Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violations of Art. 3;Violation of Art. 5;Violation of Art. 13 + 3;No violation of Art. 34;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in 1973 and lives in the city of Grozny, in the Chechen Republic.

In the morning of 23 October 2003 the applicant, his parents Kh.G. and S.B. and three siblings, Z.G., M.G. and Z.Kh.G., were at home at 25, Shakespeare Street, Katayama district of Grozny.

At about 7 a.m. on 23 October 2003 five grey UAZ vehicles without registration numbers arrived at the house. A group of twenty to thirty men got off the vehicles and burst into the applicant's house. The intruders were wearing camouflage uniforms with insignia on the forearm indicating “Armed Forces of Russia” (Вооруженные Силы России), black masks and green helmets with plexiglass parts to protect their faces, those helmets being, according to the applicants, a usual part of the equipment of specialpurpose squads of the Russian security forces, such as the Federal Security Service (“FSB”). All intruders carried sub-machine guns, wore bullet-proof jackets and vests used for carrying full sub-machine gun cartridges. Some of them were, in addition, armed with pistols and were carrying black Kenwood walkie-talkies, through which they were communicating. They spoke unaccented Russian. According to the applicant and his relatives, the intruders' actions were very well co-ordinated.

The intruders took the applicant's family members outside and searched the house, without giving any explanations or presenting any warrants. One of the armed men ordered the Gisayevs to produce their identity papers. Having checked them, he ordered his subordinates to put the applicant in one of the UAZ vehicles. Shortly thereafter the applicant was placed in the vehicle and one of the intruders, sitting in the front passenger seat, ordered another man, whom he referred to as “Number 12”, to put a shirt over the applicant's head. He also told someone over his walkie-talkie: “To the base station, we carry out an arrest, do not disturb” (“По опорному пункту, у нас задержание, не беспокоить”).

After the applicant had been put in the vehicle, his father repeatedly requested the intruders to explain the reasons for the applicant's arrest, to name the State authority to which they belonged and to which he could apply in connection with the applicant's detention. Although the armed men initially disregarded his questions, one of them finally replied: “We will check him and let him go. You can request further information from the FSB.”

Shortly thereafter the intruders got into their vehicles and drove off in the direction of the Staropromyslovskoye highway in Grozny. While the applicant and his relatives were outside, they had an opportunity to memorise several details concerning the vehicles. In particular, they noticed that they were armoured and equipped with loopholes for riflemen and had on their roofs square boxes with long antennas. Subsequently, the applicant and his relatives learnt that those boxes were containers for radio-frequency suppression, which formed part of the special equipment of the FSB and the Main Intelligence Directorate of the Russian army (the “GRU”).

When the applicant's relatives went back inside, they discovered that some items and money had been taken.

After the abductors had taken off with the applicant, they drove for about twenty minutes. On its way the vehicle honked while passing through a checkpoint, stopped for a while and then continued moving. Shortly thereafter the vehicle stopped and honked again and the applicant heard the sound of a gate opening. He was then ordered to get out. While doing so, he managed to look around and concluded that he was near the “Avtobaza” station on the Staropromyslovskoye highway, where the premises of the operational-search bureau ORB-2, the FSB, the Organised Crime Unit (“the UBOP”), the military commander's office and the government of the Chechen Republic were located.

The applicant's abductors took him inside an unknown building to a room located on the fourth floor, sat him down in the corner and handcuffed him to a heating pipe. When they left, the applicant managed to remove the shirt from his face and saw that he was in a room where there was a table and a chair. On the chair he saw a camouflage jacket with Russian military insignia on its sleeve. On the table there was a phone.

Later the same day the servicemen interrogated the applicant as to whether he was a member of illegal armed groups or knew something about them. In his submission, they considered that he must have had that information based, among other things, on the fact that he had used to work in the Ministry of the Interior under the Maskhadov regime. He refused to confess to anything. They then threatened him with violence and mentioned that his family was in danger because of his reluctance to speak. Then they left the room and locked the door.

After a while several persons entered the room; they asked the applicant if he had any information on the Chechen rebels and weapon hoards. The applicant denied his involvement in any illegal activities; the men beat him with a truncheon. Then they attached electric wires to his right hand and right foot and started passing an electric current through his body. They also burned his hands and feet with cigarettes, beat and insulted him. The applicant was denied any food and water. Then the servicemen again handcuffed him to the pipe and left him alone.

Some two hours later five to six persons returned to the applicant's room and gave him some water. Immediately thereafter they put a plastic bag over his head. About two hours later a few more men entered the room. They plastered the applicant's eyes and mouth with adhesive tape and began to beat and kick him. The applicant was lying face down; one of the servicemen stood on his back. The servicemen connected an electric wire to the applicant's handcuffs and to the little toe of his right foot and passed, again, an electric current through his body. The men told the applicant that they would blow up his family house unless he confessed that he was a rebel fighter. They tortured him in that way for about three hours. At about midnight they handcuffed the applicant to the pipe and left.

In the morning of 24 October 2003 the servicemen brought the applicant to the ground floor and allowed him to wash the blood off his body. The applicant discovered that his nose was swollen, his right wrist and right ankle were burned and one of his lips was badly cut. Then the servicemen brought the applicant back to the room on the fourth floor and continued to interrogate him even more violently.

In the evening of 24 October 2003 the servicemen again used an electric current on the applicant, beat and abused him. Then they tied him to the pipe and left. At night the applicant moaned in pain; having heard the noise, the servicemen returned and beat him again.

In the morning of 25 October 2003 two servicemen whom the applicant had not seen before entered the room and beat him. They threw some sharp objects at the applicant's head; when it started bleeding, they bandaged his head with a piece of cloth to stop the bleeding and continued to beat him. One of the servicemen beat the applicant on the abdomen and back with another sharp object, and kicked him on the throat and shoulder.

According to the applicant, when speaking among themselves, the servicemen often used specific terms. In particular, some of them would ask others if anything happened while they had been on duty or when they would take leave. Over the phone, which was in the room where the applicant was held, the servicemen would inform their interlocutors that someone “had gone to the military commander's office”. In the applicant's presence they were addressing each other as “Number 6” or “Number 12”. On several occasions the persons who had tortured the applicant, when leaving the room, were addressing others saying “You have been called by the commander” or “Get down to the canteen and fetch us some food, don't forget the apples”. Once at night the applicant heard the sounds of machine guns coming from outside. The person who was in the room with him took the phone and asked someone over it: “Why are you shooting?”.

On 25 October 2005 the man who had been in command of the operation when the applicant was abducted came to the applicant's room and told the others that the applicant's relatives were at the gate. He called someone over the phone several times asking if the applicant's relatives had left. He also told the person to frighten them to make them leave. Among themselves, the servicemen who were in the room were discussing how the applicant's relatives could have learnt about his whereabouts and from whom they might have obtained that information.

Shortly thereafter, at about 3 or 4 p.m. on 25 October 2003 the servicemen put a black plastic bag over the applicant's head, plastered his eyes with adhesive tape and took him outside the building. Then they placed him in a car, put on some loud music and drove for around forty or fifty minutes. Despite the music, the applicant was able to hear that the car was moving through busy streets. He also heard the servicemen talking over their walkie-talkies. During the ride they told the applicant that they were going to shoot him. According to the applicant, the car was moving in the direction of the Minutka Square or Khankala. When the car stopped, the servicemen dragged the applicant out and placed him in a boot of another car. That car drove for about twenty or thirty minutes stopping four times, presumably at checkpoints. Then the servicemen took the applicant out of the boot and took him to the basement of a building which was unfamiliar to him. The applicant's abductors referred to the place as “Khankala”.

In the basement the servicemen tied the applicant to a pole and started interrogating him. They asked him whether he knew anything about rebel fighters and weapon hoards; the applicant replied in the negative. The servicemen beat him all over his body, including the face, head and solar plexus. After two hours of beating they ordered the applicant to lie on the left side of his body and tied him to the table legs and left. When they left, he managed to lift the plastic bag off his eyes so that he could see a cellar of concrete blocks measuring around 5 x 10 square metres. After a while the servicemen brought him a blanket and a pillow.

In the morning of 26 October 2003 the servicemen gave the applicant some tea and a piece of bread and asked him whether his real name was Lyanov, not Gisayev. The applicant replied that he had never forged his identity papers to change his name.

While kept in the basement, the applicant had to lie on the floor covered with water. Occasionally he heard the noise of helicopters and armoured vehicles outside. At times different persons came to the basement; they threatened the applicant, insulted and beat him.

On the fourth day of the detention in the basement a man entered and hit the applicant on the face. The applicant fell; the man ordered him to rise. Then two other men arrived; they put a plastic bag over the applicant's head, plastered his eyes and mouth and told him that his death had come. The applicant asked them to give his corpse to his parents after his death; the men replied that they would feed his dead body to dogs. For the next three hours they passed an electric current through the applicant's body and beat him. Then the applicant vomited and nearly fainted; he was bleeding. Later, when the applicant regained consciousness, several servicemen beat him again.

Over the following days the servicemen repeatedly came to the basement and ill-treated the applicant; at times they used an electric current. They surrounded the applicant and took turns to hit him; they stood on the applicant's back and beat him with truncheons; they hung him up by his arms and left him hanging for a long time. From time to time they attached an electric cable to the applicant's ear and passed electricity though it. Several times they put a gas-mask on his face so that he was forced to inhale a substance with a strong suffocating smell.

The servicemen threatened the applicant with murder again and again. They forced him to drink alcohol and smoke cigarettes to make sure that he was not a radical Islamic fundamentalist, which was particularly insulting for the applicant, a devout Muslim. They also put to him all sorts of questions concerning his religious beliefs and the Muslim traditions of the Chechen people in which they appeared to be interested.

The servicemen spoke unaccented Russian; they employed legal terms used by the police and FSB officers. According to the applicant, there were offices above his room in the basement. He heard people saying that the special-purpose squad (“the OMON”) had arrived, that someone needed to be sent to a particular location in a helicopter, that a special-purpose squad would take off to the town of Malgobek in Ingushetiya. Every morning a woman called “Nadya” would arrive at the office upstairs and tell the others that she had had ordered from the stock a certain quantity of soap, bedding or tinned food. The applicant also heard the noise of armoured vehicles, helicopters and a working military radio station coming from the outside.

On an unspecified date several servicemen entered the basement, put a plastic bag on the applicant's head, plastered his eyes with adhesive tape and told him that they were going to shoot him. They took the applicant outside the building and put him in the boot of a car. After a half-an-hour ride the car stopped; the servicemen took the applicant out of the boot and led him inside a building. There they attached him to a pipe and left.

At some point the servicemen took the plastic bag off the applicant's head and gave him food and water. The applicant spent a day and a half in that room; he was not beaten during that period. Then the servicemen took the applicant to another room and handcuffed him to a bed. He spent two more days there. Then a man came who asked the applicant if he had seen any faces, apparently of those who had beaten him. The applicant replied in the negative. The man told him that he had not been detained but kidnapped.

In the evening of 8 November 2003 the servicemen again put a plastic bag on the applicant's head and told him that he would be released. They commented that the applicant would have to leave Chechnya; otherwise they would kill him and his family. Then they put the applicant in a car; after a half-an-hour ride the car stopped. A man asked the applicant in Chechen if he was Akhmed from the Katayama district; the applicant replied in the affirmative. The man told the applicant to get out of the car and escorted him to another car. There he removed the plastic bag from the applicant's head and told him not to worry and that he would bring him home. The applicant saw that the man was his relative who was working with the law-enforcement authorities. When the applicant looked around, he realised that the cars were parked on the Staropromyslovskoye highway in Grozny near a fence over which was written “Ministry of Defence of the Russian Federation”, about five hundred metres away from the buildings of the FSB, the city military commander's office, the UBOP, ORB-2 and the Chechen Government.

The applicant saw his relative give something to two servicemen wearing camouflage uniforms with the Russian military insignia. One of them, a forty-year-old man of medium height, carried a gun; the other was a tall brown-haired man in his mid-thirties. Later the applicant discovered that his relatives had paid a ransom of some 1,500 US dollars for his release.

Then the applicant's relative brought him home. According to the applicant, he could not communicate the name of his relative because the latter feared for his life.

The above description of the events is based on the applicant's fivepage typed complaint to the prosecutor's office of the Staropromyslovskiy District of Grozny dated 11 February 2004, his elevenpage written statement made on 26 March 2004 and his written statement of 21 June 2004; the applicant's father's statements of 26 March and 22 December 2004 and 2 February 2005; the applicant's mother's statements of 22 December 2004 and 2February 2005; written statements by Z.Kh.M. made on 6 July 2004 and 2 February 2005; a written statement by Z.M. made on 2 February 2005; a written statement by M.Z. of 2 February 2005; a detailed sketch of the area of the Staropromyslovskoye highway, on which are located the premises of the FSB, the UBOP, the ORB-2, the Ministry of Defence and other authorities mentioned by the applicant, with the indication of where those authorities' premises, as well as their checkpoints, fences and car parks, are to be found, accompanied by the applicant's detailed description and written explanation.

On 23 October 2003 unidentified armed persons in camouflage uniforms and masks, driving five grey UAZ vehicles, burst into the applicant's house at 25, Shakespeare Street, Grozny, and abducted the applicant.

On 23 October 2003 the applicant's father complained about his son's abduction to the prosecutor's office of the Staropromyslovskiy District of Grozny (“the district prosecutor's office”) and the police. However, those State authorities denied having any information on the applicant's whereabouts and also refused to institute a criminal investigation into his abduction.

The applicant's father also reported the circumstances of his son's kidnapping to the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (“the Special Envoy”) and the State Council of the Chechen Republic. On 28 October 2003 the Special Envoy requested the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) that requisite measures be taken to establish the applicant's whereabouts.

On an unspecified date in October 2003 the applicant's relatives applied to the local police in connection with his abduction. The police officers allegedly told them that in the early morning on 23 October 2003, while they had been on duty, unspecified FSB officers informed them over radio channels that the latter were carrying out an arrest on Shakespeare Street and that the police officers were not to interfere with the operation.

On the same day two young men who knew about the abduction of the applicant allegedly came to the applicant's father and told him that they had been in the city centre on the morning of 23 October 2003 and had seen five UAZ vehicles, which had first been driven through the city centre and had then entered the premises of ORB-2, located on the Staropromyslovskoye highway near the premises of the UBOP, the military commander's office, the FSB and the Ministry of Defence.

On an unspecified date the applicant's relatives went to ORB-2 and tried to obtain information concerning him. However, the persons to whom they talked denied having arrested him. At one point two men approached the applicant's relatives. They introduced themselves as FSB officers and asked the applicant's father who had given him the information that his son had been abducted by the FSB. When he refused to reply, they became aggressive and insisted that he tell them his source of information. Faced with his refusal to do so, they ordered him to leave, saying that the place was dangerous and that he could be shot dead. They also said that they did not have the applicant. Having heard that, the applicant's relatives returned home.

On 26 October 2003 a friend of the applicant, an official of a lawenforcement agency, came to the applicant's relatives and told them that the applicant had been abducted by officers of ORB-2, which was under direct command of the FSB. He also told them that after his abduction the applicant had been held for three days on the premises of ORB-2 and then transferred to Khankala for further interrogation.

Subsequently, the applicants found a person who was an officer of the FSB and who negotiated with the abductors the applicant's release in exchange for 1,500 US dollars (USD). The applicant's relatives collected the money and gave it to that man.

Upon his return home the applicant experienced major health problems. He suffered from insomnia and severe headaches; at some point he had a fever. His extremities ached and wounds festered. He had bruises, burns and cuts all over his body. He was not able to walk on his own and needed assistance in moving around the house. The applicant's health was so poor that he could not visit a doctor for several weeks following his release. According to the applicant, after his release he had to undergo medical examinations and treatment on a permanent basis and to take various medication including painkillers, to ease the pain.

In support of his submissions concerning his state of health the applicant also referred to statements of his relatives mentioned in paragraph 37 above.

On 3 December 2003 the applicant was examined by a doctor. According to a certificate of that date, he submitted to the doctor that he had been held in detention between 23 October and 7 November 2003 and had been beaten on numerous occasions. The applicant complained, among other things, about headache, pain in the lower back and frequent urination. The certificate noted, among other things, the following injuries: a 3 × 5 square-centimetre scar in the cervical region of the head, a scar measuring 7 × 3 square centimetres on the right hip, a round scar measuring 1 × 1 square centimetres on the right wrist. The applicant was diagnosed with “numerous scars on his head and body” and an examination by a neuropathologist was recommended.

According to a certificate of 3 December 2003, on that date the applicant was examined by a neuropathologist, to whom he complained about headaches, dizziness, insomnia, overall fatigue, numbness of extremities and pain in the lower back. The certificate noted that the applicant had a closed craniocerebral injury, was unstable in the Romberg test and had tremor of eyelids and hands. The palpation of the spine and chest area was painful. The applicant was diagnosed with “after-effects of closed intracranial injury”, “astheno-neurological syndrome” and “posttraumatic osteochondrosis of the thorax region”.

On 5 December 2003 the applicant was examined by a neurologist. According to his medical certificate of the same date, the applicant was diagnosed with chronic prostatitis.

According to a certificate of 28 December 2004, the applicant was diagnosed with continuing after-effects of a craniocerebral injury, including encephalopathy of the first and second degree.

According to the applicant's medical report dated 10 March 2005, from 12 to 26 January 2005 he underwent in-patient treatment in the neurological department of hospital no. 3 in Grozny. The document, in so far as relevant, reads as follows:

“After-effects of closed craniocerebral injury, severe brain contusion in the form of persistent intercranial hypertension; recurring hypertensive-hydrocephalic crises (three to four times a week); recurring vestibular crises (one to two times a week), accompanied by loss of coordination; strongly pronounced astheno-neurotic syndrome; mombalgia.

Complaints about: recurring headaches accompanied by dizziness and vomiting; weakness in arms and legs; attacks of dizziness accompanied by loss of coordination; loss of memory of current events; lower back pain becoming stronger in a static position and while walking.

An morbi: The patient has been sick since he was abducted, detained in a basement and ill-treated (in his words). The applicant has had the above-mentioned complaints since that time; underwent in- and outpatient treatment on numerous occasions, has been under continuous supervision of a neuropathologist. The effectiveness of the treatment is negligible.

The overall state of health is of medium gravity.

Muscular reflexes in arms reduced...

Muscular reflexes in legs reduced...

Established numbness in hands and legs.”

On 1 November 2003 the district prosecutor's office instituted an investigation into the applicant's abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).

On 27 November 2003 the district prosecutor's office replied to the head of the State Council of the Chechen Republic that on 1 November 2003 it had launched an investigation into the abduction of the applicant. A copy of that letter was forwarded to the applicant's relatives.

On 23 December 2003 the Memorial Human Rights Centre, acting on the applicant's relatives' behalf, requested the district prosecutor's office to inform them of the progress in the investigation into the kidnapping.

On 5 February 2004 the applicant requested the district prosecutor's office to open an investigation into his unlawful abduction, detention and ill-treatment, to grant him the status of victim of a crime and to order and carry out his medical examination. He also vaguely mentioned the search of his home carried out on the night of the kidnapping, but did not make any distinct complaint in this respect.

On 11 February 2004 the applicant wrote to the district prosecutor's office, giving a detailed written description of the circumstances of his abduction, detention and ill-treatment and requesting to be admitted to the criminal proceedings as a victim and a civil party. He also reiterated his request for a medical examination. He stated that he feared for his life because his abductors and torturers were working in law-enforcement bodies, that he was about to leave the Chechen Republic because of it and requested protection for his family and himself. The applicant enclosed copies of medical certificates of 3 December 2003. The applicant's letter was received by the district prosecutor's office on 20 February 2004.

On 1 June 2004 the applicant requested the district prosecutor's office to update him on the progress in the investigation into his kidnapping and to inform him whether his requests lodged on 11 February 2004 had been granted.

On 5 July 2004 the district prosecutor's office informed the applicant that on an unspecified date the investigation into his kidnapping in case no. 50127 had been stayed for failure to identify those responsible. The letter also mentioned that despite the applicant's repeated summonses to the district prosecutor's office, he had failed to appear, and that the issue of granting him victim status depended on his personal appearance.

On 28 July 2004 the applicant complained about the investigators' inactivity to the republican prosecutor's office. He referred to his numerous and repeated complaints about the abduction and ill-treatment lodged with the district prosecutor's office and claimed that they had been left unanswered. He further requested that the investigation in case no. 50127 be resumed.

On 27 August 2004 the republican prosecutor's office replied that on an unspecified date the investigation had been reopened and that unspecified investigative measures were being taken to resolve the crime.

On 30 September 2004 the district prosecutor's office informed the applicant that the investigation was underway and summoned him to their premises.

On 15 October 2004 the applicant replied that he had already requested to be granted the status of the victim of a crime in his absence because he had fled the Chechen Republic to hide from his kidnappers. He asked the investigators to arrange for his medical examination anywhere outside Chechnya. He also stressed that he was ready to provide to the investigation any information which it might wish to request from him in writing and without delay.

On 9 November 2004 the district prosecutor's office informed the applicant that they could not admit him to the proceedings as a victim in his absence and requested him either to come to the prosecutor's office or to indicate his whereabouts, as well as to inform them in which hospital he had been treated after his release.

On 28 January 2005 the applicant complained about the inactivity of the investigators to the Staropromyslovskiy District Court of Grozny (“the District Court”). He submitted, in particular, that, despite the fact that he had provided detailed information on his abduction and ill-treatment and had apprised the district prosecutor's office of his fear for his life, the latter had taken no steps to investigate the crime against him and conditioned the grant of victim status on his showing up at their office.

By a decision of 16 March 2005 the district prosecutor's office granted the applicant the status of victim of a crime in case no. 50127. The decision stated that at about 7 a.m. on 23 October 2003 a group of twenty to thirty armed persons in camouflage uniforms, who had arrived in grey UAZ vehicles without registration plates, had burst into the applicant's house and had taken the applicant to an unknown destination. It also stated that since his abduction the investigation had no information on the applicant's fate.

On 17 March 2005 the District Court examined the applicant's complaint of 28 January 2005 and dismissed it for the reason that the investigators had already admitted him to the proceedings as a victim. The court specifically indicated that the investigator's persistent refusal to grant the applicant victim status had been unlawful and asked the former to inform the applicant of the progress in the investigation.

On 15 May 2005 the applicant wrote to the district prosecutor's office, requesting to be provided information on the progress in the investigation and seeking access to the case file.

On 20 May 2005 the district prosecutor's office replied to the applicant that the investigation was in progress and that he was to come to the office to obtain access to the case-file materials.

On 6 June 2007 the applicant again wrote to the district prosecutor's office, requesting information on the progress in the investigation and the specific investigative steps taken, the name of the investigator in charge of the case, the reasons for the failure to carry out his medical examination and to append to the case file as material evidence the clothes in which he had been ill-treated.

On 21 June 2007 the district prosecutor's office granted the applicant's request of 6 June 2007 in part concerning his access to the documents from the case file related to the investigative steps taken with the applicant's participation. It dismissed the remainder of the request and also informed the applicant that on an unspecified date the investigation had been suspended owing to failure to identify the perpetrators.

On 8 August 2007 the applicant wrote to the district prosecutor's office. He submitted that he had given his clothes in which he had been illtreated to investigator D. The latter had requested him to provide those clothes in order to append them to criminal case file no. 50127 as material evidence and to carry out a biological forensic examination, which was particularly important in solving the crime. According to the applicant's letter, D. had subsequently informed him that the examination of the clothes had been carried out and that it had found on them traces of blood and of tissue fluids. Accordingly, the applicant requested the district prosecutor's office to clarify whether his clothes had indeed been examined and to inform him of the developments in the investigation.

On 27 August 2007 the district prosecutor's office informed the applicant that on an unspecified date the investigation in case no. 50127 had been suspended owing to failure to identify the perpetrators. As to the clothes issue, the applicant was to contact the investigator in charge of his case.

On 25 October 2007 the Leninskiy Interdistrict Investigating Unit of the Investigating Department in the Chechen Republic of the Investigative Committee with the Prosecutor's Office of the Russian Federation (“the investigating unit”) informed the applicant that on the same date it had reopened the investigation in case no. 50127.

On 1 November 2003 the district prosecutor's office instituted a criminal investigation into the applicant's abduction under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 50127.

On an unspecified date the investigators interviewed the applicant as a witness. He stated that at about 7 a.m. on 23 October 2003 a group of armed persons in masks and uniforms had burst into his house. They had put him against the wall and searched him. At about that time his father had gone outside and asked the intruders what was going on. They had replied that they were officials of the FSB but refused to produce any documents. The intruders had then searched the house, without providing any official authorisation, such as an arrest warrant, but had not found anything. After that, despite the applicant's parents' attempts to stop them, the armed men had taken the applicant to one of the UAZ vehicles stationed at the gate. They had put a shirt over his head and put him in the vehicle. The applicant had then been taken to an unknown place. He had been led to the fourth floor of an unknown building and handcuffed to a pipe, whereupon the abductors had started beating him and asking whether he knew any rebel fighters. He had replied in the negative. The abductors had tortured him with electric wire, beaten him up with truncheons and had put a plastic bag over his head. On the third day he had been transferred to another place. There he had been kept in a basement, tied to a pole and severely beaten up. For thirteen days the abductors had tortured the applicant, requesting that he confess to something. Subsequently, he had been returned to the first place of his detention, from where they had taken him to a hospital.

On an unspecified date the investigators also interviewed the applicant's father. He stated that in the morning of 23 October 2003, while he had been at home with his family, around twenty to thirty armed men in camouflage uniforms and masks had burst into his yard. They had ordered the family to produce their identity papers. The applicant's father had returned home to fetch them and when he had come back, he had seen the applicant standing against the wall with the intruders pointing their guns at him. When he had asked the intruders what the applicant had done, they had replied that they would take the applicant with them and check on him but had refused to say where. Despite the applicant's father's attempts to prevent them from taking the applicant away, the intruders had put him into their vehicle and had driven off. The applicant's mother, interviewed on an unspecified date, provided a similar account of the events.

On an unspecified date the investigators interviewed the applicant's neighbour M.I. as a witness. She stated that in the morning on 23 October 2003 she had heard noise and shouting coming from the applicant's house. Having gone outside, she had seen that several UAZ vehicles were parked at the applicant's house. She had not seen anything else and had learnt about the applicant's abduction from his relatives.

On unspecified dates the investigators interviewed L.Sh., B.I., Z.B. and A.Ya. as witnesses. The Government did not specify who those persons were but stated that they had given accounts of the events of 23 October 2003 similar to that given by M.I.

On 16 March 2005 the applicant was granted victim status in the proceedings in case no. 50127. On the same date his forensic medical examination was carried out. According to its conclusions, the applicant had the following injuries: scars on the occipital part of the head, the right thigh and the back of the right hand. However, owing to the time that had elapsed since the infliction of the injuries, it was impossible to establish their origin.

According to the Government, the investigation in case no. 50127 was pending.

Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 50127. They 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, since the file contained information of a military nature, such as disposition of military and special troops and particulars of their activities, as well as personal data concerning the witnesses or other participants in the criminal proceedings.

In his observations submitted to the Court on 28 March 2008 the applicant stated that he had been intimidated by State agents, referring to the following events described in his written statements of 8 April 2005 and 24 April 2006.

On an unspecified date after the applicant's release several persons allegedly approached the applicant's father, telling him not to complain about the applicant's abduction to the authorities and to be glad that the applicant was alive.

On an unspecified date, during the applicant's interview at the district prosecutor's office, an investigator allegedly told him that it was dangerous to try to identify the applicant's abductors and torturers because they were officials of State authorities.

On an unspecified date in March 2005, during the applicant's interview at the district prosecutor's office, an investigator allegedly told him in a threatening tone that persons in the applicant's situation were disappearing, that he was lucky to have returned home and that it would be better to close the investigation. When the applicant subsequently went to the district prosecutor's office, seeking access to the criminal case-file materials, an investigator asked him why he needed those documents and told him that if he wished to complain to the Strasbourg Court, it might end up badly for him. After that, on an unspecified date a group of persons in camouflage uniforms, who were driving a white VAZ-2107 vehicle, allegedly came to the applicant's parents' home, introduced themselves as officials of the prosecutor's office and told the applicant's brother that only fools were complaining in Chechnya. Following that, on an unspecified date the applicant was allegedly approached by a local police officer who told him that his fellow colleagues were tired of replying to requests of the prosecutor's office concerning the applicant's criminal case and advised the applicant to agree to its termination. In the applicant's submission, the investigators also insulted his lawyer.

On an unspecified date in April 2006 a number of persons driving a VAZ-21099 vehicle allegedly came to the applicant's house. One of them wore a camouflage uniform. They told the applicant that he was lucky to be alive and advised him in a threatening tone to write a request for the investigation into his alleged ill-treatment to be closed, to find a job and to live like everyone else.

For an overview of the public statements of the European Committee for the Prevention of Torture (“the CPT”) on the issue of ill-treatment of detainees in the Chechen Republic by members of law enforcement authorities in the period 2000–2003, see Chitayev and Chitayev v. Russia (no. 59334/00, §§ 97-98, 18 January 2007).

Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment (Article 286 § 3 of the Criminal Code).

The Code of Criminal Procedure of the Russian Federation, in force since July 2002 (the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days after receiving such complaint the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken.

Article 161 of the CCrP provides that data from the preliminary investigation cannot be disclosed. Under Article 161 § 3, information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission.

Article 22 § 1 of the Constitution of the Russian Federation stipulates that everyone has the right to liberty and security. Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2 of the Constitution). The same principle is proclaimed in Article 10 of the CCrP, which provides that no one can be arrested or remanded in custody unlawfully, in the absence of a court order and for a period exceeding forty eight hours.

Under Article 91 of the CCrP, an investigating authority can arrest a person on suspicion of having committed a criminal offence punishable by imprisonment (i) at the time of the offence or immediately thereafter; (ii) if eyewitnesses pointed to him as the perpetrator of the crime; or (iii) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home.

Within three hours after the delivery of a suspect to an investigating authority, a record of the arrest is to be drawn up, indicating the time and date of its compilation, as well as the date, time, place and grounds for a person's arrest and other relevant information (Article 92 §§ 1 and 2). A prosecutor is to be informed in writing about the arrest within twelve hours and the suspect is to be granted access to a lawyer and interviewed (Article 91 §§ 3 and 4). If no court order to place the person in custody or to extend his arrest is issued or received within forty eight hours, the detained suspect is to be immediately released (Article 94 §§ 2 and 3). Upon release, he is to be provided with a certificate indicating the authority which had arrested him, the date, time, place and legal grounds for detention, as well as the date, time and grounds for the release (Article 94 § 5).


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Kalevi Ensio Nieminen, is a Finnish national who was born in 1952 and lives in Nokia. He was represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

On 21 July 2009, in his own apartment, the applicant stabbed another person with a knife. The victim called the police. When the police patrol arrived, they found a person with a deep, bleeding wound in front of the applicant’s home who told them that he had been stabbed in the applicant’s home by the applicant. As it was not known whether other persons were in danger, the police officers entered the applicant’s home in order to prevent any possible further act or event which might seriously threaten another person’s life, personal liberty or health. In the apartment they found nobody but the applicant. He was severely intoxicated, a breathalyser showed a result of 4.00 per mill, and he was not able to give a statement. He was taken to the local police station. The police officers found and seized a knife with a 17 cm blade covered in blood.

On 22 July 2009 the applicant was questioned on suspicion of aggravated assault (törkeä pahoinpitely, grov misshandel). He was released on the same day.

On 1 October 2009 the applicant was charged with aggravated assault.

On 26 November 2009 the Tampere District Court (käräjäoikeus, tingsrätten) dismissed all charges against the applicant. It found that the applicant had not intentionally hurt the other person and that the latter’s injury could have been caused accidentally as both the applicant and the victim had been severely intoxicated. No motive for the act could be established. The applicant and the victim were still good friends and had even come to the oral hearing together.

No appeal was made against this judgment and it thus became final.

According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act.

Section 16 of the Police Act (poliisilaki, polislagen, Act no. 493/1995) provides the following:

“On the order of a commanding police officer, and in urgent cases even without such an order, police officers have the right to enter a building, other domestic premises or a vehicle if there is good reason to assume that an act or event causing a serious threat to life, personal liberty or health, or notable damage to property or the environment is taking place or about to take place. A further precondition is that the measure is essential to prevent danger or to search and take possession of explosives, weapons or other dangerous substances or objects.”

Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment.

In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in criminal proceedings, that it may have been removed from someone as a result of a criminal offence or that the court may order its forfeiture (Chapter 4, section 1, of the Coercive Measures Act).

A civil servant having the power to arrest a person may decide to conduct a search at a person’s home. A police officer may conduct a search even without a warrant if it is intended, inter alia, to locate a person to be apprehended, arrested or detained or for seizure of an object that has been used immediately before in a crime. A police officer may conduct a search without a warrant also on other occasions if the matter cannot wait (Chapter 5, section 3).

At the time of the events there was no access to a court as concerned a search but only in respect of a seizure (Chapter 4, section 16, subsection 1).

According to Chapter 21, section 6, subsection 1, of the Penal Code (rikoslaki, strafflagen, Act no. 578/1995 as modified by Act no. 654/2001), a person can be sentenced for aggravated assault to imprisonment for a minimum term of one year and a maximum of ten years.


The applicant, Mr Milenko Toth, is a Croatian citizen who was born in 1962 and is presently serving a sentence in Lepoglava State Prison.

On 15 September 1992 the competent investigating judge opened an investigation against the applicant on a charge of murder. The applicant was indicted by the Sisak County State Attorney’s Office (Okružno državno odvjetništvo Sisak) on 12 February 1993.

On 27 January 1994 the investigating judge opened another investigation against the applicant, charging him with the attempted murder of a judge. He was indicted on 15 November 1994.

The two criminal proceedings were subsequently joined.

On 20 September 1995 the Sisak County Court (Županijski sud u Sisku) convicted the applicant of both offences.

On 22 May 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance conviction with regard to the murder charge. This part of the judgment became final. At the same time, the Supreme Court quashed part of the judgment relating to the attempted murder and remitted the case.

In the resumed proceedings, on 9 May 1997 the Sisak County Court convicted the applicant of attempted murder and sentenced him to fifteen years’ imprisonment.

On appeal, the Supreme Court upheld the first instance judgment on 24 June 1998.

The applicant states that he filed a constitutional complaint with the Constitutional Court on 29 November 1999, alleging that both his convictions had been based on evidence obtained illegally and thus his right to a fair trial had been violated. His constitutional complaint concerned both convictions. He maintains that his complaint was never adjudged by the Constitutional Court.

The Government admit that the applicant’s letter to the Constitutional Court dated 29 November 1999 was titled “a constitutional complaint”. However, they submit that the applicant had already lodged a constitutional complaint on 25 February 1999 and that his letter of 29 November 1999 was merely an extension of his previous complaint, seeking to include the proceedings concerning the murder, which had ended in 1996. It was thus regarded by the Constitutional Court as a new submission in an already existing case.

Moreover, the Government submit two decisions of the Constitutional Court, by which it adjudged the entirety of the complaints raised by the applicant in his submission dated 29 November 1999 with regard to both proceedings.

In its decision dated 4 October 2000, the Constitutional Court dismissed the applicant’s complaint, finding no violation of his right to a fair trial in the proceedings concerning the attempted murder.

In its decision dated 8 March 2002 the Constitutional Court dismissed the applicant’s complaint relating to the fairness of the proceedings concerning the murder, as it had been lodged outside the statutory time-limit.


Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was detained on 30 September 1993 further to an order issued on 24 September 1993 by the preliminary investigations judge ("giudice per le indagini preliminari") attached to the Florence District Court. The applicant was accused of belonging to a Mafia type association, drug-trafficking, unlawful possession of arms and forgery. The accusation was based on the statements of a certain Mr M., a pentito (a mafioso who had decided to co-operate with the authorities).

In the reasons for the order of 24 September 1993, the preliminary investigations judge found that M.'s statements should be considered credible and to have been made voluntarily. They could therefore constitute strong evidence of guilt ("gravi indizi di colpevolezza"), which is a prerequisite under Italian law for remanding an accused in custody. The judge also considered that these statements were corroborated by the results of criminal investigations concerning similar crimes, as well as by statements made by other pentiti. Furthermore, pursuant to section 275 of the Code of Criminal Procedure (“Codice di Procedura Penale”, hereinafter called the "CPP"), the nature and the seriousness of the offences raised the rebuttable presumption that the conditions for remand in custody laid down in section 274 (risk of tampering with evidence, of absconding and of re-offending) applied.

On 24 March 1995, the preliminary investigations judge committed the applicant and twenty-six other persons for trial before the Florence District Court.

In a judgment of 8 February 1996, the Florence District Court, acting in accordance with section 23 of the CPP (which provided that the judge who found himself incompetent ratione loci should forward the case-file to the competent judge), declared that the case was outside its territorial jurisdiction and ordered that the case-file be transmitted to the Grosseto District Court.

In an order of 25 March 1996, the Grosseto District Court confirmed the applicant’s detention on remand.

In an order of 28 March 1996, the President of the Grosseto District Court committed the accused for trial and scheduled the date of the first hearing for 7 May 1996.

In an order of 25 July 1996, the Grosseto District Court granted the prosecution's request to suspend the maximum periods of detention on remand for the duration of the trial and deliberations at first instance, pursuant to section 304(2) CPP. It considered that, given the fact that more than three hundred witnesses had to be examined and a considerable volume of documents, including a number of experts' opinions, had to be produced, the proceedings could be regarded as being particularly complex. In the reasons for that order, the District Court specified that, according to the Court of Cassation's well-established case-law, the suspension should cover the whole duration of the trial and not only the days of the actual hearings.

On 21 November 1996, the applicant lodged an application for immediate release with the District Court. He observed that the interpretation followed in the order of 25 July 1996 - according to which the suspension of the maximum periods of detention on remand should cover periods of inactivity between hearings - was inconsistent with the relevant provisions of the CPP, with the overall purpose of Article 5 § 3 of the Convention and with Articles 3, 13 § 5 and 24 of the Italian Constitution.

In an order of 3 December 1996, the Grosseto District Court, observing that the maximum periods of detention on remand had not been overstepped, dismissed the applicant's claim.

On 18 December 1996, the applicant appealed against that order. The Florence District Court, sitting as the authority with jurisdiction to decide on measures affecting the liberty of persons ("tribunale della libertà e del riesame"), dismissed the applicant's appeal in an order of 15 January 1997.

On 7 February 1997, the applicant appealed on points of law.

In a decision of 17 June 1997, the Court of Cassation, considering that the lower court had not duly indicated the specific and concrete grounds for the decision to suspend the maximum periods of detention on remand, annulled the impugned order and referred the case back to the Florence District Court.

In a decision of 27 October 1997, filed with the registry on 7 November 1997, the Florence District Court confirmed the Grosseto District Court's order of 3 December 1996 and declared that the doubts raised by the applicant as to the constitutionality of the relevant provisions of the CPP were manifestly ill-founded. The District Court observed that the length of the proceedings was mainly due to the complexity of the case, to the number of parties and witnesses as well as to the circumstances preventing the attendance of the accused's lawyers and of the District Court's judges. Furthermore, no significant periods of inactivity seemed to have occurred during the trial, given the fact that at least fifty hearings had taken place from 25 June until December 1996. However, the court noted that some hearings had been adjourned for reasons which were not imputable to the applicant or to the requirements of the fair administration of justice in criminal cases, such as lawyers' strikes, the Public Prosecutor’s illness and a lack of a proper hearing-room. It consequently considered that a global delay of thirty-one days should be deducted from the maximum period of detention on remand, which had not been overstepped, even taking into account such deduction.

On 24 November 1997, the applicant appealed on points of law against that decision. In a decision of 18 February 1998, filed with the registry on 19 March 1998, the Court of Cassation declared the applicant's appeal inadmissible as manifestly ill-founded.

In the meanwhile, one hundred and thirty-eight trial hearings had taken place before the Grosseto District Court. About three hundreds witnesses had been heard and a number of expert opinions were examined.

During the trial, the lawyers of the accused had contested the lawfulness of the order for committal for trial. They had noted that in a judgment of 15 March 1996, the Constitutional Court had declared that section 23 of the CPP was unconstitutional and that the incompetent judge should forward the case-file to the Public Prosecutor’s Office (and not to the competent judge, as previously provided). Given the fact that in its judgment of 8 February 1996 the Florence District Court had ordered that the case-file be transmitted to the Grosseto District Court, the lawyers had requested that the whole proceedings be declared null and void.

On 22 July 1997, the applicant’s lawyer had declared that due to family reasons, he was unable to take part in the hearings scheduled in August and had requested to adjourn the case until 1 September 1997.

In a judgment of 16 December 1997, the Grosseto District Court had sentenced the applicant to eleven years and six months' imprisonment for drug-trafficking and had acquitted him in respect of the remainder of the charges. The court had also ordered that the applicant's case-file be transmitted to the Public Prosecutor's Office in order to evaluate the desirability of instituting fresh proceedings against him for belonging to a Mafia type association and drug-trafficking, crimes which appeared to have been committed in Florence.

As concerned the question of the lawfulness of the order for committal for trial, the District Court had observed that the decision of the Florence District Court had been adopted on 8 February 1996, while the invoked judgment of the Constitutional Court had been published only on 20 March 1996. Therefore, in accordance with the principle tempus regit actum, the finding of the unconstitutionality of section 23 of the CPP could not retroactively affect the lawfulness of the Florence District Court’s judgment.

The applicant lodged an appeal with the Florence Court of Appeal.

In a judgment of 17 November 1998, filed with the registry on 27 November 1998, the Court of Appeal declared that the committal for trial and the first-instance judgment were null and void and ordered that the case-file be transmitted to the Florence Public Prosecutor's Office. It observed, in particular, that the finding that a provision was unconstitutional should in principle apply to all pending proceedings. Therefore, after the Constitutional Court’s judgment of 15 March 1996, the District Court had no power to commit the accused for trial and its President’s order of 28 March 1996 as well as all the acts done before it were invalid.

On 3 May 1999, the applicant was released.


The applicant, Peter Frátrik, is a Slovakian national, who was born in 1951 and lives in Trnava, Slovakia. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function.

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

On 5 November 1992 the applicant was granted a trade licence (živnostenský list) entitling him, inter alia, to run a business in musical instruments. He thus became a selfemployed person. On 5 January 1993 the applicant registered himself with the health insurance fund (nemocenské poistenie) and with the pension fund (dôchodkové zabezpečenie).

In 1993, for income tax purposes, the applicant declared to have earned an annual income of 9,550 Slovakian korunas (SKK) from his selfemployment activity. In 1994 he declared an annual income of SKK 7,595, in 1995 SKK 11,050, in 1996 SKK 18,225 and in 1997 SKK 2,850.

On 1 January 1995 the Social Security Administration Act no. 274/1994 Coll. (Zákon o Sociálnej poisťovni - “the 274/1994 Act”) entered into force. This Act regulates inter alia the obligation to contribute to the health insurance fund and the pension fund, the calculation of these contributions and the modalities of their payment. Self-employed persons, like the applicant, are required to pay contributions to both funds, the amount of which is calculated on the basis of their average monthly taxable income gained during the previous fiscal year. The Act also defines the minimum and the maximum amount of such contributions (see under “Relevant domestic law” below).

On 8 September 1997 the Trnava branch office (pobočka) of the Social Security Administration (Sociálna poisťovňa) ordered the applicant to pay within 15 days a contribution of SKK 24,978 to the health insurance fund and the pension fund for the period between on 1 January 1995 and 30 June 1997. This amount was composed of SKK 9,504 for the fiscal year 1995 (i.e. SKK 792 per month), SKK 10,236 for 1996 (i.e. SKK 793 per month until April 1996 and SKK 873 per month as from April 1996), and SKK 5,238 for 1997 (i.e. SKK 873 per month). The applicant was informed that failure to pay or a late payment entailed the imposition of a fine.

The applicant filed an appeal with the Head Office (ústredie) of the Social Security Administration arguing that, given his low income, he could not afford to pay these contributions. On 24 October 1997 the Head Office of the Social Security Administration upheld the decision of its Trnava branch.

The applicant filed an administrative law appeal with the Trnava Regional Court (Krajský súd) against the decisions taken by the Social Security Administration. The applicant submitted that his income was below the statutorily defined minimal living standard (životné minimum) and argued that, in these circumstances, he should be exempted from his payment obligations under the 274/1994 Act. In his opinion, the application of this Act in his personal situation was unethical and unconstitutional.

In its judgment of 24 September 1998 the Regional Court upheld the challenged decisions. No appeal was available against this judgment. It became final and binding on 30 October 1998 when it was served on the applicant.

In 1998 and in 1999 the applicant declared to the income tax authorities that he had earned an annual income of SKK 8,737 and SKK 675 from his selfemployment activity.

On 17 May 1999 the Trnava branch office of the Social Security Administration ordered the applicant to pay within 15 days a contribution in the amount of SKK 20,742 to the health insurance fund and the pension fund for the period between 1 July 1997 and 30 April 1999. This amount was composed of SKK 5,238 payable for the fiscal year 1997 (i.e. SKK 873 per month as from July until December 1997), SKK 11,628 for 1998 (i.e. SKK 969 per month) and SKK 3,876 for 1999 (i.e. SKK 969 per month until April 1999).

On 25 May 1999 the Trnava branch office of the Social Security Administration ordered the applicant to pay a fine of SKK 2,065 for late payment of his contributions to the health insurance fund and the pension fund for the years 1995 and 1996.

On the applicant's request, his trade licence was cancelled on 31 May 1999. The applicant has been unemployed since.

On 3 June 1999 the applicant was informed by a judicial enforcement officer that enforcement proceedings had been brought against him in order to obtain payment of the contributions due as well as the fines for late payment. According to the applicant, he was thus forced to contract debts in order to pay the amounts due.

On 16 November 1999, after having conducted an audit of the applicant's situation, the Trnava branch office of the Social Security Administration found that the applicant still owed a total amount of SKK 138,221 in fines for late payments of his contributions to the social funds for the years 1993 - 1999.

Under Section 4a § 1 (b) persons who hold a trade licence for carrying out a small trade (živnosť) are considered selfemployed persons.

Section 6 § 1 (c) provided that selfemployed persons took part in and were entitled to benefit from the pension schemes. These pension schemes comprise, inter alia, the oldage pension, the (partial) invalidity pension, and the widow pension (Section 7).

Sections 145a and the following govern the participation of selfemployed persons in the health insurance and the pension insurance schemes. Under Section 145b § 1 selfemployed persons are entitled to health insurance benefits such as sickness benefits (nemocenské), maternity benefits (peňažná pomoc v materstve), and spa treatment benefits (kúpeľná starostlivosť).

According to Section 145ba § 1, the sickness benefits for selfemployed persons are paid on a daily basis. Under Section 145ba §§ 2 and 3 the amount of such benefits is calculated as a daily average of the “assessment basis” (see below).

Under Section 14 §§ 1 (b) and 2 selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund.

According to Section 15 § 1 the level of these contributions are a “percentage” of the “assessment basis” (vymeriavací základ), which is 50% of the average monthly taxable income earned by a self-employed person during the previous fiscal year (Section 16 § 4 in conjunction with Section 17 § 2 of the Act).

The “percentages” applicable to selfemployed persons varied in the course of the material period. Until 31 December 1995 it was 4.8 % for the health insurance fund and 27.5 % for the pension fund. Since 1 January until 31 December 1996 the applicable “percentages” were respectively 3.8 % and 28.5 %. Since 1 January 1997 these “percentage” changed again to 4.8 % and 27.5 %, respectively.

However, regardless of income actually earned by a selfemployed person during the previous fiscal year, Section 16 § 8 provides that his or her personal “assessment basis” cannot be lower than the statutorily defined “minimal assessment basis” and cannot be higher than the statutorily defined “maximal assessment basis”. The minimal basis is equal to the statutorily defined “minimum wage” (see below) and the maximal basis is this “minimum wage” multiplied by eight.

Until 31 March 1996, the “minimum wage” was defined by the governmental Decree no. 53/1992 Coll. on Minimum Wage (Nariadenie vlády o minimálnej mzde), as amended. From 30 October 1993 until 31 March 1996 the “minimum wage” was fixed at SKK 2,450 per month.

As from 1 April 1996 the “minimum wage” was regulated by the Act no. 90/1996 Coll. on the Minimum Wage (Zákon o minimálnej mzde), as amended. It was increased to SKK 2,700 per month.


Violation of P1-1;Violation of P4-2;No violation of P1-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Mr Giuseppe Raimondo, a building entrepreneur, lived in Davoli (Catanzaro) until his death on 11 July 1992.

Criminal proceedings were brought against him as he was suspected of belonging to a mafia-type organisation operating in the Soverato region. At the same time various preventive measures were taken concerning him.

On 24 July 1984 the Catanzaro Public Prosecutor issued a warrant for the arrest of seventeen persons including the applicant. After initially evading arrest under this warrant, the applicant gave himself up to the authorities on 7 November 1984 and was immediately remanded in custody.

The investigation was closed on 24 July 1985 and Mr Raimondo was committed for trial in the Catanzaro District Court with fourteen co-defendants. His detention on remand was replaced by house arrest (arresti domiciliari).

On 8 October 1985, at the first hearing, the District Court ordered the joinder of the case with two others and directed that certain documents be included in the file. It then adjourned the proceedings to 16 January 1986.

On 30 January 1986 the District Court acquitted Mr Raimondo on the ground of insufficient evidence (assoluzione per insufficienza di prove) and revoked the order placing him under house arrest.

Giving judgment on 16 January 1987 on the appeals of the public prosecutor and Mr Raimondo, the Catanzaro Court of Appeal acquitted the latter on the ground that the material facts of the offence had not been established (perchè il fatto non sussiste). No appeal was filed in the Court of Cassation.

On 16 January 1985 the Catanzaro Public Prosecutor applied to the District Court for an order placing Mr Raimondo under special police supervision and for the preventive seizure of a number of assets with a view to their possible confiscation (Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965, as amended by Act no. 646 of 13 September 1982 - see paragraphs 16-18 below). He based his application on a report by the Soverato carabinieri dated 27 December 1984.

On 13 May 1985 the District Court ordered the seizure of sixteen items of real property (ten plots of land and six buildings) and of six vehicles, all of which appeared to be at the applicant’s disposal. The measure was entered in the relevant public registers on 15 May 1985.

On 16 October the District Court revoked the seizure of certain property belonging to third parties; on the other hand, it ordered the confiscation of some of the buildings seized of which the applicant and his wife were the owners and four vehicles, on the ground that it had not been proved that the assets in question had been "lawfully acquired". The confiscation was recorded in the register on 9 November 1985.

By the same decision Mr Raimondo was placed under special police supervision, which however did not become effective until 30 January 1986, the day on which he was acquitted by the District Court (see paragraph 10 above); he was also required to lodge a security of 2,000,000 lire as a guarantee to ensure that he complied with the constraints attaching to this measure, namely a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention.

On an appeal by the applicant, the Catanzaro Court of Appeal gave judgment at a private hearing on 4 July 1986. It annulled the special supervision measure and ordered the restitution of the security and the property seized and confiscated. Its decision (decreto) referred to the "disconcertingly casual way in which the contested preventive measures concerning the person and property of Mr Raimondo had been adopted thereby effectively decreeing his civil and economic death".

The decision was filed with the registry on 2 December 1986 and signed by the relevant official of the prosecuting authority on 10 December. Again on 2 December the Court of Appeal registry notified it to the competent police authorities (questura) who, on 5 December, advised the local carabinieri of the decision. The latter informed the applicant on 20 December.

The decision became final on 31 December 1986.

The revocation of the seizure of the real property and of the confiscation of the vehicles was entered in the relevant registers on 2 February (real property), 10 February (two cars and a van) and 10 July 1987 (a lorry).

The security was returned to the applicant on 24 April 1987.

As regards the real property that had been confiscated, the applications for the entry in the register of the revocation of the measure are dated 9 August 1991.

Act no. 1423 of 27 December 1956 ("the 1956 Act") provides for various preventive measures in respect of "persons presenting a danger for security and public morality". The relevant provisions are summarised in the Guzzardi v. Italy judgment of 6 November 1980 (Series A no. 39, pp. 17-19, §§ 46-49):

"46. Under section 1, the Act applies to, amongst others, ... individuals who, by reason of their behaviour and style of life (tenore di vita), must be considered as habitually living, even in part, on the proceeds of crime or on the rewards of complicity therein (con il favoreggiamento), or whose outward conduct gives good reason to believe that they have criminal tendencies (che, per le manifestazioni cui abbiano dato luogo, diano fondato motivo di ritenere che siano proclivi a delinquere).

The Chief of Police [(questore)] may send such persons a warning (diffida) ...

... [such a person] may, under section 3, be placed under special police supervision (sorveglianza speciale della pubblica sicurezza); if need be, this may be combined either with a prohibition on residence in one or more given districts or provinces or, in the case of a particularly dangerous person (particolare pericolosità), with an order for compulsory residence in a specified district (obbligo del soggiorno in un determinato comune).

Only the District Court of the chief town of the province has power to order these measures; it will do so on the basis of a reasoned application by the [questore] to its president (section 4, first paragraph). The District Court must give a reasoned decision (provvedimento) in chambers within thirty days. It will first hear the Public Prosecutor’s department and the person concerned, the latter being entitled to submit written pleadings and to be assisted by a lawyer (section 4, second paragraph).

The prosecuting authorities and the person concerned may, within ten days, lodge an appeal which does not have suspensive effect; the Court of Appeal has to give a reasoned decision (decreto) in chambers within thirty days (section 4, fifth and sixth paragraphs). That decision may in turn and on the same conditions be the subject of a further appeal to the Court of Cassation, which must give its ruling in chambers within thirty days (section 4, seventh paragraph).

When adopting one of the measures listed in section 3, the District Court will specify for how long it is to remain in force - not less than one and not more than five years (section 4, fourth paragraph) - and will give directives with which the person in question must comply (section 5, first paragraph).

Act no. 575 of 31 May 1965 ("the 1965 Act") supplements the 1956 Act by adding clauses directed against the Mafia (disposizioni contro la mafia). Section 1 states that it is applicable to persons - such as Mr Raimondo - against whom there is evidence showing that they belong to "mafia-type" groups (indiziati di appartenere ad associazioni mafiose).

The above legislation was strengthened by Act no. 646 of 13 September 1982 ("the 1982 Act") which inserted, inter alia, a section 2 ter in the 1965 Act. It makes provision for various measures to be used in the course of proceedings relating to the application of the preventive measures available under the 1956 Act in respect of a person suspected of belonging to such an organisation:

"... the District Court may issue a reasoned decision, even of its own motion, ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted, when there is sufficientcircumstantial evidence, such as a considerable discrepancy between his lifestyle and his apparent or declared income, to show that the property concerned forms the proceeds from unlawful activities or their reinvestment.

Together with the implementation of the preventive measure the District Court shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired. Where the inquiries are complex, this measure may also be taken at a later date, but not more than one year after the date of the seizure.

The District Court shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired."

In its report (paragraph 43), the Commission sets out a summary of the case-law in this area:

" ... The existence of preventive measures is not in itself contrary to the Italian Constitution. The Constitutional Court has ruled that the basis for these measures is the need to guarantee the orderly and peaceful course of social relations, not only through a body of legislation penalising unlawful acts, but also through provisions intended to prevent the commission of such acts (Constitutional Court, judgment no. 27 of 1959 and judgment no. 23 of 1964).

Because of their particular object, preventive measures do not relate to the commission of a specific unlawful act but to a pattern of behaviour defined by law as conduct indicating the existence of danger to society (Constitutional Court, judgment no. 23 of 1964).

Consequently, in the Italian legal system, there is a fundamental difference between criminal penalties and preventive measures. The former constitute the response to an unlawful act and the consequences of that act; the latter are a means of preventing the commission of such an act.

In other words, a criminal penalty relates to an offence already committed, whereas a preventive measure is intended to reduce the risk of future offences (see, mutatis mutandis, Constitutional Court, judgment no. 53 of 1968, concerning security measures).

Because criminal penalties and preventive measures are essentially different, not all the constitutional principles which should underpin the former necessarily apply to the latter. For example, the presumption of innocence enunciated in Article 27 of the Constitution does not concern preventive measures, which are not based on the criminal liability or guilt of the person concerned (Constitutional Court, judgment no. 23 of 1964).

Similarly, such measures do not fall within the scope of Article 25 para. 2 of the Constitution, which prohibits the retroactive application of criminal provisions. The violation of this principle has been alleged on a number of occasions in the Court of Cassation with regard to confiscation orders under section 2 ter of the 1965 Act. The Court of Cassation has ruled, firstly, that the above principle is not applicable to preventive measures (see, for example, Court of Cassation, Piraino judgment of 30 January 1985). Secondly, the Court of Cassation has pointed out that the impugned provision is not in fact retroactive, as it relates to the property in the possession of the person concerned at the time when confiscation is ordered (Court of Cassation, Oliveri judgment of 12 May 1986) and to the unlawful use of that property after its entry into force (Court of Cassation, Pipitone judgment of 4 January 1985).

In spite of these limitations, preventive measures remain open to thorough scrutiny of their compatibility with the Constitution.

As far back as 1956 the Constitutional Court ruled that in no case could the right to liberty be restricted except where such restriction was prescribed by law, where lawful proceedings had been instituted to that end and where the reasons therefor had been set out in a judicial decision (Constitutional Court, judgment no. 11 of 1956).

It subsequently ruled that preventive measures could not be adopted on the basis of mere suspicion and are justified only when based on the objective establishment and assessment of facts which reveal the behaviour and lifestyle of the person concerned (Constitutional Court, judgment no. 23 of 1964).

More recently it confirmed that the constitutionality of preventive measures still depends on respect of the rule of law and the possibility of applying to the courts for a remedy. Furthermore, the above two conditions are closely linked. Thus it is not enough for the law to indicate vague criteria for the assessment of danger; it must set them forth with sufficient precision to make the right of access to a court and adversarial proceedings a meaningful one (Constitutional Court, judgment no. 177 of 1980).

The case-law of the Court of Cassation is in this respect entirely consistent with that of the Constitutional Court; it affirms quite clearly that proceedings for the application of preventive measures must be adversarial and conducted with respect for the rights of the defence, any violation of those rights entailing their nullity (see, for example, Court of Cassation, judgment no. 1255 of 29 June 1984 in the Santoro case).

The Court of Cassation has dismissed a number of complaints alleging the unconstitutionality of the seizure and confiscation measures provided for in section 2 ter of the 1965 Act. In particular, it has ruled that the presumption concerning the unlawful origin of the property of persons suspected of belonging to organisations of the mafia type is not incompatible with Article 24 of the Constitution, which guarantees the rights of the defence, since confiscation can only take place when there is sufficient circumstantial evidence concerning the unlawful origin of the property in question and in the absence of a rebuttal (Court of Cassation, previously cited Pipitone judgment).

With regard to the compatibility of seizure and confiscation measures with the right to free exercise of private economic activities and the right to peaceful enjoyment of private property (Articles 41 and 42 of the Constitution), the Court of Cassation has ruled that these rights are not absolute and may be limited in accordance with the general interest. This applies in connection with possessions of unlawful origin or their use (Court of Cassation, previously cited Oliveri and Pipitone judgments).

In its opinion no. 1489/86 of 18 November 1986 the Consiglio di Stato stated that "although confiscation by definition enables the State to acquire the item of property in question ..., it does not in itself have the effect of transferring ownership to the public authorities ...". It will only have such effect if in addition the decision ordering it is irrevocable (Palermo District Court, order of 19 April 1989).


Violation of P1-1;Non-pecuniary damage - financial award

The applicant was born in 1952 and lives in Milanówek.

Since 1991 the applicant has owned a plot of land located in the municipality of Milanówek, near Warsaw. It is listed in the local land register under entry no. 31737.

Under the local land development plan adopted in 1981, which was in force in 1991 when the applicant acquired the land concerned, it was situated in an area described as “the agricultural area without the right to construction, reserved for a future zone designated for recreational purposes”. The 1981 plan remained in force until 1993.

On 30 March 1993 the Municipal Council of Milanówek, in a public procedure provided for by relevant planning legislation, adopted a resolution by which the local land development plan was accepted. The applicant's land was included in an area in which a ring-road and a hospital were to be constructed in the future.

The applicant and his neighbours lodged a complaint against the Council's resolution with the Mazowsze Governor, arguing inter alia, that the plan breached their right to the peaceful enjoyment of their possessions. They submitted that the local land development plan had been prepared in a manner which failed to take into consideration and to reconcile various interests of the municipality and the local owners. As a result, the plan which had been adopted was unreasonable and did not comply with standards of good land administration.

They were informed that the Supreme Administrative Court was competent to examine their complaint.

By a judgment of 25 September 1995 the Supreme Administrative Court dismissed the complaint, finding that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan. It noted that restrictions on ownership imposed by the land development measures were not per se incompatible with the nature of ownership as guaranteed by the Civil Code.

On 8 February 1999 the applicant requested that an initial approval for a development project on his land be issued.

On 27 March 2000 the applicant submitted to the Mayor of Milanówek a request that his land either be acquired by the municipality or that he be given another plot of land.

In a letter of 12 April 2000 the Municipal Office informed the applicant that his request of 8 February 1999 had not been examined as he had failed to submit an appropriate plan with it. He was further informed that the validity of the 1993 plan had been prolonged by Parliament for two more years, until the end of 2001.

On 12 May 2000 the Marshal of the Mazowsze Region informed the applicant that the construction of the roadway was undoubtedly in the interests of the inhabitants of Milanówek, but that no funding would be provided for it in the financing scheme for the regional land development plan until at least 2010.

On 17 July 2000 the applicant renewed his request for an initial approval for a development project on his land. He wished to have a house built on it.

On 1 September 2000 the Mayor of Milanówek refused his request, finding that the project as submitted by the applicant was incompatible with the local land development plan.

The applicant appealed, submitting that there were no immediate plans to build the road, there was no financing earmarked for it in the relevant public budgets, and that his right to the peaceful enjoyment of his property had been breached by the continuing restrictions on the use of his land in view of its future expropriation at some undetermined point of time.

On 19 December 2000 the Local Government Board of Appeal dismissed the applicant's appeal on the ground that his construction project was incompatible with the land development plan for the municipality of Milanówek.

The applicant appealed to the Supreme Administrative Court, arguing that since the adoption of the 1993 plan he had been restricted in the use of his property; that the municipality had refused to acquire his land or to provide him with another plot; and that this amounted to a breach of his right to the peaceful enjoyment of his possessions as well as of various provisions of the Constitution. He stressed that under the applicable laws he did not have any right to compensation for the protracted restrictions on the exercise of his ownership.

In 2001 the applicant requested the municipality three times to either acquire his land or to grant him another plot. His requests were unsuccessful.

On 2 July 2002 the Supreme Administrative Court dismissed his appeal against the decision of 19 December 2000. The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision. It found that the decision was lawful as it was common ground between the parties that the applicant's construction project was incompatible with the local land development plan.

It further noted that the applicant had complained that his situation could not be seen as being compatible with the Constitution, given that owners affected by plans adopted prior to the Constitution's entry into force could not benefit from compensation claims provided for by section 36 of the 1994 Local Planning Law. The court referred to the judgment of the Constitutional Court given in 1995 (see paragraph 54 below). The Constitutional Court had examined the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of the owners' right to compensation provided for in section 36 of that Act to land development plans adopted before 31 December 1994. It found that this provision was compatible with the Constitution.

The Supreme Administrative Court observed that it was not its task to amend or to criticise existing laws and that it was bound by this provision. Otherwise there were no grounds on which to consider that the decision challenged by the applicant was unlawful.

On 31 December 2002 the validity of the 1993 land development plan expired.

On 25 August 2003 the applicant was granted an initial planning permission (decyzja o warunkach zabudowy) and on 25 November 2003 a final building permission (zezwolenie na budowę).

From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984.

On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995.

On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.

On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act.

Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date.

Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner's request, or provide compensation for the damage caused by the designation.

However, pursuant to Section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995.

Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999.

In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.

Under section 87 of the 2003 Act (see paragraph 27 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.

Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 30 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of Section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act.

Other relevant legislative provisions are extensively set out in the Court's judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28 - 53).

In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners' interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership.