to the ordinary police.

The applicant was taken to the police station at about 1 a.m. on 23 November 2003. There he was examined by a police officer, Ma., in the presence of two witnesses. It was noted that the applicant had no bodily injuries and had no complaints about the police officers. A report drafted by a police officer was signed by two witnesses and by the applicant. The applicant also signed a statement that he had no complaints about his arrest and that no physical force or special restraining equipment had been used on him.

Later, according to the applicant, he was tortured and ill-treated and was forced to make self-incriminating statements. In particular, according to the accounts given by the applicant on an unidentified date, in the police station he had his head banged against the wall and table, and was hit in the kidneys.

According to the police officers, the applicant was released at about 2-3 a.m. on 23 November 2003. The applicant, however, states that he was released at 8 a.m.

At 9 a.m. the applicant caught a bus. According to the bus driver, Kt., the applicant had bruises on his left ear and left eye and said that he had been beaten by the police.

According to the testimony of the applicant’s sister and mother, given by them later during the investigation into the applicant’s complaints of ill-treatment, on 23 November 2003 the applicant was at home. An ambulance was allegedly called for him which did not come. The applicant’s mother had arrived at home late at night on 23 November 2003 and, as the applicant was feeling bad and had fallen to the floor after getting up from the bed, she called him an ambulance. The ambulance arrived at 4.58 a.m. on 24 November 2003. The applicant was diagnosed with concussion and head injury, and taken to hospital.

On 24 November 2003 the applicant’s mother complained to the prosecutor’s office that the applicant had been ill-treated.

The applicant stayed in Konotop Central District Hospital from 24 November to 8 December 2003. He was diagnosed with concussion, bruises to the neck and left ear and acute bronchitis. The applicant told doctors that he had fallen.

According to the conclusions of the Konotop traffic police internal investigation of 18 December 2003, two traffic police officers, Ku. and G., were approached by D., who said that he had been stabbed in a bar. Ku. and G. arrested the applicant, handcuffed him and took him to the traffic police station. Later they took the applicant to the ambulance station, where he was tested for alcohol. The test was positive and the applicant was then taken back to the traffic police station and handed over to the police. The applicant’s injuries had been inflicted during the fight in which D. was stabbed.

During a forensic medical examination carried out between 25 November and 24 December 2003 the applicant stated that he had been beaten by the traffic police officers after fighting with D. According to the applicant, he was punched about three times on the head and chest and hit in the ear. He also had a helmet put on his head and was hit twice with a truncheon on the head. It was revealed that the applicant had bruises on his left ear and scratches on his left arm. The scratches had been caused by handcuffs. These injuries could have occurred on 22-23 November 2003 in the circumstances described by the applicant. The expert concluded that there were no marks indicating truncheon blows.

According to the conclusion of a report dated 24 December 2003, signed by the head of the Konotop traffic police unit, the use of handcuffs on the applicant had been justified. When Ku. and G. had arrived at the bar, there had been around twenty-five persons there. People started to run away and a window was broken. The applicant, P., and R. were recognised by Z.; however, as they were drunk, they refused to enter the police car, and they swore and resisted.

On 24 December 2003, following complaints by the applicant’s mother, the Konotop Town Prosecutor’s Office refused to institute criminal proceedings. Two traffic police officers, Ts. and T., testified that they had seen the applicant upon his arrival at the traffic police station and he had had no bodily injuries. Nobody had ill-treated the applicant. This was further confirmed by four other traffic police officers, D., and the doctor who had examined the applicant. Further, the prosecutor referred to the report of the police officer Ma. It was concluded that the police officers had not ill-treated the applicant.

On 2 March 2004 the Sumy Regional Prosecutor’s Office quashed the decision of 24 December 2003 and remitted the case for additional investigation. It was noted that when Kt. had been driving the applicant home at 9 a.m. on 23 November 2003, the latter had said that he had been beaten by police officers. The police officers testified that the applicant had been released at 2 a.m. The prosecutor noted that these, as well as other relevant circumstances, had not been verified and the quashed decision had been based on the testimony of the persons involved. Moreover, the cause of the applicant’s injuries had not been established.

On 19 March 2004 the Konotop Town Prosecutor’s Office again refused to institute criminal proceedings. It was found that, on the day of the incident, two young people, one having a stab wound, had asked the traffic police officers for help. The applicant, together with two other persons, had been taken to the traffic police station. Because they resisted arrest, they had been handcuffed. The applicant did not have any bodily injuries and that had been confirmed by a medical examination. A doctor, K., had been questioned and confirmed that, during the examination in the ambulance station on the night of 22 November 2003, the applicant had had no bodily injuries. Police officers had stated that the applicant had been questioned and released at about 2 a.m. on 23 November 2003. He had not had any injuries and they had not ill-treated him. Although R., who had been arrested together with the applicant, had testified that he had seen the applicant being beaten by the traffic police officers, it was concluded that his testimony, as well as the applicant’s statements, were not confirmed by the medical conclusions, and, in particular, that there had been no marks from truncheon blows on the applicant’s body (see paragraph 18).

On 3 December 2004 the Konotop Local Court quashed the decision of 19 March 2004 and remitted the case for further investigation. The court held that the cause of the applicant’s injuries had not been established and the testimony of Kt. had not been verified.

On 24 December 2004 the Konotop Prosecutor’s Office again rejected the applicant’s request to institute criminal proceedings. It was concluded that the applicant’s version of events was not confirmed by “the medical conclusion of 24 November 2003”. Furthermore it had been impossible to establish where the applicant had been between 3 and 9 a.m. on 23 November 2003.

On 26 May 2005 the Konotop Local Court quashed the decision of 24 December 2004 because the prosecutor had made a reference to the wrong provision of the Code of Criminal Procedure when rejecting the applicant’s complaints.

On 14 June 2005 the Konotop Town Prosecutor’s Office rejected a request by the applicant for the institution of criminal proceedings. The prosecutor found that the applicant’s description of events was not confirmed by the findings of the forensic medical examination which had been completed on 24 December 2003.

On 20 July 2005 the Sumy Regional Prosecutor’s Office quashed the decision of 14 June 2005 and remitted the case for further investigation. It was noted that the hospital doctors who had examined the applicant on 24 November 2005 had not been questioned. An additional medical examination of the applicant needed to be carried out, taking into consideration material from the hospital medical file. Moreover, it was unclear when exactly the applicant had been released.

During additional investigations in 2005 the majority of the witnesses (ambulance doctors, police officers, relatives of the applicant) stated that as the events of 22-24 November 2003 had happened long ago, they did not clearly remember them. Witness Kt. was not questioned since he had moved abroad. The records of the ambulance visit to the applicant of 24 November 2003 and the police station register had already been destroyed as their keeping period (one year for the police station register) had expired.

On 12 December 2005 the forensic medical examination concluded that the applicant had a scar on his right wrist. According to medical documents, on 22 November 2003 the applicant had sustained light bodily injuries. Such injuries could have been inflicted in the circumstances described by the applicant. It was unlikely that they had been inflicted by the applicant’s falling down.

On 23 December 2005 the Konotop Town Prosecutor’s Office again refused to institute criminal proceedings into the applicant’s complaint of ill-treatment. It was found that the applicant had been hospitalised on 24 November 2003 complaining of headache, nausea and a left ear injury. The applicant had not told the doctors that he had been beaten by the police. The applicant’s sister had testified that the applicant had come home during the morning of 23 November 2003 feeling ill and had told her that he had been beaten by the police. The prosecutor, however, referred to the findings of the courts in the criminal case against the applicant and decided that there were no grounds to institute criminal proceedings against the police officers. This decision was not appealed against.

On 11 December 2003 criminal proceedings were instituted against the applicant for hooliganism.

On 28 December 2003 the applicant was charged with hooliganism and the use of an offensive weapon. He signed an undertaking not to abscond.

On 31 January 2004 the applicant’s representative, B., was refused permission to represent the applicant in the criminal proceedings because B. did not hold an advocate’s certificate. B.’s appeals against that decision were unsuccessful. The applicant was represented in the criminal proceedings by his mother and by the advocates T. and S.

Between 9 February and 17 March 2004 the criminal proceedings were stayed because the applicant was ill.

On 17 March 2004 the criminal proceedings were resumed and the applicant was arrested.

On 19 March 2004 the Konotop Town Court authorised the applicant’s pre-trial detention. In doing so the court stated that “the materials of the case presented before the court confirmed the investigating officer’s conviction that the applicant might abscond or interfere with the course of justice”.

On 13 April 2004 the Sumy Regional Court of Appeal quashed the decision of 19 March 2004 because, by a Decree of the President of Ukraine which had entered into force on 19 March 2004, the Konotop Town Court had been dissolved. Therefore, the decision appealed against had been adopted by a court which no longer existed in law. The case was transferred to the newly created Konotop Local Court for fresh consideration.

On 28 April 2004 the Konotop Local Court authorised the applicant to be placed in pre-trial detention. In particular, the court held that the applicant had been accused of committing a serious crime to which he had not confessed. The court further noted that it was “the investigating officer’s right to decide on the tactics for the investigation and it was his right to decide to change the preventive measure [from an obligation not to abscond to pre-trial detention]”.

The applicant appealed against that decision. According to the Government, this appeal was received by the court on 5 May 2004.

On 18 May 2004 the Konotop Local Court found the applicant guilty of hooliganism and sentenced him to two years’ imprisonment. In particular, the court found that the applicant, P., and R., had followed M., S., Pv., Ps., Z., Kh. and D. onto the street. The applicant had asked M. why he had not stayed in the bar. The applicant then started to swear and tried to have a fight with Pv. When M., D. and Z. had tried to calm the applicant down he had struck D. with a knife.

In the court hearing the applicant stated that he had had a quarrel with D. but had not struck him with a knife. The court listened to the testimony of Ps., Kh. and S. The two latter witnesses withdrew the testimony they had given at the pre-trial stage and stated that the applicant had not in any way committed an offence against them. None of the other persons present during the incident attended the hearing because they were out of town. The court took into consideration the testimony they had given during the pre-trial investigation. The court also relied on various pieces of evidence and the conclusions of the forensic examinations.

On 1 June 2004 the Sumy Regional Court of Appeal rejected an appeal by the applicant against the decision of 28 April 2004, because the applicant had already been sentenced to imprisonment.

On 3 August 2004 the Sumy Regional Court of Appeal upheld the judgment of 18 May 2004. It also rejected as unsubstantiated the applicant’s complaints that he had been ill-treated. No particular reasoning was given for this conclusion as the court referred to certain undated decisions not to institute criminal proceedings following the applicant’s complaints.

By a decision of 14 April 2005 the Konotop Local Court rejected a request by the applicant to have his sentence commuted.

On 10 May 2005 the Supreme Court of Ukraine rejected an appeal in cassation by the applicant against his conviction.

On 23 June 2005 the Sumy Court of Appeal quashed the decision of 14 April 2005 and remitted the case for fresh consideration.

On 8 July 2005, by a decision of the Konotop Local Court, the applicant was granted an amnesty.

The applicant’s representative, B., asked the courts and the prosecutor’s office to provide him with copies of documents necessary for lodging a complaint before this Court. All his requests were rejected, mainly on the ground that he had not presented a valid power of authority and because he had requested documents other than those required in connection with the lodging of his complaints before the Court.

Articles 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005).

Following the amendments to the Compensation Act of 1 December 2005, the range of cases where the right to compensation would arise was expanded to include those in the following category:

“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on the remittal of cases for additional investigation)”.


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicants are Mr Aslan (also known as Lukman) Dzhabrailov, who was born in 1979, Ms Umkusu Dzhabrailova, who was born in 1949 and Ms Larisa Dzhabrailova, who was born in 1977. They live in Grozny, Chechnya. The first applicant is the brother of Valid (also spelled as Volid and also known as Lecha) Dzhabrailov, who was born in 1973; the second applicant is his mother and the third applicant is his sister.

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

At the material time the applicants and Valid Dzhabrailov lived at 104 Sovetskaya Street in the settlement of Pervomayskiy, in the Grozny district, Chechnya. At about 7 a.m. on 16 February 2003 (in the submitted documents the date was also referred to as 15 February 2003) the applicants and Valid Dzhabrailov were at home, when a group of armed masked men in camouflage uniforms arrived at their gate. The men arrived in a white GAZ car (“Газель”), a blue VAZ-2121 car (“Нива”), a khaki-coloured military UAZ car (“таблетка”) and a UAZ car. The men broke into the house and dispersed into different rooms. The intruders, who spoke unaccented Russian, neither identified themselves nor produced any documents. The applicants thought that they were Russian servicemen.

The intruders woke up the second and third applicants, lined them up against a wall and threatened to shoot them if they moved. After that the servicemen went into the room where the first applicant and Valid Dzhabrailov were sleeping. They woke them up, forced the brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov with the hood of his sweater. Then they took Valid and Aslan Dzhabrailov's passports, beat them, dragged them outside and forced them to the ground. When the second applicant asked the intruders where they were taking her sons, the servicemen told her that they were taking them to a local department of the interior (“в отдел”) for an identity check. After that they forced Valid and Aslan Dzhabrailov, who were already bleeding, into the military UAZ car and drove away to an unknown destination. While travelling in the car, the servicemen beat and kicked the brothers.

Upon arrival at the point of destination, the servicemen took Valid Dzhabrailov and the first applicant out of the car, put plastic bags over their heads and bound the bags with adhesive tape. The brothers did not know where they had been taken, but they could hear the sound of military vehicles and helicopters. The first applicant thought that they had arrived at the main base of the Russian military forces in Khankala, Chechnya.

After that Valid and Aslan Dzhabrailov were forced to crawl on their hands and knees into a basement where they were thrown on to a cement floor. The brothers were cold and bleeding. Some time later the abductors came into the cell. Valid Dzhabrailov asked them why they had been abducted. In response one of the servicemen gave him several blows to the head and in the stomach with his rifle butt. Valid Dzhabrailov fell unconscious and was dragged outside. After that the brothers were separated and placed into different cells.

The first applicant was taken into a small cell in a basement, measuring approximately 2 x 3 metres. The cell had an electric light, a bunk bed and no windows. From the cell he could hear his brother Valid Dzhabrailov being interrogated and screaming as a result of being beaten.

After a while two masked men in camouflage uniforms came into the applicant's cell. They asked him a number of questions, such as: whether he had ever laid any landmines and whether he had known any members of illegal armed groups in his village. They beat him with their fists, pistols and a heavy flashlight and kicked him with their heavy boots. The applicant was subjected to such interrogations and beatings several times. The men pressurised the applicant to confess to involvement in illegal armed groups. For two days of his detention in the basement the first applicant was not given any food or drink.

It appears that Valid Dzhabrailov was detained in the same building as the first applicant. Between 16 and 18 February 2003 he was subjected to interrogations and beatings.

On 18 February 2003 two officers took the first applicant out of the basement, put a plastic bag over his head, bound it and his hands with adhesive tape and pushed him into a military UAZ car. In the vehicle the first applicant felt someone's heavy, cold body on the floor. He realised that this was the body of his brother, Valid Dzhabrailov.

The two servicemen took the first applicant and the body of Valid Dzhabrailov to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of them shot the first applicant in the head; the applicant was not killed, but wounded, and he was able to pretend to be dead.

The servicemen carried the first applicant and Valid Dzhabrailov's body into a pit and placed them under a piece of a construction block. Then they laid explosives on the first applicant and placed Valid Dzhabrailov's body on top of them. After that they lit the fuse. Having done that, they got back in the car and drove away.

The first applicant managed to set himself free and extinguish the burning fuse. He threw the explosives away before they exploded. He ran out into the street and stopped the driver of a passing car who drove him home.

Upon returning home the first applicant did not immediately seek medical help; that came at a later stage. The first applicant obtained the following medical statements and submitted them to the Court:

1) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 8 December 2003. The document stated that, as a result of a splinter wound to the head, Aslan Dzhabrailov was suffering from cephalgia (pain in the skull), asthenia and neurosis.

2) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that, as a result of a tangential wound to the head received in 2003, Aslan Dzhabrailov was suffering from asthenia and neurosis.

3) Medical statement issued by a surgeon at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that the applicant had undergone a medical examination of the tangential wound inflicted to his head in 2003.

On 18 February 2003 (in the submitted documents the date was also referred to as 17 February 2003) the applicants, their relatives and neighbours went to the Zavodskoy district of Grozny. They found Valid Dzhabrailov's body where it had been left by the first applicant and took it home. According to the witnesses, Ms L.M. and Ms A.M., the body showed traces of torture: it was black from the beatings; the wrists and ankles had been cut to the bone from the wearing of handcuffs and shackles; the palms and feet had been crushed and the head was hardly recognisable. They found a piece of metal wire on the neck but there was no trace of firearm wounds on the body.

Valid Dzhabrailov was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. Two certificates were issued in connection with his death: the medical statement confirming Valid Dzhabrailov's death, dated 17 April 2003 and Valid Dzhabrailov's death certificate, stating that his death had occurred on 17 February 2003.

In support of their statements, the applicants submitted: an account by Ms L.M., dated 29 September 2003; an account by Ms A.M., dated 29 September 2003; an account by the first applicant, dated 29 October 2003; an account by the second applicant, dated 29 October 2003; an account by the third applicant, undated, and the three medical certificates, one dated 8 December 2003 and two dated 31 August 2004.

The Government did not challenge the facts as presented by the applicants. However, they pointed out that the investigation file contained neither a mention of the first applicant's beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention.

Since 16 February 2003 the applicants have repeatedly applied in person and in writing to various public bodies, including the district department of the Ministry of the Interior (the ROVD) and prosecutors at various levels. They have been supported in their efforts by the NGO, SRJI. In their letters to the authorities the applicants referred to the events of 1618 February 2003 and asked for assistance and details of the investigation. Mostly, these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted to the Court some of the letters sent to the authorities and their replies. These documents, as well as the documents submitted by the Government, are summarised below.

On 16 February 2003 the Grozny district prosecutor's office inspected the crime scene at the applicants' house. Nothing was collected from the scene.

On 17 February 2003 an officer of the Zavodskoy ROVD informed his superiors that at about 6 p.m. on that date the ROVD had received information about the discovery of Valid Dzhabrailov' body in an abandoned building on the premises of a chemical plant and of the first applicant with a gunshot wound in his head. The latter stated that he and his brother, Valid, had been abducted from their house at about 6 a.m. on 15 February 2003 by unidentified armed men in camouflage uniforms; that they had been detained in an unidentified place and then taken by the abductors to the chemical factory in a UAZ vehicle.

On 18 February 2003, under Article 126 § 2 of the Criminal Code (aggravated kidnapping), the Grozny district prosecutor's office instituted an investigation into the abduction of Valid and Aslan Dzhabrailov. The case file was given the number 42024 (in the submitted documents the number was also referred to as 42042 and 41026).

On 18 February 2003 the investigators examined the crime scene at the place where Valid Dzhabrailov's body had been discovered. The investigators inspected the body on the spot and drafted a report to this effect. As a result, it was established that Valid Dzhabrailov's skull, face, ribs and upper and lower limbs seemed intact; no metal wire was found on his neck. Nothing was collected from the scene.

On 18 February 2003 the Grozny town prosecutor's office instituted an investigation into the murder of Valid Dzhabrailov and the case file was given the number 30034.

On 19 February 2003 the first and third applicants were granted victim status in the criminal case concerning the abduction and were questioned.

During questioning on 19 February 2003 the third applicant stated that at about 7 a.m. on 16 February 2003 a group of military servicemen had arrived at their house in several vehicles and had broken in. They had been armed with automatic guns; their faces had been covered with masks. The intruders had woken up the first applicant and Valid Dzhabrailov, taken their passports and told the third applicant in Russian that they would check her brothers' identities and release them. After that the servicemen had pushed the brothers into a grey UAZ car and taken them away. On 18 February 2003 a woman had arrived at the applicants' house and told them that the first applicant and Valid Dzhabrailov had been in the Zavodskoy ROVD. The applicants had immediately informed the district police officer about it who had gone to Grozny and returned with the body of Valid Dzhabrailov and the first applicant. The body had had numerous injuries and the first applicant had received a gunshot wound to the head. The witness further stated that she had learnt from the first applicant that the brothers had been handcuffed and taken to a basement made of concrete box units. At some point later they had been separated and the first applicant had not seen Valid Dzhabrailov for about twenty-four hours. In the morning of 18 February 2003 a Russian-speaking man in a camouflage uniform had removed the handcuffs from the first applicant, bound his hands, put a sack over his head and bound it with adhesive tape. He had pushed the applicant into a UAZ vehicle beside a cold corpse; the first applicant had thought that it must have been the body of his brother, Valid. The car had been driven for about fifty minutes; then it had stopped and the first applicant had been taken out. He had been dragged about 10-15 metres away from the road; then he had been forced to the ground and shot in the head; he had pretended to be dead. After that they had put Valid Dzhabrailov's body on top of the applicant; then they had placed three pieces of trotyl between the brothers' bodies and lit them. One of the abductors had suggested to the other in Russian: “Lets wait until it explodes” but the other one had said that they'd better leave quickly. After that they had got back into the car and driven away. The first applicant had managed to extinguish the explosive device and made it to the road, where he had stopped a car which had taken him to the Zavodskoy ROVD. On 20 February 2004 the investigators again questioned the third applicant who provided a statement similar to the one given on 19 February 2003. She added that the abductors had told her that they had been taking Aslan and Valid Dzhabrailov to the Staropromyslovskiy ROVD for an identity check; that the abductors had been a group of about thirty men, five of whom had broken into their house.

During questioning on 19 February 2003 the first applicant stated that at about 7 a.m. on 16 February 2003 he and his brother, Valid, had been abducted from their home by a group of five armed military servicemen who had arrived in three grey UAZ vehicles, a white four-door “Niva” car and a white “Gazel” minivan. The abductors had blindfolded the brothers and pushed them into a UAZ vehicle. After that the abductors had driven for about fifty minutes and taken the brothers to a windowless basement, which measured approximately 5 x 7 metres and was divided into smaller cells. The first applicant had been taken to a cell with a wooden door where he had been kept for about thirty-six hours. In the evening of 17 February 2003 he had been taken outside by two armed servicemen in uniform, who had put a sack over his head and bound it with adhesive tape. Then they had pushed the applicant into a UAZ car, inside which was a cold corpse. The abductors had driven for about forty to fifty minutes. Then they had stopped, dragged the applicant out of the car and forced him to his knees against a wall. The corpse had been placed next to the applicant. After that the abductors had shot the applicant in the head; he had felt the pain but managed to pretend to be dead. Then the servicemen had placed an object between the applicant and the corpse and set it on fire, discussing whether it would be better to wait for the explosion or not. Next, the abductors had got back into the car and driven away. The applicant had pulled the sack off his head and seen that a pack of trotyl had been placed between him and the corpse of his brother, Valid. He had managed to extinguish the explosive device and throw it away. He had looked around and noticed that he had been taken to an abandoned building on the premises of a former chemical plant in Grozny. He had walked to the road, stopped a car and been driven to the Zavodskoy ROVD where he had informed the authorities about the events.

At a later date, on 3 March 2004 the investigators again questioned the first applicant whose second statement about the events of 1618 February 2003 was similar to the one given on 19 February 2003. In addition, he provided a more detailed description of the place of his detention and stated that the abductors had interrogated him and demanded that he confess to laying landmines; that they had beaten him with flashlights and rifle butts; that they had all been wearing uniforms and masks and had been armed with firearms and that one of them had been armed with a military “Makarov” pistol; that one of the abductors had addressed one of the men present during the interrogations in the basement as “Colonel” and that the latter had been wearing a specific reddish camouflage uniform with a peculiar blotted pattern and had been armed with a special sub-machine gun with a silencer; that the two men who had conducted the last interrogation of the applicant had not been wearing masks; that one of them was a large-built, fair-haired man with glasses, of about forty to forty-five years of age, whereas the other one had an Asian appearance, was about the same age and had a similar build to the first one; that these two men had taken the applicant to the premises of the former chemical plant where they had shot him in the head with a sub-machine gun, but the bullet had just grazed his head and he had managed to pretend to be dead; that the men had tried to blow up him and his brother's body; that after the abductors had left he had managed to stop an MAZ vehicle in which there had been two men who had driven him to a security lodge located in a yard with many garages; that three armed men in camouflage uniforms who had been present there had called the Zavodskoy ROVD via a portable radio and that about half an hour later a UAZ car had arrived and taken the applicant to the Zavodskoy ROVD.

On 19 February 2003 the investigators questioned the applicants' relative, Mr N.R., whose statement concerning the events of 16-18 February 2003 was similar to the ones given by the first and third applicants.

On 14 March 2003 the Grozny district prosecutor's office wrote to the Grozny district department of the Federal Security Service (the FSB) requesting information about the involvement of the first applicant in illegal armed groups. On 15 March 2003 the FSB replied that they had no such information.

On 14 March 2003 the Grozny town prosecutor's office joined the investigation in the criminal cases concerning the abduction and the killing. The joint criminal case was given the number 30034.

On 18 April 2003 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to identify the perpetrators.

On 3 February 2004 the Chechnya prosecutor's office informed the second applicant that her complaint about the killing of Valid Dzhabrailov had been examined and that on 3 February 2004 the investigation had been resumed.

On 2-3 March 2004 the Chechnya Bureau of Forensic Expert Evaluations conducted an expert evaluation of Valid Dzhabrailov's body based on the crime scene examination report of 17 February 2003. According to the expert's conclusions:

The following injuries were found on Valid Dzhabrailov's body:

- numerous extensive bruises of the body and the extremities;

- circular abrasions on the wrist and ankle joints;

The injuries could have been caused by a number of impacts by a dull firm object (objects) two or three days prior to the death;

The corpse of V. Dzhabrailov was not examined; therefore, it is not possible to make further conclusions...”

On 6 March 2004 the Zavodskoy district prosecutor's office suspended the investigation in the criminal case for failure to identify the perpetrators and informed the applicants about it on 15 or 29 March 2004.

On 10 October 2004 the first applicant complained to the Zavodskoy district prosecutor's office that the investigation into Valid Dzhabrailov's murder had been ineffective, that there had been a lack of information about the progress of the investigation and that its suspension had been unjustified.

On 11 May 2005 the applicants' representatives wrote to the Grozny district prosecutor's office and the Grozny town prosecutor's office. They described in detail the circumstances of Valid and Aslan Dzhabrailov's abduction and their subsequent detention. In particular, they described the beatings and the ill-treatment to which the brothers had been subjected by the abductors and the abductors' attempt to kill the first applicant. They further complained that the investigations into the abduction and the murder had been ineffective and that there had been a lack of information about the progress of the proceedings, and asked to be provided with copies of a number of procedural decisions.

On 14 June 2005 the Zavodskoy district prosecutor's office informed the applicants that on an unspecified date the investigation into the abduction had been joined with the investigation into the murder and the joint criminal case had been given the number 30034.

On 21 July 2005 the applicants' representatives wrote to the Zavodskoy district prosecutor's office complaining that the investigation in the joint criminal case had been ineffective and that there had been a lack of information about the steps taken by the investigators. In particular, they pointed out that they had received no information as to whether an expert evaluation of the evidence discovered at the crime scene or a forensic examination of Valid Dzhabrailov's body had been carried out. They further asked that the first applicant be provided with access to the investigation file.

On 27 October 2005 and 25 June 2008 the decisions to suspend the investigation were overruled by the supervisory prosecutors for failure to take necessary investigative steps and the proceedings were resumed.

The applicants submitted that the authorities had failed to provide them with information concerning the investigation into the abduction and the subsequent killing of their close relative.

The Government submitted that the investigation in criminal case no. 30034 was still in progress. The perpetrators of the abduction and the killing had not been identified, but the domestic authorities were taking steps to have the crime resolved. The applicants had been duly informed of all decisions taken during the investigation.

Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 30034. They submitted copies of several documents and stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contained personal data concerning the witnesses or other participants in the criminal proceedings.

On 23 September 2005 (in the submitted documents the date was also referred to as 23 September 2003 and 11 October 2005) the first applicant complained to the Zavodskoy district court of Grozny. He described in detail the events of 16-18 February 2003, including the beatings to which he had been subjected by the abductors, and complained that the investigation in criminal case no. 30034 had been ineffective and that its suspension had been unjustified. The applicant sought a ruling obliging the authorities to resume the investigation and provide him with access to the investigation file.

On 28 October 2005 the Zavodskoy district court rejected the complaint stating that the investigation in the criminal case had been resumed on 27 October 2005.

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


Violation of Art. 6-1+6-3-c;Violation of Art. 6-3-e;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Ireneu Cabral Barreto

The applicant was born in 1974 and at the time of lodging her application was serving a prison sentence in Buca Prison.

On 19 February 2004 the applicant was taken into police custody by police officers from the Denizli Security Directorate, upon intelligence reports that she was a member of the illegal organisation PKK/KONGRAGEL (the Kurdistan Workers' Party). When she was arrested, the applicant was in possession of a fake identity card.

On the same day the applicant was examined by a doctor, who noted that there was no sign of ill-treatment on her body. The applicant was subsequently taken to the Denizli Security Directorate for interrogation.

According to a form dated 19 February 2004 which explained an arrested person's rights, the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer. The applicant marked this form with her fingerprint and stated that she did not want to be represented by a lawyer. Subsequently, a police officer prepared a further report, in which it was stated that although the applicant had been reminded of her right to legal assistance she had expressed her wish to defend herself in person. The applicant marked this report with her fingerprint as well.

On 20 February 2004 the applicant was questioned by the police in the absence of a lawyer. Before the questioning commenced the applicant was once again reminded of her right to have legal assistance, but she refused. In her police statement the applicant gave a detailed account of her involvement in the illegal organisation.

On 20 and 21 February 2004 respectively, the applicant was examined by a medical doctor. The medical reports indicated that there was no sign of ill-treatment on her body.

On 21 February 2004 the applicant was taken before the public prosecutor. During her questioning, the applicant was represented by a lawyer, Mr A.O. from the Denizli Bar Association, and she availed herself of her right to remain silent. The prosecutor questioned the applicant about the fake identity card that had been found on her during her arrest and the applicant accepted that she had been using a fake identity paper. The lawyer left the public prosecutor's office without signing the applicant's statement, stating that although the applicant had expressed her wish to remain silent, the prosecutor had continued asking questions.

The same day, the applicant was questioned by the investigating judge, again in the absence of a lawyer. Before the judge, the applicant retracted her police statement, stating that it had been taken under duress. When asked about her involvement in the illegal organisation, the applicant accepted that when she was a teenager she had joined the PKK and moved to Iraq. She denied however having taken part in any terrorist activity. She stated that she had come back to Turkey to benefit from the Reintegration of Offenders into Society Act (Law no. 4959). After the questioning was over, the investigating judge remanded the applicant in custody.

On 8 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act (Law no. 3713).

The proceedings commenced before the Izmir State Security Court and during the proceedings the applicant was represented by a lawyer. At the request of the applicant, the State Security Court gave permission to the applicant to have the assistance of an interpreter. In its decision the firstinstance court noted that the applicant was capable of expressing herself in Turkish; however, in order not to hinder her right to defence and to comply with Article 6 § 3 of the Convention, she was given leave to use an interpreter.

In her defence submissions before the Izmir State Security Court, the applicant retracted the statements she had made during the preliminary investigation stage. She alleged that she had been forced to fingerprint her statement. According to the applicant, as she was illiterate, she could not understand the content of the document. She went on to deny the accusations against her and explained that when she was a teenager she had escaped to Iraq for family reasons and that she had stayed in a refugee camp there.

On 1 October 2004, the applicant's representative brought to the attention of the Izmir State Security Court that the applicant, being of Kurdish origin, had a limited knowledge of Turkish and that during her police custody she had not had the assistance of a lawyer or an interpreter.

During the trial, the Izmir State Security Court took into consideration the police statements of three people who had also been charged with membership of the PKK. These three people testified that the applicant was a member of the PKK.

In the meantime, Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolished State Security Courts. The case against the applicant was therefore transferred to the Izmir Assize Court.

On 26 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced her to twelve years and six months' imprisonment. In convicting her, the court had regard to the applicant's police statement and the statements of three witnesses who had confirmed that the applicant was a member of the PKK.

The applicant appealed. In her appeal, she alleged that her right to legal assistance during police custody had been breached in so far as she had been denied the assistance of a lawyer.

On 14 March 2005 the Court of Cassation upheld the judgment of the first-instance court.

On 13 June 2005 the Izmir Assize Court re-examined the case in the light of the new Criminal Procedure Code which entered into force in 2005. It found the applicant guilty as charged but reduced her sentence to six years and three months' imprisonment.

A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 2731, 27 November 2008).


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant, Mr Jiří Jedlička, is a Czech national who was born in 1954 and lives in Přerov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A Schorm, from the Ministry of Justice.

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

In November 1999 the applicant’s company concluded a contract to provide a sub-delivery of building operations within a large construction project carried out by the company S. The applicant’s company provided all the contracted work in due time and quality, and invoiced the company S., but payment did not follow.

On 6 December 2000 the applicant’s company brought an action against the company S. in the Brno Regional Commercial Court (krajský obchodní soud).

On 15 October 2003 the court issued a payment order against the company S. However, the latter filed a protest against the order which consequently did not become effective.

On 22 July 2004 bankruptcy proceedings were instituted against the company S. The civil proceedings were therefore suspended ex lege.

On 28 February 2005 the court received a proposal of the applicant’s company to modify its action.

In appears that the civil proceedings instituted by the applicant’s company against the company S., which is now in liquidation, have not yet ended.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant, Mrs Lyudmila Vladimirovna Kositsina, is a Ukrainian national who was born in 1936 and lives in Odessa, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.

From 27 February to 2 March 1995 the applicant’s son, G., was allegedly detained in the village of Balka, Odessa Region, by T. and Tr. (relatives of G.’s former wife), who extorted payment of a obligation of 10,300 US dollars (USD) from G. by subjecting him to ill-treatment.

On 3 March 1995 the Illichevsk Department of the Ministry of the Interior was informed by a medical clinic, to which G. came for medical treatment after being released, that he was suffering from head injuries.

On 17 April 1995 the Illichevsk District Prosecutor’s Office of Odessa (прокуратура Ілічевського району м. Одеси) instituted criminal proceedings against T. and Tr. for unlawfully depriving G. of his liberty.

Between 1995 and 1998 the criminal proceedings were several times terminated and subsequently reinstituted.

On 12 February 1998 G. died.

On 21 November 1998 the criminal case against T. and Tr. was closed for lack of evidence of crime. It was established that G. had borrowed money from T. and Tr., and that his physical injuries had occurred as a result of an epileptic fit. Following a complaint by the applicant about this decision, on 25 January 1999 the Illichevsk District Court of Odessa upheld it, finding no irregularities in the prosecutor’s decision to terminate the criminal proceedings.

On 7 April 1999 the Presidium of the Odessa Regional Court, acting upon a protest lodged by the Deputy Prosecutor of the Odessa Region, quashed the decision of 25 January 1999 because the applicant had not been informed about the court hearing of 25 January 1999 and the court decision had not been reasoned. It remitted the case for a fresh examination to a different judge.

On 19 July 1999 the Illichevsk District Court remitted the case for further investigation. In particular, it found a number of deficiencies in the investigation of the case and ordered the prosecution to rectify them.

On 28 August 1999 the Illichevsk District Prosecutor’s Office again terminated the criminal proceedings against T. and Tr. for lack of evidence of crime.

On 2 December 1999 the same prosecutor’s office quashed its own decision and reinstituted criminal proceedings.

On 29 January 2000 the applicant was granted victim status.

On 30 May 2000 the Illichevsk District Prosecutor’s Office terminated criminal proceedings against T. and Tr. for lack of evidence of crime. G.’s former wife, her mother and T. testified that the applicant had borrowed money from T. and that he had suffered from epilepsy.

On 29 September 2000 the Malinovskyy District Court of Odessa, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation.

On 13 December 2000 the prosecutor quashed the decision of 29 January 2000 granting the applicant victim status, as contrary to Article 49 of the Code of Criminal Procedure.

On 22 February 2001 the prosecutor terminated the criminal proceedings for absence of evidence of crime and as time-barred.

On 27 November 2001 the Illichevsk District Court, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation. In particular, it ordered that the deficiencies in the investigation of the case be rectified. However, the court underlined that the applicant had no victim status in the case. On 21 February and 25 June 2002 the Odessa Regional Court of Appeal and the Supreme Court of Ukraine upheld this decision.

Between August 2003 and February 2004 the criminal proceedings were several times terminated and subsequently reinstituted.

On 25 June 2004 the Malinovskyy District Court, by a separate decision, ordered the prosecutor to inform the court about the investigative actions which the prosecution had taken in the case. It emphasised the failure of the prosecution to abide by the courts’ previous decisions. On the same date, on a complaint by the applicant, the court remitted the case for a new investigation.

On 21 September 2004 the Odessa Regional Court of Appeal upheld the decision of 25 June 2004, by which the case had been remitted for a new investigation.

Between November 2004 and June 2005 the criminal proceedings were several times terminated and subsequently reinstituted.

On 23 June 2005 the case was transferred to the court in order to terminate proceedings as time-barred.

On 3 October 2005 the Malinovskyy District Court of Odessa refused to terminate the criminal proceedings against T. and Tr. and remitted the case for a new investigation. On 6 December 2005 the Odessa Regional Court of Appeal quashed this decision and remitted the case for a fresh judicial examination. The applicant was recognised by the court as her late son G.’s representative.

On 3 April 2006 G.’s daughter was granted victim status in the proceedings.

On 26 April 2006 the Malinovsky District Court terminated the criminal proceedings as time-barred.

On 25 May 2006 the Malinovskyy District Court dismissed the applicant’s appeal against the decision of 26 April 2006 since the applicant was not a party to the proceedings. On 12 September and 5 December 2006 the Odessa Regional Court of Appeal quashed the decisions of 25 May and 26 April 2006 respectively and remitted the case to the Malinovskyy District Court for fresh consideration.

On 16 February 2007 the Malinovskyy District Court granted the applicant victim status and remitted the case to the prosecutor for an additional investigation.

On 26 April 2007 the Malinovskyy District Prosecutor’s Office terminated the criminal proceedings for the absence of the event of crime. On 12 July 2007 the Malinovskyy District Court upheld this decision. The applicant appealed against it and the proceedings are still pending.

According to Article 28 of the Code, a person who has sustained pecuniary damage as a result of a crime can lodge a civil claim against an accused at any stage of the criminal proceedings before the beginning of the consideration of the case on the merits by a court.

Article 49 of the Code provides in so far as relevant:

“A person who has suffered moral, physical or property damage from the crime can be recognised as an aggrieved party. ...

A citizen, who has been recognised as an aggrieved party from the crime, shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to: ... make requests; to study all the materials of the case-file when the pre-trial investigation is completed, ... to lodge complaints against the actions of inquirer, investigator, prosecutor and court, ...

In cases where the crime caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased’s next kin.”