Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The applicants are:

(1) Mrs Satsita Utsayeva, born in 1954;

(2) Mr Aslambek Utsayev, born in 1948;

(3) Mrs Khava Muslimova, born in 1986;

(4) Mrs Belita Dadayeva, born in 1952;

(5) Mrs Yakhita Taysumova, born in 1985;

(6) Mrs Zulay Abdulazimova, born in 1943;

(7) Mrs Birlant Tovmerzayeva, born in 1943;

(8) Mrs Larisa Tovmerzayeva, born in 1968.

They are Russian nationals and residents of the village of Novye Atagi, Shali district, Chechnya.

The facts of the case are linked to the application Imakayeva v. Russia (no. 7615/02, ECHR 2006... (extracts)), in that the four relatives of the applicants in the present case were detained together with the husband of Marzet Imakayeva, Said-Magomed Imakayev, on 2 June 2002 in the village of Novye Atagi (see below). The facts of the present case, as submitted by the parties, may be summarised as follows.

The applicants submitted that the village of Novye Atagi had been under the firm control of the Russian military since early 2000. Military checkpoints had been established at all roads leading into and out of the village.

The applicants submitted that early in the morning of 2 June 2002 a convoy including at least six armoured personnel carriers (APCs) and at least one other military vehicle - a UAZ all-terrain car - conducted a “sweeping” operation in the village of Novye Atagi. The local residents noted the hull numbers of three APCs: 569, 889 and 1252, and partially of the UAZ vehicle as “344”. The hull numbers of the other vehicles were obscured. The servicemen went to six houses during the operation and detained five men. The applicants submitted numerous affidavits about the events of 2 June 2002, produced by the family members of the detained and the neighbours. They also submitted a hand-drawn map of the village, indicating the location of the roadblocks and of the houses of the five persons detained on 2 June 2002.

The first and second applicants are husband and wife. They were residents of Grozny, but have lived for several years at 22 Nizhnya Street, Novye Atagi, as internally displaced persons. Their son Islam Utsayev, born in 1976, had lived with them in Novye Atagi since 1999. He had previously been a student at the Grozny University philological faculty, but in October 1999 he was seriously injured during a rocket attack on the Grozny central market. Following that injury he underwent several operations and left the university. He worked as a car mechanic and supported his parents, who were unemployed. The couple's second son had died during the hostilities of 1994–1996, and a third son had been detained by security services and ill-treated in 2001, following which he suffered from poor health. The third applicant is Islam Utsayev's wife.

On the morning on 2 June 2002 the first two applicants, Islam Utsayev and his wife (the third applicant), their other son Bislan U. and his wife Liza Kh., were at their home at 22 Nizhnya Street. At that time the third applicant and Liza Kh. were both pregnant. It was still dark outside and the family was sleeping when, at about 5.30 a.m., an APC knocked down the fence and drove into the courtyard. A group of about twenty heavily armed servicemen in uniform entered the house and woke up the family. Four of the servicemen were masked, the rest were not. The applicants described them as “contract soldiers”, aged between 30 and 40. They had Slavic features and spoke unaccented Russian. More servicemen remained outside on the hull of the APC, while others took positions around the house.

Without producing any warrant or explanation, the soldiers forced the Utsayev family members into the courtyard and onto the ground. They surrounded Islam Utsayev and beat him. The second and third applicants were also beaten when they asked for explanations, and the third applicant, Islam Utsayev's pregnant wife, submitted that she had a miscarriage later that day. Islam Utsayev, who was taken from his bed barefoot and wearing only a light T-shirt, was hooded, his hands were tied behind his back and he was forced into an APC. The first applicant tried to climb onto the APC to give her son footwear, but was pushed away and hit by several soldiers. The soldiers fired into the air from automatic rifles in order to scare away those neighbours who tried to intervene.

In support of their allegations the first and the second applicants submitted detailed statements to the SRJI, produced in 2003 and in March 2007. The third applicant also produced a statement in 2003. In particular, they explained that the third applicant had been in the first month of pregnancy and that after the miscarriage they had not applied to any medical institution, nor had they complained anywhere about this incident.

In their observations the Government submitted that no information about the alleged beatings of the second and third applicants or a miscarriage by the third applicant had been recorded in the medical institutions of the Shali district. They also stated that the third applicant's current place of residence was unknown and that her relatives had refused to give any evidence on the subject.

The fourth and fifth applicants are the mother and sister of Movsar Taysumov, born in 1980. They lived at 1 Lenin Street in Novye Atagi. Movsar Taysumov worked as a guard at the local school and was not married. His brother Masud was killed by unknown persons in January 2002, along with two other men who had gone to gather firewood near the river Argun. In May 2002 his father, the fourth applicant's husband, died of a heart attack.

At about 6 a.m. on the morning on 2 June 2002 the fourth applicant and her son Movsar Taysumov were at their home when an APC pulled up outside the house. The fourth applicant was at her morning prayers, and her son Movsar was still asleep. The fifth applicant, Movsar's sister, was in hospital for a check-up. Four men in green uniform entered the house. They were not wearing masks and the fourth applicant reported that they had Slavic features and spoke unaccented Russian.

The military did not introduce themselves or give reasons for the visit. They woke up Movsar Taysumov and ordered him to dress quickly. They said they needed to question him, collected his passport and took him outside. The fourth applicant followed them and pleaded with them to question her son at home. An officer told her that if he was innocent he would soon return. The soldiers put Movsar Taysumov into an APC. The fourth applicant tried to climb onto the hull, but the soldiers swore at her and hit her with rifle butts until she fell. Several neighbours tried to come closer and intervene, but soldiers who had taken positions around the house shot in the air as a warning.

Once Movsar Taysumov was inside, the APC drove further along Lenina Street. The fourth applicant and her neighbours clearly noted its hull number as 569. The fourth applicant followed it along the street and witnessed from a distance how it stopped at the Tovmerzayevs' house and how another person (Masud Tovmerzayev) was put into it. The fourth applicant also noticed several other APCs along the street, though she did not notice their numbers.

The sixth applicant is the mother of Idris Abdulazimov, who was born in 1984. In 1997 he finished the seventh grade at school and thereafter helped his mother around the house. They lived at 19 Lenina Street with the sixth applicant's three other children.

On 2 June 2002 the sixth applicant, her daughter Louiza and three sons, Akhmad, Vakhid and Idris, were sleeping at their home. At about 6 a.m. an APC stopped at their house and a group of about 30 military servicemen surrounded the house, about half of them wearing masks. The applicant described them as heavily armed, wearing new camouflage uniforms and speaking unaccented Russian. Approximately ten servicemen entered the house, shouting and swearing. They pulled the sixth applicant's three sons onto the floor and asked their names. They then told Idris to dress. The applicant's oldest son asked them to take him instead of his 18-old brother, but one of the soldiers said “We don't need you”. They took Idris Abdulazimov and placed him in an APC with an obscured number. The applicant tried to get onto the APC, but her eldest son pulled her off.

The sixth applicant asked a soldier with Asian features on the hull of the APC where they were going, and he responded that they were going to the military commander's office. The APC drove along and stopped by a house further down the street to detain another person who was not at home. The sixth applicant followed the vehicle to the cemetery at the end of the village and then returned home.

The seventh and eighth applicants are the mother and sister of Masud Tovmerzayev, born in 1974. He was unmarried and had worked at a shoe factory and at the market. They lived at 62 Lenina Street, together with the seventh applicant's other children and grandchildren.

On 2 June 2002 the seventh and eighth applicants and Masud Tovmerzayev were at home. At about 6 a.m. the applicants were awake, because the seventh applicant was planning to go to town and had to catch a bus; the eighth applicant had to take care of the family's cattle. Masud Tovmerzayev was still in bed.

The seventh applicant opened the gate and at that point an APC stopped outside their house. The woman was surprised and asked them if they were going to conduct a “sweeping” operation, but they did not answer. One of the soldiers on the APC asked “Which gate?” and another pointed to the applicant's. Immediately 20-25 armed servicemen entered the courtyard. The applicants and neighbours described them as well armed and wearing green camouflage uniforms; some of them were masked. The seventh applicant noted several men with Asian features among the servicemen.

The eighth applicant asked the seventh applicant to go into the house and watch to ensure that the soldiers did not “plant” anything there. The soldiers asked the eighth applicant where her brother was and went to his room. One of them had a piece of paper and asked her “Is that Masud?” When she answered in the affirmative they put him on the floor and handcuffed him. One of the servicemen asked about weapons, while others were searching the house and the car. They then placed Masud Tovmerzayev in APC no. 569, without permitting him to dress or to put on footwear, and drove away. The neighbours were not allowed to approach because the soldiers shot into the air. Masud Tovmerzayev's aunt, who came to the house because of the noise and tried to intervene, was pulled by the hair and hit by a soldier.

Finally, at around 6.20 a.m. on 2 June 2002 servicemen on APCs 889 and 1252 and UAZ 344 drove to Ordzhonikidze Street, two blocks away from the Tovmerzayevs' house. At 11 Ordzhonikidze Street they detained Said-Magomed Imakayev, husband of Marzet Imakayeva. After the stop at the Imakayevs' house the APCs and other military vehicles left Novye Atagi. Some of the military vehicles apparently drove towards Grozny, while others went in the direction of the 70th regiment stationed near Shali. The families of the five men detained on 2 June 2002 in Novye Atagi have had no news of them since.

In their observations the Government did not dispute most of the facts as presented by the applicants. They accepted as established that “on 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, arrived in Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were subsequently taken by the unidentified persons in an unknown direction.”

Immediately after the detention of their family members the applicants started to search for them. The search was primarily carried out by the mothers of the detained men, together with Marzet Imakayeva, the applicant in application no. 7615/02. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities in Chechnya, to the media and to public figures. The applicants also personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the Northern Caucasus.

On 2 June 2002, immediately after the arrests, the four mothers, together with Marzet Imakayeva and Abdula D., the head of the Novye Atagi administration, drove in the Abdulazimovs' family minibus to Shali, the district centre, to inquire about the whereabouts of their relatives. At the military commander's office in Shali the applicants unsuccessfully sought to meet with the commander, General N. They were told by the staff at the military commander's office that they had not received any detainees that morning. They received a similar answer at the police station.

The next day, on 3 June 2002, the applicants again travelled to Shali. Abdula D., the head of the village administration, was permitted to meet with General N., who allegedly confirmed to him that the men had been detained at the military commander's office and would be released in three days.

Having waited for three days, the applicants again visited the commander's office in Shali, accompanied by the head of the village administration. About ten days later the commander's office staff denied that the detainees had been there.

At some point in August 2002 the applicants managed to meet with General N., who denied that his servicemen had participated in a military operation in Novye Atagi on the date in question. At that time the applicants spotted APC no. 569 in the courtyard of the commander's office. At their insistence the commander questioned the driver of the vehicle about the events of 2 June 2002. The driver confirmed that two men had been detained and driven away in the APC on 2 June 2002, but claimed that they had been handed over to other military servicemen at a checkpoint.

The applicants unsuccessfully tried to meet with the officers of the military prosecutor's office in Shali in order to have the drivers of the APCs and other servicemen questioned.

In addition to personal visits, the applicants addressed numerous letters to the prosecutors and other authorities, in which they set out the facts of their relatives' detention and asked for assistance and details about the investigation. The applicants have submitted copies of the more or less standard letters they wrote.

The applicants received hardly any substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters forwarding their requests to the different prosecutors' services. Below is a summary of letters retained by the applicants and the replies they received from the authorities.

On 3 June 2002 the first applicant wrote to the head of the Shali district administration in relation to Islam Utsayev's detention and requested assistance in finding him. She also mentioned the “rough” treatment meted out to herself and other family members in the course of her son's arrest.

Either on the same day or immediately after, in three identically worded complaints, the applicant wrote to the military commander of the Shali district General N., the military prosecutor of the Shali district and the head of the Shali temporary district police department (VOVD).

On 5 June 2002 the first applicant wrote to the military prosecutors of military units nos. 20116 and 20102, based in Shali and Khankala (Grozny), stating details of her son's detention and requesting their help in finding him. Also on 5 June 2002 the first applicant wrote a similar letter to the head of the Novye Atagi village administration, Abdula D.

On 8 June 2002 the first applicant wrote to the State Duma member for Chechnya and to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms.

On 20 June 2002 the first applicant wrote a complaint to the Shali district prosecutor's office (“the district prosecutor's office”), with copies to the head of administration of Chechnya and the commander of the federal forces in Chechnya. She stated the facts of her son's detention and asked for assistance in finding him. She submitted that the servicemen had thrown her son on the floor and taken him away undressed, beaten her husband on the head with a rifle butt and had treated the women of the house “rudely and incorrectly”.

On 1 July 2002 the applicant received a reply from the member of the State Duma for Chechnya, in which he informed her that her letter had been forwarded to the Chechnya Prosecutor's Office and that he would try to establish whether her son had been detained by the authorities.

On 17 September 2002 the first applicant again wrote to the military prosecutor of military unit no. 20116 and the heads of administration of Novye Atagi and the Shali district, with requests for information about Islam Utsayev.

On 30 September 2002 the district prosecutor office informed the applicant that the investigation into her son's kidnapping had been suspended. The letter did not give reasons for the suspension, but informed her that she could appeal against the decision to the district prosecutor or to a сourt.

On 3 October 2002 the first applicant received a copy of a letter from the Chechnya Prosecutor's Office, forwarding her compliant to the district prosecutor's office.

On 7 October 2002 the Chechnya Prosecutor's Office informed the first applicant that the investigation into her son's kidnapping had been suspended on 30 September 2002 due to a failure to identify the culprits (Article 208 part 1 of the Code of Criminal Procedure). The applicant was invited to address further queries to the district prosecutor's office.

On 9 October and on 23 October 2002 the district prosecutor's office acknowledged receipt of the applicant's complaints and informed her that the investigation into Islam Utsayev's “disappearance” had been suspended.

On 14 November 2002 the Chief Military Prosecutor's Office requested the military prosecutor's office of the United Group Alignment in the Northern Caucasus (UGA) to investigate the “disappearance” of the first applicant's son and of the other men detained on 2 June 2002.

On 5 March 2003 the applicant submitted a complaint (dated 10 December 2002) to the military prosecutor of the UGA, summarising the facts of her son's disappearance and the efforts to find him and requesting assistance.

On 6 February 2003 the Chechnya Prosecutor's Office forwarded complaints by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs Abdulazimova) to the district prosecutor's office. On 12 February and 14 March 2003 the three women were informed by the district prosecutor's office that their complaints would be looked into.

On 28 February 2003 the Chechnya Prosecutor's Office informed the first applicant that they had forwarded her letter to the military prosecutor of the UGA. The letter stated that investigation file no. 59140 had been sent to the military prosecutor's office on 29 October 2002.

In March 2003 the Government of Chechnya twice informed the first applicant that her complaints had been forwarded to the military prosecutors, to the Chechnya Prosecutor's Office and to the local department of the Ministry of the Interior.

On 19 April 2003 the first applicant asked the district prosecutor's office to give her an update on the progress of the investigation and to grant her victim status in the proceedings.

On 25 April 2003 the military prosecutor of the UGA forwarded the applicant's complaint to the military prosecutor of military unit no. 20116.

On 23 May 2003 the Chechnya Ministry of the Interior replied to the deputy head of the investigative department of the Southern Federal Circuit, stating that the criminal case opened into Islam Utsayev's disappearance had been forwarded to the military prosecutors on 1 August 2002.

On 27 May 2003 the military prosecutor of military unit no. 20102 informed the first applicant that the materials of the case file did not prove the involvement of military servicemen in the crime under investigation.

On 2 June, 6 June and 25 June 2003 the Chechnya Prosecutor's Office informed the applicant in similarly worded letters that the decision of 30 September 2002 to suspend the investigation into her son's kidnapping had been quashed and that the investigation had been reopened on 29 May 2003.

On 18 June 2003 the military commander of the Shali district informed the applicant that the district prosecutor's office was investigating her son's “disappearance”.

On 12 August 2003 the military prosecutor of military unit no. 20116 replied to the first applicant's complaints of December 2002 and March and May 2003. The letter stated that the criminal investigation opened in relation to the kidnapping of four men in June 2002 was pending with that office. The letter did not say whether the investigation was suspended or ongoing, but invited the applicant to come to the office to take part in procedural steps and to obtain access to the case file. The letter also stated that no evidence had been obtained which could link the kidnapping to any military servicemen.

At some point the applicant wrote to the all-Russian NTV channel, addressing their programme “Attention: Search!” She asked the journalists to help in finding her son Islam Utsayev. In reply the NTV stated that work in Chechnya was too dangerous for journalists.

On 2 July 2002 the fourth applicant received a copy of a letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, stating that there was no evidence to conclude that the criminal acts in question had been committed by UGA servicemen.

On 16 July 2002 the district prosecutor's office informed the fourth applicant that an investigation had been opened by their office, under Article 126 part 2 of the Criminal Code, in relation to the kidnapping of Movsar Taysumov.

On 25 July and 10 September 2002 the Chechnya Government informed the fourth applicant that her complaints had been forwarded to the district prosecutor's office.

On 16 September 2002 the district prosecutor's office informed the applicant that the investigation into her son's kidnapping (file no. 59155) had been suspended. The letter did not give reasons for the suspension, but informed her that she could appeal against the decision to the Shali District Prosecutor or to a сourt.

On 2 October 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the applicant's complaint to the military prosecutor of military unit no. 20116.

On 15 November the district prosecutor's office informed the fourth applicant that her complaint of 12 November 2002 about her son's disappearance could not be considered, because it had not been signed by her. The applicant was invited to the prosecutor's office to obtain information concerning the criminal investigation.

On 5 March 2003 the applicant's complaint dated 15 December 2002 was accepted by the military prosecutor of the UGA. The complaint summarised the applicant's efforts to find her son and requested urgent assistance.

On 19 February 2003 the district prosecutor's office informed the fourth applicant, in reply to a request from Amnesty International made on her behalf, that criminal case no. 59155 had been opened by that office in relation to her son's kidnapping. All necessary and possible measures had been taken, but on 15 September 2002 the investigation had been suspended due to the failure to identify the culprits. The letter further informed the applicant that measures to find her son were continuing and that she could challenge the decision to suspend the investigation.

On 26 March 2003 the military prosecutor of military unit no. 20116 informed the fourth applicant that troops under their jurisdiction had not detained her son. The letter advised her to approach the local police.

On 5 April 2003 the applicant complained to the district prosecutor's office. She stated that she had not received any information about the course of the investigation and requested updated information about its progress, and asked that she be granted victim status.

On 15 April 2003 the district prosecutor's office informed the fourth applicant that criminal case no. 59155 had been suspended. Actions aimed at locating Movsar Taysumov's whereabouts would continue. The applicant was also informed that she had been granted victim status.

On an unspecified date Abdula D., the head of the Novye Atagi village administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help to find Movsar Taysumov.

On 25 November 2004 the fourth applicant was granted victim status in criminal investigation no. 59155 into her son's abduction.

On 5 June 2002 the sixth applicant prepared a letter to the military prosecutor of military unit no. 20116 about the detention of her son, Idris Abdulazimov. The complaint was submitted on 19 June 2002.

On 5 June 2002 the sixth applicant complained about her son's detention and requested his release and information about his whereabouts from the district prosecutor's office, the military commander and the head of the VOVD.

On 2 July 2002 the sixth applicant received a copy of the letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, which stated that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen.

On 16 July 2002 the district prosecutor's office informed the applicant that an investigation had been opened by their office in relation to the kidnapping of her son under Article 126 part 2 of the Criminal Code.

On 8 August 2002 the applicant was informed by the district prosecutor's office that the file number allocated to the investigation into her son's kidnapping was 59159.

On 23 August 2002 the Chechnya Prosecutor's Office forwarded the applicant's complaint to the district prosecutor's office.

On 3 September 2002 the Chechnya Government informed the sixth applicant that her complaints had been forwarded to the Chechnya Department of the Interior, the district prosecutor's office and the VOVD, the military prosecutor's office and the Chechnya Prosecutor's Office.

On 4 September 2002 the district prosecutor's office informed the applicant that they were investigating criminal case no. 59159 and taking steps to establish her son's whereabouts.

On 16 September 2002 the district prosecutor's office informed the sixth applicant that the investigation into her son's kidnapping had been suspended.

On 2 October 2002 the military prosecutor for the Northern Caucasus military circuit forwarded the applicant's complaint to the military prosecutor of military unit no. 20116.

On 22 November 2002 the military prosecutor of military unit no. 20116 informed the applicant that they had requested information about Idris Abdulazimov from the Chechnya department of the FSB, the commander of the UGA and the head of the operative headquarters for coordination of the anti-terrorist operation in the Northern Caucasus.

On 16 January 2003 the Chechnya department of the FSB replied to the applicant that they had no information about the whereabouts or activities of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors.

On 6 February 2003 the Chechnya Prosecutor's Office forwarded complaints by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs Abdulazimova) to the district prosecutor's office. On 12 February and 14 March 2003 the three women were informed by that office that their complaints would be taken into account.

On 5 April 2003 the applicant wrote to the district prosecutor's office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and asked that she be granted victim status.

On 6 June 2003 the district prosecutor informed the sixth applicant that the criminal investigation into the kidnapping of her son had been suspended. Actions aimed at locating Mr Abdulazimov's whereabouts were continuing.

On an unspecified date Abdula D., the head of the Novye Atagi village administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help find the sixth applicant's son.

On 2 July 2002 the seventh applicant received a copy of a letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, stating that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen.

On 16 July 2002 the district prosecutor's office informed the applicant that an investigation had been opened by their office, under Article 126 part 2 of the Criminal Code, in relation to the kidnapping of Masud Tovmerzayev.

On 2 August 2002 the district prosecutor's office informed the applicant that a criminal investigation into her son's kidnapping had been opened under file no. 59154.

On 4 September 2002 the Chechnya Prosecutor's Office informed the seventh applicant that the district prosecutor's office was investigating criminal case no. 59154 and taking steps to establish her son's whereabouts.

On 10 September 2002 the Government of Chechnya informed the seventh applicant that her complaints had been forwarded to the district prosecutor's office.

On 16 September and on 23 September 2002 the district prosecutor's office informed the seventh applicant that the investigation into her son's kidnapping had been suspended and that she could appeal against the decision to a prosecutor or to the court.

On 17 September 2002 the applicant wrote to the head of the Novye Atagi administration and asked for his help in finding her son.

On 2 October 2002 the military prosecutor for the Northern Caucasus military circuit forwarded the seventh applicant's complaint to the military prosecutor of military unit no. 20116.

On 6 November 2002 the military prosecutor of military unit no. 20116 informed the seventh applicant that they were not aware of Masud Tovmerzayev's detention and had not issued any documents in that respect. The letter further stated that a question about the applicant's son's whereabouts had been put to the UGA headquarters and that she should contact the local department of the interior in connection with all issues related to the search for the missing persons.

On 16 January 2003 the Chechnya department of the FSB replied to the applicant that they had no information about the whereabouts of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors.

On 5 March 2003 the seventh applicant's letter, bearing the date of 5 June 2002, was accepted by the military prosecutor of the UGA. The letter stated the circumstances of her son's detention and requested information about his whereabouts and the reasons for his detention.

On 5 April 2003 the applicant wrote to the district prosecutor's office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and asked to be granted victim status.

On 16 April 2003 the district prosecutor's office responded that the investigation in criminal case no. 59154 had been suspended.

On an unspecified date Abdula D., the head of the Novye Atagi administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help in finding the seventh applicant's son.

The applicants were thus informed that criminal investigations had been opened in respect of the kidnappings of their relatives: no. 59176 in respect of Islam Utsayev, no. 59155 in respect of Movsar Taysumov, no. 59159 in respect of Idris Abdulazimov and no. 59154 in respect of Masud Tovmerzayev. From the letters received from the different authorities, the applicants could also understand that at some point the investigations were joined under no. 59140, initially opened in relation to the kidnapping of Said-Magomed Imakayev. The applicants were not informed by the prosecutors which steps had been taken in order to find their relatives, nor were they allowed access to the case files. In June 2003 the first applicant was informed by the Chechnya Prosecutor's Office that the decision to suspend the investigation into her son's kidnapping had been quashed and that the investigation had been reopened. None of the applicants have received information on the progress of the investigation since that date.

The applicants also understood that in October 2002 the investigation had been transferred from the district prosecutor's office to the military prosecutors. At some subsequent point the case file was returned to the district office. However in August 2003 the military prosecutor of military unit no. 20116 invited the first applicant to visit the office and informed her that the file was with them. The letter did not indicate whether the proceedings were pending or suspended at that time.

In their observations submitted in December 2004 the Government did not dispute the information concerning the apprehension and investigation into the kidnapping of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev. Referring to the information obtained from the General Prosecutor's Office, the Government stated:

“On 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, had arrived to Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were subsequently taken by the unidentified persons to an unknown direction.

On 28 June, 15 July and 31 July 2002 the Shali district prosecutor's office opened five criminal investigation files into the kidnappings: nos. 59176, 59155, 59159, 59154 and 59140 under Article 126 part 2 (a) and (g) of the Criminal Code.

Criminal investigation file no. 59140 concerning the kidnapping of Imakayev S.-M.U. had been transferred for investigation to the military prosecutor of the UGA.”

The Government also stated that the investigation had not confirmed the involvement of federal servicemen in the kidnapping of the applicants' relatives. The indicated APC hull numbers were not listed in the relevant registers. The investigations were adjourned and reopened on several occasions and were most recently resumed on 30 September 2004. Their progress was monitored by the General Prosecutor's Office.

In their additional Memorandum submitted in April 2005 the Government submitted further details of the investigations. They stated that criminal case file no. 59176 had been opened on 31 July 2002 into the kidnapping of Islam Utsayev. On the same day the first applicant had been questioned and granted victim status. She was again questioned on 22 June 2003, 30 August 2003 and 18 October 2004. The second applicant was questioned on 18 October 2004 and confirmed the circumstances of his son's detention. Two neighbours were questioned but could not indicate the identity of the kidnappers. The site of the crime was inspected at some point, but no relevant evidence was discovered.

According to the Government, criminal case file no. 59155 into the abduction of Movsar Taysumov was opened on 15 June 2002. The fourth applicant was questioned on 16 July 2002, 30 August 2003 and 18 October 2004. She was also granted victim status. In September 2004 two neighbours were questioned by the local police, but they were not aware of the identity of the perpetrators of the crime.

The Government further specified that on 15 July 2002 criminal investigation file no. 59159 had been opened into the abduction of Idris Abdulazimov. The sixth applicant was questioned on 16 July 2002 and 27 September 2004. She was also granted victim status in the proceedings. Three of her neighbours and the former military commander of the Shali district, General N., had also been questioned. An inspection of the site of the crime had taken place, but had produced no results.

Finally, they submitted that on 15 July 2002 criminal case no. 59140 [this should probably be no. 59154] had been opened into the abduction of Masud Tovmerzayev. The seventh and eighth applicants were questioned and granted victim status on 16 July 2002 and 18 November 2004 respectively. The investigation also questioned five of their neighbours and relatives, the head of the Novye Atagi administration, General N. and a serviceman from the military commander's office. An inspection of the site of the crime had produced no results.

No other witnesses to the crimes were identified by the investigation.

According to the Government, in the period 2002-2004 a number of information requests were forwarded to the relevant bodies concerning special operations carried out by the military forces. Despite these efforts, no information was obtained which would imply that the four men had been detained by federal forces. Their names were not found in the registers of persons detained on suspicion of committing a criminal offence or arrested by way of administrative procedure.

The Government conceded that the four investigations had been repeatedly suspended and reopened, on account of a failure to identify the culprits. They alleged that the victims had been informed of all the decisions made. The proceedings in criminal case no. 59176 had been reopened on 24 March 2005 and, in criminal cases nos. 59154, 59155 and 59159 – on 1 April 2005.

In their latest submissions of June 2007 the Government informed the Court that on 6 May 2005 criminal investigation files nos. 59176, 59154, 59155 and 59159 had been joined under no. 59176. The reason for the joinder was the establishment by the investigation of the fact that Mr Utsayev, Mr Abdulazimov, Mr Tovmerzayev and Mr Taysumov had been kidnapped by the same group of unidentified persons, who had travelled around in an APC with hull number 569.

The Government also submitted that the investigation had been reopened on 8 December 2006. In December 2006 and January 2007 the investigators questioned four female witnesses and the first, second and sixth applicants, who had victim status in the criminal proceedings. The Government also stated that in December 2006 the investigation requested the Ministry of Defence and the Ministry of the Interior to submit information from their archives about the participation of their personnel in the special operation in Novye Atagi on 2 June 2002.

Among the documents submitted by the Government, in a decision of 8 December 2006 the deputy prosecutor of Chechnya ordered that the proceedings be reopened and summarised the information available by that date. According to that document, the investigation had established that the four men had been kidnapped by a group of unidentified persons who had used an APC with hull number 569 and three other APCs.

On the same day the prosecutor issued written directions for the investigation. The prosecutor ordered that the bullets and cartridges left behind when the kidnappers had shot in the air to prevent relatives from interfering with the abduction be found, and that ballistic and other expert reports be carried out. He also ordered that information be collected about any special identification marks on the bodies of the missing men, so that a search could be organised through the register of unidentified corpses. He further directed information to be collected from the FSB central archives about the special operations carried out in Novye Atagi in June 2002; for it to be confirmed whether the APC with hull number 569 had indeed been attached to the Shali military commander's office and the crew of that vehicle to be questioned. The document referred to a witness statement by D. who had served in June 2002 in the military commander's office of Shali district and who had been a crew member of APC 569. According to the prosecutor, D. testified that in early June 2002 he and other members of the crew had been involved, using the APC, in a special operation in Novye Atagi and had detained three civilians. After their arrests he had returned to the military commander's office. The three detainees had been taken in three other APCs towards the village of Belgotoy. In view of this testimony, the prosecutor ordered that N., the military commander of Shali district, be questioned and that all details relevant to the special operation of 2 June 2002 in Novye Atagi be obtained from him (establishment of the units that had carried out the special operation, identification and questioning of the officers-in-charge; finding the persons who had been in charge of the detainees and establishing where they had been taken). The document concluded by stating that if sufficient evidence of the involvement of military servicemen in the abduction was obtained, the investigation should be transferred to the military prosecutor's office.

On 16 January 2007 the district prosecutor's office decided not to open a criminal investigation into an allegation by the sixth applicant that money and jewellery had been stolen from her home. The decision stated that, in her application of 5 June 2002, the sixth applicant had alleged that during the arrest of her son Idris Abdulazimov the perpetrators had also taken money and valuables. On 16 January 2007 the sixth applicant was questioned and stated that the money and valuables had been found afterwards, but that she had forgotten to inform the investigation of this. On this basis the investigator ordered not to open criminal proceedings into the theft. The decision was countersigned by the sixth applicant.

On 20 January 2007 the investigation was adjourned. On 11 May 2007 it was again reopened with instructions to carry out the steps as listed in the prosecutor's decision of 8 December 2006.

Despite specific requests by the Court on two occasions, the Government did not submit copies of the documents to which they referred, providing only several copies of decisions to suspend and resume the investigation and to grant victim status, all issued after December 2006, as well as copies of several notifications to the relatives of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants of criminal proceedings.

Marzet Imakayeva, the wife of Said-Magomed Imakayev, the fifth man detained on 2 June 2002 in Novye Atagi, applied to the European Court of Human Rights (see Imakayeva v. Russia, no. 7615/02, 9 November 2006). Within these proceedings the Government first denied that Said-Magomed Imakayev had been apprehended by law-enforcement or security bodies and suggested that he had been abducted by members of a terrorist organisation with a view to discrediting the federal forces.

Later both parties submitted to the Court that on 9 July 2004 the criminal investigation into the abduction of Said-Magomed Imakayev had been closed on the ground that no criminal offence had been committed. On 9 July 2004 the applicant's victim status in the criminal proceedings related to the kidnapping of her husband was withdrawn. She was informed at that stage that her husband had been detained by military servicemen and he had been subsequently released. The detention had been carried out in accordance with the Federal Law on the Suppression of Terrorism and the Federal Law on the Federal Security Service. According to the Government, on 2 June 2002 military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. However, his involvement had not been established, and he had been transferred to the head of the Shali administration (who had subsequently died) with a view to being returned home. Thus, no abduction had been committed and the actions of the servicemen who had detained Mr Imakayev had not constituted any offence. Mr Imakayev's further absence from his place of residence was not connected to his detention by military servicemen, so the applicant had suffered no pecuniary or non-pecuniary damage. The Government did not submit any documents of substance from the investigation file concerning Said-Magomed Imakayev's abduction.

In its judgment the Court found it established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev had been detained by the security forces on 2 June 2002. No records had been drawn up in respect of his detention, questioning or release. After that date he “disappeared” and his family had had no news of him. He could thus be presumed dead following unacknowledged detention and the responsibility for his death lay with the State.

In August 2004 the applicants informed the Court about two incidents in respect of the second applicant. According to the applicants' representatives, on 4 July 2004 and 30 July 2004 a large group of military personnel arrived at the first and second applicants' house at 22 Nizhnya Street in Novye Atagi. On both occasions the servicemen arrived in the early hours of the morning in several APCs, broke into the house without identifying themselves or giving any reasons for the intrusion, conducted an unsanctioned search and confiscated a number of items.

According to the applicants, on 4 July 2004 the servicemen severely beat the second applicant, who is a pensioner and disabled (he is blind in one eye), on his head and torso, knocking him unconscious. They also threatened to shoot the first applicant, her daughter-in-law and two-year old granddaughter. When leaving they took with them household items of some value and a copy of the application to the Court, as well as a file containing correspondence with various authorities maintained by the first applicant in relation to her son's disappearance.

The second applicant submitted that he had been severely physically traumatised by the beatings and had difficulty in walking. He submitted that he had visited three hospitals where doctors performed X-rays and confirmed concussions to the ribs and spinal column, but refused to issue him with any medical documents, fearing reprisals. The first applicant also submitted that immediately after the incident she had applied to the prosecutor's office, but they refused to accept her complaint or to conduct an investigation into it.

On 30 July 2004 the masked servicemen who arrived at the Utsayevs' family house again searched the house, hit the second applicant in the back several times, dragged him into the garden and dropped him face down.

On 18 August 2004 the Court, in accordance with Rule 40 of the Rules of Court, gave notice of the application and of the complaint about harassment to the Russian Government. In their observations the Government stated that a prosecutor's check had been conducted into these complaints. Within this check the first and the second applicants had been questioned but denied that they had submitted such complaints to the European Court. They allegedly stated that on the said dates military servicemen had conducted an identity check in their house, but that no unlawful actions had been committed. On 8 November 2004 the district prosecutor's office refused to initiate criminal proceedings due to an absence of corpus delicti. The Government did not submit any documents relating to these proceedings.

In her submissions of March 2005 the fourth applicant alleged that a number of checks had been carried at her house in December 2004 by security servicemen, who failed to identify themselves or to present her with reasons for the searches.

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


Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 6-3-c

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1970 and is currently serving a sentence in Polytska no. 76 Prison in the Rivne region.

The applicant had had a relationship with his neighbour, Ms M. He received from her a duplicate of the key to her house, which he never returned. The relationship was terminated in December 2002 at the instigation of Ms M., whose husband had returned home from a long business trip.

During the night of 18-19 April 2003 Mr M., the husband of Ms M., was sleeping in his house, which was locked from the inside, while his wife was at work, and was attacked by a man wearing a mask. The victim's son, ten years old, who was sleeping in the same room, was woken by the noise and saw the intruder leaving the room with an object which looked like a stick. After the incident the entrance door to Mr M.'s house remained locked. Mr M. died without regaining consciousness.

On 19 April 2003, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death (see also paragraph 18 below).

On 22 April 2003 the Sarny Town Court (“the Sarny Court”) remanded the applicant in custody in Rivne no. 24 Detention Centre (“the SIZO”) at the investigator's request. The court based its decision on the seriousness of the charges against the applicant, as well as the fact that he had no family of his own and might therefore abscond.

On 19 June 2003 the Sarny Court extended the applicant's pre-trial detention to four months. It justified this decision with the necessity to undertake a number of investigative measures, the seriousness of the charges against the applicant and the inherent risk of his absconding or hindering the investigation if at liberty. The court examined the applicant's argument about his frail health and noted, referring to a medical report, that his condition was not incompatible with detention.

During both the pre-trial investigation and the judicial proceedings the applicant's lawyer introduced numerous requests for the applicant's release on bail, referring to his illness and specific medical needs which could not be accommodated by the SIZO administration and placed an excessive financial burden on his parents (for more details see paragraphs 45-47 below). It was also noted in the requests that the applicant did not have a criminal record and had a permanent place of residence and elderly parents to care for. By way of bail the applicant's father offered his minibus, whose value was estimated at 24,732 Ukrainian hryvnias (UAH), which at the time was equal to about 3,700 euros (EUR).

By rulings of 15 and 26 March, 26 April, 27 May, 23 June, 13 and 22 July, 12 August and 2 September 2004, the Sarny Court rejected the aforementioned requests for the applicant's release. The reasoning of all those nine rulings was identical and read as follows:

“[The applicant] is accused of a serious crime punishable by imprisonment of over seven years. Therefore, to prevent [him] from attempting to abscond or hindering the establishment of the truth, the preventive measure – detention – should remain unchanged.”

Seven of the rulings contained an additional phrase following the first sentence in the above quotation:

“There are considerable discrepancies in the witnesses'

All the rulings, with the exception of that of 15 March 2004, also noted that the applicant was “free to address requests to the [SIZO] administration for medical assistance under the [legislation on pre-trial detention].”

On 8 November 2005 the Rivne Regional Court of Appeal (“the Court of Appeal”), in its ruling ordering an additional investigation in the case, noted that “the preventive measure in respect of [the applicant was to] be unchanged – pre-trial detention” (see also paragraph 33 below).

On 26 May 2006 the Sarny Court, following a preparatory hearing prior to the applicant's retrial (see also paragraph 38 below), rejected his request for release on bail or subject to an undertaking not to abscond. The court noted that the applicant was suspected of a dangerous crime and there was a risk of his absconding given his young age, single status and the fact that he had no children. The court examined the applicant's argument about his health and noted, referring to some medical findings, that it was not incompatible with detention.

On 19 April 2003 the police searched the applicant's house and seized the key to Ms M.'s house. The applicant was delivered to the police station, where he was questioned from 8:45 p.m. to 10 p.m. as a witness. He denied involvement in the crime being investigated.

Later that evening, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death. The arrest report listed all the possible reasons for an arrest contained in the report template, without giving any details. As noted there, the applicant refused to sign it, for unspecified reasons.

At an unspecified time on 20 April 2003 the applicant wrote a statement of surrender to the authorities (“явка з повинною”), in which he confessed to beating Mr M. to death with a car axle (kept in the applicant's garage). The investigator accepted that statement, relying on Article 96 of the Code of Criminal Procedure (see paragraph 54 below).

On the same date – according to the applicant, at 4:10 p.m. – the investigator delivered an “Act of explanation to the suspect of his rights”. It contained the applicant's handwritten note as follows: “For this questioning, I waive legal assistance. I will be testifying of my own will.” The applicant also signed a formal legal assistance waiver “for the period of questioning”, and the investigator accepted it.

Later on 20 April 2003 the applicant was questioned as a suspect and repeated his confession.

In the evening of 20 April 2003 the applicant was questioned again, during which he drew the car axle in question and stated that he would be able to recognise it.

At some point during the day on 20 April 2003 the applicant's parents signed a contract for legal representation by lawyer O. The lawyer tried to get access to the applicant, but was refused it on the pretext that he was being questioned as a witness and therefore his status did not warrant legal representation.

During the night of 20 to 21 April 2003, between 1.20 a.m. and 2 a.m., a videotaped reconstruction of the crime was conducted, during which the applicant again repeated his confession.

On 21 April 2003 the classification of the investigated crime was changed from infliction of grievous bodily harm causing the victim's death to premeditated murder.

On 24 April 2003 the applicant's parents signed a contract with lawyer R. for legal representation of the applicant, and on 30 April 2003 they informed lawyer O. that her services were not needed any longer.

On 30 April 2003 lawyer R. requested to be involved in the investigations as the applicant's legal representative. The investigator granted the request, and he received permission to have meetings with the applicant “without any time restrictions”.

On the same date, 30 April 2003, the investigator delivered another “Act of the explanation to the suspect of his rights”, in which the applicant noted that he wished to be represented by lawyer R.

As soon as the applicant was legally represented he retracted all his earlier confession statements.

On 3 July 2003 the pre-trial investigation was declared complete and the applicant was committed for trial.

On 17 November 2004 the Sarny Court found the applicant guilty of premeditated murder and sentenced him to twelve years' imprisonment. It dismissed his not-guilty plea made at the hearing as untruthful and found his guilt proved by the confessions he had made on 20 April 2003 and repeated in the course of the reconstruction of the crime on 21 April 2003, as well as the corroborating material evidence (the duplicate key and the car axle). The court noted that the applicant had had explained to him his right not to incriminate himself before he had confessed and that he had voluntarily waived his right to legal representation. Having heard lawyer O., who stated that she had been refused a meeting with the applicant on 20 April 2003, the court found her allegation unsubstantiated, with a reference to “a thorough investigation into the matter”. The court also found no evidence that the applicant had admitted guilt under duress, given the fact that he had raised no complaints in that regard before any authorities.

The applicant appealed, alleging that the sole evidence of his guilt had been his confession extracted by the police under duress and in the absence of a lawyer. He submitted in particular that during the initial questioning and investigative activities he had been deprived of his medicines, and that he had not been receiving proper nutrition, water and sleep. Moreover, according to the applicant, he had been threatened with deprivation of legal assistance unless he confessed, and the police officers from time to time hit him on the back of the head with their hands or files. The applicant also insisted that he could not be regarded as having surrendered to the police under Article 96 of the CCP, as presented by the investigator, given the fact that prior to his statement in that regard he had already been arrested as a suspect. Furthermore, lawyer O. had not been allowed to see him on 20 April 2003, that is after his arrest, on the ground that he was being questioned as a witness, but not because he had waived his right to legal assistance.

On 8 November 2005 the Court of Appeal quashed the first-instance judgment and remitted the case for additional investigation, having allowed the applicant's appeal in part. It found in particular that an additional investigation and a retrial were required in order to rectify certain shortcomings. The Court of Appeal noted that the applicant's conviction had largely been based on mere presumptions, namely that the Sarny Court had relied on the confession he had made during the pre-trial investigation in the absence of a lawyer; this confession was not corroborated by any strong evidence against him. It further criticised the first-instance court for its failure to address the applicant's complaint that he had had no access to a lawyer following his arrest as a suspect. Although it disregarded the lawyer's statements made under oath as untruthful, the Sarny Court did not initiate criminal proceedings against her for perjury. According to the Court of Appeal, the first-instance court had selectively admitted and interpreted evidence (thus, according to the report of the first questioning of the victim's son, he had replied in the negative to a quite suggestive question from the investigator as to whether the intruder looked like the applicant to him, while it was noted in the verdict that he had stated the contrary). Lastly, the Court of Appeal pointed out some issues, which, although pertinent, remained uninvestigated: for example, that the victim was visited by unidentified persons on the eve of his murder, and the disorder in his house, which was not mentioned in the applicant's confession.

Following the additional investigation, on 27 January 2006 the applicant was again charged with premeditated murder.

On 30 January 2006 the Sarny Town Prosecutor delivered a ruling, refusing to institute criminal proceedings against the investigator who had allegedly refused the applicant's lawyer permission to represent him on 20 April 2003. The prosecutor noted firstly that on 20 April 2003 the applicant was questioned as a witness and therefore did not require legal representation, and secondly that even when he was recognised as a suspect he had voluntarily waived his right to legal assistance.

On 30 January 2006 the prosecutor delivered another ruling refusing to institute criminal proceedings in respect of the applicant's allegation of unlawful arrest and ill-treatment. The prosecutor referred in particular to the statements by the police officers involved, who denied any coercion. He also took into account the fact that the applicant had not raised any complaints about his health.

On 30 March 2006 the applicant was indicted as charged, and on the following day the case was sent to the court for trial.

On 26 May 2006 the Sarny Court held a preparatory hearing.

On 2 March 2007 it issued a new judgment which in its operative part, was identical to that of 17 November 2004.

The court examined the applicant's complaint that he had had no access to a lawyer and dismissed it as unsubstantiated: on one hand, the court referred to the investigator's statements, according to which the lawyer had not submitted any documents to him authorising her to represent the applicant; and, on the other hand, it noted that the contract for legal representation submitted to it by the defence had indicated the applicant (but not his parents) as a party, while he was in detention at that time and could not have signed it. Furthermore, it was mentioned in the judgment that the prosecutor had examined the applicant's allegation that the investigator had refused to allow the lawyer to see him, and refused to institute criminal proceedings against the investigator for lack of corpus delicti in his actions, which the applicant had failed to challenge. The court also noted that on 20 April 2003 the applicant had waived his right to legal assistance. It dismissed his allegation of duress, because the applicant had not complained to anybody about it apart from his father. In any event, the prosecuting authorities had already examined that allegation and rejected it, and the applicant had not appealed against that decision (see paragraph 35 above). The court therefore concluded that the applicant “had not been refused access to a lawyer”.

The judgment further referred to the statements of the victim's son, who had not recognised the murderer, although he noted that he was the same height as the applicant. The court further noted that although several witnesses had seen two unidentified persons looking for Mr M. on the eve of his murder, this fact did not negate the finding of the applicant's guilt. The court made a similar observation concerning the disorder in the victim's house not mentioned in the applicant's confession. It also relied on the material evidence obtained on the basis of the applicant's confession, namely the car axle found in his garage, having explained the lack of any traces of the crime on it with the fact that the applicant had wrapped it in cloth and plastic, which he had later burnt.

The applicant appealed against the judgment as based on unlawfully obtained confession statements and lacking a solid evidential basis. He reiterated his earlier grievances, namely that his right to defence during the early stages of the investigation had been restricted, and argued that the Sarny Court had failed to address a number of specific issues raised in the Rivne Regional Court of Appeal ruling of 8 November 2005.

On 19 June 2007 the Court of Appeal upheld the applicant's conviction, finding that the first-instance court had rightly relied on his confession statements as they had been given in compliance with the legislation on criminal procedure and were corroborated by other evidence.

On 21 January 2008 the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated.

The applicant has been suffering for many years from diabetes insipidus (нецукровий діабет). In 1990 he was recognised as falling into the third category of disability (the mildest) on account of that condition. Apart from the diagnosis and the aforementioned fact about his disability, the applicant did not provide the Court with any details about his medical condition.

According to a note issued on 3 February 2004 by the local clinic at the request of the applicant's lawyer, the applicant had been being monitored by an endocrinologist, who had prescribed him certain antidiuretic hormones, which cost about UAH 420 a package. The clinic provided the applicant with one package a month free of charge, while the required intake was three packages.

On 10 December 2003 the applicant's lawyer wrote a letter to the SIZO administration in which he referred to the applicant's medical needs as outlined above and enquired whether the SIZO was able to provide him with the medication he required. The reply was that the SIZO was providing the applicant with some symptomatic treatment. As to the “expensive medications of narrow specification”, such as the antidiuretic hormone referred to, the administration was ready to accept those from the applicant's relatives. It was also noted in the letter that for the time being the applicant had an adequate supply of that medication.

On 16 May 2008 the applicant authorised his father to represent him in the proceedings before the Court. The prison administration countersigned the authority form.

On 5 June 2008 the Court received a letter from the applicant's father dated 29 May 2008, in which he complained in particular that his son had been deprived of legal assistance for several days after his arrest and that a lawyer had been admitted to him only after he had made confession statements while he was in a state of physical and emotional exhaustion.

Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

The Criminal Code envisages imprisonment of seven to fifteen years for deliberate murder without aggravating circumstances (Article 115 § 1) and seven to ten years for deliberate infliction of grievous bodily injuries causing death (Article 121 § 2).

The relevant provisions of the Code of Criminal Procedure (“the CCP”) concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.

Article 154-1 of the CCP, as well as the relevant extracts from Resolution No. 6 of the Plenary Supreme Court of 26 March 1999 “on the practice of applying bail as a preventive measure”, can be found in the judgment in the case of Koval v. Ukraine, no. 65550/01, §§ 60-61, 19 October 2006.

As regards admissions of guilt, Article 73 of the CCP requires verification of a suspect's statements. His or her admission of guilt may provide a basis for the accusation only if corroborated by the totality of the evidence. Article 96 of the CCP defines a statement of surrender to the authorities as follows: “a personal voluntary written or verbal statement made by a person, before the institution of criminal proceedings against him or her, to an enquiry authority, a police officer, an investigator, a prosecutor, a judge or a court, about a crime committed or planned for by him or her”. Where criminal proceedings have already been instituted, such a statement must be made before formal charges are brought against the person.


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)

André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

The applicant was born in 1970 and lives in Berlin.

From Easter to September 2003 the applicant had a relationship with Ms P. In February 2004 Ms P. started a relationship with Mr M. In September 2004 Ms P. and Mr M. moved into a joint household. In October and November 2004 the applicant had intimate contact with Ms P. In December 2004 Ms P. informed the applicant that she was pregnant.

On 28 June 2005 Mr M., with the consent of Ms P., acknowledged paternity of Ms P.’s future child. On 10 August 2005 Ms P. gave birth to a daughter, R. Ms P. and Mr M. jointly exercise parental authority and are bringing up the child together.

On 27 October 2005 the applicant lodged an action to challenge Mr M.’s paternity, submitting a statutory declaration that he had had sexual intercourse with the child’s mother during the period of conception. Mr M. submitted in reply that he lived with the child in a social-familial relationship and that he assumed full parental responsibility for the child, even if he was not her biological father.

On 24 November 2005 the Tempelhof-Kreuzberg District Court (Amtsgericht) scheduled a hearing for 17 January 2006. On 13 January 2006 the District Court cancelled the hearing, as a guardian ad litem to represent the child’s interests had to be appointed. On 6 February 2006 the District Court appointed a guardian ad litem. On 21 March 2006 the guardian submitted that a loving father-child relationship existed between Mr M. and R. and that the applicant’s action ran counter to the child’s best interests.

On 28 March 2006, following a reminder by the applicant’s counsel, the District Court scheduled a hearing for 30 May 2006. On 27 April 2006 the District Court, following M.’s request, postponed the hearing to 6 June 2006.

On 6 June 2006 the District Court, having heard the applicant, Mr M. and Ms P., ordered an expert opinion on the question whether Mr M. was the child’s biological father. On 7 September 2006 the District Court requested the expert to submit information on the state of the proceedings.

On 4 October 2006 the expert informed the District Court that Mr M. and Ms P. had postponed several appointments for the taking of blood samples on medical grounds. Mr M. had his blood sample taken on 4 October 2006. On 2 November 2006 the expert informed the court that he had received the blood samples of Ms P. and the child. On 27 November 2006 the expert submitted his report which concluded that Mr M. was not the child’s biological father.

On 1 December 2006, following a reminder by the applicant’s counsel, the District Court scheduled a further hearing for 16 January 2007. On 6 February 2007 the District Court ordered an expert opinion by the same medical expert as to the applicant’s alleged paternity.

On 15 March 2007 the expert submitted his report which concluded that it had been proved to a probability of 99.99 % that the applicant was the child’s biological father.

On 12 March 2007 the District Court scheduled a hearing for 10 April 2007.

On 27 April 2007 the District Court delivered a judgment establishing that Mr M. was not the child’s father and that the applicant was the child’s father. The District Court found the applicant’s action admissible, as he had submitted a statutory declaration that he had had sexual intercourse with the child’s mother during the period of conception. The action was well-founded, as it had been proved by expert opinion that the applicant was the child’s biological father. The District Court considered that the applicant had not been precluded from challenging paternity under Article 1600 § 2 of the Civil Code (see relevant domestic law below), as there had been no social and family relationship between Mr M. and the child at the time of the last court hearing. It could not be assumed that Mr M. bore actual responsibility for the child. This would have required the legal father and the child to have lived together for a longer period of time, which, according to the District Court, necessitated a minimum period of approximately two years. Taking into account the constitutional right of the biological father under Article 6 § 2 of the Basic Law, it was necessary that the factual relationship between the legal father and the child enjoyed a certain stability. This stability could only be assumed after a period of two years, which had not passed in the instant case. Under these circumstances, it was not relevant that the applicant actually took care of the child together with the child’s mother.

On 24 August 2007 the Berlin Court of Appeal (Kammergericht) quashed the District Court’s judgment and rejected the applicant’s action. The court noted that it was undisputed between the parties that Mr M. had lived with the child and her mother since the child’s birth and that he had continued to live with them after it had been established by an expert that he was not the child’s biological father.

According to the Court of Appeal, the District Court had failed to recognise that the applicant did not have the right to challenge paternity because of the existence of a social and family relationship between Mr M. and the child. The Court of Appeal considered that such a relationship had not only existed at the time it decided on the appeal, but already a long time before, as Mr M. had lived together with the child and her mother in a joint household since the child’s birth. A young child could not possibly live together with another person for a period of time longer than his or her own lifetime. The legislature had not strictly defined which period of time would amount to a “longer period of time”, but had left this assessment to the courts adjudicating each individual case.

The period of time which was necessary to establish a social and family relationship was not absolute, but had to be assessed with regard to the circumstances of each individual case and, in particular, the child’s age. There was no doubt that a child, during the first months of his or her life, developed a social and family relationship with the persons taking care of him or her on a daily basis. During the first two years of his or her life, a child was in particular need of secure family relationships, which allowed him or her to develop further social contacts. A child’s interest in learning about its true descent could only become relevant at a more advanced age. According to the intentions of the legislature, who were guided by the Federal Constitutional Court’s case-law, external disturbances should be avoided in the child’s best interests and in the interest of the already existing family relationship. The constitutional rights of the biological father should not prevail over the equally protected rights of the legal father, if and as long as the latter assumed parental responsibility within the meaning of social parentage. Against this background, even a period of a few months which elapsed between a child’s birth and the bringing of an action to challenge paternity could be considered as a “longer period” within this specific context.

The Court of Appeal did not find it necessary to decide whether the period of time which had elapsed between the child’s birth and the lodging of the applicant’s action would have been sufficient to establish a social and family relationship. According to the case-law of the Federal Law Court, in cases in which the child had lived since birth without interruption together with his or her legal parents, the existence of a social-family relationship had to be assumed if the cohabitation persisted and the judge was convinced that the legal father assumed actual parental responsibility in a way which appeared to be long-lasting. It was not decisive whether the social and family relationship already existed when the action was lodged, but only whether there was a social and family relationship at the time of the last court hearing. The applicant had failed to point to any circumstances which could call into question the existence of such a relationship in the instant case. Conversely, the fact that the relationship between the legal parents had endured the crisis which had been caused by the mother’s breach of trust indicated that the relationship was particularly stable. The Court of Appeal did not allow an appeal on points of law.

On 20 May 2009 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 3 June 2009.

Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2).

Article 6 of the Basic Law, in so far as relevant, provides:

“(1) Marriage and the family shall enjoy the special protection of the State.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.”

According to Article 1592 of the Civil Code, a child’s father is either the man who on the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). Paternity can only be validly acknowledged with the mother’s consent (Article 1595 § 1).

Paternity may be challenged within a time-limit of two years. The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity; the existence of a social and family relationship does not prevent the period from running (Article 1600b § 1). Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to Article 1600 § 2, the biological father has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time. There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 4).

Under Article 1598a of the Civil Code as in force since 1 April 2008, the legal father, the mother and the child can request the examination of paternity by genetic testing. The outcome of these proceedings does not change the legal status of the persons involved. However, no such right is granted to a third person alleging that he is the biological father.

Research undertaken by the Court in respect of twenty-six Council of Europe Member States shows that in twenty-one of those States acknowledgment of the paternity of a child born out of wedlock requires the mother’s consent. In seventeen Member States (namely Azerbaijan, Croatia, Cyprus, Estonia, France, Georgia, Ireland, Italy, Lithuania, Moldova, Romania, Russia, San Marino, Spain, Turkey, Ukraine and the United Kingdom), the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment. This right may be subject to certain time-limits. In fifteen States this remains the position where the legal father has lived with the child in a social and family relationship. In France and Spain, the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of at least five or four years, respectively (la possession d’état conforme au titre).

By contrast, in nine Member States (Armenia, Bulgaria, Hungary, Iceland, Latvia, the Netherlands, Poland, Slovakia and Switzerland) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement. In those nine jurisdictions, the courts are not entitled to judicially consider (on the grounds of the best interests of the child or otherwise) whether the biological father should be allowed to challenge paternity.


HEATHER MOOR & EDGECOMB LTD v. THE UNITED KINGDOM (NO. 2)

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant, Heather Moor & Edgecomb Ltd (“HME”), was a company based in Wiltshire in the United Kingdom. According to information provided by the Government, the applicant was dissolved on 20 March 2012. The application was lodged on 5 August 2010 by Mrs A. D. Pickering, a director of the applicant company. The applicant was advised by Mr A. Speaight Q.C. and Ms. K. Livesey, barristers practising in London.

The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki.

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

In 2000 the applicant was contacted by a British Airways pilot, R., who was approaching the retirement age of 55 years and was seeking advice regarding his pension fund. R. had already been advised by a financial services company linked to the pilots’ association against leaving his employer’s occupational pension scheme, since this would entail “enormous risk”. There were several exchanges of correspondence between R. and HME in the following months as well as a long meeting at the company’s premises. R. indicated he was prepared to accept a “medium” degree of investment risk, and signed a checklist prepared by HME to indicate that he and his wife had been made fully aware of the risks associated with the income drawdown scheme being proposed. HME provided figures showing that by transferring his pension funds, R. could obtain an appreciably higher annual income. Also, the benefits payable in the event of R.’s death before the age of 60 would be much greater. For its assumed growth projections, HME used a central projection rate of 9%, rather than the 7% indicated by the regulator the previous year. R. acted on HME’s advice and transferred his pension fund.

By March 2003, R. had become dissatisfied with his investments and, taking new advice, transferred his funds elsewhere. In November of that year he made a formal complaint to HME that he had lost 27% (£278,000) of the amount originally transferred. He complained as well that the 9% assumed rate of growth had been presented to him as a “worst-case scenario”, and that HME had taken no action in response to the concerns he had expressed at the time about stock market movements. HME rejected the complaint, leading R. to file a complaint with the Financial Ombudsman Service (FOS) in December 2003.

The procedure followed by the Ombudsman was an entirely written one, with submissions from R. and from HME. The latter’s requests for an oral hearing and for the opportunity to cross-examine R. were refused. The Ombudsman considered this to be unnecessary in the circumstances, and observed that the complaints process was an inquisitorial one, not an adversarial one.

The Ombudsman gave a provisional decision on 17 February 2006. He considered that in view of the relative security provided by R.’s occupational pension scheme, HME should have demonstrated that transfer would be clearly advantageous. He observed that responsibility for advice rested completely with the adviser and was not diminished by recommendations or warnings given by other firms. The causal link was established here since HME had recommended transfer and R. had done so. Although the firm argued that there had been a respectable school of thought among financial advisers that would have agreed with their advice to R., the witness statement they relied on indicated the contrary. The Ombudsman considered that to be consistent with good industry practice, the firm should have assumed a growth rate of less than 9%. There was, however, no evidence in the file that the consequences of a lower growth rate had been explained to R. Instead, HME had made repeated references to higher growth rates achieved in previous years. He also took the view that HME had not explained the investment risk in terms that R. would have understood properly. He concluded that the overall risks associated with the income drawdown arrangement were greater than was advisable for R. in his circumstances, and that had this been given sufficient prominence in the firm’s advice R. would not have transferred his pension funds. The most suitable advice would have been to remain in his employer’s pension scheme.

HME made detailed submissions on these findings. Its arguments were considered and dismissed in the Ombudsman’s final decision of 9 February 2007.

The firm argued first that it had received legal advice that R.’s

HME maintained there was no causal link between its advice and R.’s decision to transfer his pension fund. The Ombudsman reiterated the position taken in the provisional decision.

Regarding R.’s attitude to risk, the Ombudsman held that R.’s pension fund, which constituted a very significant part of his overall wealth, should not have been placed at risk, there being no need to do so in the particular circumstances. The fact that R. had signed the checklist did not make the transfer more suitable, nor did it negate HME’s duty to explain very clearly the risks involved.

The Ombudsman reiterated that HME had not acted consistently with good industry practice when it used the rate of 9% for its projections. While this did not necessarily make the firm’s advice more or less suitable, it incorrectly made the option of transferring look more attractive than it would otherwise have been. Although R. was concerned to make adequate provision for his son in the eventuality of the untimely death of himself and his wife, the Ombudsman was not satisfied that this should have been given greater weight than the security of their retirement income. Other arrangements could have been made to ensure their son’s welfare, such as life insurance. In light of these considerations, he concluded that the appropriate advice should have been not to transfer his pension fund. He directed HME to arrange for a loss assessment to be carried out. R. accepted the decision, making it binding on HME. In August 2010 the firm paid out the statutory maximum amount (£100,000) to R.

HME applied to the High Court for judicial review of the Ombudsman’s decision. The application was rejected on the papers on 10 March 2009. The firm renewed its application, which was heard and dismissed by Judge Davis on 18 September 2009. Two grounds were relied on – the Ombudsman’s refusal to hold a hearing, and a lack of independence and impartiality on the part of the FOS. On the first ground, the judge noted that comprehensive written evidence of the parties’ dealings had been available to the Ombudsman. It would have been pointless to cross-examine R. on what action he would have taken had HME advised against transfer, it being probable that he would not have left his employer’s scheme. The procedure followed by the Ombudsman had been a fair one, allowing HME to put its case fully in writing. A hearing would not have added anything. Although the firm alleged that the Ombudsman’s decision contained errors, judicial review was essentially concerned with procedural fairness. Moreover, it did not appear that any facts had been plainly ignored.

On the second ground, the judge rejected HME’s arguments about the supervisory role of the Financial Services Authority (FSA) in relation to the FOS, and its reference to evidence in another case in which the FOS was found by an independent assessor to have effectively solicited complaints against companies. The judge was satisfied that the FOS scheme involved an independent and impartial tribunal.

HME applied for leave to appeal. This was refused on the papers by Stanley Burnton LJ, following which the firm renewed its application, which was dealt with orally and dismissed by Aikens LJ on 25 March 2010. He noted that Judge Davis had found both grounds to be without merit and agreed with that view. On the issue of an oral hearing, he stated that whether the facts were or were not as alleged by the firm was beside the point. Rather the issue was whether the refusal of a hearing before the Ombudsman was procedurally unfair or unreasonable. He did not consider it so, or that the will of Parliament had been subverted in this respect. Regarding the second ground, he found it to be without substance.

The relevant provisions of domestic law, as they stood at the material time, are set out in the Court’s decision in Heather, Moor and Edgecomb v. the United Kingdom (dec.), no 1550/09, 14 June 2011.

The following provision of the FOS dispute resolution rules (DISP), as formulated and numbered at the material time, is also relevant to the present case:

“3.9.15 R The Ombudsman must maintain a register of each money award and direction made.”


The applicant, Mr Emin Aşcı, is a Turkish national who was born in 1963 and lives in Vienna. He was represented before the Court by Mr R. Soyer, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

The facts of the case may be summarised as follows.

On 26 August 2000 the police stopped the applicant, who was driving his car, on account of a minor traffic offence. There followed a violent dispute between the applicant and the police officers, Mr P. and Mrs M. The applicant snatched his car documents from the former and bruised the latter with his car keys.

On 31 August 2000 the Vienna Federal Police Directorate (Bundespolizeidirektion) issued a penal order (Straferkenntnis) in which it sentenced the applicant to a fine of 1,000 Austrian schillings ((ATS) – approximately 73 euros (EUR)) under section 82 of the Police Security Act (Sicherheitspolizeigesetz) for aggressive behaviour towards a public officer (Organ öffentlicher Aufsicht). It noted that the applicant had shouted and tried to snatch his driving licence from a police officer. It ordered the applicant to pay two further fines of ATS 500 (approximately EUR 36) for an offence under the Road Traffic Act (Straßenverkehrsordnung) and for having caused undue noise disturbance.

The applicant did not appeal against that decision.

On 2 October 2000 the Vienna Regional Court (Landesgericht), sitting with a single judge, convicted the applicant of having attempted to resist the exercise of official authority (Widerstand gegen die Staatsgewalt), under Article 269 of the Criminal Code (Strafgesetzbuch), and of having caused bodily harm to police officer M. while she was on duty, which was to be qualified as grievous bodily harm (schwere Körperverletzung) in accordance with Article 84 § 2 of the Criminal Code. Pursuant to Article 28 § 1 of the Criminal Code, which provides that a person who has committed more than one offence should receive only a single penalty, it sentenced him to four months’ imprisonment, suspended on probation, under Article 269 of the Criminal Code. In the operative part (Spruch) of its judgment, the court referred to the fact that on 26 August 2000 the applicant had started fighting with police officer M., in the process bruising her with his car keys, causing skin abrasions on her forearm and kicking her legs.

In the part of the judgment headed “Reasons for the decision” (Entscheidungsgründe), the court observed that the applicant had started to shout and, on being ordered to hand over the keys to the car, had snatched the car documents from police officer P. He had then started the fight with police officer M.

The court based its findings as far as the course of the events was concerned on the statements of the police officers concerned. In respect of the injury inflicted by the applicant, it relied on the statement by the officer concerned and an official medical expert opinion.

The applicant appealed against his conviction and sentence. He argued, inter alia, that the Federal Police Directorate had based its penal order against him on the same set of facts. The subsequent court proceedings and his conviction were therefore in breach of the non bis in idem principle. He also requested the preparation of a further expert opinion in order to prove that the police officer concerned had not suffered any injuries which were relevant for the purposes of the Criminal Code.

On 11 May 2001 the Vienna Court of Appeal (Oberlandesgericht), having held a hearing, dismissed the applicant’s appeal. Giving extensive reasons and referring to the Court’s case-law in Gradinger v. Austria (23 October 1995, Series A no. 328C) and Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998V), it found that there had been no breach of the applicant’s rights under Article 4 of Protocol No. 7 to the Convention. It noted in this regard that the Federal Police Directorate had sentenced the applicant for his aggressive conduct in seeking to impede the performance of an official act by snatching the driving licence from police officer P. and shouting, whereas the subject of the criminal proceedings had been the violent behaviour by which the applicant had subsequently tried to resist police officer M. and had injured her. The Court of Appeal noted that these were different acts motivated by different intentions. In any event, the applicant’s criminal conviction by the Federal Police Directorate did not do justice to all of the unlawful aspects (Unrechtsgehalt) of his conduct.

The Court of Appeal lastly noted that in the light of the evidence before it, namely the official medical opinion, there was no need for a further medical opinion. There was no reason to doubt the police officers’ version of the events, and the assessment of the facts did not require special knowledge.

The judgment was served on the applicant’s counsel on 11 June 2001.

By section 82(1) of the Police Security Act (Sicherheitspolizeigesetz), a person who, notwithstanding a previous warning, behaves aggressively towards a public officer on duty and thereby obstructs the performance of an official act commits an administrative offence and is punishable by a fine of up to ATS 3,000 (approximately EUR 218) (aggressives Verhalten gegenüber Organen der öffentlichen Aufsicht).

Section 85 of the Police Security Act provides that an administrative offence under sections 81 to 84 is not to be prosecuted when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts.

Under Article 269 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by imprisonment of up to three years, to resist forcibly or using dangerous threats a public officer in the performance of an official act (Widerstand gegen die Staatsgewalt).

Article 83 of the Criminal Code applies where a person causes bodily harm and provides for up to one year’s imprisonment or up to 360 day-fines.

By Article 84 § 2 of the Criminal Code, bodily harm caused to a public officer while on duty qualifies as grievous bodily harm (schwere Körperverletzung) punishable by up to three years’ imprisonment.

Article 28 § 1 of the Criminal Code provides that where a person has committed more than one offence, he or she should be punished by a single penalty, on the basis of whichever offence provides for the more severe punishment.