André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant, Mr Luis Angel Garcia Cancio, is a Spanish national who was born in 1952 and lives in Madrid. He is represented before the Court by Ms A. Haucke-D’Aiello, a lawyer practising in Munich. The respondent Government were represented by their agent Mr H. J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

On 5 August 1994 investigations in relation to contraband trade of cigarettes were instituted by the Lindau Custom Investigation Office (Zollfahndungsamt). On 15 April 2002 the prosecution registered the applicant as an accused in these proceedings; on 27 March 2003 he was questioned as an accused.

On 30 August 2004 the applicant and several co-accused were charged with a violation of the Foreign Trade Act (Außenwirtschaftsgesetz) in conjunction with UN Resolution No. 757 (1992) concerning the embargo against Serbia and Montenegro (see relevant domestic and international law below), with regard to a total of 559 shipments of cigarettes in 1994 and 1995.

On 1 October 2004 the Augsburg Regional Court asked the prosecution for clarification regarding its territorial jurisdiction. On 10 November 2004 the prosecution returned the file to the Regional Court with additional submissions.

On 6 July 2005 the prosecution withdrew the first indictment.

On 25 July 2005 the prosecution submitted a new indictment. On 24 August 2005 this indictment was served on the applicant’s counsel. In September 2005 the Regional Court ordered a translation of the indictment to be served on the applicant.

Between September 2005 and November 2006 the applicant’s counsel requested nine extensions of time-limits to submit further observations, which were all granted.

On 26 June 2007 the Regional Court decided to open the main proceedings against the applicant and one other co-accused regarding one part of the indictment.

On 11 July 2007 the prosecution and the applicant appealed this decision.

On 7 August 2007 the Regional Court dismissed the applicant’s appeal arguing that his right to be heard before the opening of criminal proceedings was not interfered with.

On 30 November 2007 the Munich Court of Appeal rejected the appeal of the prosecution for the most part.

On 6 May 2008 the Regional Court dismissed the applicant’s motion for reconsideration.

On 27 August 2008 the Court of Appeal dismissed the applicant’s appeal against the decision of the Regional Court of 7 August 2007.

On 29 September 2008 the dates of the trial were fixed for 3 and 10 December 2008. On the first day of trial the proceedings against the applicant, who at that time was imprisoned in Italy, were disjointed.

On 25 March 2009 the Regional Court provisionally stayed the proceedings on request of the prosecution in view of pending criminal proceedings against the applicant in Switzerland pursuant to Article 154 paragraph 2 of the Code of Criminal Procedure.

On 14 June 2008 the applicant lodged a constitutional complaint against the decision of the Regional Court of 26 June 2007 to open the main proceedings against him. He raised the issue of the length of the proceedings, an alleged lack of fairness of the proceedings and the infringement on the principle of double-jeopardy.

On 8 October 2008 the Federal Constitutional Court declared the complaint inadmissible, finding that the impugned decision was a mere intermediate decision and thus did not constitute a suitable object of a constitutional complaint.

On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) a federal Act against Protracted Court Proceedings and Criminal Investigations had entered into force on 3 December 2011.

In December 2011 the Court informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy. The Court referred to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001IX) and invited him to inform the Court whether he intended to make use of the new remedy within the time-limit set by the transitional provision of that Act (see for details § 36 et seq below).

By letter of 29 February 2012 the applicant informed the Court that the domestic remedy might not apply in his particular case, as the criminal proceedings were stayed. He suggested that the Court should invite the German Government to give further explanations on the new remedy in comparison to the situation in Brusco v. Italy (dec.), cited above. He nevertheless requested that his application before this Court be maintained while the proceedings according to the new remedy were pending. Lastly, he doubted that the costs for the proceedings before this Court would be reimbursable as damages in the domestic proceedings.

“(4) A prison sentence of no less than two years shall be imposed on anyone who violates a statutory order ... which serves the implementation of an economic sanction imposed by the Security Council of the United Nations in accordance with Chapter VII of the United Nations Charter. ...”

In 2006 the statutory range of punishment (Strafrahmen) provided for in section 34 (4) was reduced to an imprisonment from six months up to five years.

United Nations Security Council Resolution 757 (1992) of 30 May 1992 demanded that all Member States should prevent the sale of all products and commodities to the Federal Republic of Yugoslavia (Serbia and Montenegro), except for humanitarian causes.

With United Nations Security Council Resolution 1022 (1995) of 22 November 1995 the measures imposed by, inter alia, resolution 757 were suspended with immediate effect.

Section 154 of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms:

(2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office.

(4) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force.

(5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.”

The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) was published in the Federal Law Gazette - Part I, 2011, page 2302 et seq. - on 2 December 2011 and entered into force the next day.

The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA).

The new remedy combines an instrument to expedite the proceedings, an objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed (henceforth: trial court), with a subsequent compensation claim to be lodged at the Court of Appeal (henceforth: compensation court), see section 198 paragraph 1 and 3 CCA.

According to section 198 paragraph 1 CCA a party to proceedings (Verfahrensbeteiligter) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation. The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons. A compensation award is not dependent on the determination of fault.

The compensation is awarded in monetary form, if other forms of compensation for lengthy proceedings are not appropiate, see section 198 paragraph 4 and section 199 CCA. The compensation for one year of protraction amounts to 1,200 euros

A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim. The action for compensation may not be lodged with a compensation court until six months after the objection had been raised, see section 198 paragraph 5 CCA. The compensation claim must at the latest be lodged within six months of the final judicial decision of the trial court.

For protracted criminal proceedings or investigations the Remedy Act stipulates in section 199 CCA special provisions, as criminal courts and the prosecution have already established a standard practice compensating for unreasonable length which this Court considered to be in line with the requirements of Articles 6 § 1 and 13 of the Convention (see Kaemena and Thöneböhn v. Germany, nos. 45749/06 and 51115/06, § 87, 22 January 2009). In criminal cases the courts may either afford compensation by declaring that a specified part of the sentence had to be considered as having already been served or they may terminate proceedings with the consent of the prosecution.

In circumstances where the criminal trial court cannot compensate for the excessive length of proceedings, e.g. in cases of acquittal or discontinuance of proceedings for other reasons than length (see Ommer v. Germany (no. 1), no. 10597/03, § 67 et seq., 13 November 2008), the provisions of section 198 CCA apply (see official motivation of the draft law: record of Bundestag 17/3802 page 24) and redress will be granted by monetary compensation.

Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court.

The judgment of the compensation court is subject to appeal on points of law (Revision) only.

According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court.

In pending proceedings the objection to delay (Verzögerungsrüge) should be raised without delay when the Remedy Act entered into force. In these cases the objection preserves a subsequent compensation claim even for the past.

For terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court it is not necessary to raise the objection prior to filing a compensation claim. The claim based on Article 23 of the Act has to be lodged with the competent court on 3 June 2012 at the latest.


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

The applicant, Mr Mubariz Yagubov, is an Azerbaijani national who lives in Tovuz, Azerbaijan. He is represented before the Court by Mr B. Hajiyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Asgarov.

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

The applicant was involved in a property dispute with a private person (S.) over a retail shop located in the Govlar settlement of the Tovuz Region. At the time of the dispute, the shop was in S.’s possession. The applicant claimed to have bought the shop from its previous owners, who had privatised it in 2003, while S. argued that the privatisation process had been unlawful and that he had a lawful claim to the shop.

The applicant lodged a lawsuit seeking S.’s eviction from the shop.

By a judgment of 23 November 2005, the Shamkir District Court found that the applicant had purchased the shop on 6 October 2003 and was its lawful owner pursuant to the ownership certificate issued by the Ministry of Economic Development on 16 January 2004. The court further found that S. had unlawfully occupied the shop without the owner’s permission. Accordingly, the court ordered S. to vacate the shop. S. appealed against that judgment.

On 7 April 2006 the Court of Appeal delivered a judgment dismissing S.’s appeal. The Shamkir District Court’s judgment of 23 November 2005 thus became final immediately. No further appeals were filed.

According to information submitted by the Government, on 2 May 2006 the Tovuz Department of Enforcement Officers enforced the judgment of 23 November 2005 as upheld by the Court of Appeal and S. was evicted from the shop by the police. By a decision of 4 May 2006, the Tovuz District Court terminated the enforcement proceedings as the judgment of 23 November 2005 had been executed.

It appears from the case file that the same shop was subsequently occupied by three other persons. On 26 September 2007 the Tovuz District Court delivered a judgment ordering their eviction from the shop. That judgment was enforced on 15 February 2008.

According to the applicant, however, the shop was subsequently occupied again, by other persons related to S.


Violation of Art. 9;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

In February 1994 the Persons and Family Act was amended to require the registration with the Council of Ministers of non-profit organisations which had religious or related activities. Seventy-eight requests for registration were submitted, but only twenty-three organisations were registered. Those turned down were primarily Protestant groups.

Denial of legal status made it impossible for those organisations to hire public lecture halls or sign contracts in the name of the organisation. The unregistered organisations were unable to open bank accounts or publish journals or newspapers in the name of the organisation and were denied certain tax advantages.

Among the organisations whose registration was turned down was “Word of Life”, a Christian Evangelical group that had become active in Bulgaria in the early 1990s.

As a result of the authorities' refusal to register Word of Life, the religious organisation began clandestine activities. Meetings were periodically thwarted by the police followed by media propaganda against the organisation and its members.

On 20 June 1994, acting on an order from the Sofia's Prosecutor's Office, the police closed a hall used by Word of Life in Sofia and prevented members from using it.

On 22 June 1994 a Swedish citizen was expelled from Bulgaria because of his participation in a Word of Life course (see Lilja v. Bulgaria (dec.), no. 41574/98, 20 November 2003).

On 23 June 1994 a force of around thirty policemen prevented members of Word of Life from attending a meeting at a hall, because it had purportedly been cancelled.

On 23 February 1995 the police raided private homes in the town of Veliko Turnovo and a conference hall in the Hotel Etur. They confiscated religious literature, audio tapes and video cassettes, which they displayed at a press conference the next day. No charges were subsequently brought against any members of Word of Life.

On 20 July and 27 September 1995 the police raided two gatherings of Word of Life followers in private homes. Religious literature was confiscated and the hosts were required to declare in writing that they would no longer organise religious gatherings in their homes.

Throughout 1994 and 1995 the local Ruse media reported regularly on “unlawful” gatherings and religious activities by Word of Life followers. The media campaign intensified, with the national press joining in, during the summer and autumn of 1995. Press coverage was focused on the River Shipbuilding and Navigation School (Техникум по речно корабостроене и корабоплаване – “the School”) in Ruse because several of the non-academic staff were allegedly followers of Word of Life. The media also waged a personal campaign against some of those individuals by naming and condemning them as followers of the religious organisation. It called for their dismissal and named the applicant as one of the individuals whose employment should be terminated (see, for example, paragraph 22 below).

As a direct result, the Regional Prosecutor's Office and the National Security Service initiated inquiries into the religious activities of the School's staff members.

On 18 September 1995 the Regional Prosecutor's Office, in summarising the findings of the National Security Service, found that there were insufficient grounds for opening a preliminary investigation. At the same time it stated that, inter alia, the activities at the School were “not free of criminal culpability”, and that they were in contravention of the Religious Denominations Act and “probably” the relevant education Acts and regulations. Moreover, the allegedly “unlawful” religious activities were considered to have been carried out with the tacit approval of its principal.

Soon thereafter, the Regional Governor (областният управител) and a local member of parliament (“the MP”) called for radical measures to be taken to curb the alleged religious activities at the School and to dismiss the principal. They made public threats that, if such measures were not taken, they would petition the Ministry of Education, Science and Technology (“the Ministry”) to dismiss the Chief Educational Inspector for Ruse (“the Educational Inspector”).

On 23 October 1995 the principal of the School was dismissed by the Ministry. The dismissal order directly referred to the negative media coverage and the findings of the Regional Prosecutor's Office and accused her of tolerating the activities of Word of Life at the School to the detriment of its staff and pupils. It also suggested that the principal should have dismissed those members of staff who were Word of Life followers. It is unclear whether the principal appealed against her dismissal.

A new principal was appointed soon thereafter.

In a broadcast on the Hristo Botev radio station, aired on 7 December 1995, the MP stressed that there were still members of Word of Life working in the School, such as the swimming pool manager (the post occupied by the applicant), and inferred from this that the Ministry had not conclusively resolved the matter with the dismissal of the former principal.

The applicant was a mechanical engineer and had a second university degree in pedagogical sciences. She had been involved in the religious activities of Word of Life since 1994.

On 14 October 1994 the applicant was appointed by the School to the post of “mechanic” at its swimming pool on a temporary employment contract until 23 February 1995.

On an unspecified date, the Ministry approved a new roster of posts (щатно разписание) for the School effective as of 1 January 1995, which provided for the post of “swimming pool manager” with a requirement for the holder of the post to have completed a course of secondary education. By a further amendment of 1 April 1995 the holder of the post was required to have a higher-education qualification.

On 6 April 1995 the applicant was promoted to the post of “swimming pool manager” and concluded a temporary employment contract with a term up to 31 August 1995.

On 31 August 1995 the applicant's temporary employment contract was extended until 31 August 1996.

On 20 September 1995 the applicant concluded an employment contract of indefinite duration, which provided for her appointment to the post of “swimming pool manager” as of 1 July 1995. Her job description indicated that her responsibilities included, inter alia, managing and supervising the staff of the swimming pool, organising their work schedules, monitoring the regular accounting of the proceeds from the swimming pool and organising the swimming lessons. The job description did not expressly refer to any education or professional qualification requirements for the post. The applicant's basic salary was set at 4,992 old Bulgarian levs (approximately 111 Deutsche marks (DEM)) with a 16% bonus for length of service.

On an unspecified date the Ministry approved a new roster of posts for the School effective as of 1 October 1995. It provided for the post of “swimming pool manager” with a requirement that the holder of the post have a higher-education qualification.

On 23 October 1995 the principal of the School was dismissed and a new one was appointed soon thereafter.

On 2 November 1995 the applicant was summoned to a meeting with the Educational Inspector and his deputy. Another member of staff, Mrs M., was also summoned to the meeting, which took place on the premises of the School. At the meeting, the inspectors asked for their resignations as a means of easing public tensions. The applicant contended, although this was disputed by the Government, that the inspectors had threatened them that if they did not resign of their own accord or did not renounce their faith, they would be dismissed on disciplinary grounds. The inspectors claimed that irrespective of their work performance they “could instruct the [new] principal” to dismiss them. Mrs M. denied being a member of Word of Life, while the applicant did not and also refused to resign. No assessment or mention was made during the meeting as to whether the applicant was performing her job well and whether she met the requirements for holding her post.

On 3 November 1995 the applicant informed the new principal of the School in writing of her meeting of the previous day with the Educational Inspector and his deputy. No action was taken in response.

Thereafter, the new principal alienated the applicant – her office phone was removed, the locks to the swimming pool were changed without her being provided with a set of keys and the supervision of the renovation of the swimming pool was entrusted to a subordinate even though it should allegedly have been her responsibility. The new principal also made enquiries as to the applicant's work performance.

On 24 November 1995 the human resources department of the School prepared a list of thirty-one employees allegedly without job descriptions. The applicant's name and post were among them.

On 7 December 1995 Hristo Botev radio aired the interview with the MP in which he implied that the applicant's post was one of those still being occupied by a member of Word of Life (see paragraph 22 above).

By an order of 28 December 1995 the applicant was dismissed, with immediate effect, on the grounds of not meeting the education and professional qualification requirements for the post of “swimming pool manager” (Article 328 § 1 (6) of the Labour Code). When she was served with the order, the applicant enquired as to which requirements she did not meet, but the new principal did not inform her.

On 27 May 1996 the applicant initiated proceedings before the Ruse District Court challenging the lawfulness of the dismissal. She also sought reinstatement in her previous post and compensation for loss of income.

The applicant maintained that her dismissal was directly related to her religious beliefs and her refusal to resign of her own accord. Such a reason for terminating her employment contract, she argued, was a violation of Article 8 § 3 of the Labour Code and Article 37 of the Bulgarian Constitution, which prohibited religious discrimination.

During the trial it was established that in December 1995 there had been a further amendment to the School's roster of posts, which the Ministry had approved in a letter of 30 January 1996, but with effect from 1 January 1996. The amended roster of posts no longer envisaged the post of “swimming pool manager”, but provided for the post of “sports complex organiser”. On an unspecified date a job description had also been prepared for the new post which set out the requirements for the holder of the post as follows: “university degree in sports, university degree in economics, as an exception – secondary education with specialisation in the relevant sport, qualified lifeguard, certified swimming instructor.”

The applicant argued before the Ruse District Court that the changes to the School's roster of posts should have taken place in accordance with standard practices and should not have been arbitrary. She claimed that the standard practice was to make changes to the roster of posts before the beginning of the academic year. The applicant also claimed that the changes were arbitrary because there had not been any objective necessity, stemming from the work being performed, to change the requirements for the post.

A hearing was held on 9 July 1996 at which the respondent party presented the new job description for the post of “sports complex organiser”.

At a hearing on 19 November 1996 several witnesses gave evidence. The Educational Inspector testified that the standard practice was to make changes to the roster of posts before the academic year unless an urgent need, usually of a financial nature, required otherwise. He confirmed that he had met with the applicant in early November 1995 in connection with the findings of the Regional Prosecutor's Office and that he had invited her to resign in view of the mounting discontent and public opinion. He stated that he had not enquired as to the activities of Word of Life at the School and that he was not familiar with the applicant's work performance.

Mrs M. also testified and informed the court that the new principal had threatened her with dismissal if she talked about her work at the School. She testified as to the meeting of 2 November 1995 with the Educational Inspector and stated that, faced with the claim of being a follower of Word of Life, she had denied it. She stated that she had broken down and cried during the meeting because she had two children to support and did not want to be left without a job. Mrs M. also informed the court that, as far as she was aware, the applicant had been a good and diligent employee, who had maintained good relations with the other members of staff.

A teacher from the School also testified at the hearing. He informed the court that since its construction in 1974 the swimming pool had always had a manager, but that there had never been a requirement of a university degree in sports for the post. The teacher also testified as to the content of the radio broadcast of 7 December 1995, in which the applicant had been singled out for dismissal by the MP.

On 25 November 1996 the applicant filed her written submissions with the Ruse District Court, contending that the evidence in the case supported her claim. She maintained that the School's roster of posts had been changed in the middle of the academic year with the sole aim of introducing such requirements for her post as to allow her dismissal on those grounds.

On 5 May 1997 the Ruse District Court dismissed the applicant's claims. In its judgment the court noted that the burden of proof as to whether the dismissal had been lawful or not lay with the School. It found, inter alia, that the School had complied with the procedure for changing the roster of posts and that the new job description for the post was in conformity with the standard job descriptions for such posts as approved by the Ministry. In addition, the court found that with the changes to the requirements for the post the School had envisaged the possibility that the person appointed to the job would not only manage and organise the activities of the swimming pool but could also act as a lifeguard or swimming instructor, a factor which the court deemed to be of “vital importance”. Based on these considerations, the court found that “there really had been preconditions [which entailed] changing the requirements for the post” and that the dismissal was therefore lawful. Separately, the Ruse District Court found that the applicant's claims that her dismissal had been motivated by her religious beliefs were not supported by the evidence in the case, that in fact the applicant had had very good relations with the other members of staff and that there were no complaints as to her work performance. The court also reasoned that the applicant's assertions in this respect were refuted by the fact that Mrs M. was still employed by the School.

On 27 June 1997 the applicant appealed against the judgment of the Ruse District Court. She claimed, inter alia, that its findings were not based on the evidence established in the case and were therefore unfounded. She claimed that the Ruse District Court had failed to make a proper assessment of key evidence, such as the testimonies of the Educational Inspector and Mrs M.

The applicant also questioned the grounds of the first-instance court for dismissing her claim and contended that they were frivolous and at odds with the substance of her complaint alleging religious discrimination. Firstly, she had never claimed that her personal relations with her colleagues had suffered as a result of her religious beliefs. Secondly, she submitted that the first-instance court's reasoning that there had been no discrimination against her, considering that Mrs M. was still employed by the School, was incorrect as there were various possible reasons for Mrs M.'s continued employment, such as the fact that the media had not singled her out for dismissal.

The applicant also claimed that the Ruse District Court had never analysed in substance her complaint alleging religious discrimination, but had dealt with the matter purely as an issue of unfair dismissal.

Finally, she maintained that the facts of the case clearly showed that following her refusal to resign on 2 November 1995 the School had simply tried to find a legal ground for dismissing her and that the chosen method was to change the requirements for the post she occupied so that she would become ineligible to hold it.

On 22 July 1997 the former principal of the School filed submissions with the Ruse Regional Court, attesting to a conversation she had had in June 1995 with the Educational Inspector. At the meeting he had identified four employees in respect of whom there had been “information that they were members of a sect” and whose employment he had insisted be terminated. At the time, the former principal had suggested that those employees resign of their own accord, but they had refused and no further action had been taken against them. It is unclear whether the applicant was one of those employees.

In a judgment of 23 July 1997 the Ruse Regional Court dismissed the applicant's appeal. The court found, inter alia, that the School had both a need and the right to change the roster of posts and the requirements for the applicant's post and to dismiss her because she did not meet those requirements. It also found that the Ruse District Court had adequately addressed the applicant's allegations of religious discrimination and found them to be “totally and irrefutably ... irrelevant” based on the fact that she had maintained good relations with her colleagues and had been a good employee. Any allegations of subjective reasons or discriminatory grounds for her dismissal were therefore considered unfounded.

On 18 September 1997 the applicant filed a petition for review (cassation appeal), claiming, inter alia, that the lower courts had failed to properly evaluate the evidence before them and had never addressed the substance of her complaint alleging religious discrimination. She maintained that they had failed to assess the circumstances surrounding her dismissal and especially the events leading up to it, which clearly demonstrated the real reason why this legal method had been used to terminate her employment.

A hearing was conducted on 16 November 1998, which the applicant and her counsel, though duly summoned, did not attend. They presented their submissions to the court in writing.

In a final judgment of 9 December 1998 the Supreme Court of Cassation dismissed the applicant's appeal. The court found, inter alia, that the applicant's arguments were unsubstantiated, and upheld the findings of the lower courts. It stressed that the School had the right to change the requirements for the post and that such changes were not subject to judicial review. In addition, it compared the duties and responsibilities of the posts of “swimming pool manager” and “sports complex organiser” and found them to be essentially the same. The Supreme Court of Cassation also noted that the old job description had lacked any education or professional qualification requirements for the post, while the new one had included such requirements. It reasoned, therefore, that the employer had simply filled a gap that had previously existed in that respect.

The court refused to address the remainder of the arguments of the applicant as it found them to be irrelevant to the proceedings and to the issue of the dismissal.

The relevant provisions of the 1991 Constitution read as follows:

“(1) Religions shall be free.

“(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.

(2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”

The relevant provisions of the Religious Denominations Act 1949 read as follows:

“All citizens in the Republic of Bulgaria shall be afforded the freedom of conscience and religion.”

“No one shall be persecuted or restricted in his civil and political rights, nor be dismissed from the performance of duties entrusted to him by law, on account of belonging to one or another religious denomination or for not associating with any one religious denomination...”

The Bulgarian Constitution (Article 38), the Education Act of 1991 (section 4) and the Labour Code (Article 8 § 3) provide for protection against discrimination grounded on, inter alia, religious beliefs.

An amendment of Article 8 § 3 of the Labour Code of 31 March 2001 widened the scope of protection against discrimination in the workplace to include “indirect discrimination”, which was defined in item 7 of § 1 of the Supplementary Provisions to the Labour Code as follows:

“'Indirect' [refers to] the discrimination whereby ostensibly legal solutions are used in exercising labour rights and duties, but they are applied, in the light of the criteria under Article 8 § 3 [of the Labour Code], in a manner which in reality and in fact places some workers and employees in [a] less favourable or privileged position compared to others. Discrimination [does not exist where] the differences or the preferences [are] based on the qualification requirements for performing a specific job, or where special protection is given to certain [types of] workers and employees (juveniles, pregnant women and mothers of young children, disabled people, those with reduced working capacity and other similar groups), as established by normative acts.”

The above definition was repealed on 1 January 2004 with the entry into force of the Protection Against Discrimination Act, which provides a comprehensive framework for protection against discrimination. Section 4(3) of the Act introduced the following new definition of “indirect discrimination”:

“Indirect discrimination is placing a person on the basis of the criteria in section 1 [sex, race, nationality, ethnicity..., religion and belief...] in a less favourable position in comparison to other persons by way of an ostensibly neutral provision, criterion or practice, unless the said provision, criterion or practice is objectively justified in view of a statutory aim and the means of attaining the said aim are appropriate and necessary.”

An employer may terminate a contract of employment by giving notice in writing to an employee where he or she does not have the necessary education or vocational training for performing the work assigned (Article 328 § 1 (6) of the Labour Code).

In reviewing such terminations the domestic courts have as their established practice that for a dismissal to be lawful (under Article 328 § 1 (6) of the Labour Code) it is sufficient for the courts to establish that there were new requirements in terms of education or vocational training for performing the assigned work which the employee no longer met, without their being required to assess the necessity for introducing such requirements (see, for example, решение на ВС № 77 от 22.ІІ.1995 г. по гр. д. № 1062 от 1994 г., ІІІ г. о.).

Section 5 of the Education Act (1991) proclaims the system of education to be secular.

The European Commission against Racism and Intolerance (“ECRI”), in its three reports on Bulgaria for the years 1997–1999, found that during the period there had been a high degree of intolerance in the media towards minority religious groups, particularly new religions. It also found the authorities to be somewhat passive in the face of acts of intolerance, which were not sufficiently combated or punished.

ECRI also reported that there had been religious discrimination in the field of education and that there had been cases of dismissal in the public sector for religious beliefs.

Human Rights Watch and the Bulgarian Helsinki Committee, in their annual reports for the years 1994–1996, noted that violations of religious freedoms in Bulgaria had significantly increased over the period, especially with regard to what had been referred to as “non-traditional” religious denominations. They observed that the authorities had sought to impose restrictions on thought and religion and to restrict religious diversity, for example by introducing a requirement that non-profit organisations which pursued religious or related activities or dispensed religious education must first obtain the approval of the Council of Ministers before they registered as such.

The NGOs also reported that there had been cases of dismissal in the public sector for religious beliefs and mentioned specific instances involving followers of Word of Life.


The applicant, Petronella Greuter, is a Dutch national, born in 1964 and living in Amsterdam. She is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.

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

The applicant’s partner, Mr P., was killed on 23 March 1997 in Beverwijk during a fight between supporters of the Amsterdam soccer club Ajax and supporters of the Rotterdam soccer club Feijenoord. Following an investigation by the regional police Haarlem–Kennemerland of the killing of Mr P., a number of suspects were arrested.

Shortly afterwards, the regional police Amsterdam-Amstelland opened an investigation into whether and to what extent Ajax supporters formed part of a criminal organisation specifically involved in (the organisation of) fights and/or street vandalism and violence. In this context, the Amsterdam public prosecutor (officier van justitie) opened a preliminary judicial investigation (gerechtelijk vooronderzoek) against NN (nomen nescio; i.e. against a person or persons unknown).

In the course of this preliminary judicial investigation and upon the request of the public prosecutor, the investigating judge (rechtercommissaris) authorised the tapping of a telephone line, the number for which was registered in the applicant’s name. It was tapped between 28 March and 11 April 1997. In addition, the investigating judge authorised that a print-out be obtained of all telephone communications having taken place on this line between 1 January 1997 and 1 May 1997. At no point did any suspicions arise that the applicant herself had been involved in any criminal activities.

The lawyer who was acting on the applicant’s behalf in the criminal proceedings against the suspected perpetrators of the killing of Mr P., and who also acted as defence counsel in criminal proceedings against a soccer supporter called W., learned of the existence of the tapping of the applicant’s telephone, as it was mentioned in W.’s case-file. With W.’s permission, the lawyer informed the applicant of the tapping of her telephone.

In a letter of 9 October 1997, the applicant’s lawyer put the following questions to the public prosecutor:

“a. Is it correct that the above telephone number has been tapped under your responsibility?

b. If so, during which period has this taken place?

c. Can you tell me when you informed my client of this, i.e. that her telephone was tapped during a certain period?

d. In case this has not taken place so far, when would you have intended to do so and, if so, mentioning what grounds?

e. What were the reasons for the “tapping” and of what criminal offence was she suspected?

f. Is she still suspected of having committed that criminal offence?

g. Would you kindly provide me, on behalf of <the applicant>, with a copy of all conversations that were recorded and listened to, in particular all the formal records of interception (processen–verbaal van opname).”

In his reply of 15 October 1997, the public prosecutor informed the applicant’s lawyer as follows:

“In answer to a number of your questions I could refer you to the formal record that is already in your possession in your capacity as the lawyer of the suspect W. On page 26 of that record it is set out that and why the telephone of your client <the applicant> has been tapped. I will nevertheless reply to your questions point by point.

a. Yes.

b. From 28 March 1997 to 11 April 1997.

c. I have not informed her of this.

d. I did not have the intention to inform her of this, since the tapping took place in the context of a preliminary judicial investigation against NN.

e. Your client was the partner of Mr P., who was killed during the clash between Ajax and Feijenoord supporters in Beverwijk and who was formerly a barkeeper in the café U., that was owned by your client and where, according to the information of the Criminal Intelligence Service (Criminele Inlichtingen Dienst; “CID”), the hard core group of Ajax supporters gathered. On this ground it was considered plausible that as yet unknown members of the hard core group, who were involved in acts of violence, could have contacts via the telephone number at issue. Your client was not suspected of a criminal offence in this connection.

f. See the last sentence under e.

g. No. The tapping has – as said – not taken place in the context of criminal proceedings against your client. A number of intercepted telephone conversations have been added to the note requesting authorisation to conduct a house search in connection with one of the suspects. In consultation with the investigating judge, it has been decided to grant you access to those conversations.”

In his letter of 17 October 1997 to the public prosecutor, the applicant’s lawyer pointed out, inter alia, that the applicant had sold café U. nearly three years ago and that it would have been understandable had the café’s telephone been tapped, but the fact that the applicant’s private telephone line had been tapped was incomprehensible. The lawyer requested the information which had led to the telephone tapping, and a copy of the memoranda and other evidentiary items indicating that the applicant’s telephone line would be used by members of the hard core group, and that these persons maintained contacts via this telephone.

In his reply of 23 October 1997, the public prosecutor stated inter alia:

“... My answer is possibly understandable ... when you see the situation as a whole and not only for a part thereof.

Let me, in spite of this, formulate it differently: your client was the owner of a café where the group of Ajax hard core supporters met regularly. The suspicion that members of this hard core group would maintain contacts via the private telephone line of your client is not so incomprehensible when account is taken of the fact that your client’s partner, Mr P., apparently belonged to that group since he went along to the planned violent clash between the hard core of Ajax supporters and the hard core of Feijenoord supporters, during which clash he was killed.

In any event, the investigating judge considered this sufficient to issue an authorisation for tapping the telephone number concerned.

Since your client is not a suspect in this case, I will not add the ‘memoranda and other evidentiary items’ requested by you.”

On 27 October 1997, the applicant’s lawyer transmitted a copy of the letter of 23 October 1997 to the investigating judge, requesting a copy of the documents he had asked for in his letter of 17 October 1997. Despite a reminder sent on 13 January 1998, it remained unanswered.

Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering; the “CCP”). Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police.

The above rules initially only covered communications by telephone. As from 1 March 1993, when the Act on Computer Criminality (Wet op de Computercriminaliteit) entered into force, they also covered communications by fax and e-mail. On 1 February 2000, when the Act of 27 May 1999 on amendments of the CCP in relation to special methods of criminal investigation entered into force, the provisions of Article 125f-h of the CCP were replaced by Articles 126m and 126n of the CCP.

Pursuant to Article 125g of the CCP, as in force at the material time, the tapping of communications can only be effected in regard to offences for which detention on remand (voorlopige hechtenis) may be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 CCP). The tapping can only concern communications in which a suspect is likely to participate, and it can only be ordered where the investigation urgently requires it. It must be authorised by the investigating judge. Furthermore, a record (proces-verbaal) of the tapping must be prepared within 24 hours.

Under Article 125h of the CCP, as in force at the relevant time, records without importance for the investigation must be destroyed as soon as possible by order of the investigating judge. As to the destruction of information obtained via the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia, the Court’s findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A&B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request.

Where no suspect can be identified immediately and in order to obtain a tapping authorisation from the investigating judge, a preliminary judicial investigation against a person or persons unknown (“NN”) may be opened. As soon as the name(s) of the suspected perpetrator(s) can be established, the preliminary judicial investigation is to be put in the name of the suspect(s) concerned (Article 181 § 1 of the CCP). By subsequently availing him or herself of the right to be granted access to the case-file (Article 30 § 1 of the CCP), a suspect can become aware of the fact that communications have been tapped during the investigation.

Until 1 February 2000, the Code of Criminal Procedure itself contained no provision on the period during which tapping of telecommunications may be carried out. However, pursuant to the Guidelines on the Interception of Telephone Conversations, a period of not more than four weeks was set. Prolongations could also not exceed four weeks. After two weeks the responsible police officer was required to submit an interim report to the public prosecutor and the investigating judge. The provisions of Articles 126m and 126n of the Criminal Code, as in force as from 1 February 2000, incorporated these four-week rules.


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in 1980 and lives in Karabulak.

The applicant lived with her husband, Mr Adam Medov (born in 1980), in Karabulak, Ingushetia. The applicant is a linguist by training, and currently looks after her two children, born in 2003 and 2004. In June 2004 her husband temporarily resided in Nazran in Ingushetia.

The applicant submitted that on 15 June 2004 at about 8 p.m. her husband had left his temporary home in Nazran in his car (Zhiguli VAZ 21099). According to his brother, Mr Magomed Medov, he should have had 3,800 United States dollars with him, which he had borrowed from his relatives. He did not come back home that night.

In the night of 16 to 17 June 2004 the applicant’s husband called his brother, Mr Magomed Medov, on his mobile phone and said that his car had broken down. He tried to say where he was, but the phone was cut off.

In the evening of 17 June 2004 the Medovs were informed that their son, Mr Adam Medov, was being detained at the Sunzhenskiy District Department of the Interior (the Sunzhenskiy ROVD). At about 8 p.m. several of Mr Adam Medov’s relatives, including his father and two brothers, arrived at the village of Ordzhonikidzevskaya (also called Sleptsovskaya) – the administrative centre of the Sunzhenskiy district – and went to the ROVD building.

There the policemen told them that on 17 June 2004 the traffic police stopped two vehicles, a green Volga 31-10 and a Zhiguli VAZ 21099, for an inspection near the Kavkaz-1 crossing between Ingushetia and Chechnya. The policemen heard noise coming from the boot of the Zhiguli car. They opened it and found a man tied up (according to the policemen this was Mr Adam Medov) who cried “I am an Ingush! They are trying to take me out of here!”. The Volga car then started to move towards Chechnya, but was stopped by the policemen. In its boot they found another man tied up.

The policemen arrested the persons who were in both cars and took them and the two bound men to the Sunzhenskiy ROVD at about 7 p.m.

According to the policemen, Mr Adam Medov was questioned and explained that on 15 June 2004 he had been apprehended near the Sunzha restaurant in Sleptsovskaya along with a man to whom he had been giving a lift in his car, and whose name he did not know. He said he had been apprehended by eight men, four of them of Russian origin and four of them of Chechen origin, and subsequently taken to the Federal Security Service (FSB) headquarters in Magas, the capital of Ingushetia. There he had been beaten and tortured. At some point on 16 June 2004 he had been forced to call his family to convince them not to start searching for him.

By the evening of 17 June 2004 numerous relatives of Mr Adam Medov had gathered in front of the Sunzhenskiy ROVD. The policemen asked his relatives to bring food and agreed to take it to him. Later they offered to allow two of Mr Adam Medov’s brothers, Mr Magomed Medov and Mr Usman Medov, to visit him inside the building. While the two men were standing on the ground floor of the police station, they heard someone shouting “No visits! They should leave!” Magomed Medov and Usman Medov were then escorted to the exit of the ROVD building.

At about 11.30 p.m. on 17 June 2004 the policemen came outside to where the relatives of Mr Adam Medov were waiting and told them that he and another detainee had been driven to Chechnya. Mr K-v, an officer of the Sunzhenskiy ROVD, had accompanied the cars to the Kavkaz-1 roadblock. This was the last news the relatives had of Mr Adam Medov.

On 22 July 2004, in reply to the Court’s request of 16 July 2004 for factual information relating to the detention and whereabouts of Mr Adam Medov, the Government first submitted that the Ministry of the Interior was not aware of his alleged abduction or his whereabouts. He had not been detained in the Sunzhenskiy ROVD between 15 and 21 June 2004. His relatives had not applied to the department of the interior with a complaint about Mr Adam Medov’s abduction. Furthermore, according to the information submitted by the Prosecutor General’s Office, on 22 July 2004 the Prosecutor’s Office of Ingushetia had opened a criminal case under Article 126 (2) of the Criminal Code – abduction committed by a group.

On 20 August 2004 the Government submitted the following information received from the Prosecutor General’s Office:

“In the evening of 17 June 2004 police officers stopped two cars at the “Volga-20” stationary road checkpoint, located on federal route “Kavkaz”, near the administrative border of the Chechen Republic. The six men sitting in the two cars refused to produce their documents. In this connection they were brought to the Sunzhenskiy [ROVD], where four of the above-mentioned six men introduced themselves as officers of the Department of the [FSB] in the Chechen Republic and produced their documents. The highest ranking officer of the group, Mr Beletskiy V.V., gave the following explanation of what had happened. He said that on 15 June 2004 in Ingushetia they had apprehended two men, Medov A.A. and [K.], who were wanted on suspicion of having committed grave crimes, and that they were taking them to the Chechen Republic. Mr Beletskiy produced documents that showed the lawfulness and validity of Mr Medov’s and [K.’s] arrest and detention. After that the above-mentioned officers ... and the two detained persons left for the Chechen Republic.

According to information provided by the Prosecutor’s Office of the Chechen Republic, officers of the law-enforcement bodies of the Chechen Republic had not apprehended Mr Medov and there was no information that the latter had been brought to the territory of the Chechen Republic. According to the Department of the FSB in the Chechen Republic, Mr Beletskiy V.V. was not on the staff of that Department. Moreover, the Department did not have any information regarding Mr Medov’s apprehension and whereabouts.

On 22 July 2004 the Public Prosecutor’s Office of the Republic of Ingushetia initiated a criminal case in respect of an offence defined by Article 126 § 2 (a) (abduction by a group of persons after preliminary collusion) in connection with Mr Medov’s and [K.’s] disappearance.

At present Mr Medov’s and [K.’s] location is not established. Mrs Medova’s allegations that her husband is being detained at the Khankala military base have not proved to be true”.

Immediately after 17 June 2004 the members of Mr Adam Medov’s family started to search for him. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, the Ministry of the Interior, the FSB, administrative authorities and public figures. The applicant and other family members received conflicting information about the circumstances of Mr Adam Medov’s apprehension and detention, and hardly any about his whereabouts after 17 June 2004.

On 18 June 2004, upon a request by Mr Adam Medov’s relatives, the chairman of the Ingush Bar Association “XXI Vek” asked the Ingush Department of the FSB and the Sunzhenskiy ROVD if Mr Adam Medov had been detained on 17 June 2004, and if so, where he was. On the same day the Sunzhenskiy ROVD replied that Mr Adam Medov had not been detained by them.

However, on 21 June 2004 the deputy prosecutor of the Sunzhenskiy District informed the Medovs that “on 15.05.2004 Medov A.K. was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V.” On 22 June 2004 the same prosecutor informed the applicant’s family that on 16 June 2004 he had “requested the military prosecutor of the United Group Alignment (UGA) to submit relevant information”.

On 24 June 2004 the acting prosecutor of Ingushetia replied to a member of Ingushetia’s Popular Assembly, Mr Ozdoyev, that an investigation was ongoing into the Medovs’ complaint about the detention and ill-treatment of Mr Adam Medov by FSB officers on 15 June 2004.

On 26 June 2004 the deputy prosecutor of the Sunzhenskiy District again confirmed to the applicant’s family that “on 15.06.2004 Medov was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V. On 18 June 2004 [M.], the military prosecutor of the UGA, was requested to submit information relating to the grounds of the arrest.”

On 1 July 2004 the acting prosecutor of Ingushetia replied to Mr Ozdoyev that, since Mr Medov had been detained by FSB officers from Chechnya, all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA.

On 7 July 2004 the Chief of the FSB Department for Chechnya wrote to the applicant and stated that Mr Medov had not been arrested or detained by its officers and that they had no information about his whereabouts.

On 9 July 2004 Mr Adam Medov’s relatives sent fifteen letters to the Prosecutor of Ingushetia, the Minister of the Interior of Ingushetia and the NGO Memorial, in which they described the known circumstances of Mr Medov’s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established.

On 9 July 2004 the Chairman of Memorial, Mr Orlov, and a member of the Human Rights Commission with the President of Russia, Mrs Gannushkina, met in Ingushetia with Mr M-v, the prosecutor of the Sunzhenskiy District. The applicant submitted a transcript of the discussion signed by Mr Orlov. According to that document, on 17 June 2004 Mr M-v had been informed that at about 7 p.m. a group of armed persons had been stopped at the Kavkaz-1 roadblock while trying to take two persons to Chechnya. The armed persons had produced documents to show they were FSB officers from Chechnya and insisted that they were acting lawfully. The prosecutor had demanded that they be taken to the Sunzhenskiy ROVD and personally went to the roadblock, but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD. At the ROVD the detained persons had produced identity documents issued by the FSB Department for Chechnya bearing the names Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. They had also produced documents authorising them to arrest Mr Adam Medov and K., who had been found by the policemen in the boots of the cars. Mr M-v had called the local FSB office, which confirmed that the arrest had been legal. The prosecutor had had to order the release of the detained persons, who had departed for Chechnya through a back door, taking the two men with them.

In July-August 2004 the applicant and Mr Adam Medov’s mother wrote several letters to the Prosecutor General, the Prosecutor of the Chechen Republic, the FSB Department for Chechnya, and the Prosecutor of the Sunzhenskiy District, referring to the information obtained in July and asking for information about Mr Adam Medov’s whereabouts and news of the investigation.

On 19 July 2004 the Russian Human Rights Commissioner wrote to the General Prosecutor and the Director of the FSB in respect of Mr Adam Medov’s arrest and detention.

On 25 July 2004 the deputy chief of the FSB Department for Chechnya replied to the applicant. He denied that Mr Adam Medov had been arrested or detained by the Department’s officers and stated that they had no information on his whereabouts. The letter further stated that Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. were not members of the Department’s staff.

On 17 August 2004 the General Prosecutor’s Office replied to the Russian Human Rights Commissioner, stating that a criminal investigation into the abduction was pending, and that at the moment no law-enforcement authority possessed information about Mr Adam Medov’s arrest and detention or whereabouts. The letter also stated that on 17 June 2004 the six armed men and their two prisoners had been released from the Sunzhenskiy ROVD upon orders of the then acting Minister of the Interior of Ingushetia, Mr Kostoyev, who had been killed on 21 June 2004.

On 9 September 2004 the FSB replied to the Human Rights Commissioner and stated that the service had no information about Mr Medov’s arrest and detention or whereabouts, and that the four named servicemen were not members of the FSB Department for Chechnya.

On 15 September 2004 the applicant complained to the Prosecutor General about the inactivity of the investigator in charge of the case concerning her husband’s abduction.

On 25 November 2004 the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures, including questioning of the officers who had been on duty at the roadblock on 17 June 2004 and the officer who had escorted her husband and the persons who had detained him to the border between Ingushetia and Chechnya. According to the applicant, during her visit in person the investigator had refused to accept the application or include it in the case file. She had then sent it by registered mail.

On 29 December 2004 the applicant complained to the Sunzhenskiy District Court of the Republic of Ingushetia about the investigator’s refusal to accept the application of 25 November 2004 and to take the requested investigative measures.

On 25 January 2005 the Sunzhenskiy District Court examined the complaint. At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply. He had not received any other applications from her. He contended that the investigative measures requested by the applicant had been taken; however, he could not inform her of the results until the preliminary investigation was completed. The court dismissed the applicant’s complaint and held, inter alia:

“In accordance with [the Code of Criminal Procedure] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation. Accordingly, [the investigator’s] refusal to familiarise the victim with the materials of the case file was lawful.”

The decision could be appealed against within ten days.

On 14 February 2005 the applicant submitted an appeal together with an application to restore the time-limit for appeal as the decision had been served on her only on 4 February 2005.

On 10 March 2005 the Sunzhenskiy District Court refused the application to restore the time-limit for appeal on the ground that the applicant had been present at the hearing of 25 January 2005, where the decision had been read out.

On an unspecified date the decisions of 25 January and 10 March 2005 were quashed by the Supreme Court of the Republic of Ingushetia and the case remitted to the Sunzhenskiy District Court for a fresh examination. According to the Government, upon the fresh examination the Sunzhenskiy District Court dismissed the complaint. The decision was not appealed against.

On 15 June 2005, following an application lodged by the applicant, the Karabulakskiy District Court of the Republic of Ingushetia declared Mr Adam Medov a missing person.

The Government submitted the following information concerning the progress of the investigation.

On 22 July 2004 criminal investigation no. 04600045 was instituted into the abduction of Mr Adam Medov.

On 29 July 2004 the investigator questioned as a witness Mr I., deputy prosecutor of the Sunzhenskiy District. Mr I. submitted that on 17 June 2004 he had been on duty at the District Prosecutor’s Office. At around 9 p.m. he was informed by the head of the Sunzhenskiy ROVD that unknown persons who had tried to take Mr Medov and K. through the checkpoint had been brought to the ROVD. They had presented themselves as FSB officers. Mr I. had immediately informed Mr B., another deputy prosecutor of the Sunzhenskiy District. Mr B. had told him that the persons brought to the ROVD had with them all necessary documents. Mr I. was questioned again on 20 October 2004.

On 29 July, 2 August and 5 October 2004 the investigator also questioned relatives of Mr Adam Medov.

On 30 July 2004 the applicant was granted the status of a victim in the criminal proceedings. She was questioned on 5 August 2004.

On 5 August 2004 the investigator questioned A., the head of the Sunzhenskiy ROVD. On 7 August 2004 he questioned E., an officer of the Sunzhenskiy ROVD. On 9 August 2004 the investigator questioned Bad. and Kh., the heads of the Sunzhenskiy ROVD, and on 16 August 2004 he questioned A., an officer of the Sunzhenskiy ROVD.

On 17 August 2004 the investigator questioned as witnesses two police officers of the special police unit of the Ministry of the Interior of Ingushetia.

On 13 September 2004 the investigator questioned six officers of the traffic police of Ingushetia.

On the same date the prosecutor of military unit no. 04062 questioned the head of the Sunzhenskiy District Department of the FSB and on 18 October 2004 his deputy.

On 22 December 2004 the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified.

On 1 April 2005 the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation.

On 5 April 2005 the investigation was resumed.

On 5 May 2005 the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified.

On 31 May 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation and transmitted the case to the Prosecutor’s Office of the Sunzhenskiy District for additional investigation.

On 1 June 2005 the investigator questioned as witnesses two neighbours of Mr Adam Medov.

On 1 July 2005 the investigator suspended the preliminary investigation again on the ground that the persons to be charged with the offence had not been identified.

On 3 October 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation.

According to the Government, in the course of the investigation requests for information were sent to the Prosecutor’s Office of the Chechen Republic, prosecutor’s offices and investigating authorities of other Caucasian regions, the military prosecutor of UGA, the FSB Department for Northern Caucasia, the Ministry of the Interior of Ingushetia, medical institutions, a mobile network operator, airline and railway ticket offices, civil registrars, and passport and visa services. The investigating authorities also checked the registers of unidentified dead bodies and temporary detention facilities. According to the information received, the persons who presented themselves as FSB officers during the documents check had never served in the FSB and the documents presented had never been issued to them by the State authorities. Neither the Ministry of the Interior nor the FSB had conducted any operations in order to arrest Mr Medov and K. The Prosecutor’s Office of the UGA had neither instituted proceedings against Mr Medov and K. nor arrested them.

On 15 April 2007 the investigation was suspended on the ground that the persons to be charged with the offence had not been identified. The applicant was notified accordingly.

On 20 November 2007 the investigation was resumed. The applicant was notified of the resumption.

Despite specific requests made by the Court on several occasions, the Government did not submit any documents from the file in criminal case no. 04600045. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of the documents disclosing military information and the personal details of the witnesses, and without the right to make copies of the case file and transmit it to others.

On 10 March 2005 the applicant submitted a letter to the Court, in which she alleged that in January – March 2005 persons who claimed to belong to the FSB had offered her money via a relative of hers for the withdrawal of her application. She had also been personally contacted by a man claiming to be an officer of the FSB who had threatened her and offered money for the withdrawal of her application before the Court.

After the application had been communicated to the Government, the applicant maintained the complaint concerning the events that had allegedly taken place in January – March 2005. She made no new allegations.

The Government submitted that State agents had not hindered the applicant’s right to petition the Court. Furthermore, the applicant had not applied to law-enforcement agencies in connection with the alleged threats and offers of money for the withdrawal of her application.

Article 125 of the Code of Criminal Procedure provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

Article 161 of the Code of Criminal Procedure stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but 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 participants in criminal proceedings without their permission