Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants, Mr Hayk Papyan, Mr Samvel Papyan, Ms Satenik Davtyan and Ms Lilit Papyan, are Armenian nationals who were born in 1971, 1942, 1949 and 1978 respectively and live in Yerevan. They were represented before the Court by Mr T. Atanesyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.

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

The applicants are a family who resided in a house situated at 11 Byuzand Street, Yerevan, which had allegedly belonged to their family since 1926. It appears that the house in question was situated on public land and had been built without permission.

It appears that in 1995 and 1997 the applicants Hayk Papyan and Samvel Papyan (hereafter, the first and the second applicant respectively) applied to the relevant public authority to have the house privatised in the framework of the privatisation scheme. According to the applicants, no decision was taken on their applications.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.

On 28 October and 21 November 2003 the first applicant applied to the Real Estate Registry, seeking to have his ownership right registered in respect of the house.

By letters of 30 October and 25 November 2003 the Real Estate Registry refused the first applicant's request.

On 3 December 2003 the first applicant applied to Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան), seeking to establish a fact of legal significance, namely to have his ownership in respect of the house recognised by virtue of adverse possession. He submitted, in particular, that he had been using the house as his own property since 1989.

On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Glendale Hills CJSC.

On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property.

By a letter of 18 August 2004 Glendale Hills CJSC informed the applicant Satenik Davtyan (hereafter, the third applicant) that the house in question was situated within the expropriation zone of the Main Avenue area and was to be taken for State needs. The third applicant was offered 2,000 United States dollars (USD) as financial assistance payable under the relevant governmental decree to registered persons, since the house was an unauthorised construction and she was only registered in it.

It appears that a similar offer was made to the other applicants. It further appears that none of the applicants responded to the offer, not being satisfied with the amount of compensation proposed.

On 27 September 2004 Glendale Hills CJSC instituted proceedings on behalf of the State against the applicants, seeking to oblige them to accept the offer and to have them evicted, with reference to Government Decree No. 1151-N.

On 3 March 2005 the Kentron and Nork-Marash District Court of Yerevan examined jointly the first applicant's application of 3 December 2003 and the claim of Glendale Hills CJSC. The court decided to grant the latter, finding that the house was situated in an expropriation zone as identified by the Government and was to be taken for State needs. The court awarded each applicant compensation payable to persons registered in unauthorised constructions, namely USD 2,000. The court further decided to dismiss the first applicant's application as unsubstantiated.

On 18 March 2005 the first applicant lodged an appeal. In his appeal, he argued that the court, in dismissing his application, had incorrectly interpreted various provisions of the Civil Code, the Housing Code and the Land Code. In support of his arguments the first applicant relied on evidence which allegedly substantiated his ownership claim in respect of the house. He further argued that, even if his ownership was not formally recognised, the amount of compensation awarded to him was inadequate. He finally claimed that as a user of the expropriated property he was entitled under the law to receive other property in its place.

On 14 April 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Glendale Hills CJSC and dismissed the first applicant's application on the same grounds as the District Court.

On 29 April 2005 the first applicant lodged an appeal on points of law. In his appeal, he argued that the Court of Appeal's judgment was unreasoned and was not based on the evidence in the case. The Court of Appeal had ignored and incorrectly applied various provisions of the Civil Code and the Housing Code, and had failed to establish correctly the facts. He further argued that, regardless of the formal status of the property in question, he should have received adequate compensation or a plot of land or another flat instead. He finally claimed that the house was ownerless and the court should have recognised his ownership in its respect by virtue of adverse possession.

On 27 May 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the first applicant's appeal.

For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-43, 23 June 2009).


Preliminary objection (non-exhaustion of domestic remedies) partially joined to merits and dismissed (Art. 3 and 13) and remainder dismissed;Preliminary objection (six-month period) dismissed (Art. 3 and 13);Preliminary objection (six-month period) allowed (art. 5-1 and 5-4 : detention in the SIZO);Preliminary objection (non-exhaustion of domestic remedies) dismissed (art. 5-4 : confinement in the hospital);Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

The applicant was born in 1980 and lives in the city of Kharkiv.

In 1998 the applicant was diagnosed as suffering from schizophrenia. Since then the applicant has undergone outpatient treatment at the City Psychoneurological Healthcare Centre no. 3 (hereafter “the Healthcare Centre”).

In March 2001 the applicant was convicted of theft and hooliganism and sentenced to one and a half year’s imprisonment suspended on probation.

On 12 April 2002 the applicant was arrested and taken into police custody at the Kominternovskyy District Police Station on suspicion of hooliganism and theft.

On 15 April 2002 the police investigator assigned to the applicant’s case charged him with hooliganism and theft. On the same day, considering that there were serious suspicions against the applicant, that he had a previous conviction for similar offences and was on probation and that there was a serious risk that the applicant would commit further offences or escape trial, the judge of the Kominternovskyy District Court of Kharkiv (hereafter “the Kominternovskyy Court”) ordered the applicant’s detention on remand.

On that same date the applicant was examined at the City Hospital no. 13. He was found to be suffering from schizophrenia but fit for detention on remand.

On 16 April 2002 the applicant was brought to the Kharkiv Regional Pre-trial Detention Centre SIZO no. 27 (hereafter “the SIZO”) from the police station. On his admission the applicant was received by the SIZO medical department for observation and assessment. The prison psychiatrist diagnosed him as suffering from schizophrenia, but certified him fit for detention at the SIZO.

The applicant was admitted to a psychiatric ward of the medical wing of the SIZO. On 17 and 25 April 2002 he was visited by a prison therapist who prescribed him cardiovascular and systemic medication.

On 30 April 2002 the investigator asked the Healthcare Centre for information on whether the applicant had been known to be suffering from a mental disease. On 5 May 2002 the Healthcare Centre confirmed that the applicant had been under psychiatric treatment for schizophrenia since 1998. Relying on this information, on 13 May 2002, the investigator ordered an inpatient forensic psychiatric examination of the applicant to determine his sanity at the time of the offence.

The applicant was transferred to the Psychiatric Hospital no. 15 (hereafter “the Hospital”), where he was examined from 17 to 29 May 2002. On the latter date forensic experts drew up a report, which included the following findings:

“...Psychiatric status

The patient is available for verbal contact. However such contact is highly formal. Mimics and movements are spontaneous and incongruous. He cannot understand or appreciate the purpose of the examination or the situation in general. The patient is restless, euphoric, fidgety, talkative but incoherent in his speech. .... The patient ... roars with laughter and grimaces, sticking his tongue out. ... Sometimes he starts asking in a whisper whether he will be released, but having received the answer, asks the same question again. ... If asked about his experience after the arrest, the patient becomes restless, somewhat confused, the expression on his face becomes blank. ... His memory and intelligence cannot be tested for lack of productive contact... Sometimes he becomes tense, restless and quarrelsome....

Conclusion

Mr Kucheruk currently shows symptoms of acute personality disorder in the form of a reactive state of mind.

It is at present impossible to determine the question of his sanity at the time of the offences on account of the complexity of the clinical manifestations of his reactive state of mind, which could also point to another mental illness.

Mr Kucheruk’s mental state requires compulsory inpatient psychiatric treatment.”

In early June 2002 the applicant was transferred back to the SIZO. On 6 June 2002 he was examined by the prison psychiatrist. No medication was prescribed on that occasion.

On 12 June 2002 the investigator requested compulsory psychiatric treatment for the applicant. On the same date the applicant’s case-file was sent to the Kominternovskyy District Prosecutor’s Office for approval. On 14 June 2002 the investigator’s request and the case-file were received by the Kominternovskyy Court.

On 5 July 2002 the Kominternovskyy Court, following an adversarial trial in the presence of the applicant’s lawyer, found him guilty of theft and hooliganism as charged. Referring to the experts’ report of 29 May 2002, the court found that the applicant’s acute personality disorder made it impossible at that stage to determine his sanity at the time of the offences and, consequently, to consider the question of punishment. The Kominternovskyy Court made an order under Article 421 of the Code of Criminal Procedure (hereafter the CCrP) committing the applicant for compulsory psychiatric treatment and suspended the criminal proceedings against him pending his recovery. The court also specified that:

“Mr Kucheruk’s preventive detention on remand is to be revoked upon his admission to the psychiatric establishment.

The judgment may be appealed against to the Kharkov Regional Court of Appeal within fifteen days from its delivery.”

On 10 July 2002 the court order of 5 July 2002 was sent to the SIZO for implementation.

In the meantime, the applicant, who was held in an ordinary cell, started to show signs of personality disorder. At the subsequent inquiry the inmates with whom he shared a cell stated that the applicant had acted in a strange way, mumbling incoherently, suddenly yelling at them or starting a fight. On 2 July 2002 the applicant assaulted one of his cellmates. On the same day he was transferred to the medical wing of the SIZO, where he shared a cell with other prisoners.

From 2 July 2002 onwards each new duty shift of the SIZO guards was regularly informed of the possibility of violent outbursts on the applicant’s part, and of the threat he posed to other detainees, the SIZO staff and himself.

On 3 July 2002 the prison psychiatrist examined the applicant, diagnosed him as suffering from schizophrenia and catatonic stupor and prescribed tranquilisers, analeptics (drugs that stimulate the central nervous system) and systemic drugs. On 4 July 2002 the psychiatrist found that the applicant had recovered from the catatonic stupor, and prescribed a change in his medication.

On 8 July 2002 the applicant became particularly agitated, moving erratically around the cell, waving his arms, bumping into the furniture and swearing at prison guards. At 7.00 a.m. three prison guards on duty were called by the medical wing staff to deal with the applicant. Through the peephole they observed his erratic movements and, having classified them as an “outrage” (буйство) within the meaning of section 18 of the Law “on Detention on Remand”, ordered the applicant to stand still, face the wall and put his hands behind his back. When the applicant failed to comply, the guards warned him that they were about to use force and entered the cell. The guards beat the applicant with truncheons, forced him to the floor and handcuffed him. Although a prison paramedic was called to attend to the applicant soon after the incident, there is no information that he received any treatment or medication for the injuries sustained during the struggle to restrain him.

In a report dated 8 July 2002 and amended, it would appear, on 15 July 2002, the three prison guards and the paramedic involved in the incident informed the Governor of the SIZO about the circumstances of the use of special police equipment (truncheons and handcuffs). In different handwriting it was added that the handcuffs were applied at 7.00 a.m. on 8 July 2002 and removed at 6.45 a.m. on 15 July 2002. At the bottom of the page, below the signatures of the officers and the paramedic, it is indicated that “distinct traces of the use of [truncheons and handcuffs] were found” and that “no other injuries ... could be detected”. These notes were signed by a certain Kh., apparently a prison doctor or paramedic, and dated 15 July 2002.

On 8 July 2002 the Governor ordered the applicant to be confined to a disciplinary cell for ten days for “serious breach of prison rules”. Before his transfer the applicant was examined by two prison officers and a doctor, who indicated in their report that his shoulders and buttocks bore traces of injuries inflicted by truncheons. They concluded, however, that the applicant was fit to be detained in the disciplinary cell.

Whilst in the disciplinary cell the applicant was locked up for about twenty-three hours each day. Although the disciplinary cell was visited each day by a physician and psychiatrist, no treatment or medication was administered to him as, according to the medical records, he refused to accept them. The entries made by the prison physician in the applicant’s medical record for 10, 12 and 16 July 2002 state:

“10 July 2002 ... [the applicant] lurched towards me, stretching out his handcuffed hands...

12 July 2002 ... [the applicant] was moving quickly around the cell, bending down and trying to pull his legs between his handcuffed hands... banging his head against the wall trying to free himself from the handcuffs ...

16 July 2002 ... [the applicant] is trying to remove the handcuffs, rolling on the floor”.

The applicant’s detention in the disciplinary cell continued until his discharge from the SIZO on 17 July 2002.

On 17 July 2002 the applicant was transferred to the Hospital for compulsory treatment pursuant to the Kominternovskyy Court’s judgment of 5 July 2002.

On 27 January 2003, following a fresh assessment of the applicant’s mental condition, the psychiatric commission of the Hospital recommended that his psychiatric treatment should continue.

On 28 February 2003, having regard to the experts’ report of 29 May 2002 and the oral submissions of the doctor in attendance at the Hospital, the Kominternovskyy Court allowed the petition of the chief psychiatrist of the Hospital and ordered an extension of the applicant’s compulsory psychiatric treatment pending his recovery.

On 2 April 2003 the applicant’s mother filed a petition with the Moskovskyy District Court of Kharkiv (hereafter “the Moskovskyy Court”) under Article 256 of the Code of Civil Procedure (hereafter “the CCivP”) seeking to have her son declared incapable by reason of mental disorder.

On 26 May 2003 the psychiatric commission of the Hospital recommended that the applicant’s compulsory treatment be discontinued.

On 28 May 2003 the Moskovskyy Court ordered a forensic psychiatric examination of the applicant under Article 258 of the CCivP in order to determine his sanity.

On 7 July 2003 the Kominternovskyy Court lifted the compulsory treatment order. It also indicated that criminal proceedings against the applicant should be resumed and a forensic psychiatric examination ordered to determine his sanity at the time of the offence.

On 1 August 2003 the pre-trial investigation against the applicant was resumed.

On 4 August 2003 the Hospital received the Kominternovskyy Court’s ruling of 7 July 2003.

On 5 August 2003 the investigator requested the Kominternovskyy Court to authorise the applicant’s inpatient psychiatric examination under Article 205 of the CCrP, which request was granted on 6 August 2003.

Both forensic examinations ordered by the Moskovskyy and Kominternovskyy Courts were completed on 1 September 2003. The psychiatric experts concluded that the applicant’s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour.

On 2 September 2003 the applicant was discharged from the Hospital and handed over to his mother.

On 4 November 2003 the Kominternovskyy Court terminated the criminal proceedings against the applicant in view of his lack of criminal liability.

On 11 November 2003 the Moskovskyy Court allowed the mother’s petition and declared the applicant legally incapacitated.

Upon the applicant’s admission to the Hospital on 17 July 2002 his mother was informed of his whereabouts. Ms Kucheruk stated that when she visited him the following day she saw that he was badly injured and could hardly move or talk. The only words he allegedly managed to utter were “[they] beat [me] severely” (cильно били).

On 25 July 2002 the applicant’s mother filed a criminal complaint against the prison guards for ill-treatment of her son.

On 2 August 2002 the applicant’s mother and a human rights activist from a local non-governmental organisation visited the applicant in his ward. They drew up a document attesting that the applicant had an injury on his head behind the left ear, several bruises on the face and forehead and deep cuts around his wrists.

On an unspecified date the Governor of the SIZO opened a criminal investigation into the applicant’s mother’s complaint. On 19 and 20 August 2002 written statements were taken from two of the inmates who had shared an ordinary cell with the applicant, from his four cellmates in the medical wing who witnessed the incident of 8 July 2002, from three prison guards involved in that incident and from a prison paramedic. The inmates and the prison guards briefly outlined the events of 2-8 July 2002 as they are described above in paragraphs 19 and 22. The paramedic wrote that he had been called to attend to the applicant after the latter had been immobilised by the guards. He had observed truncheon marks on the applicant’s shoulder blades and buttocks and marks on his wrists made by handcuffs.

As part of the inquiry, on 14 August 2002 the Governor of the SIZO ordered that medical evidence be obtained. On the same day the applicant was examined by an expert from the Kharkiv Forensic Medicine Institute. The expert’s report stated the following:

“Examination

Mr Kucheruk has a 2.5x0.5 cm oblong abrasion with a thick scab on the outer part of his right wrist. The wound is horizontal. Similar abrasions are observed on the inner part of the right wrist and the outer and inner parts of the left wrist, as well as on the left elbow, the right occipital area and the inner-rear and frontal parts of the left thigh. These injuries measure from 1x0.2 cm. to 5.5x0.3 cm. ...

Conclusion

According to the medical documents provided [by the Governor of the SIZO] it is established that Mr Kucheruk bore bruises and abrasions which had been inflicted by blunt solid objects.

When Mr Kucheruk was examined on 14.08.2002 he had abrasions on his head, right foot, arms and left thigh. He also had bruises on the left eye and the left shoulder. All these injuries were inflicted by blunt solid objects. The bruises were three to five days old and the abrasions seven to ten days old...

Having regard to the description of the injuries in medical documents [drawn up by the SIZO staff], as well as the entries for 8 and 15 July 2002, where the injuries are not described at all, and the nature of the injuries (indicating the use of truncheons and handcuffs), it is impossible to draw any conclusions about the time of the injuries.

Mr Kucheruk’s injuries could have been inflicted by special equipment (truncheons and handcuffs).”

On 21 August 2002 the Governor of the SIZO decided not to bring criminal proceedings against the guards involved in the incident, finding no wrongdoing on their part. He relied in this conclusion on the written statements made by the inmates and prison officers and the forensic report of 14 August 2002. On an unknown date the prison supervision department of the Kharkiv Regional Prosecutor’s Office confirmed this decision.

On 4 September 2002 the applicant’s mother received a letter from the Governor of the SIZO in which he informed her that no criminal investigation in respect of the accused prison officers was to be opened, without, however, indicating the date of the relevant decision or providing a copy. In his letter the Governor also expressed the opinion that the truncheons and handcuffs had been used by the guards in accordance with the relevant regulations, to protect the SIZO staff and the applicant himself from his uncontrolled and aggressive behaviour.

On 26 December 2002 the Kharkiv Regional Prison Department (hereafter “the Department”) informed the applicant’s mother that an additional internal inquiry, undertaken, apparently, on her request, had revealed no wrongdoing on the part of the SIZO guards.

By a letter of 16 January 2003 the Head of the Department informed the applicant’s mother that her further complaints were unsubstantiated. He referred in this connection to the inquiry carried out by the Governor of the SIZO, which had culminated in his decision of 21 August 2002. This was the first mention of the date of the Governor’s decision in any official correspondence with the applicant’s mother. On 8 February 2003 she requested a copy of the final report and access to the case-file. On 25 February 2003 the Head of the Department rejected this request. On 27 March 2003 he rejected her second request for access to the file.

On 31 March 2003 the applicant’s mother challenged the Governor’s decision of 21 August 2002 before a court. On 27 May 2003 the Zhovtnevy District Court of Kharkiv (hereafter “the Zhovtnevy Court”), having heard the prosecutor, rejected her complaint as unsubstantiated. The applicant’s mother appealed.

In the course of the appeal proceedings, on 14 August 2003, the applicant’s lawyer was, for the first time, given access to the case-file.

On 18 November 2003 the Kharkiv Regional Court of Appeal quashed the decision of the Zhovtnevy Court on the grounds that it had been taken in the complainant’s absence, and remitted the case for fresh consideration.

On 24 December 2003 the Zhovtnevy Court found, without giving any details, that the inquiry was flawed. It reopened the case and handed it to the Governor of the SIZO for further investigation.

On 4 March 2004 the Governor, referring to the same evidence as before, discontinued the criminal proceedings again. His final report indicated, inter alia, that:

“...Mr Kucheruk arrived at the [SIZO] with a medical certificate, issued by the city hospital no. 13 on 15 April 2002, according to which he was fit to be detained in a SIZO. ... On the basis of this information Mr Kucheruk was placed in a psychiatric ward of the medical wing.

On 16 April 2002 Mr Kucheruk was examined by [the prison psychiatrist] who diagnosed him as suffering from schizophrenia. At the time of the examination his mental condition was satisfactory and he did not need any active treatment.”

As to the applicant’s conduct after the incident of 2 July 2002 and his transfer from the ordinary cell to the medical wing, the Governor stated that:

“On 3 July 2002 Mr Kucheruk was examined by [the prison psychiatrist], who found him suffering from schizophrenia and catatonic stupor and prescribed the relevant medication.

On 4 July 2002 the patient recovered from the catatonic stupor ... but continued to have tense relations with his cellmates.

Accordingly, based on general information about Mr Kucheruk’s behaviour, the officers on duty were warned daily about his possible violent outbursts against his cellmates or the SIZO staff.”

The report of 4 March 2004 further states that, following the incident of 8 July 2002, the applicant was placed in the disciplinary cell for serious breach of prison rules. Having regard to the applicant’s mental condition, the paramedic who examined him after the incident had recommended keeping him handcuffed.

As regards the time of the applicant’s discharge to the Hospital, the Governor indicated that:

“The [Kominternovskyy Court’s judgment of 5 July 2002] did not contain any provision for immediate execution. It set out a fifteen-day time limit for appeal; therefore the term provided by Article 404 of the Code of Criminal Procedure for execution of this judgment was complied with as the applicant was transferred to the [Hospital] on 17 July 2002.”

On 1 October 2004 the Zhovtnevy Court, acting on a complaint lodged by the applicant’s lawyer, quashed that decision and ordered further investigations, pointing out the following irregularities:

failure to take account of the submissions of the applicant’s mother concerning the applicant’s state of health in July-August 2002;

failure to measure the lawfulness and reasonableness of the guards’ conduct against the legal principle prohibiting degrading treatment;

failure to determine whether the applicant’s misbehaviour constituted a breach of prison rules that warranted his placement in a disciplinary cell;

failure to consider the proportionality of the force used;

the fact that the investigation was conducted by the Governor of the SIZO, a person whose impartiality was highly doubtful.

The case-file was transmitted to the Kharkiv Regional Prosecutor’s Office for additional investigations. In a final report of 1 November 2004 a prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office came to a similar conclusion to that reached by the Governor of the SIZO, that the applicant was fit for detention in the SIZO and the prison officers concerned acted properly on the basis of the orders they were given and the relevant regulations. The prosecutor referred to the evidence collected by the Governor’s investigation and the statements of the prison psychiatrist that certain drugs should normally be used to pacify mentally ill patients, and when no drugs were available, special equipment could be used to immobilise such patients. The prosecutor further agreed with the Governor’s finding that the applicant’s conduct constituted a flagrant violation of prison rules and warranted his detention in the disciplinary cell. The applicant’s mother appealed.

On 30 July 2005 the Chervonozavodskyy District Court of Kharkiv (hereafter “the Chervonozavodskyy Court”) quashed that report and ordered further investigations as the authorities had failed to follow the instructions of the Zhovtnevy Court.

On 6 September 2005 a senior prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office, following additional investigation, decided not to bring any charges against the prison officials. His final report repeated, in substance, the findings in the report of 1 November 2004 that the applicant had been fit to be detained in the SIZO and that there had been no wrongdoing on the part of the prison authorities. The senior prosecutor stated, inter alia, that the applicant’s detention after 12 June 2002 had been based on a letter from the Head of the Investigative Department of the Kominternovskyy District Police Station that the applicant’s case-file had been sent to the Kominternovskyy District Prosecutor’s Office for approval. As to the applicant’s ten-day confinement in the disciplinary cell, he considered that “the severity of the punishment imposed was fully in keeping with the nature of the offence committed”. He further considered that the applicant had been held in the SIZO until 17 July 2002 because of the fifteen-day time-limit for entry into force of the judgment of 5 July 2002. Although the forensic report of 14 August 2002 recorded the use of handcuffs by the prison guards, the investigation did not establish whether or not, between 8 and 15 July 2002, the applicant was handcuffed all the time. The senior prosecutor concluded that there was no evidence that the prison officers had acted in bad faith or in violation of the relevant laws and regulations when restraining the applicant with truncheons and handcuffs, putting him in a disciplinary cell and holding him in the SIZO until 17 July 2002.

On 28 October 2005 the applicant’s mother challenged that report before the Chervonozavodskyy Court, where the proceedings are still pending.

The relevant extracts from the Constitution read as follows:

“Article 28

Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...

Article 29

Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...”

The text of Article 19 and Articles 92 and 94-96 of the Criminal Code of 5 April 2001 can be found in the Court’s judgment in the case of Gorshkov v. Ukraine (no. 67531/01, § 28, 8 November 2005).

Article 365 of the Code provides:

“Excess of authority or official powers, that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which cause any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities shall be punishable ....”

Article 367 of the Code prescribes liability for official negligence:

“Neglect of official duty, that is failure to perform, or improper performance, by an official of his or her official duties due to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities, shall be punishable ...”

The relevant provisions of the CCrP regulating the conduct of pretrial investigation proceedings are summarised in the Court’s judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 38 and 39, 4 April 2006),

Article 101 enumerates the bodies responsible for inquiries. Normally these functions are discharged by the police. However, paragraph 5 of Article 101 also vests this power in the governors of prisons and pre-trial detention centres, who conduct inquiries into offences committed by prison officials involving infringements of prison rules.

Articles 148 (purpose of and grounds for taking preventive measures), 149 (list of preventive measures), 150 (circumstances that should be taken into account in choosing a preventive measure) and 156 (time-limits for holding in custody) of the CCrP are to be found in the Nevmerzhitsky v. Ukraine judgment (no. 54825/00, § 53, ECHR 2005).

Article 155 of the CCrP insofar as relevant provides as follows:

“Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of more than three years’ imprisonment...

Persons against whom a detention on remand order is issued shall be held in pre-trial detention centres.”

Article 237 of the CCrP insofar as relevant provides:

“In a case received from the prosecutor [with the bill of indictment], the judge in a preliminary hearing shall resolve the following questions:

...4) whether there are any reasons to change, terminate or apply a preventive measure.”

Article 241 of the CCrP reads as follows:

“A preparatory hearing shall be held within 10 days or, in complex cases, 30 days of receipt of the case-file by the court.”

Article 205 of the CCrP provides:

“If forensic medical or psychiatric examination necessitates long-term monitoring or assessment of the suspect, the court, on the investigator’s request and with the prosecutor’s authorisation, may order the suspect’s commitment to the relevant medical institution.”

Article 347 of the CCrP provides:

“An appeal may be lodged against:

...2) a court order concerning the application of ... compulsory medical treatment.”

According to Article 349 of the CCrP:

“An appeal against a judgment, ruling or order of a first instance court ... may be filed within fifteen days of its adoption...”

Article 402 of the CCrP reads as follows:

“The court order or ruling shall become final and enforceable upon the expiry of the time-limit for appeal.”

Articles 416 (Grounds for the application of measures of compulsory medical treatment) and 422 (Termination or modification of the applicable compulsory measures of medical treatment) of the CCrP are set out in the Gorshkov judgment (cited above, § 31).

Article 424 provides as follows:

“An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against a ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be entered in the ordinary manner.”

According to Article 417 of the CCrP:

“Pre-trial investigation in cases concerning illegal acts committed by persons who are not criminally responsible or who bear only limited criminal responsibility, as well as in cases concerning offences committed by persons who become mentally ill after the events in question but before the imposition of the sentence, shall be conducted by the investigating authorities pursuant to the rules set out in Articles 111-130 and 148222 of the present Code.

Following the completion of the pre-trial investigation, if the alleged offender is found to have no, or limited, criminal responsibility, the investigator shall draw up a ruling requesting the court to commit the person for compulsory medical treatment ... This ruling shall be sent to the prosecutor.”

Article 418 of the CCrP reads as follows:

“Having received a case with the ruling under Article 417 of this Code, the prosecutor:

1) if he agrees with the ruling, shall confirm it and transmit the case to the court;

2) if he finds that the ... collected evidence is insufficient to reach a conclusion as to the mental condition of the accused or that the collected evidence is insufficient to prove that the illegal act was committed by the person concerned, shall return the case-file to the investigator with written instructions for further inquires.”

Article 419 of the CCrP insofar as relevant provides:

“If the judge or the president of the relevant court who received the case-file with the request for compulsory medical treatment agrees with the investigator’s ruling, he or she shall send the case directly for trial.

The trial in such cases shall be held in open hearing, with the obligatory participation of the prosecutor and defence lawyer, in accordance with rules laid down in Chapters 25 and 26 [Articles 283-317] of this Code.”

According to Article 421 of the CCrP:

“When it is established that a [mentally ill] person has committed an illegal act or a person became mentally ill after committing an offence ... the court shall commit him or her for compulsory medical measures, indicating exactly what measure should be applied.”

Article 221 of the CCivP provides in its relevant part:

“The court must suspend its examination of a case if ...it is impossible to hear the case before other civil, criminal or administrative proceedings have been terminated.”

Article 256 of the CCivP provides that close relatives of a mentally ill person, associations, a prosecutor or a local board of tutorship may apply to the court with a view to declaring that person incapable by reason of mental disorder.

According to Article 257 of the CCivP a petition filed under Article 256 should include evidence of the mental disorder which prevents the person concerned from understanding his or her actions and conducting his or her affairs.

Article 258 of the CCivP empowers the court to order forensic psychiatric examination of the person concerned. In exceptional cases, when the person overtly avoids examination, the court may order his or her compulsory psychiatric examination.

Section 8 of the Act provides that:

“Detained persons shall be held in ordinary cells. In exceptional circumstances ... and for medical reasons, following a reasoned decision of the relevant investigating authority or governor of the relevant pre-trial detention facility, a detainee may be placed in solitary confinement.”

Section 18 of the Act sets out rules governing the use of force by prison guards. Officers in pre-trial detention facilities are entitled to use physical force, police equipment and firearms against the inmates. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties and should be carried out so as to inflict as little injury as possible. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs, truncheons etc., with a view to putting an end to physical resistance, violence, outrage (буйство) and opposition to the lawful directions of the administration of the detention facility when other means of achieving a legitimate objective prove ineffective.

Special police equipment and firearms must not be used on women with visible signs of pregnancy, elderly persons, persons with visible signs of invalidity or underage persons, except in the event of an assault by a group of these persons which is dangerous for the lives of the prison officers or others.

A governor has the power to place a prisoner in a disciplinary cell where this is necessary to put an end to physical resistance, violence, outrage and opposition to the lawful directions of the administration.

The choice of the means to be used and the time and intensity of their use depends on the circumstances, the nature of the wrongdoing and the personal characteristics of the perpetrator.

An officer who uses force or special equipment must immediately report it to his direct supervisor and the relevant prosecutor. All persons against whom the above means have been used should be immediately examined by a medical practitioner.

The relevant provisions of the Act are quoted in the case of Gorshkov (cited above, § 30).

Paragraph 4 of the Resolution enumerates the cases when special means may be used, including when they are necessary for putting an end to resistance to police officers or other persons carrying out official public order duties.

Paragraph 6 of the Resolution provides that decisions to use special means must be taken by an official responsible for maintening public order or by the head of the particular operation. A person taking such a decision must immediately inform his or her superiors in writing.

Paragraph 7 of the Resolution obliges the police officers who applied the special means to ensure immediate medical assistance to the victims.

Paragraph 14 of the Resolution prohibits the application of rubber truncheons to the head, neck, collar area, stomach and genitalia.

According to Paragraph 2.5 of Decree no. 346/877 psychiatric establishments are obliged to inform the relevant local police department of the imminent release of mentally ill persons.

The relevant extracts from Decree no. 397 of the Ministry of Health of 8 August 2001 on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts (approved by the Supreme Court of Ukraine, the Ministry of Internal Affairs and the General Prosecution Service) are set out in Gorshkov (cited above, § 32).

The relevant extracts from the Instruction on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts (adopted by Decree No. 397 of the Ministry of Health) are also quoted in the case of Gorshkov (cited above, § 33).

According to Section 8 of the Resolution, force, as an element of excess of power, can be both physical and psychological. Physical force may involve, inter alia, unlawful deprivation of liberty and inflicting blows.

Section 9 of the Resolution provides that illegal actions constituting an excess of power fall within the scope of criminal law when they are “painful or abusive”, and the Supreme Court has declared that such actions are to be interpreted as “painful or abusive” when they inflict physical pain or moral suffering on the victim. These actions can involve, inter alia, the unlawful use of special police equipment such as truncheons and handcuffs.

The 1983 Resolution was valid at the material time. In 2005 it was replaced by Resolution no. 7 of 3 June 2005.

In both Resolutions (1983 and 2005 - Sections 9 and 15 respectively) the Supreme Court, interpreting domestic law regulating the types of compulsory measures of a medical character, stated that a court which orders compulsory treatment of a person against whom a preventive measure had been taken should simultaneously order the discontinuation of the preventive measure from the moment of the person’s admission to a psychiatric institution.

The relevant provisions of the first and second annual reports are set out in the Nevmerzhitsky judgment (cited above, §§ 60 and 61).

The relevant extracts from Committee of Ministers Recommendation No. R (87) 3 on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers’ Deputies) read as follows:

“Medical services

1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.

Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers.

1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.

The medical officer shall report to the director whenever it is considered that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.

Discipline and punishment

1. Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer, after examination, certifies in writing that the prisoner is fit to sustain it.

Instruments of restraint

The use of chains and irons shall be prohibited. Handcuffs, restraint-jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances:

a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise;

b. on medical grounds, by direction and under the supervision of the medical officer;

c. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.

The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must not be applied for any longer time than is strictly necessary.

Insane and mentally abnormal prisoners

1. Persons who are found to be insane should not be detained in prisons and arrangements shall be made to remove them to appropriate establishments for the mentally ill as soon as possible.

Specialised institutions or sections under medical management should be available for the observation and treatment of prisoners suffering gravely from any other mental disease or abnormality.

The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all prisoners who are in need of such treatment.”

The relevant extracts from the CPT Report [CPT/Inf (2004) 34] on a visit to Ukraine from 10 to 26 September 2000 read as follows:

“The CPT would point out that all mentally ill prisoners, including those serving life sentences, should be cared for and receive treatment in a hospital facility adequately equipped and with qualified staff. Forcing such prisoners to stay in prison, where they cannot receive appropriate treatment for lack of suitable facilities or because such a facility refuses to accept them, is an unacceptable state of affairs. The transfer of mentally ill prisoners to an appropriate psychiatric facility should be considered a high priority.”


The applicant, Mr Massimo Golfetto, is an Italian national, who was born in 1926 and lives in Padua. He is represented before the Court by Mr U. Giuliani Balestrino, a lawyer practising in Milan.

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

On 11 December 1989, 24 November 1990 and 9 April 1991 respectively, the Padua Court declared three companies, allegedly directly or indirectly administered by the applicant, insolvent.

In connection with these facts, the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in the Padua Court. At a hearing on 10 February 1995, the presiding judge of the Court of Padua questioned a witness, A.R., who had been the official receiver in the insolvencies of the above-mentioned companies. The presiding judge asked him whether he had been previously involved, as a victim, in criminal proceedings. A.R. answered that he recently had, because someone had fired shots at the door of his house, probably as an act of intimidation. The witness added that the outcome of those proceedings was that the applicant's son had been found guilty and had been sentenced to two years' imprisonment.

In fact, the presiding judge of the Court of Padua had also presided over the criminal proceedings against the applicant's son, which had ended on 18 January 1994.

On 30 March 1995 the applicant filed a request with the Court of Appeal of Venice for the presiding judge of the Court of Padua to be removed from hearing his case (ricusazione). The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions (Article 36 para. 1 (c) of the Italian Code of Criminal Procedure) or, in the alternative, that he had stated his opinion on the facts of the case before the end of the proceedings (Article 37 para. 1 (b) of the same Code).

On 5 April 1995 the Venice Court of Appeal rejected the applicant's request as manifestly ill-founded. The applicant appealed against that decision to the Court of Cassation. On 9 November 1995 the latter court rejected the applicant's appeal.

On 28 December 1995 the Court of Padua found the applicant guilty of fraudulent insolvency and sentenced him to six years' imprisonment and five years' disqualification from civic office.

On 9 April 1996 the applicant lodged an appeal against the above decision with the Venice Court of Appeal.

When lodging the appeal with the Venice Court of Appeal, the applicant did not explicitly refer to the alleged lack of impartiality of the first-instance judge. Before the Court, he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of the Court of Cassation rejecting it and that, in any event, in Italian law the issue of the alleged partiality of a first-instance judge was not a ground on which the Court of Appeal could set aside a first-instance judgment.

According to the latest information provided by the Government, on 4 July 2001 the proceedings in the Court of Appeal were still pending because priority had been accorded to other proceedings. According to the Government, the first hearing should take place at the beginning of 2002.


David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Ms Henryka Ostrowska, is a Polish national, who was born in 1956 and lives in Mielec.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

On 11 July 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) (“SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

On 1 August 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 521 Polish zlotys (PLN).

On 30 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance.

The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension.

On 3 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal.

The applicant further appealed against the first-instance judgment.

On 19 May 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. This decision was served on the applicant on 22 June 2004.

Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.

Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.

One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.

The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicants were born in 1980 and 1982 respectively and live in the town of Nizhniy Novgorod.

Between 4 and 24 November 1999 the first applicant had the status of witness in a murder case conducted jointly by the police and the prosecution.

It appears that these authorities repeatedly summoned her to give evidence to the Nizhegorodskiy District Department of Internal Affairs (Нижегородское районное управление внутренних дел – “the police station”).

It also appears that at some point during the investigation suspect B. stated that the first applicant had been in receipt of the murdered person's belongings.

According to the first applicant, investigator Zh. summoned her to appear on 25 November 1999 at 12.30 p.m. The Government submitted that the first applicant was summoned by policeman K. and not by investigator Zh.

The applicants submitted the following account of events. The Government did not make any specific comments in this respect.

The first applicant arrived at the police station on time and was questioned. The interrogation was initially conducted by policemen Kh. and K. and took place at office no. 63 of the police station.

The policemen requested the first applicant to acknowledge that she had received property belonging to the murdered person. When the first applicant refused to do so, they started shouting and threatened to bring criminal proceedings against her. They took her soccer scarf and administered several blows with the scarf to her face.

Then K. left the office and Kh. stayed there with the first applicant in private. He locked the door from the inside and went on with physical and psychological coercion. Kh. fettered the first applicant's hands with thumbcuffs and administered blows to her head and cheeks. He raped her using a condom and then forced her to perform oral sex with him.

Kh. was interrupted by noise in the corridor and knocking on the door. The first applicant was allowed to go to the lavatory and tidy herself up.

At around 2 p.m. the first applicant was confronted with suspect B. In his presence, she yet again denied her involvement in the murder.

Thereafter Kh. and K. fettered the first applicant's thumbs and repeatedly hit her in the stomach. They put a gas mask over the first applicant's face and made her suffocate by shutting off access to air. Kh. and K. also ran electricity through wires connected to the first applicant's earrings. The above actions were coupled with attempts to obtain a confession.

It appears that eventually the first applicant admitted having received the property in question and agreed to write her confession down on paper. Since the first applicant was in an agitated state and failed to write properly, she had to try twice. The confession was addressed to a local district prosecutor.

Kh. and K. then suggested that the first applicant's mother should bring the notebook containing the phone numbers and addresses of the applicant's friends and acquaintances.

The first applicant called her mother and at 4.40 p.m. the latter and the second applicant came to the police station and brought the required notebook. The first applicant's mother and the second applicant stayed in a lobby near office no. 63.

At 5 p.m. S., an investigator from a local prosecutor's office, came to office no. 63. He learned from the first applicant that she was a CSKA Moscow soccer fan and started to insult her and administer blows to her head with the second applicant's own scarf, requiring her to curse this club.

Some time later Kh. brought the first applicant to office no. 3 of the prosecutor's office for the Nizhegorodskiy District of the city of Nizhniy Novgorod (Прокуратура Нижегородского района г. Нижний Новгород – “the local prosecutor's office”) which was situated in the same building as the police station.

Zh., an investigator of the local prosecutor's office, interrogated the first applicant in connection with her confession.

In order to put additional pressure on her the investigators simultaneously arrested and detained her mother. It appears that the first applicant's mother spent two hours in detention.

According to the second applicant, around 6.30 p.m. investigator S. was in the lobby and saw the second applicant. S. rudely demanded the second applicant to leave the building, kicked him on the hip, pushed him towards the exit, then caught up with him and forced him into office no. 54 in which there were two unidentified policemen.

Then S. locked the door from the inside, hit the second applicant in his trunk several times and dealt a few blows to the second applicant's head and trunk with his own CSKA Moscow soccer scarf.

S. brought the second applicant to office no. 7 and, in presence of Kh. and investigator M., went on beating the second applicant, requiring him to curse the CSKA Moscow soccer club. When the second applicant refused, S. put the scarf around his neck and started to suffocate the applicant, simultaneously hitting him on the trunk. The second applicant eventually capitulated.

Thereafter M., Zh. and Kh. sent the second applicant to a nearby shop to buy alcohol, cigarettes and food and upon his return he was expelled from the building.

Around 7 p.m., S. and M. came to office no. 3 in which investigator Zh. was finalising the interrogation of the first applicant. They did not let the first applicant out after the questioning was over and started to drink alcohol. According to the first applicant, her requests to leave were denied.

Upon her request, the first applicant was escorted to the lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist.

She returned to office no. 3 and for the next two hours she was raped by Zh., S. and M. It appears that they used condoms and that following the rape they cleaned the place with wipes. It appears that Kh. had left the office upon the first applicant's return from the lavatory and had not taken part in the rape.

At 9 p.m. S. left and during the next hour Zh. and M. went on raping the first applicant. Around 10 p.m. they released her.

At 10.30 p.m. the first applicant reached the place of her acquaintance RB. Shortly later she was joined by IA and EA. After a talk, EA called the first applicant's parents and told them that RB and IA would follow the first applicant to a hospital.

At 1.20 a.m. on the next day they arrived at hospital no. 21 and the first applicant told an assistant nurse that she had been raped in the police station. The nurse and the doctor did not examine the applicant and advised her to address herself to a bureau of forensic examination. The applicant refused because the bureau was located too close to the police station. She was then advised to go to a bureau in a different district. It does not appear that the first applicant did so.

It appears that on 26 November 1999 the first applicant applied to the prosecutor's office alleging that she had been tortured and raped. The Nizhniy Novgorod City prosecutor's office (прокуратура г. Нижний Новгород) opened a criminal case in this connection and carried out an investigation. The second applicant had the status of crime victim in this case.

On 25 April 2000 Kh., Zh., S. and M. were charged with commission of crimes punishable under Articles 131, 132 and 286 of the Criminal Code.

On 5 July 2000 the bill of indictment was signed and the case against Kh., Zh., S. and M. was transferred to the Nizhegorodskiy District Court of the city of Nizhniy Novgorod (Нижегородский районный суд г. Нижний Новгород – “the District Court”) for trial.

The bill of indictment stated that Kh. was accused of having tortured and raped the first applicant, ill-treated the second applicant, abused the office and discredited the authority (see the episodes described in paragraphs 12-15, 16-21, 25-28 and 29-32 above). Zh. was charged with having raped and sexually abused the first applicant, abused the office and discredited the authority (see paragraphs 22-24 and 29-32). As to S., he was accused of having ill-treated the first and second applicant and abused and discredited the authority (see paragraphs 16-21 and 25-28), raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). M. was charged with having raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). The alleged criminal acts of the accused were characterised under Articles 131-1, 2 (b), 132-1, 2 (b) and 286-3 (a, b), respectively, of the Criminal Code.

It appears that the accused denied their involvement in the crimes in question, kept silent and refused to give urine or sperm for examination.

The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicants, who had identified the alleged offenders and gave a very detailed account of events.

The bill also referred to the statements of witness B., who heard the screams of Kh. and moans of the first applicant and then saw that the first applicant was tear-stained and demoralised. B. also cited the statement of Kh. who had allegedly said that the first applicant had “cracked” and admitted everything.

There were also statements of witnesses RB, EA and IA, the assistance nurse and the doctor, the parents of the first applicant, the mother of the second applicant and an employee of the shop who had sold the food and alcohol to the second applicant (see paragraph 28 above).

The other evidence also included the items obtained through searches carried out on the premises of the police station and the prosecutor's office, the first applicant's handwritten statement of a self-incriminating character which had been described by an expert as having been written by “a shaking hand” (see paragraph 18), the medical confirmation of the first applicant's attempts to cut her veins (see paragraph 30), the report of the forensic examinations and other evidence. It appears that several other people who had previously been prosecuted and whose criminal cases had been dealt with by the accused gave evidence confirming that the accused had used torturing devices, such as a gas mask, electric wires and a fettering device.

According to forensic examination no. 650 of 31 December 1999, the clothes that Kh. had worn on 25 November 1999 bore traces of cells of vaginal epithelium of the same antigen group as the first applicant's. The investigation also established that Kh. and his spouse had a different antigen group.

During the search carried out at the premises on 27 November 1999 the investigative authority discovered two used condoms, one in the yard of the police station and the other on the cornice under the window of office no. 3 of the prosecutor's office.

It appears that only one of the discovered condoms was suitable for forensic examination. The genomic examination revealed the presence of vaginal cells belonging, with a probability of 99.9999%, to the first applicant and spermatozoids and cells of male urethra.

The same search also led to the discovery of two wipes in the yard of the police station bearing traces of sperm.

Furthermore, the forensic examination established that the first applicant's clothes which she had allegedly worn on that day bore traces of sperm.

During a preliminary examination of the case on 16 August 2000 counsel for the accused pointed to various procedural defects in the investigation and applied to have the case remitted for additional investigation.

On the same day the District Court granted the application and remitted the case for additional investigation.

The court ruled that the investigative authorities had committed serious breaches of domestic procedure during the investigation which had infringed the rights of the accused and rendered most of the evidence in the case inadmissible.

In particular, the decision noted numerous inaccuracies and deficiencies in the handling of the case, including disregard of a special procedure for opening an investigation in respect of prosecution officers and the fact that Kh., Zh., S. and M. had not enjoyed the procedural status of accused persons until 24 April 2000, which meant that almost all investigative actions (searches, interrogations, identification parades, expert examinations, etc.) prior to that date had been carried out in breach of their defence rights and rendered the respective evidence inadmissible.

The decision of the District Court of 16 August 2000 was upheld on the prosecutor's appeal by the Nizhniy Novgorod Regional Court (Нижегородский Областной Суд – “the Regional Court”) on 13 October 2000.

On an unspecified date in September 2001 the first applicant's counsel brought an appeal against the decisions of 16 August and 13 October 2000 to the Presidium of the Regional Court, requesting that they be re-examined by way of supervisory review.

On 1 October 2001 counsel lodged a similar appeal with the Supreme Court of the Russian Federation (Верховный Суд РФ – “the Supreme Court”).

Having examined the case file, on 6 June 2002 the Presidium of the Regional Court declined the applicants' request for re-examination of the decisions by way of supervisory review.

It appears that a similar decision was taken by the Supreme Court on 21 June 2002.

On 12 January 2001 the Regional Prosecutor's Office (Нижегородская областная прокуратура) examined the case, found that the charges were essentially based on the first applicant's incoherent and inconclusive submissions, that the evidence in the case taken as a whole was inconsistent, and concluded that no strong evidence against the accused had been collected during the investigation.

It also had regard to the conclusions in the court decisions of 16 August and 13 October 2000 and noted that “the repetitive breaches of law and, in particular, the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects – investigators of the prosecutor's office – created no judicial perspective [for the case] since it appeared impossible to remedy the breaches committed during the investigation”. For these reasons it was decided to discontinue the criminal proceedings. The decision stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor's office.

By a letter of 19 June 2001 (No. 15/1-1018-99) the Regional Prosecutor's office responded to the first applicant's appeal against the decision of 12 January 2001 fully deferring to its reasons and conclusions. The letter did not mention the possibility of appeal against the decision in a court.

According to the Government, the investigation in this case was repeatedly resumed and discontinued.

On 30 August 2002 the Regional Prosecutor's Office annulled its decision of 12 January 2001 to discontinue the criminal proceedings and submitted the case for additional investigation. It mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision.

On 16 October 2002 the local prosecution office terminated the investigation in the criminal case, referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials.

It appears that this decision was subsequently annulled, but on 24 February 2002 the local prosecutor's office again terminated the proceedings on the ground of lack of evidence of a crime.

On 19 September 2004 the first applicant's counsel challenged the decision of 24 February 2002 before the District Court. In a judgment of 28 September 2004 the District Court upheld the decision, fully deferring to its reasons. The judgment was upheld on appeal on 29 October 2004 by the Regional Court.

On 29 April 2005 the Regional Prosecutor's office yet again decided to resume the proceedings in the case.

According to the applicant, on 28 June 2005 the proceedings were yet again closed.

The Government submitted that on 22 August 2005 the proceedings in the case had been resumed. This decision was appealed against by the accused. On 22 November 2005 the District Court quashed the decision to resume the proceedings as unlawful. The Regional Court upheld the District Court's decision on 30 December 2005. Thereafter the Deputy Prosecutor General lodged a supervisory review request in respect of the decisions of 22 November and 30 December 2005.

On 1 February 2007 the Regional Court, sitting as a supervisory review instance, examined and rejected the prosecutor's request, but noted that the decision of 30 December 2005 had been adopted by an unlawful composition of judges and remitted the case to the Regional Court for a fresh examination on appeal.

The outcome of these proceedings remains unclear, but no further steps appear to have been taken in respect of the criminal case against the policemen and investigators.

Article 131 §§ 1 and 2 (b) of the Criminal Code of the Russian Federation punishes the offence of rape committed by a group, whether or not organised and with or without prior conspiracy, with imprisonment up to fifteen years.

Article 132 §§ 1 and 2 (b) punishes forced sexual acts committed by a group, whether or not organised and with or without prior conspiracy, with up to fifteen years of imprisonment.

Article 286 § 3 (a, b) punishes abuse of office committed with use of force or threat to use force, with or without the use of arms or other special devices with imprisonment up to three years.

“A witness shall be called for interrogation by a written notice served on him personally or, in his absence, on an adult member of his family...

The notice shall contain the name of the person called as a witness, indicating where, before whom, on what date and at what time he is required to appear and the consequences of failure to appear. A witness may also be called by means of telephone or cable.”

“The interrogation of a witness shall be conducted at the place of the investigation. An investigator may decide to interrogate a witness at the location of that witness.”

Under Articles 108 and 125 of the Code of Criminal Procedure, a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities' own motion. Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case file.

Under Articles 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation. In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings.

Under Article 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete.

Article 210 of the Code provided that the case could be reopened by the prosecutor “if there were grounds” to do so. The only exception to this rule was for cases where the time-limit for prosecuting crimes of that kind had expired.

Article 161 of the Code provided that, as a general rule, the information obtained in the course of the investigation was not public. The disclosure of that information might be authorised by the prosecuting authorities if disclosure did not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings could not be made public without their consent.

Section 42 of the Law on Prosecution Authorities and Decree No. 44 of the Prosecutor General of 26 June 1998 sets out a special procedure for bringing administrative and criminal proceedings against officials of the prosecution authorities. In particular, the officials who have the right to initiate such proceedings are exhaustively listed.

The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated for irrespective of any award for pecuniary damage.


The applicants, Oksana Kozlova and Tatjana Smirnova, are “permanently resident non-citizens” of Latvia, born in 1930 and 1946 respectively and living in Riga (Latvia). They were represented before the Court by Mr G. Kotovs, a lawyer practising in Riga.

In 1931 the Latvian State sold to a certain O.A.R. a plot of land 3,740 sq. m in area with a semi-detached weekend house, located in Vecāķi (in the suburbs of Riga). After O.A.R.’s death in 1939, the property passed to his daughter, M.R.

In 1944 fear of Stalinist persecution forced M.R. to go into exile in the West and abandon her property. The house was also considerably damaged during the 1940s.

In a decision of 9 June 1948 the executive committee of the Mangaļi Municipal Council granted the right to use the above-mentioned land to Colonel S. (the applicants’ father) and Lieutenant Colonel B., and calculated the actual value of the building on it. On 27 August 1948 Mr S. and Mr B. purchased the house by paying the tax authorities the sum of 2,080 Soviet roubles. In the following years S. and B. rebuilt the house.

In a decision of 4 February 1952 the municipal authorities granted S. and B. the definitive right to use the land. However, on 1 July 1952 those authorities divided the land into three parts, two of which were allocated to S. and B. and the third of which was placed in public ownership.

On 25 December 1968 the municipality’s executive council divided the house into two parts and registered them as two separate properties with different numbers. The title to one of the parts was granted to the heirs of S., who had died that year; title to the other half was granted to B.’s former wife.

In 1969 the applicants were recognised as the heirs to equal portions of their fathers’ estate.

On 30 October 1991 after Latvia had regained its independence, the Supreme Council (Augstākā padome) enacted the Law on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”).

On 30 May 1995, in response to an application by O.A.R.’s grandson, A.R., Riga Municipal Council restored ownership of the land in issue to A.R. That decision did not, however, cover the buildings erected on the land.

In April 1998 A.R. asked the Riga Regional Court to set aside all the decisions taken in relation to the semi-detached house during the Soviet period and recognise him as the legitimate owner.

In a judgment of 30 June 1998 delivered after adversarial proceedings the Riga Regional Court allowed A.R.’s application. The Court noted first of all that although the house in issue had never been formally expropriated, it was covered by section 7 of the Law on the Return of Real Estate to the Legitimate Owners, which excluded property abandoned for fear of persecution from the category of res nullius (the property of nobody). The taking of possession of the property by the Soviet local authorities in 1948 had therefore been arbitrary and illegal, especially as it had not been based on any judicial decision. Furthermore, the Regional Court pointed out that section 6 of the aforementioned law precluded the return of items of property sold to private individuals acting in good faith by means of contracts certified by a notary. However, it noted that there had been no such contract in the instant case. Lastly, the Regional Court rejected the applicants’ argument that the disputed house had been completely rebuilt by their father and was in fact a new item of property. In that connection, the Court considered on the basis of the evidence produced that the repairs carried out (the replacement of doors, windows and roofing and repairs to some of the walls) were not sufficient to warrant the assertion that the initial building no longer existed and that S. had built a new house. Consequently, the Regional Court declared the decision of 9 June 1948 and all subsequent measures relating to the building null and void and ordered that it be returned to A.R.

The applicants appealed against that judgment to the Civil Division of the Supreme Court, which, in a judgment delivered on 9 December 1998 following adversarial proceedings, dismissed A.R.’s application on the ground that the documents he had submitted were not sufficient to prove O.A.R.’s title to the disputed house.

In a judgment of 3 March 1999 the Cassation Division of the Supreme Court, ruling on an appeal on points of law lodged by A.R., quashed the aforementioned judgment and remitted the case to the Civil Division. According to the Cassation Division, as a building was in principle an adjunct to the land on which it was built, the house in question should, in the absence of any evidence to the contrary, have been considered to have belonged to the owner of the land, namely O.A.R.

In a judgment of 20 May 1999 the Civil Division of the Supreme Court allowed A.R.’s application. Having established that the semi-detached house had indisputably belonged to O.A.R., the Civil Division ruled as follows:

“... Section 7 of the Law on the Return of Real Estate to the Legitimate Owners provides that an item of property abandoned by its owner following the events of the Second World War, particularly in order to avoid persecution or other adverse consequences, cannot be classed as res nullius.

It appears from the documents in the case file that in 1944, after the death of his grandmother, the appellant and his family left Latvia to escape potential oppression.

The case file does not contain any information attesting to the legal basis for the taking of possession of the property by the executive committee ... . No judgment was adopted regarding a res nullius. ...

... [T]he Civil Division considers that by taking possession of the disputed property without paying any compensation and by making use of it subsequently, the municipality infringed the rights of the legitimate owner and adopted a policy of administrative arbitrariness.

Under section 6 of the Law on the Return of Real Estate to the Legitimate Owners, no court order can be made for the return of items of property acquired against payment by natural persons acting in good faith and on the basis of contracts certified by a notary.

The file does not contain any evidence that the property came into the ownership of [S.] and [B.] on the basis of an official conveyance certified by a notary. ...

That being so, the Civil Division considers that [B.] and [S.] cannot be regarded as purchasers acting in good faith within the meaning of section 6 of the Law on the Return of Real Estate to the Legitimate Owners. ...

Since [S.] cannot be deemed to have purchased the house in good faith, the Civil Division considers the certificate of succession to the estate issued to Tatjana Smirnova [and] Oksana Kozlova ... to be null and void ...”

The applicants appealed on points of law against the above judgment cited above to the Cassation Division of the Supreme Court. In a judgment of 6 October 1999 the Cassation Division, ruling as an extended bench of seven judges, rejected that appeal, upholding the reasons given by the Civil Division.

The relevant provisions of the Law of 30 October 1991 on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) provide as follows:

“Title to immovable property of which the State or legal persons took possession without paying compensation during the period between the 1940s and the 1980s, as part of a policy which infringed the rights of owners and was tainted by administrative arbitrariness, shall be restored to the former owners or their heirs irrespective of their present nationality.”

“The property rights of former owners or their heirs who have lodged an application shall be restored by a court order in accordance with the provisions of the Latvian Code of Civil Procedure. ...”

“... [T]he courts may declare null and void measures taken by administrative authorities putting an end to or restricting a lawful right to property.”

“Immovable property that has come into the ownership of natural persons acting in good faith against payment and on the basis of contracts certified by a notary may not be returned ...

In this case, the former owner (or his heir) has the right to demand from the vendor who acquired the property compensation up to the price laid down in the contract of sale; compensation corresponding to the real value of the property must be paid as provided by law. ...”

“Immovable property which had to be abandoned by its owner following the military operations of the Second World War, particularly in order to avoid potential repression or other adverse consequences, may not be regarded as res nullius. ...”

“Where the immovable property eligible to be claimed by means of a judicial remedy has not survived ..., former owners (or their heirs) are entitled to compensation as provided by law.

Immovable property which, after 30 October 1991, has been rebuilt in such a way that most of it (more than sixty-five percent) amounts to a new building, shall also be considered not to have survived in substance. Where the construction or reconstruction has been carried out in breach of the requirements of a law or regulation or by an occupier acting in bad faith, that fact may not be relied on to dismiss an application for restitution of the property.”

In a judgment of 22 October 1997 (case no. SKC-287) the Cassation Division held that a decision taken by the municipal authorities in the 1940s whereby a private individual was granted title to an expropriated house provided that he paid a sum to the tax authorities corresponding to the value of the building was equivalent to a “contract certified by a notary” within the meaning of section 6 of the Law.

The relevant provisions of the Latvian Civil Code (Latvijas Republikas Civillikums) read as follows:

“The claimant must prove that he has title. For this purpose, it is sufficient for him to show that he genuinely acquired that title in a legal manner; it is subsequently for the defendant to prove that the claimant is no longer the owner.

Where the claimant maintains that he acquired the property from a third party through delivery or inheritance, he must prove that his predecessor was the owner.”

“The defendant may have the application dismissed if he proves that he has title to the property or the right to possess it on the basis of a right in rem or a right in personam which the claimant must respect.”