Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award;Just satisfaction reserved (one applicant)

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

On 5 July 2000 the applicants were in detention in Burdur Prison when a large-scale security operation was conducted there by 415 members of the security forces consisting mainly of gendarmes and soldiers. As the remaining facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 7-12). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 1321). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 2260).

On 4 April 2000 a number of remand prisoners in Burdur Prison were beaten by gendarmes on their way back from a court hearing. On 4 July 2000 eleven detainees, including nine of the applicants, informed the prison administration that, unless steps were taken to guarantee their safety, they would not be appearing at a hearing in the Burdur Assize Court scheduled for the following day. Neither the prison authorities nor the prosecutors responded to their calls.

At around 8.30 a.m. on 5 July 2000, members of the security forces arrived at the prison in large numbers. Using the furniture in their dormitories the inmates unsuccessfully tried to block the doors to stop the soldiers from coming in. The soldiers locked the windows to the prison cells, set fire to the cell doors and tried to confine the inmates in one part of the prison, measuring 25-30 square metres. The applicants Yunis Aydemir and Cemil Aksu suffered burns in the fire. When the inmates were confined in the same 25-30 square metres the soldiers used tear gas and various other chemical gases on them.

A hole was opened in the walls of this room with a digger. When the digger went through the hole and into the room the applicant Mr Saçılık waved his arm at the operator of the machinery, trying to tell him to withdraw the digger. The operator saw Mr Saçılık but proceeded, tearing off Mr Saçılık’s left arm from above his elbow. The severed arm was not collected by the authorities with a view to preserving and reattaching it, but was left there in the rubble. It was later taken from the mouth of a stray dog which had snatched it from the rubble.

Furthermore, a gas bomb detonated nearby seriously damaged the applicant Şahin Geçit’s right hand and eardrum.

The soldiers then started beating the inmates, dragging them on the floor, sexually assaulting female detainees and threatening them with rape. The detainees were then handcuffed, with their hands behind their backs, and were kept in that position for a period of 15 hours. The beatings continued even after the detainees were handcuffed. The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants Azime Arzu Torun and Mürüvet Küçük and started raiding the detainees’ personal belongings.

The injured detainees, some with life-threatening injuries, were subsequently taken to hospital. However, it was too late for Veli Şaçılık’s arm to be stitched back on, so he permanently lost his arm. The health of a number of other applicants also worsened because of the delays. Moreover, the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed.

On 4 July 2000 eleven detainees, including nine of the applicants, refused to obey the prison authorities and attend a hearing at the Burdur Assize Court. The Burdur Gendarmerie Headquarters requested assistance from a number of other military headquarters in an operation to be carried out in the prison.

The applicants and a number of other detainees began rioting in the prison. At around 10.00 a.m. on 5 July 2000, members of the security forces entered the prison in order to restore safety and security. They warned the prisoners and asked them to stop rioting. Ten prisoners complied with the soldiers’ instructions, but the remaining ones, including the applicants, continued to riot. They barricaded themselves in, opened fire, set fire to the dormitories and corridors, attacked members of the security forces with hand-made harpoons and iron bars and threw various explosive and corrosive chemicals at them. Seventeen gendarmes were injured as a result of the attacks.

As soon as members of the security forces managed to pass the barricades, the prisoners moved to the next dormitory after setting fire to the one they had been in. At that point the soldiers opened holes in the ceilings of the dormitory where the prisoners had gathered, and threw in tear gas canisters with a view to stopping the riots and minimising further damage.

A total of two holes were opened. The applicant Veli Saçılık was injured when a machine was opening the holes.

At the end of the operation a search was carried out. A number of documents belonging to an illegal organisation, 81 iron bars, 25 wooden bars, 52 hand-made objects used for cutting and digging holes, two saws, 20 pairs of scissors and three hammers were found during the search.

Apart from the severe damage caused to the prison building, ten security force personnel, six prison guards, one civilian and sixteen prisoners were wounded during the operation. The sixteen wounded prisoners were taken to hospitals. When 45 other prisoners refused to go to hospital for medical checks, three doctors were taken to the prison to provide medical assistance to them.

Although the applicant Azime Arzu Torun alleged that she had been raped with a truncheon, the medical reports pertaining to her examination revealed that her hymen was intact.

In the course of the investigation prosecutors questioned the applicants and members of the security forces, and examined the medical reports. On 30 March 2005 the Burdur prosecutor concluded that the soldiers’ actions had become unavoidable as a result of the prisoners’ behaviour, and decided not to prosecute any members of the security forces.

The applicant Veli Saçılık successfully filed a civil suit for his injuries, claiming 100,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 50,000 in respect of non-pecuniary damage. On 31 March 2005 the sum of TRL 244,150 (approximately 140,000 euros (EUR) at the time), which included accrued interest, was paid to Mr Saçılık.

The following information emerges from the documents submitted by the parties.

On 21 June 2000 the president of the Burdur Assize Court sent a letter to the Burdur prosecutor and stated that eleven inmates at the prison had failed to attend a hearing scheduled for that day. The president urged the prosecutor to ensure the inmates’ attendance at the next hearing scheduled for 5 July 2000, “if necessary by forceful means so that judicial functions could be performed and the authority of the State would not be undermined”.

In his letter of 4 July 2000 the governor of Burdur Prison informed the Burdur prosecutor’s office about the Burdur Assize Court president’s letter. In the opinion of the prison governor, force would need to be used to uphold the “State’s authority” but there was an insufficient number of prison guards at the prison to handle such an intervention.

On 4 July 2000 the Burdur public prosecutor asked the Burdur Gendarmerie Headquarters to ensure the attendance of the eleven detainees at the hearing, if necessary by forceful means. The same day the Burdur Gendarmerie Headquarters asked a number of other military headquarters, including the special forces at the Antalya and Konya Commando Headquarters, to assist them in an operation to be carried out in Burdur Prison the following day.

According to incident reports drawn up by soldiers on 5 July 2000, the soldiers went to the prison in the early hours and asked the eleven detainees to leave the prison and go to the hearing. When this request met with the inmates’ refusal, the soldiers entered the prison and saw that the inmates had barricaded themselves in their dormitories using their bunk-beds, tables, lockers and other furniture. When the inmates were all confined in one room, the walls of the room were demolished and the soldiers threw in gas canisters. However, the inmates covered their heads with wet fabrics to protect themselves from the effects of the gas, before proceeding to throw the gas canisters back at the soldiers. The inmates then started throwing cleaning products containing acid and bleach at the soldiers and hitting them with metal rods made from window bars. When the soldiers finally gained control of the prison, sixteen of their number had either been beaten up by the inmates or intoxicated by the tear gas. When the operation ended at around 10.00 p.m. the injured inmates were taken to hospitals.

The applicants were all examined by doctors on a number of occasions. Details of their injuries, as noted in the medical reports, are as follows:

Veli Saçılık: Mr Saçılık was taken to hospital on 5 July 2000 and was discharged again on 27 July 2000. It was not possible to stitch his arm back on and his injury was deemed to be life-threatening by the doctors. His injury prevented him from working for 60 days.

Hüseyin Tiraki: Examined by three doctors. Various injuries to the face, arms and legs. Unable to work for a period of between one and seven days.

Halil Tiryaki: Examined by three doctors. Various injuries, some infected, and bruising on the torso, arms and legs, requiring a ten-day healing period. Unable to work for a period of between five and seven days.

Yunis Aydemir: Examined by two doctors. Various injuries and bruising on the head and on the back of his body, legs and ankles. Unable to work for a period of between five and seven days.

Yusuf Demir: Examined by one doctor. His injury prevented him from working for a period of two days.

İbrahim Bozay: Examined by three doctors. Various injuries and bruising on the shoulders and arms. Unable to work for a period of between three and seven days.

Hakan Baran: Examined by three doctors. Various injuries, some infected, and bruising on the shoulders and the back of the body, arms and legs. Unable to work for a period of between three and seven days.

Kazım Ceylan: After the operation Mr Ceylan was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors who also observed various injuries and bruises on the left ear, head, arms and legs. Unable to work for a period of between two and seven days.

Hüseyin Bulut: Examined by three doctors. Various injuries and bruises on the back of the body, ribs, arms and legs. Unable to work for ten days.

Cemil Aksu: Examined by two doctors. Various injuries and bruises on the head and round the eyes and extensive injuries to the shoulders, the back of the body and the arms, wrists and fingers. Unable to work for a period of between seven and eight days.

Necla Çomak: Ms Çomak was examined by two doctors. Various injuries and bruises on various parts of the body including the head and the eyes. Unable to work for a period of between five and seven days.

Şahin Geçit: Examined by two doctors one of whom was an ear, nose and throat consultant. Various infected injuries on the right hand. Various injuries and bruises on the head, face, eyes, ears, shoulders, arms and legs. Perforated ear drum and hearing loss. Unable to work for a period of between ten and fifteen days.

Hayrullah Kar: Examined by two doctors. Various injuries and bruises on the head and the right shoulder blade. Unable to work for a period of between seven and eight days.

Mehmet Leylek: After the operation Mr Leylek was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors. He was discharged from the hospital the following day. The doctors also observed various injuries and bruises on the ribs, knees, legs and torso, which prevented him from working for a period of between two and seven days.

Birsen Dermanlı: After the operation Ms Dermanlı was taken to a hospital suffering from gas intoxication and her condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on her face and legs. Unable to work for a period of between two and seven days.

Veysel Yağan: Examined by two doctors. Extensive injuries and bruising on the back of the body, arms, hands, legs and feet. Unable to work for a period of seven days.

Fikret Lüle: Examined by three doctors and taken into hospital for a head trauma. Various injuries and bruises around the eyes, nose, face, ears, lips, shoulders, arms and knees and a nose fracture. Unable to work for ten days.

Ali Rıza Dermanlı: Examined by two doctors. Various injuries and bruises on the face, chest and back of the body, arms and legs. Unable to work for a period of between seven and thirteen days.

Cavit Temürtürkan: Examined by three doctors. Extensive injuries and bruising on the head, face, back of the body and legs. Unable to work for a period of between five and seven days.

Azime Arzu Torun: Examined by three doctors. Extensive injuries and bruising on the head, knees, lumbar region, sternum, arms and legs. On 10 July 2000 Ms Torun was also examined by a doctor in relation to her allegations of sexual attacks and it was established that her hymen was intact. Her various injuries rendered her unfit for work for a period of between five and seven days.

Gönül Aslan: Examined by two doctors. Various injuries and bruises on the face, back of the body, lumbar region and legs. Unable to work for a period of between two and seven days.

Barış Gönülşen: After the operation Mr Gönülşen was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on his head, ears, chest, back of his body, arms, legs and feet. His injuries prevented him from working for a period of between two and seven days.

Hüsne Davran: Examined by three doctors, who observed various injuries and bruises on her back, arms, and legs, which prevented her from working for a period of between one and five days.

Mürüvet Küçük: Examined by a doctor who observed various injuries and bruises on her head, eyes, neck, shoulders and legs. Her injuries rendered her unfit to work for a period of between five and twelve days.

Emre Güneş: Examined by three doctors. Various injuries and bruises on the head, face, chest, back of the body, arms and legs. Unable to work for a period of between five and seven days.

On 6 and 7 July 2000 the applicants were questioned by public prosecutors. They told the prosecutors that they had been subjected to various forms of ill-treatment.

Between 8 July and 19 July 2000 the applicants submitted nineteen separate complaint petitions to prosecutors and asked for the security personnel responsible for their injuries to be prosecuted.

On 21 July 2000 lawyers representing the applicants, as well as twenty-nine other detainees, submitted a joint and detailed complaint to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill-treatment and injuries.

In his letter of 24 July 2000 the Burdur Governor Kaya Uyar informed the relevant ministerial authorities that the force used by the soldiers had remained within the permissible limits of the applicable legislation. The soldiers had been particularly cautious in not using their weapons and careful not to infringe the inmates’ human rights; they had never attacked the inmates and had not caused any injury to any of them. The inmates who had been intoxicated by the gas used by the soldiers, as well as Mr Saçılık, who had been “injured while throwing bricks at the driver of the digger”, had “promptly” been taken to hospital. In his letter the governor also stated that “20 of the 61 inmates had been taken to hospitals in ambulances after the operation had ended at around 9.30 p.m. and 10.00 p.m. and the remaining inmates had been held in the prison”.

On 2 August 2000 the soldiers who took part in the operation were questioned by an army officer. Between 4 and 10 August 2000 they were further questioned by prosecutors. They all denied having ill-treated the applicants, and maintained that respect for human rights had been paramount during the operation. A number of prison guards who had been on duty at the prison that day stated that they had not seen or heard anything.

In the meantime, on 7 August 2000 the applicant Azime Arzu Torun submitted a separate complaint to the Burdur prosecutor and gave details of the sexual assault to which she claimed she had been subjected during the operation. According to Ms Torun, the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn. She asked the prosecutor to refer her to a hospital specialising in post-traumatic stress disorders and to carry out an investigation “in compliance with the European Convention on Human Rights”.

On 7 August 2000 the Burdur gendarmerie commander Ali Erduran drew up his preliminary investigation report in which he concluded that the soldiers had not ill-treated any of the inmates. The inmates had made the allegations of ill-treatment in order to damage the reputation of the armed forces.

Acting on officer Erduran’s advice, on 8 August 2000 the Burdur Governor Kaya Uyar declined to grant the necessary authorisation to the prosecutors to investigate a number of gendarme officers. The Burdur Prosecutor Tahsin Uyav lodged an objection against that decision on 18 August 2000.

On 14 August 2000 Prosecutor Uyav asked for permission to prosecute three officers implicated in the allegations.

In his letter of 24 August 2000 Prosecutor Uyav informed the Ministry of Justice that “a number of inmates had been injured in the course of an operation which had been necessary to quell a large-scale riot against the prison administration”. In a similarly worded letter addressed to the Gendarmerie General Command in Ankara on 13 October 2000, Prosecutor Uyav stated that “during forceful resistance by terrorists, security forces had to use force and a number of security personnel and terror convicts were injured”.

On 1 November 2000 Prosecutor Uyav brought prosecutions against the applicants and a number of other inmates for “having caused a riot”.

The same day Prosecutor Uyav requested permission from the Burdur governor to investigate the actions of 404 members of the security forces who had taken part in the operation. The Burdur governor appointed his deputy Mr Azizoğlu to carry out a preliminary investigation

In its decision of 2 November 2000 the Antalya Regional Court upheld the prosecutor’s objection of 18 August 2000, and held that the preliminary investigation should have been conducted by the Ministry of the Interior.

In its decision of 8 January 2001 the Ministry of the Interior appointed gendarmerie colonel Adnan Kandemir to examine the allegations with a view to advising as to whether a prosecution should be brought against the soldiers.

In his report of 19 February 2001 Colonel Kandemir recommended the Ministry of the Interior to refuse the authorisation sought by the Burdur prosecutor to prosecute the 404 members of the security forces. It appears from this report that a total of 389 of the 404 security personnel had been questioned by Colonel Kandemir and they had all denied the allegations against them. Colonel Kandemir concluded that the operation had been a success, the uprising had been halted and the authority of the State had been restored. Other than their abstract allegations, there was no evidence to support the applicants’ “ill-intentioned allegations”.

Acting on Colonel Kandemir’s advice, on 23 February 2001 the Burdur governor declined the authorisation sought by the Burdur prosecutor.

On 27 March 2001 Burdur prosecutor Uyav lodged an objection against the Burdur governor’s decision of 23 February 2001.

In his decision of 11 October 2002 the Burdur governor refused to grant authorisation for the prosecution of a further eleven gendarme officers.

On 23 January 2003 Antalya Regional Administrative Court upheld the Burdur prosecutor’s objection and the file was forwarded to that prosecutor’s office for a judicial investigation to be opened.

In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries.

On 12 January 2005 a colonel at the Gendarmerie General Headquarters in Ankara wrote to the Burdur public prosecutor informing him that exorbitant sums of compensation were being awarded to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to protecting the right to life and quelling riots staged by prisoners acting under orders from illegal organisations. The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault. He asked the prosecutor to provide him with information about the investigation.

In his decision of 30 March 2005 the Burdur public prosecutor decided not to prosecute any members of the security forces. The prosecutor noted that the driver of the digger which had severed Veli Saçılık’s arm had subsequently been tried for, and acquitted of, the offence of causing bodily injury by recklessness. The prosecutor also noted that a number of doctors and nurses working at the hospital where Mr Saçılık had been treated had also been tried for neglecting their duties, but had been acquitted. Criminal proceedings brought against the inmates for causing a riot, on the other hand, were still pending.

The prosecutor considered that the soldiers’ intervention had become unavoidable as a result of the actions of inmates who had refused to surrender but had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars. Veli Saçılık’s arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger.

The prosecutor observed that, according to the medical reports, all applicants had suffered various injuries, preventing them from working for different periods. Although Azime Arzu Torun had alleged that she had been raped with a truncheon, the medical reports showed that her hymen was intact. There was no medical evidence of any sexual assault of the other female detainees and, as such, their allegations of sexual abuse were unfounded.

In the prosecutor’s opinion, the soldiers had had to resort to the use of force in order to quell the prisoners’ riot, and the amount of force used had been “no more than absolutely necessary” within the meaning of Article 2 § 2 of the Convention.

An objection lodged against the prosecutor’s decision was rejected on 30 May 2005 by the Isparta Assize Court, which considered that the prosecutor’s decision was in accordance with the applicable legislation and procedure.

Furthermore, on 12 February 2008 the Burdur Assize Court terminated the criminal proceedings against the applicants for causing a riot, as the statutory time-limit for such proceedings had been reached.

In 2002 Mr Saçılık brought proceedings against the Ministry of Justice and the Ministry of the Interior, claiming TRL 100,000 for pecuniary damage and TRL 50,000 for non-pecuniary damage.

On 31 March 2005 the Antalya Administrative Court concluded that the use of heavy machinery in a prison had been unusual. Even assuming that its use had been necessary, Mr Saçılık had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger. It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger; indeed that would have been most improbable given his state of health at the time. It was also clear that the driver of the digger had seen Mr Saçılık but had carried on regardless. The Ministries were therefore responsible for his injury caused by the use of disproportionate force. It thus awarded Mr Saçılık the sums claimed by him in full, plus statutory interest.

The Ministries appealed. According to the applicable procedure, appeal proceedings do not affect the execution of first-instance court decisions. Thus, the total sum of TRL 244,150 was paid to Mr Saçılık before the appeal was decided.

The appeal lodged by the Ministries was upheld by the Supreme Administrative Court on 15 February 2008 and the decision awarding Mr Saçılık the compensation was quashed. The applicant’s request for a rectification of that decision was rejected by the Supreme Administrative Court on 25 February 2009.

Proceedings were restarted before the Isparta Administrative Court, which decided on 24 June 2010 to reject the applicant’s claim for compensation. According to the Isparta Administrative Court, the applicant had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison. The applicant’s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage.

On 20 August 2010 the judgment was served on the applicant, who lodged an appeal through the Isparta Administrative Court. The latter failed to transfer the applicant’s appeal to the Supreme Administrative Court within the statutory time-limit. Following the applicant’s challenge and, having noted this administrative error, the Supreme Administrative Court granted the appeal on 9 December 2010. In the meantime, in his observations the Chief Prosecutor at the Supreme Administrative Court opined that the applicant’s appeal should be dismissed. The proceedings are still pending.


CASE OF PETRI SALLINEN AND OTHERS v. FINLAND

Violation of Art. 8;Not necessary to examine under Art. 6;Not necessary to examine under Art. 13;Non-pecuniary damage -  financial award (one applicant);Finding of violation sufficient (others);Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant was born in 1968 and lives in Joensuu. He is a member of the Finnish Bar. The other 17 applicants were his clients at the relevant time (“the client applicants”).

On 26 January 1999 the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant's clients X and Y (not client applicants before the Court) had committed aggravated debtor's fraud. In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence.

At the time the first applicant's status in the investigation had been that of a witness. On 22 February 1999 the police requested him to attend for questioning in this capacity. This request was apparently cancelled before he had taken any action thereon.

A police officer in charge of the criminal investigations granted a search warrant and on 2 March 1999 seven officers of the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), assisted by a tax inspector and an enforcement official (ulosottomies, utmätningsman), searched the first applicant's law office, flat and vehicles. This search warrant was likewise based on the suspicion that X and Y had committed aggravated debtor's fraud but the first applicant was now indicated as a suspect, namely that he had aided and abetted the offences by drafting certain documents.

Under the terms of the warrant the search aimed at examining “the documents, computers and archives of the law office” as well as the first applicant's flat and vehicles “so as to investigate the share transactions by the limited liability company [H.] in 1998 and to find material relating to those transactions”.

During the search of his law office all of the first applicant's client files were allegedly perused. The police also examined all floppy disks and examined his note books pertaining to his meetings with clients. In addition, the hard disks in the office computers were copied: two were copied on the spot and two computers, including the one used by the first applicant himself, were seized for later disk-copying on police premises. Those computers were returned on 4 March 1999.

The first applicant's computer also contained software for electronic mail, including his private and professional messages.

A fellow member of the Bar assisted the first applicant during part of the search.

On 4 March 1999 the first applicant requested the District Court (käräjäoikeus, tingsrätten) of Joensuu to revoke the seizure as being unlawful. On 24 March 1999 the court nevertheless maintained it, noting that the first applicant was suspected of aiding and abetting aggravated debtor's dishonesty.

On 11 May 1999 the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland upheld the District Court's decision and on 25 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal.

On 4 May 1999 the police certified the return of three of the four hard disks and that they had destroyed any copies thereof. They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason.

In June 1999 three of the applicants (nos. 2-3 and 8) requested the District Court to revoke the seizure of the copy of the fourth hard disk (which contained material relating to their instructions to the first applicant) and to order the police to compensate their costs. They argued that the seizure had been unlawful from the outset. At any rate, the copy in question was of no relevance to the pre-trial investigation concerning X and Y.

In its rejoinder the National Bureau of Investigation referred to the Court of Appeal's decision of 11 May 1999 in which the seizure had been found lawful. Moreover, the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals. Only the potentially relevant client files in the law office had been perused. The search and seizure had thus not been of wholesale nature. The tax and enforcement officials who had witnessed the search had been – and remained – under a duty to keep secret any information thereby obtained.

On 17 June 1999 the District Court agreed with the three client applicants and ordered that the copy of the fourth hard disk be returned. It rejected, as not being based on law, the applicants' claim for compensation in respect of their costs. The applicants appealed on this point, whereas the police appealed against the revocation order.

In its submissions to the Court of Appeal the National Bureau of Investigation listed the contents of the copied hard disk. For example, specific mention was made of what appears to have been the promissory note which the police had been looking for (and had found). The submissions indicated the debtor's and the creditor's names as well as the amount of the debt. The National Bureau of Investigation furthermore explained that the material on the relevant hard disk had been copied to a so-called optical disk which could in any case not be returned as it also contained internal police data. The submissions by the Bureau were apparently not ordered to be kept confidential.

On 27 January 2000 the Court of Appeal declined to examine the parties' appeals, considering that the matter had been resolved res judicata in the first set of proceedings ending with the Supreme Court's decision of 25 November 1999. The Supreme Court granted leave to appeal to the three client applicants in question.

On 3 March 2000 the public prosecutor charged, among others, X and Y with aggravated debtor's dishonesty but decided to press no charges against the first applicant, having found no evidence of any crime.

On 20 April 2001 the Supreme Court ruled that although a final decision had already been rendered in respect of another appellant, it did not prevent the courts from examining similar appeals filed by other parties. The case was referred back to the Court of Appeal which, on 4 October 2001, revoked the District Court's decision on the basis that the seizure had been lawful.

The three client applicants in question were again granted leave to appeal to the Supreme Court. On 18 October 2002 it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant.

The Supreme Court found it undisputed that the copied hard disk contained information relating to the three client applicants' instructions to the first applicant. It had not been argued that this information was not protected by counsel's secrecy obligation under Chapter 17, section 23 of the Code of Judicial Procedure. Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime.

The Supreme Court accepted that the police had been entitled by Chapter 4, section 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987) to seize the first applicant's hard disk and make a copy thereof. Technical reasons and practical needs (the fact that the police had been obliged at the time of the search to copy the whole hard disk) did not however permit any deviation from the prohibition on seizure of privileged material. The police should therefore have returned the computer files immediately or destroyed them. The appellants were awarded reasonable compensation for their costs and expenses.

On 11 November 2002 the Chief Enforcement Officer of Vantaa confirmed that the copy of the hard disk had been destroyed on that day.

On 22 August 2003 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet) issued his decision in response to a petition by the Finnish Bar Association concerning, inter alia, the alleged unlawfulness of the coercive measures against the first applicant. He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert. He nevertheless concluded, inter alia, that from the point of view of foreseeability of domestic law, as required by Article 8 of the Convention, the relationship between the Coercive Measures Act (Chapter 4, section 2, subsection 2), the Code of Judicial Procedure (Chapter 17, section 23, subsection 1 (4)) and the Advocates Act (section 5 c) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure. The Deputy Chancellor therefore requested the Ministry of Justice to consider whether there was a need to amend the relevant legislation.

Under the Coercive Measures Act (450/1987) the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months' imprisonment (Chapter 5, section 1). The search warrant is issued by the police themselves.

A search may also be conducted on the premises of a person other than the one who is under reasonable (todennäköinen, sannolik) suspicion of having committed an offence of the aforementioned nature, provided the offence was committed on those premises or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those premises will produce an object to be seized or other information pertaining to the offence (Chapter 5, section 2). In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings, that it may have been removed from someone by a criminal offence or that the court may order its forfeiture (Chapter 4, section 1).

A sealed letter or other private document which has been seized may only be opened by the head of investigation, by the prosecutor or by the court. In addition, only the investigators of the offence in question may examine such a document more closely. However, an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material, as directed by the head of investigation, by the prosecutor or by the court (Chapter 4, section 8).

Whenever possible, the officer in charge shall call a witness to attend the search. If deemed necessary, the officer may also seek the assistance of an expert or other person (Chapter 5, section 4, subsection 1).

The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information. The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search (Chapter 5, section 4, subsection 3).

According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be placed on record.

As regards other evidence, it is the respondent Government's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by section 17 of the Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen 750/94).

Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in an investigation no one's rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily.

Chapter 7, section 1 a, of the Coercive Measures Act provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures, as well as in light of any other pertinent circumstances.

According to Chapter 4, section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants.

Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document.

Under Chapter 17, section 23, subsection 1 of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years' imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused.

Under section 5 c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, section 1 or 2, of the Penal Code (rikoslaki, strafflagen), unless the law provides for a more severe punishment on another count.

In their book “Pre-trial investigation and coercive measures” (Esitutkinta ja pakkokeinot, Helsinki, 2002) Klaus Helminen, Kari Lehtola and Pertti Virolainen state (at page 742) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition.

The Ministry of Justice appointed a Working Group on Internet Aided Crimes (tietoverkkorikostyöryhmä, arbetsgruppen för IT brottslighet) which also considered the question of searches and seizures of computer files and computers by the police. On June 2003 the Working Group issued a report, which was sent out for comments to various interest groups and experts. On the basis of the working group's report and the comments given, the Ministry of Justice is expected to prepare a government bill.

Chapter 4, section 13, of the Coercive Measures Act provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal.

According to section 118, subsection 3 of the Constitution (perustuslaki, grundlagen 731/1999) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. This section is equivalent to section 93 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time.

Until 31 December 1998, Chapter 24, section 2 of the Penal Code provided that if a search of premises was carried out by someone lacking the authority to do so, or if someone having such authority carried it out in an unlawful manner, he or she was to be sentenced to a fine or to imprisonment for a maximum of one year. According to Government Bill no. 6/1997, the provision was proposed to be repealed as “in cases where the above-mentioned act is committed by a public official in the performance of his or her official duties, Chapter 40, section 10 is applicable”.

Chapter 40, section 10, subsection 1 of the Penal Code provides that if a public official, when acting in his office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.

Chapter 40, section 11 of the Penal Code provides that if a public official, when acting in his office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for a negligent violation of official duties to a warning or to a fine.

According to Chapter 1, section 14 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

Under the 1974 Damage Compensation Act (vahingonkorvauslaki, skadeståndslagen 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters 3 and 4).

Recommendation (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:

“Principle I - General principles on the freedom of exercise of the profession of lawyer

... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”

The Finnish Bar Association (Finlands Advokatförbund, Finlands Advokatförbund) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of the Court. Further, under Finnish legislation, there are no provisions affording a legal remedy against a search warrant issued by the police. A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there. The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies.

The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate's confidentiality obligation. Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search. The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search. The hard disks of the law office's computers, floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search, in addition to which data on the office secretary's computer was copied. Subsequent to the seizure, the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure.

In terms of the confidentiality obligation, the possibility of submitting the issue of a seizure to the court for review as provided for in the Coercive Measures Act had in this case remained a dead letter. All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings, as the authorities examined the seized material without waiting for a court to rule on the issue.

The Association further maintained that the police could have availed themselves of the procedure provided for in the Advocates Act, wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre-trial investigation being conducted by the police and which was not. This procedure would have allowed for the upholding of the advocate's confidentiality obligation as well as the client's right to confidentiality.


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant, Mr Pavel Vasilyevich Zaytsev, is a Russian national who was born in 1970 and lives in Moscow. He was represented before the Court by Mr A. Gofshteyn, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.

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

Since 1999 the applicant has been working as a special investigator for important cases at the Investigation Board of the Ministry of the Interior.

On 7 September 2000 the Chief Department of the Interior of the Moscow Region started an investigation into a case concerning customs and financial fraud involving a group of companies which were allegedly affiliated with various high-ranking State officials.

On 9 October 2000 the fraud case was assigned to the applicant, and from 22 October 2000 he was in charge of the investigation team working on this case. The investigation involved surveillance and telephone interception; the applicant claims that he also received instructions from his superior to conduct searches, if necessary without prior authorisation, under the extraordinary powers provided for in urgent cases.

On 10 and 15 November 2000 the applicant, acting under his own authority, ordered a series of urgent searches. The searches were carried out on 12, 16 and 19 November 2000. Two suspects were arrested but both were released three days later.

On 22 November 2000 the office of the Prosecutor General notified the Investigation Board of the Ministry of the Interior that “some unlawful searches and arrests had taken place in connection with the [fraud] case” and withdrew the case file from the Ministry of the Interior.

The Investigation Board of the Ministry of the Interior carried out an internal enquiry and concluded that there had been no abuse of authority on the part of the applicant.

The applicant alleged that certain documents disappeared from the case file as soon as the Prosecutor General’s Office took over the case.

On 20 December 2000 the Prosecutor General instituted criminal proceedings against the applicant on charges of abuse of official powers and ordering unlawful arrest (Article 286 § 1 and Article 301 § 1 of the Criminal Code), on account of the above searches and arrests. Between 8 February 2001 and 18 February 2001 the applicant was under an obligation not to leave the city. The recognisance not to leave the city was renewed on 6 June 2001 and remained in force until the date of his conviction, 3 November 2003.

On 17 February 2001 the Minister of the Interior sent a letter to the Prosecutor General in which he contested the charges against the applicant. He alleged that the searches were necessary and that the applicant’s decision to proceed without prior authorisation was made in accordance with the law and was justified by the special circumstances. He also contended that a persecution of the investigators had been orchestrated by the suspects in the fraud case, through certain contacts within the Prosecutor General’s Office, and that the same persons had attempted to have the fraud case file closed. The Minister of the Interior requested the Prosecutor General to end the proceedings against the applicant.

On 7 May 2001 the Prosecutor General discontinued criminal proceedings in the fraud case.

On 6 June 2001 the applicant was indicted on charges of exceeding official powers and ordering unlawful arrest.

On 8 June 2001 a newly appointed Minister of the Interior wrote to the Prosecutor General restating, in substance, his predecessor’s letter of 17 February 2001.

On 28 June 2001 the Deputy Prosecutor General replied to the Minister of the Interior that the criminal proceedings against the applicant had been instituted lawfully and reasonably.

On 29 October 2001 the criminal case against the applicant was submitted to the Moscow City Court. At first the Moscow City Court President assigned the case to judge N.G., but owing to the latter’s heavy workload it was transferred to judge M.K.

On 14 February 2002 the President of the Security Committee of the State Duma made an official inquiry about the state of proceedings against the applicant, in reply to which the Prosecutor General allegedly stated “I will lock him up”.

On 13 March 2002 the State Duma issued a Resolution entitled “Parliamentary Question to the Prosecutor General, V.V. Ustinov, about the Circumstances surrounding the Investigation into the case concerning the Smuggling of Furniture into the Russian Federation”. The Resolution read as follows:

“On 7 September 2000 the Chief Department of the Interior of the Moscow Region opened criminal proceedings concerning the fraudulent import of furniture into the Russian Federation through a shell [company], following a finding by the State Customs Committee that there had been a breach of customs rules. ... the Investigation Board of the Ministry of the Interior started its investigation. The Ministry of the Interior and the State Customs Committee set up a joint investigation group which made important progress in investigating the facts of furniture smuggling ...

Subsequently the case file was reclaimed by the Prosecutor General’s Office and the case was transferred to the special investigator for important cases at the Prosecutor General’s office, who decided to terminate the proceedings for a lack of corpus delicti. The Prosecutor General’s Office also instituted criminal proceedings against P. V. Zaytsev, the investigator of the Investigation Board of the Ministry of Interior who investigated the [case of fraud], and charged him with having ordered searches and arrests in breach of the procedure prescribed by law, ...

To ensure a fair and objective assessment of this situation, and further to a proposal by the Prosecutor General, a joint expert group was set up, in which the Prosecutor General’s Office, the State Customs Committee of the Russian Federation and the Investigation Board of the Ministry of the Interior took part.

On 14 February 2002 the Security Committee of the State Duma heard the report of the joint expert group. The President of the State Customs Committee, the acting Chief of the Investigation Board of the Ministry of the Interior and the experts representing these agencies, who were all present at the meeting, expressed their disagreement with the termination of the [fraud investigation], having noted that the special investigator for important cases at the Prosecutor General’s Office had failed to examine a number of substantive issues ...

Having regard to the above, the [State Duma] requests that [the Prosecutor General] resumes criminal proceedings in the case concerning the smuggling of furniture into the Russian Federation ...”

The Prosecutor General did not resume the criminal proceedings requested by the State Duma. These proceedings were resumed only in 2006.

In the meantime the criminal case against the applicant had continued. On 5 September 2002 the Moscow City Court, composed of judge M.K. and two lay assessors, examined the case and acquitted the applicant of all charges.

On 25 February 2003 the Supreme Court of the Russian Federation granted an appeal by the public prosecutor and reversed the acquittal, on the grounds that the court’s conclusion had been self-contradictory. It remitted the case for fresh examination by the first-instance court in a different composition.

On 23 April 2003 that court, composed of Ms Kudeshkina as judge, and two lay assessors, Ms G. and Ms V.K., began to examine the case. Ms G. and Ms V.K. were subsequently replaced for unknown reasons. On 24 April 2003 the hearing was adjourned on the grounds of the applicant’s illness. On 24 June 2003 the court, composed of judge Kudeshkina and two newly appointed lay assessors, Ms I. and Ms D., resumed the hearing.

During the hearing on 26 June 2003 judge Kudeshkina invited the public prosecutor to present evidence for the prosecution. The prosecutor replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted. On the following day, Friday 27 June 2003, he challenged Ms Kudeshkina on the grounds of bias which she had allegedly shown when questioning one of the victims. Other parties to the proceedings, including the victim in question, objected to the challenge. On the same day the lay assessors dismissed the challenge, following which the public prosecutor challenged both lay assessors. The parties to the proceedings objected to the challenge and it was dismissed. On the same day the public prosecutor filed another challenge to the lay assessors on the grounds of bias, which was also dismissed by Ms Kudeshkina on the same day.

On Monday 30 June 2003 both lay assessors filed a motion to withdraw from the proceedings.

On 1 July 2003 the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records. The court refused this motion, on the grounds that the minutes could be accessed after their completion.

On 3 July 2003 Ms Kudeshkina allowed the withdrawal of both lay assessors, stating as follows:

“At the hearing the lay assessors I and D declared their withdrawal from the proceedings, on the grounds that they were unable to participate in the examination of the case because of the [public prosecutor’s] biased and discourteous behaviour towards them and due to the perverse environment at the hearing, for which he is responsible and which made them ill.”

The Moscow City Court President, Ms Yegorova, then during the proceedings called Ms Kudeshkina to her office and asked her about the details of the proceedings, putting certain questions regarding the conduct of the trial and the decisions on the above motions.

The parties disagree on the circumstances of Ms Kudeshkina’s withdrawal from the case. According to the applicant, Ms Yegorova removed Ms Kudeshkina from sitting in the case on 4 July 2003, the day after the lay assessors’ withdrawal. According to the Government, the case remained with Ms Kudeshkina until 23 July 2003, when it was withdrawn from her on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for annual leave from 11 August to 11 September 2003, which she filed on 22 July 2003.

On 23 July 2003 the Moscow City Court President assigned the case to judge M.

On 25 August 2003 the Moscow City Court, composed of judge M. and lay assessors Mr B. and Mr S., began to examine the case. On 3 November 2003 the court found the applicant guilty of having exceeded his official powers. The other charge had been dropped by the prosecutor. The applicant was sentenced to two years’ imprisonment, suspended, with one-year probation. The court also decided that an injunction against holding office in the bodies of the Ministry of the Interior was not necessary.

The applicant appealed against the judgment to the Supreme Court of the Russian Federation, pleading not guilty and claiming that his conviction was based on the wrong assessment of evidence and misinterpretation of the Criminal Code.

While the applicant’s appeal was pending, on 2 December 2003 Ms Kudeshkina lodged a complaint with the High Judiciary Qualification Panel, in which she referred to certain alleged procedural irregularities in the criminal case against the applicant. Her complaint read as follows:

“I request that the President of the Moscow City Court, Olga Aleksandrovna Yegorova, be charged with a disciplinary offence for exerting unlawful pressure on me in June 2003, when I was presiding in the criminal proceedings against P.V. Zaytsev. She demanded that I give an account on the merits of this case while its examination was underway, and that I inform her about the decisions the court was about to take; she even called me out of the deliberations room for that purpose. [She] insisted on removing certain documents from the case file, forced me to forge the minutes of the hearing, and also recommended that I ask the lay assessors not to turn up for the hearing. Following my refusal to bow to this unlawful pressure [she] removed me from the proceedings and transferred the case to another judge.

As to the particular circumstances, they were as follows.

I was appointed to examine the case against Zaytsev and the court, acting in a bench with two lay assessors, I. and D., started its examination.

Having started the trial, the court questioned a number of victims. The public prosecutor who was representing the Prosecutor General’s Office clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing. For no reason he challenged me as a judge, the lay assessors and the whole composition of the court. His motions were made in a manner that was humiliating, offensive and insulting to the court, and were clearly untrue. Soon after his challenge was rejected by the court, the Moscow City Court President Yegorova called me to her office.

In violation of Article 120 of the Constitution and section 10 of the Law “On the Status of a Judge in the Russian Federation”, the Moscow City Court President demanded an explanation from me as to why the lay assessors and I were putting one or other question to the victims in the trial and why one or another motion by the parties was refused or accepted. In my presence the Moscow City Court President had a telephone conversation with the [First Deputy Prosecutor General], who had issued the indictment against Zaytsev. Yegorova informed [the First Deputy Prosecutor General] that the judge was being called to account with regard to what was going on in the proceedings.

Back in my office I told the lay assessors what had happened. By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor, and they therefore considered it impossible to continue to take part in the proceedings. One of the assessors, Ms I., was seeking medical assistance due to a health problem. For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of the Prosecutor General’s Office.

At the court’s following meeting the lay assessors announced their withdrawal on the above grounds. Their written requests were given to me to be enclosed in the file, and the court adjourned for deliberations.

I was again called from the deliberations room by the Moscow City Court President, Yegorova. This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take. Her main point was that there should have been no mention in the assessors’ written requests that the reason for their withdrawal was pressure being exerted on the court. The Moscow City Court President also insisted on excluding from the hearing minutes any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure. In essence, Yegorova was pushing me to forge the case file. Moreover, she proposed that I ensure that the assessors did not turn up for the hearing, literally ‘ask them not to come to the court any more’. The aim was obvious – if the assessors [did] not appear the proceedings themselves [would] fall apart. It seemed that for some reason [she] did not want the case to continue to be examined in this composition. The unlawfulness of the Moscow City Court President’s actions was obvious.

I followed none of her instructions. The lay assessors’ requests were included in the file, the court allowed their withdrawal and stated that the reason for it was the pressure being applied by the Prosecutor General’s Office. The hearing minutes reflected everything that happened in the proceedings.

Once I signed [the minutes] Yegorova withdrew the case from me and transferred it to another judge without stating reasons.

I consider that such acts on the part of the Moscow City Court President, Olga Alexandrovna Yegorova, are incompatible with the status of a judge and undermine judicial authority, and are thus destructive for justice, for which she must be held liable. This is what I hereby request from the High Judiciary Qualification Panel of the Russian Federation.”

The applicant was not notified of this complaint. In December 2003 Ms Kudeshkina, furthermore, gave one radio interview and two newspaper interviews reiterating the above allegations and criticism.

Following this, on 15 December 2003 Ms D., one of the lay assessors who had, on 3 July 2003, withdrawn from the criminal case against the applicant sent a letter to the High Judiciary Qualification Panel which read as follows:

“Further to the publication of an interview with judge Kudeshkina ... I decided to write you because I participated in Zaytsev’s case as a lay assessor.

I entirely support everything judge Kudeshkina said in her interview.

During the trial the [public prosecutor] did everything to prevent the court from hearing the case. He was rude and aggressive to the court; in his interventions and requests he deliberately misrepresented what was going on in the proceedings, and he repeatedly filed objections to the court’s composition. These motions were made in a humiliating, even obnoxious manner. By doing so he was exerting pressure on the court, to force it to give a judgment that was convenient to him, or, alternatively, to set the court hearing at naught.

I was appalled by that, but what was my surprise when I learned about the pressure also being exerted on judge Kudeshkina by the court President!

We, the assessors, were there when, during the interval, judge Kudeshkina received a phone call from the court President to come and see her. After some time judge Kudeshkina returned, she was upset and depressed. To our question she replied that [the court President] had accused her that the court was reluctant to examine the case; that the lay assessors were asking the victims the wrong questions; and that she had suggested that judge Kudeshkina arrange for the lay assessors not to appear at the court proceedings.

... On the following morning ... both Ms I. and I decided to withdraw from the proceedings.

At the start of the hearing on that day the public prosecutor, before he was called by the court, began with a motion in which he, in essence, again degraded and insulted me by repeating [a] comment made by [the victim] outside the courtroom about me ... he did not react to the reproof by the judge.

After that ... I declared that I was withdrawing from sitting in the proceedings on the grounds of the public prosecutor’s rude and offensive behaviour, which could not be defined as anything but pressure on the court. After that Ms I. also withdrew.

Before the trial I had never met anybody [involved in the proceedings]: not the judge, not [the applicant], not the public prosecutor, not the defence counsel; I had no personal interest in the case. The public prosecutor’s behaviour was therefore inexplicable and came as a shock to me.

At about 6 p.m. judge Kudeshkina was called out from the deliberations room, where the court was taking a decision. It was the court President who called her. ...

On the following day ... judge Kudeshkina told us that the court President had shouted at her, demanding that she refrain from enclosing [the assessors’] withdrawal requests in the file and not refer in the court’s decision to the reason for the withdrawal.

Ms I. and I were shocked by what was going on. First it was the public prosecutor who put pressure on us at the hearing, and then it turned out that the [court President] joined in.

What a surprise it was when the [court’s Deputy President] came into the deliberations room and started trying to persuade me and Ms I. not to comment on the public prosecutor’s behaviour in the court decision, but to state in our requests and in the court decision that we withdrew on medical grounds. She said that they would invite me and Ms I. to take part in other proceedings.

Ms I. and I refused to change our requests, and after the Deputy President had left the court issued the decision [to allow withdrawal] which reflected what had happened.

I have been a lay assessor before, I have taken part in several other proceedings, but this was the first time that I came across such pressure being exerted on the court.

I request you to look into the above events and to take action against the [court’s President and her Deputy].”

On 16 December 2003 the other lay assessor who had withdrawn, Ms I., sent a similar letter to the High Judiciary Qualification Panel.

Following Ms Kudeshkina’s complaint of 2 December 2003, the High Judiciary Qualification Panel appointed Mr S., a judge of the Moscow City Commercial Court, to examine the allegations against Ms Yegorova, the Moscow City Court President. The Government submitted a copy of an internal report prepared by Mr S. and submitted to the High Judiciary Qualification Panel, which contained the following conclusions:

– during the hearing of the criminal case against the applicant judge Kudeshkina herself consulted Ms Yegorova, seeking advice on the conduct of the proceedings in view of the public prosecutor’s behaviour;

– further communications between judge Kudeshkina and Ms Yegorova and, on another occasion, the deputy court president, took place in private and their content could not be established;

– there was insufficient evidence that Ms Yegorova exerted pressure on judge Kudeshkina, since both Ms Yegorova and the deputy court president denied the allegations;

– Ms Yegorova transferred the criminal case file against the applicant to another judge on the grounds that Ms Kudeshkina “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on that case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”.

On 11 May 2004 the High Judiciary Qualification Panel reported to the President of the Supreme Court their findings concerning the complaint against Ms Yegorova. The President decided, without elaborating on the reasons, that there were no grounds for charging Ms Yegorova with a disciplinary offence.

On 17 May 2004 the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against Ms Yegorova. No copy of this decision was provided to the Court. The applicant was not informed about the enquiry conducted by the High Judiciary Qualification Panel, or about its findings. On the same day Ms Kudeshkina was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary.

On the same day the High Judiciary Qualification Panel wrote a letter to both lay assessors stating that no grounds had been found to bring disciplinary proceedings against the President of the Moscow City Court.

On 19 May 2004, following disciplinary proceedings against Ms Kudeshkina, the High Judiciary Qualification Panel decided that her office as a judge should be terminated on account of her statements in the interviews given in December 2003.

On 10 August 2004 the Supreme Court of the Russian Federation examined the applicant’s appeal against his conviction. The court, composed of three judges, upheld the judgment of 3 November 2003 by a majority, having found that the applicant’s conviction was lawful and wellfounded. Judge G. expressed a dissenting opinion stating that the applicant’s actions had no constituent elements of a crime as provided for by Article 286 § 1 of the Criminal Code.

On 30 November 2004 the Office of the Prosecutor General sent an official enquiry to the Deputy Minister of the Interior about the applicant’s continued employment in the Ministry of the Interior, in spite of his conviction for abuse of powers. The Ministry of the Interior reviewed the applicant’s file and considered that it was not necessary to dismiss the applicant, in view of the court’s decision to dispense with an injunction against holding office in the bodies of the Ministry of the Interior.

On 24 February 2005 the First Deputy Prosecutor General sent an official letter of warning to the Minister of the Interior. The letter referred to the generally unsatisfactory performance by the Ministry of the Interior in investigating criminal cases and pointed out certain instances of breach of procedure. Among the latter the prosecutor’s office indicated the “appalling example” of the applicant’s continued employment in the Ministry of the Interior after his conviction for abuse of power.

On 31 March 2005 the acting First Deputy Minister of the Interior replied to the prosecutor’s warning. In so far as it concerned the applicant, he relied on the decision by the first-instance court, upheld by the Supreme Court, to dispense with an injunction against the applicant holding office in the Ministry of the Interior’s entities and informed the prosecutor’s office that the applicant had not been dismissed.

Article 168 § 3 of the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic, in force at the material time, provided that in urgent cases an investigating officer could exceptionally order and carry out a search without prior authorisation by the prosecutor. The prosecutor was to be notified within 24 hours of a search carried out under this provision.

The Criminal Code of the Russian Federation provides:

“Acts by an official which clearly go beyond his or her authority, if they incur a substantial breach of individual rights and the legitimate interests of a person or organisation, or of state or public interests protected by law

– are punishable by a fine of up to eighty thousand roubles or of up to six times the monthly salary or other income of the convicted, or by a prohibition to hold certain official posts or to perform certain official functions for up to five years, or by arrest for four to six months, or by imprisonment of up to four years.”

The Code of Criminal Procedure of the Russian Federation provides:

“1. The case must be examined by one and the same judge or by a court bench in one and the same composition.

If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”

Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:

“1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions:

(1) organises the court’s work;

(3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...”

The instruction on courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management.

As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.

... the city courts of [Moscow and St Petersburg], ... have jurisdiction in criminal proceedings concerning:

(1) criminal offences provided for by Articles ..., 294-302, ... of the Criminal Code of the Russian Federation;

(2) criminal cases remitted to these courts in accordance with Articles 34 and 35 of this Code;

The Supreme Court of the Russian Federation has jurisdiction in the criminal cases indicated in Article 452 of this Code and other criminal cases that fall under its jurisdiction in accordance with the Constitutional Laws and the Federal Laws.”

“A criminal case against a member of the Federal Council, a deputy of the State Duma or a judge of a federal court is to be examined by the Supreme Court of the Russian Federation at their request, to be submitted before the beginning of the court examination in their case.”

“A criminal case must be examined by a court in the place where the crime has been committed, except for the cases provided for by Article 35 of this Code.”

“1. When the judge who decides on the scheduling of a hearing establishes that the case ... falls outside the jurisdiction of that court, he or she shall issue an order to remit the case according to jurisdiction.

“1. Territorial jurisdiction in a criminal case may be changed:

(1) at a party’s request – if it has successfully challenged, in accordance with Article 65 of this Code, the entire court composition of the relevant court.

Territorial jurisdiction of a criminal case may only be changed before the beginning of the court examination.”

“3. A challenge brought against several judges or the whole court composition must be decided upon by the same court in its entire composition, by a majority vote.

If the challenge to a judge, several judges or the whole court composition is granted the criminal case, the request or the complaint must be transferred to another judge or court composition in accordance with the procedure provided for by this Code.”

The grounds for quashing of a judicial decision [by the cassation instance] are, in any event, as follows:

(2) judgment held by an unlawful court composition ...”

“The court examining the case as a cassation instance may quash the [first instance] conviction and terminate the proceedings if there exist grounds provided for by this Code.”

“1. Criminal case is remitted for a fresh examination:

(2) to the same court that held the [first instance] judgment but in a different composition ...”