Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nina Vajic

The applicant, Mr Livius Popovici, is an Austrian national who was born in 1927 and lives in Vienna. He was represented by Mr Reif-Breitwieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

By a decision of the Tax Authority (Finanzamt) of 9 December 2002 the applicant was ordered to pay a “first surcharge” for the late payment of his income tax (erster Säumniszuschlag) for the years 1996, 1997 and 1998. The Tax Authority held that the applicant had failed to pay the taxes by their due date of 11 November 2002.

By letters dated 17 and 18 December 2002 the applicant appealed against the decisions regarding the surcharges for income tax for 1996 and 1998 respectively. The surcharges amounted to 2% of the outstanding taxes, totalling 137.91 euros (EUR).

By a decision of 3 June 2003 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeals as ill-founded and upheld the decision of 9 December 2002.

The applicant, who was in receipt of legal aid, complained to the Administrative Court (Verwaltungsgerichtshof) on 29 September 2003, arguing that the law applicable at the time the tax surcharges were due, did not provide for “first surcharges”, but only for “surcharges”.

On 18 November 2004 the IFP submitted comments on the applicant’s complaint.

On 6 December 2004 the applicant submitted comments in reply.

By a decision of 4 June 2008 the Administrative Court rejected the applicant’s complaint. It held that while the law in force at the time only provided for (one) surcharge, and “first”, “second” and “third” surcharges were only introduced by a later amendment to the law, the applicant had not suffered any disadvantage, as the substantive content of the law before and after the amendment was the same. The amount of the surcharge itself was the same under the law in force at the time as the amount of a “first” surcharge under the law after the amendment. It was only their denotation that had changed. The decision was served on the applicant’s counsel on 2 July 2008.

On 4 March 2010 the applicant informed the Court that by a decision of the Tax Authority of 30 March 2009, the decision obliging him to pay surcharges had been annulled.

Section 217 of the Federal Tax Act (Bundesabgabenordnung) deals with the imposition of surcharges for the late payment of taxes. The provision in force at the material time provided that the surcharge was to be fixed at 2% of the amount of tax not paid in time.


The applicant, Mr Krzysztof Dobrowolski, is a Polish national, who was born in 1974. He was represented before the Court by Mr Ł. Jura, a lawyer practising in Warsaw. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs.

On 18 April 2001 the Śrem District Court (Sąd Rejonowy) convicted the applicant of dealing in stolen goods and sentenced him to a sixteenmonth prison term.

The applicant filed an appeal to the Poznań Regional Court (Sąd Okręgowy) in which he complained about the severity of the sentence.

On 20 November 2001 the Regional Court informed the applicant that a legal aid counsel had been appointed for him and that an appeal hearing would take place on 30 November 2001.

However, counsel never contacted the applicant. The applicant, who was serving a prison sentence in another case, asked that he be brought before the appellate court but his request was refused.

On 30 November 2001, after a hearing at which the prosecutor and the applicant’s counsel, but not the applicant, were present, the Regional Court dismissed the applicant’s appeal.

On 9 December 2001 the applicant asked the Court to serve him with a copy of the reasoned judgment with the purpose of lodging a cassation appeal with the Supreme Court. On 10 January 2002 the court served him the reasoned judgment.

The applicant failed to lodge a cassation appeal within the time-limit and on 20 February 2002 the President of the Fourth Chamber of the Poznań Regional Court declared that the judgment was final.

Under Article 519 of the 1997 Code of the Criminal Procedure, which entered into force on 1 September 1998, a party to criminal proceedings may lodge a cassation appeal with the Supreme Court against a final judgment of an appellate court which has terminated the criminal proceedings.

Article 523 §1 of the 1997 Code provides, in so far as relevant:

“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of rules governing jurisdiction in criminal matters; trying a person in absentia where his presence was obligatory etc.] or on the ground of another flagrant breach of law provided that it could significantly affect the substance of the ruling in question. No cassation appeal may be directed against the severity of the penalty imposed.”

A cassation appeal must be lodged within 30 days from the date of notification of the reasoned judgment of the appellate court (Article 524 of the 1997 Code).

Pursuant to Article 451:

The appellate court shall order an accused, who is detained, to be brought to the appellate hearing, unless it finds that the presence of his lawyer is sufficient. If the court decides not to bring to the hearing an accused who has no defence counsel, it shall appoint for him ex officio a legal aid lawyer.

The Supreme Court has examined in numerous judgments cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question, within the meaning of Article 523 of the Code of Criminal Procedure.

The Supreme Court on many occasions found that the refusal to bring the accused to the appeal hearing, although not in violation of the Code of Criminal Proceedings in force, constituted a breach of Article 6 §§ 1 and 3 (c) of the Convention read in conjunction with Article 91 § 2 of the Constitution of the Republic of Poland. In such cases, the Supreme Court quashed the appeal judgment and remitted the case (judgment of 10 August 2000, III KKN 192/00, judgment of 5 June 2001, III KKN 28/01).

The resolution of 7 judges of the Supreme Court of 18 October 2001 (IKZP 25 /01) dealt with the Ombudsman’s request for clarification of issues relating to the presence of the accused at the appeal hearing in the light of Article 6 of the Convention and the Polish Code of the Criminal Procedure. The Supreme Court, inter alia, stated:

“...Finally, it should be underlined, that even if the accused requests to be brought to the appeal hearing, the court may establish that the presence of the lawyer at the appeal hearing would be sufficient. If the accused does not have a counsel, it is necessary to appoint for him a legal aid lawyer whose presence at the hearing would be obligatory. It should however be noted that if an accused deprived of liberty requests to be brought to the appeal hearing, granting such request should be a rule... Finding that the presence of the lawyer would be sufficient could occur in particular if the appeal hearing concerned only questions of law.”


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr Carl G. Holm is a Swedish national. He is an economist and resides at Täby in Sweden. At the material time, he was employed by the Swedish Federation of Industries (Sveriges Industriförbund).

In 1974 the applicant formed together with others a foundation named Contra. According to him its aim was to scrutinise governments of communist regimes in Eastern Europe and the Swedish Social Democratic Workers Party (Sveriges socialdemokratiska arbetareparti - the "SAP").

In 1985 a publishing house, Tidens förlag AB, published a book entitled "Till höger om neutraliteten" (To the right of neutrality). It contained a survey of right-wing organisations and individuals, including a 52-page chapter on the applicant and his involvement in Contra. The author of the book, Mr Sven Ove Hansson, was then employed by the publisher and had previously served as an ideological adviser to the SAP.

Tidens förlag AB was, from its foundation in 1912 until 1 January 1985, owned by the SAP directly. As of the latter date, 85% of its shares were held by a company owned by the SAP, namely AB Förenade Arebolagen. The remaining 15% were held by Folkparkernas Centralorganisation which, the applicant states, was controlled by the SAP. Tidens förlag AB is known for publishing books and articles portraying social democratic views.

On 15 April 1986 the applicant brought a private prosecution for aggravated libel (grovt förtal), and in the alternative for libel (förtal), against Mr Hansson in the District Court (tingsrätten) of Stockholm, under Chapter 7, section 4, paragraph 9, of the 1949 Freedom of the Press Act (tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) and Chapter 5, Articles 1 and 2, of the Penal Code (brottsbalken). In the same proceedings he sued both the author and the publisher for damages, claiming 200,000 Swedish kronor. He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups, calculated to cast doubt on his honour and to expose him to contempt; in view of the wide distribution of the book and the applicant’s central position in the Swedish Federation of Industries, the libel was aggravated.

The impugned passages of the book included allegations which can be summarised as follows:

(a) in 1973 the applicant had chaired the youth section of the World Anti-Communist League’s Conference in London, an organisation whose membership was said to consist largely of neo-nazis and former SS-members, for example the then chairman of the nazi-oriented Swedish National Union;

(b) the applicant had, by reason of his right-wing extremism, been expelled in 1974 from the Democratic Alliance and the Conservative Youth Organisation; it was therefore regrettable that he still held important positions within the Swedish Federation of Industries and the Swedish Employers’ Federation;

(c) he had been reported to the police for embezzlement of the Democratic Alliance’s funds; an audit had shown that he had transferred 1,340 Swedish kronor from the association’s account to his own account;

(d) he had failed to dissociate himself immediately from a co-member of a splinter group of the Democratic Alliance, who had provided grenades to two Nordic National Party activists and who had urged the latter to place one of the grenades in an office of the Democratic Alliance and advised them on how to enter the office; the activists had been convicted of having placed the grenades and the applicant’s associate of having aided and abetted causing bodily harm;

(e) Contra had been collaborating with the above-mentioned Swedish National Union in Lund and Malmö and the applicant had negotiated with the latter about the setting up of a local Contra group;

(f) organisations like Contra were infiltrated to the highest echelons by neo-nazi groups, which selected the most militant members of such organisations and incited them to engage in illegal activities.

At a sitting held by the District Court on 10 November 1986, the defendants, but not the applicant, asked for the case to be considered with a jury. As a result of the defendants’ request, the question whether a criminal offence had been committed was to be examined, according to the provisions of the Freedom of the Press Act, by a jury, composed on the basis of a list of two groups of names (see paragraphs 15, 18 and 19 below). The list, which had been published by the Stockholm County Council (Stockholms läns landsting), indicated the jurors’ political affiliations. The first group comprised sixteen persons, seven of whom were members of the SAP, five of the Conservative Party, two of the Liberal Party, one of the Centre Party and one of the Communist Party. The second group included eight names, of whom four were members of the SAP, two of the Conservative Party and two of the Liberal Party.

The applicant, referring to paragraph 9 of Article 13 in Chapter 4 of the Code of Judicial Procedure (rättegångsbalken), filed a complaint with the District Court under Chapter 12, section 8, of the Freedom of the Press Act, asking it to exclude as being disqualified those jurors who were members of the SAP (see paragraph 21 below). In support of his request, he pointed to the position as regards ownership of Tidens förlag AB (see paragraph 8 above) and argued that the publisher was the "mouthpiece" of the social democratic movement. However, the District Court rejected his request on 10 November 1986, finding that, regardless of whether the publisher could be seen as a "mouthpiece" as described by the applicant, the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned.

In an appeal against this decision to the Svea Court of Appeal (Svea Hovrätt), the applicant submitted, in addition to the above arguments, that the contents of the book were of a political nature and that the case had political undertones. The Court of Appeal dismissed the appeal on 4 December 1986, without stating any reasons. It was not open to the applicant to appeal further against this decision (Chapter 12, section 8, of the Freedom of the Press Act).

In the meantime, at the above-mentioned sitting on 10 November 1986, the District Court proceeded with the constitution of the jury in accordance with Chapter 12 of the Freedom of the Press Act. Exercising their right under section 10, the applicant and the defence each rejected three jurors from the first group and one from the second group. Those eliminated by the applicant were all SAP members and those by the defendants were members of the Conservative Party. Lots were drawn in accordance with the procedure described in paragraph 19 below, and a jury of nine members was constituted. Of these, five were members of the SAP - one of the them was subsequently replaced by another SAP member -, two of the Conservative Party, one of the Liberal Party and one of the Communist Party.

As appears from information submitted by the applicant, which was not contested by the Government, the SAP jurors were active members of the Party, holding or having held various offices in it and on its behalf at local level (for further details, see paragraph 27 of the Commission’s report).

On 14 October 1987, the District Court, sitting with three judges and a jury of nine, examined the merits of the case. In its judgment of the same date the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book. Accordingly, the District Court dismissed the charges made by the applicant and his claims for damages. In view of the conclusions reached on the merits, it ordered him to pay 67,860 Swedish kronor in costs.

It was not possible under Swedish law for the applicant to appeal against the jury’s verdict (see paragraph 16 below).

In Sweden freedom of expression as regards the printed word is regulated by the 1949 Freedom of the Press Act, which has constitutional status. The first such Act dates back to 1766. The jury system was introduced when a revised version of the Act entered into force in 1812. The merits of the system underwent a thorough examination in the course of the revision which led to the 1949 version of the Act. However, the predominant view was that the jury system constituted an important safeguard of press freedom in Sweden and that it should be maintained. For similar reasons, more recent proposals to abolish the jury system have also been resisted.

Chapter 12 of the Act contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print (section 1). These cases are heard by the District Court within whose jurisdiction the county administration has its seat (Chapter 12, section 1). It sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed or whether civil liability has been incurred, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (sections 2 and 14). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone.

In a jury trial the District Court is presided over by a judge. If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred, the defendant must be acquitted or the case must be dismissed. If the reply is in the affirmative - and this requires a majority of at least six members - the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or, in civil proceedings, dismiss the case (sections 2 and 14).

A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury’s verdict (Chapter 12, section 2).

Chapter 1, section 4, provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented; where there is doubt, he should acquit rather than convict.

In each county the county council, alone or in some cases together with the municipal council, elects jurors for a term of four years (Chapter 12, section 4). They are divided into two groups, one of sixteen jurors and the other of eight, the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts (section 3). The names of jurors are entered on a list in which each of the two groups are listed separately (section 9).

Only Swedish citizens residing in Sweden are eligible for election as jurors. A further condition is that they be known to be independent and fair-minded and to have sound judgment. Different social groups and currents of opinion as well as geographical areas should be represented among the jurors (section 5). In practice, jurors are normally elected from among people who have been politically active.

In proceedings involving a jury, the District Court presents the above-mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors (Chapter 12, section 10; see also paragraph 21 below). Thereafter, each party is given the opportunity to exclude three jurors in the first group and one from the second. Subsequently, the District Court, by drawing lots, selects the substitute members until there remain six jurors in the first group and three jurors in the second group; these nine jurors become full members of the jury (Chapter 12, section 10).

Chapter 11, section 2, of the Instrument of Government (regeringsformen), which forms part of the Swedish Constitution, provides that neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. Moreover, all public power must be exercised subject to the law; courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, sections 1 and 9). These fundamental principles apply also to a jury sitting in a trial under the Freedom of the Press Act.

The statutory rules on disqualification of judges extend to jurors (Chapter 12, section 10, of the Freedom of the Press Act). Chapter 4, Article 13, of the Code of Judicial Procedure enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Article, paragraph 9, which was the one relied on by the applicant in the domestic proceedings, a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case.

According to section 5 of the 1949 Act containing certain provisions on Proceedings relating to the Freedom of the Press (lagen 1949:164 med vissa bestämmelser om rättegången i tryckfrihetsmål) jurors must take the following oath before participating in a trial:

"I, N.N., solemnly swear and declare on my faith and honour that, as a member of this jury, I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury’s deliberations and how the jurors have voted. This I will and shall faithfully observe as an honest and upright judge."

Clause 13 of the SAP’s articles of association provides that a member may be excluded if he is disloyal to the Party, disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests. SAP candidates for public office are required to contribute through their office to the implementation of the Party’s programme. Other political parties have similar rules.

On the other hand, none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror. It appears from the legislation summarised in paragraphs 20 to 22 above and the preparatory works to the 1949 Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge (see Statens offentliga utredningar - "SOU" 1947:60, p. 194).


The applicant, Mr Leonid Ivanovich Balyuk, is a Ukrainian national who was born in 1957 and resides in the town of Mukachevo, Zakarpattya Region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

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

In April 2001 the applicant instituted proceedings in the Mukachevo Town Court against Mr S., a private person, seeking recovery of a debt.

On 3 May 2001 the court restricted Mr S.’s right to dispose of his property in order to secure the applicant’s claim. However, on 17 May 2001 some of Mr S.’s property (part of an apartment) was sold to Mrs B.

On 13 June 2001 the court found for the applicant and awarded him 7,027 Ukrainian hryvnas (UAH) against Mr S. On 23 October 2001 the Zakarpattya Regional Court of Appeal upheld this judgment and it became final.

The judgment of 13 June 2001 was not enforced allegedly due to Mr S.’s lack of funds.

In December 2001 the applicant instituted proceedings in the same court against Mr S., Mrs B. and the Mukachevo Notary Office No. 1, seeking to invalidate the apartment sales agreement. On 11 February 2002 the court found that the agreement was valid. In particular, the court found that the injunction on the sale of the disputed apartment had only been forwarded to the notary on 17 May 2001 and therefore, at the material time, the notary had acted in good faith. On 27 May 2002 the Supreme Court of Ukraine upheld this judgment.

By letters of 24 May and 10 December 2002, the Zakarpattya Regional Prosecutor’s Office informed the applicant that, because of the court’s negligence, the decision of 3 May 2001 had only been received by the Bailiffs’ Service and the notary on 24 May 2001.

In March 2002 the applicant instituted proceedings in the Mukachevo Town Court against the Bailiffs’ Service for an allegedly improper enforcement of the judgment of 13 June 2001. On 3 June 2002 the court rejected the applicant’s complaint for having been submitted out of time. On 3 September 2002 the Zakarpattya Appellate Court quashed this decision and remitted the case for a fresh consideration.

On 3 December 2002 the court returned the applicant’s complaint without consideration because it did not comply with the procedural requirements prescribed by law. The applicant neither appealed against this decision, nor lodged his complaint anew.

On 17 April 2002 the applicant revoked the writ of enforcement and the enforcement proceedings were closed. The applicant states that there was no sense in continuing the enforcement proceedings because the Bailiffs’ Service was inactive and Mr S. had no assets to seize.

At the material time Article 156 of the Code provided that a decision to secure a claim should be enforced immediately in accordance with the procedure for the enforcement of judgments.


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant, Mrs Natela Davitashvili, is a Georgian national who was born in 1947 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr Mikheil Kekenadze of the Ministry of Justice.

The applicant had worked, under a contract of indefinite duration, as a laboratory assistant in a tuberculosis hospital since 1994. By an order of 12 July 2002, the hospital administration (“the respondent”) dismissed her.

The applicant sued for unlawful dismissal and, in a judgment of 29 November 2002, the Didube-Chughureti District Court in Tbilisi found in her favour.

Enforcing the terms of the above judgment, the respondent issued, on 29 November 2002, an order reinstating the applicant to her previous position.

On 1 December 2002 the respondent offered, and the applicant accepted, an employment contract for six months.

On 1 April 2003 the respondent notified the applicant that her contract would expire on 1 June 2003 and that no extension was possible.

On 27 June 2003 the applicant filed another action, requesting, inter alia, that the respondent be ordered to re-employ her. She claimed that she had signed the six-month contract by mistake.

On 18 June 2004 the Tbilisi Regional Court, overturning a lower instance decision, found for the applicant, ordering the respondent to offer her a contract of indefinite duration, as the situation had stood prior to her unlawful dismissal of 12 July 2002. The appellate judgment noted, in its operative part, that a cassation appeal lay within a month following delivery of its motivated copy to the parties.

On 24 September 2004 the respondent lodged a cassation appeal.

On 26 January 2005 the Supreme Court allowed the respondent’s cassation appeal, by quashing the appellate judgment of 18 June 2004 and dismissing the applicant’s employment action of 27 June 2003. The cassation court established that the Didube-Chughureti District Court’s binding decision of 29 November 2002 had been properly enforced, in so far as the respondent had duly issued, on 29 November 2002, an order reinstating the applicant to her permanent position. It was only subsequent to that reinstatement that the respondent had offered her an employment contract for six months, which she had accepted herself. The Supreme Court noted in that regard that the Labour Code did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration. Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will.

Throughout the second set of proceedings, a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf.

Pursuant to Article 264 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), if a cassation appeal had not been lodged within the statutory period, the appellate judgment became binding.

Subsequent to Article 397 § 1 of the CCP, the period for lodging a cassation appeal, which could not be either restored or extended, was one month. That period started to run from the moment of delivery of the appellate judgment to a party in question. Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party.

Article 397 § 2 of the CCP further stated that, if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned, the period for lodging a cassation appeal started to run upon pronouncement.


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Mr Yevgeniy Yevgenyevich Trifontsov, is a Russian national who was born in 1963 and lives in Kaliningrad. He was represented before the Court by Mr V. Filatyev and Mr S. Baranov, lawyers practising in Kaliningrad.

The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and then by Mr G. Matyushkin, their Representative at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows.

At the relevant time the applicant was working as a police investigator. He was in charge of a criminal case against N.K., a student suspected of illegal possession of drugs. The case against N.K. was opened on 23 November 1999.

According to the official account of events, in December 1999January 2000 the applicant repeatedly contacted N.K.’s parents offering to close the case against their son in exchange for payment of a certain sum of money. The applicant’s father, V.K., tentatively agreed. However, some time later V.K., having discussed the matter with his wife, decided to report the applicant and secretly recorded their conversations on several audiotapes. On 28 December 1999 V.K. informed the Internal Security Service (hereinafter the “ISS”) of the offer he had received from the applicant. He gave them the audiotapes at a later date. It is unclear when those recordings were made and what they contained.

The applicant claimed that he had been incited by V.K. to take the money. He also maintained that V.K. had been acting on ISS orders, and that the ISS had instructed V.K. to make him accept the deal and to secretly record their conversations.

The ISS’s first official record of V.K.’s statement reporting the applicant was dated 15 January 2000. To the extent that V.K.’s statement is legible (the record of his questioning is hand-written), it can be summarised as follows. According to V.K., in December 1999 the applicant solicited a bribe from N.K.’s mother. In January 2000 the applicant made a similar approach to V.K. The applicant allegedly asked for 5,000 US dollars (US$), which were supposed to go to a supervising prosecutor. V.K. claimed that he had taped some of his conversations with the applicant on his own initiative.

On the same date, the ISS conducted a covert operation targeting the applicant. They equipped V.K. with a radio-transmitting device connected to a tape-recorder and instructed him to record his conversation with the applicant. They also gave V.K. money to be handed over to the applicant, and recorded the serial numbers of the banknotes in a document, signed by two attesting witnesses – soldiers from a nearby military base.

Again on 15 January 2000 V.K. called the applicant, who told V.K. that they should meet at the regional Prosecutor’s Office. They met there at about noon and discussed the deal. Their conversation was recorded by the ISS through the radio transmitter. In the course of the conversation, the applicant reproached V.K. for having brought only US$ 2,500, namely half the amount agreed earlier. V.K. replied that he would bring the remaining half later. The applicant also asked V.K. whether he had told anybody about their deal. V.K. replied in the negative. The applicant then asked V.K. to leave the money on a table, in a plastic bag. When V.K. had done so, the applicant gave him an official note signed by the applicant and confirming that the case against N.K. had been closed.

As soon as the applicant left the building, V.K. contacted the ISS officers, who were waiting nearby and informed them that the money had been handed over. The ISS officers immediately apprehended the applicant, but found that he was not in possession of the money. They then searched the premises where V.K. had met the applicant and found the money in a plastic bag, hidden in the corridor. The serial numbers on the banknotes found there corresponded to those on the banknotes received by V.K. from the ISS. The ISS officers drew up a report of the search of the place of the incident, which was attested by the same two witnesses. The applicant was questioned and arrested. The case was then transferred to the regional Prosecutor’s Office, and on 18 January 2000 the applicant was formally charged with taking a bribe. Material obtained by the ISS during the covert operation was declassified and attached to the criminal case file. On 16 May 2000 the prosecution sent the case with a bill of indictment to the Kaliningrad Regional Court.

In the course of the trial the applicant pleaded not guilty and alleged that it was V.K. who had offered him money. The applicant did not deny that he had agreed to take the money but claimed that his real intention had been to report V.K. as a briber. He had arranged for the meeting to take place at the Prosecutor’s Office in order to report him to his friends who worked there. The applicant also claimed that the tape recorded on 15 January 2000 and the search report should not have been admitted in evidence.

The prosecution insisted that the applicant had extorted money from V.K. In support, they produced the report of “the search of the place of the incident” (namely the corridor where the money had been discovered in a plastic bag). They also produced the report of an expert examination of the fingerprints on the plastic bag, according to which the fingerprints belonged to the applicant. A record of the conversation of 15 January 2000 between the applicant and V.K. was also presented to the court. Finally, the prosecution submitted the official note signed by the applicant certifying that the case against N.K. was closed..

The court heard several witnesses. V.K. testified that the applicant had offered to discontinue the proceedings against his son in exchange for a sum of money. His testimony was corroborated by N.K., who testified that in 1999 his father had told him about the offer made by the applicant. Another witness, V.K.’s wife, stated that she had known about the deal and had persuaded her husband to inform the ISS about it. The court also examined the ISS officers involved in the operation. They confirmed that V.K. had informed them about the offer made by the applicant. The applicant’s immediate superiors and colleagues were also examined. They claimed that the applicant had never told them that V.K. had offered him money to close the criminal case against N.K.

The court also examined the record of the applicant’s first questioning and noted that the applicant had not referred to “incitement” when questioned. The court also heard the two attesting witnesses who had been present on 15 January 2000 during the preparation of the covert operation and during the search of the premises of the regional Prosecutor’s Office. They confirmed the accuracy of the reports drawn up by the ISS.

Finally, the court listened to the tape recording made secretly during the meeting between V.K. and the applicant on 15 January 2000, examined the transcript of the tape and studied the official note concerning the closure of the criminal case against N.K.

On 13 July 2000 the Kaliningrad Regional Court found the applicant guilty of taking a bribe and sentenced him to four years’ imprisonment.

The applicant appealed. He maintained that ISS officers had framed him. He submitted that the ISS should have first obtained V.K.’s written statement, then opened an inquiry or instituted criminal proceedings, but that none of that had been done. The applicant also contested the admissibility and authencity of the tape recording of his conversation with V.K.. He also contested the admissibility of the search report . He submitted that those pieces of evidence had been obtained in breach of the law. Furthermore, the applicant challenged the veracity and consistency of statements of the witnesses who had testified against him.

On 28 December 2000 the Supreme Court of the Russian Federation upheld the decision of the Kaliningrad Regional Court and confirmed the findings of the first-instance court as to the facts of the case. It also noted that the operation that had led to the applicant’s arrest had been carried out in conformity with the applicable legislation. The material obtained by the ISS had been duly incorporated in the body of evidence. Furthermore, in accordance with criminal procedure rules, the ISS had the right to search premises without waiting for an investigator from the Prosecutor’s Office.

For relevant provisions of the Operational-Search Activities Act of 1995, as in force at the material time, see Bykov v. Russia [GC], no. 4378/02, § 56, 10 March 2009.


Preliminary objection dismissed (Six-month period);Violations of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award

The applicant was born in 1972 and lives in Arlington, United States of America.

Georgiy Gongadze, the applicant's husband, was a journalist. He disappeared on 16 September 2000 in circumstances that have not yet been fully established by the Ukrainian authorities despite the numerous demands and requests of the applicant. Recently, however, several police officers were charged with the kidnap and murder of Mr Gongadze.

Mr Gongadze was a political journalist and the editor-in-chief of Ukrayinska Pravda, an online newspaper. He was known for his criticism of those in power and for his active involvement in awareness-raising in Ukraine and abroad as regards the problems of freedom of speech in his country. He reported on such topics as the allegedly undemocratic initiatives of the Ukrainian authorities and corruption amongst high-level State officials.

For months before his disappearance Mr Gongadze had been telling his relatives and colleagues that he was receiving threats and was under surveillance.

On 14 July 2000 Mr Gongadze wrote an open letter to the Prosecutor General making the following complaints:

(i) His relatives and friends in the city of Lviv, and his colleagues in Kyiv, had been interviewed by law enforcement officers about him. The pretext for holding these interviews had been an inquiry into a criminal incident in Odessa in which Mr Gongadze had allegedly been involved. (The applicant maintained that Mr Gongadze had known nothing about the incident or the people involved in it. He himself had never been interviewed about it.)

(ii) For some time, unknown persons in a car with the number plate 07309 KB had been following Mr Gongadze from his home to his office and back.

In his open letter, Mr Gongadze requested the Prosecutor General to take measures to protect him from what he described as “moral terror”, and to find and punish those involved.

In response, the Prosecutor General sent the letter to the regional prosecutor's office in Lviv, where Mr Gongadze was officially registered as a resident (propiska). The Lviv prosecutor replied that the places and streets (of Kyiv) mentioned in Mr Gongadze's letter were unknown in Lviv.

Later, the then Minister of the Interior told representatives of the non-governmental organisation “Reporters sans frontières” (as recounted in the latter's report of 22 January 2001) that the car registration plate had been stolen from a police vehicle in February 2000.

On 1 September 2000 the General Prosecutor's Office (“the GPO”) informed Mr Gongadze that there were no grounds for the adoption of any decision under Article 52-1 of the Code of Criminal Procedure (protective measures during criminal proceedings) regarding his letter.

Mr Gongadze disappeared on 16 September 2000.

On 17 September 2000 the applicant reported her husband's disappearance to the Moskovskiy District Police Department in Kyiv.

On 18 September 2000 (19 September, according to the Government) the Pechersky district prosecutor's office initiated an inquiry into a case of premeditated murder (the “Gongadze case”). The inquiry included a search of the places where Mr Gongadze had last been seen and interviews with people who had been there at the time. The applicant maintained that the investigating prosecutor in charge of the case, Mr H., had seemed to be conducting a serious investigation. However, he was replaced at the beginning of November by another prosecutor, Mr V.

On 2 November 2000 the decapitated body of an unknown person was discovered in the vicinity of the town of Tarashcha, in the Kyiv Region.

On 3 November 2000 the Kyiv regional prosecutor's office initiated an inquiry into the murder of an unidentified person (the “Tarashcha case”).

The first autopsy of the corpse was performed by a local expert and the findings were presented on 8 November 2000. According to these findings, the time of death of the unknown person roughly corresponded to the time of the disappearance of Mr Gongadze.

On 10 November 2000 relatives learned from a brief article in the newspapers about the discovery of an unidentified body in the vicinity of Kyiv. On 15 November 2000, on examining the body, they identified jewellery belonging to Mr Gongadze and the marks of an old injury to the body that corresponded to that of the missing journalist. The contents of the stomach corresponded to the food which Mr Gongadze had eaten on the day of his disappearance. The relatives took a fragment of skin from the body to be examined by independent experts.

From that date onwards, the prosecutor allegedly began actively to impede the investigation. On 15 November 2000 the body was removed from the morgue in Tarashcha. Three days later the Kyiv regional prosecutor's office admitted that the body had been transferred to Kyiv. All documents relating to the first forensic examination conducted in Tarashcha were confiscated. The local expert was prohibited from talking about the autopsy of the body and later became the subject of criminal proceedings. On 16 November 2000 the Deputy Minister of the Interior announced that, contrary to the preliminary findings, the body which had been discovered had been buried in the ground for about two years.

On 21 November 2000 the applicant requested the investigator at the Pechersky district prosecutor's office

(i) to recognise her as a civil party to the proceedings in the Tarashcha case;

(ii) to identify the body and the jewellery found with it; and

(iii) to organise a forensic medical examination in order to establish whether the body found in Tarashcha was that of her husband.

On 23 November 2000 the investigator rejected this request.

That day the applicant also requested the prosecutor of the Kyiv Region not to cremate the body found in Tarashcha and to let her bury it if the body were to be identified as that of her husband.

On 29 November 2000 the Pechersky district prosecutor's office recognised the applicant as a civil party in the Gongadze case.

On 4 December 2000 the head of the investigation department of the Kyiv regional prosecutor's office informed the applicant that a criminal investigation into the murder of the unidentified person had been initiated and that a forensic medical examination had been organised. However, there were no grounds to recognise the applicant as a civil party in the Tarashcha case. They promised to keep the applicant informed as to her possible participation in the identification of the objects found with the body. Accordingly, the applicant was not allowed to participate in the identification of the body at that stage.

On 6 December 2000 the applicant asked the GPO to be allowed to participate in the identification of the body and requested that the two sets of proceedings be joined.

On 8 December 2000 the Prosecutor General announced that DNA analysis could not be done for the time being because Mrs Lesya Gongadze, the deceased's mother, was ill. This statement was denied by the latter herself. The Prosecutor General then declared that he had been misunderstood.

On 10 December 2000, more than a month after the body had been discovered, the applicant was allowed to participate in its identification. Being under stress, she was unable to make a positive identification of the body as being that of her husband.

On 11 December 2000 a blood sample was taken from the deceased's mother for DNA analysis.

On 14 December 2000 the applicant requested the Prosecutor General to involve foreign experts in the investigation of the case under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

On 15 December 2000 the Prosecutor General announced that the body found in Tarashcha was not that of Mr Gongadze.

On 18 December 2000 the GPO refused the applicant's request to involve foreign experts in the DNA analysis and informed her that the Ukrainian institutions were empowered to conduct all necessary examinations.

Later, several DNA analyses were conducted in the case, including by foreign experts. The forensic medical examinations conducted by the Russian and United States specialists confirmed that it was highly probable that the body found in Tarashcha was that of Mr Gongadze. However, within the framework of an investigation conducted by an ad hoc parliamentary committee, an examination conducted by German specialists did not confirm this finding.

The applicant maintained that she had never been informed directly by the investigating authorities about the results of these examinations, but had learned about them from the media.

On 10 January 2001 the Prosecutor General informed Parliament of the provisional findings of the forensic medical examination conducted by the Russian experts, which showed that the body found in Tarashcha was that of Mr Gongadze (99.64% probability). Nevertheless, the identity of the body could not be confirmed as there were witnesses who claimed to have seen Mr Gongadze alive in Lviv after his disappearance, in November and December 2000. This information had been checked but was also not confirmed.

On 12 January 2001 the applicant and the deceased's mother requested the GPO to recognise them as civil parties in the Tarashcha case and to conduct another examination of the body. The same day the applicant was informed by the Prosecutor General that her status as a civil party, which had been granted by the Pechersky district prosecutor's office on 29 November 2000, was annulled. The applicant lodged a complaint with the Pechersky District Court of Kyiv.

On 13 January 2001 the GPO rejected the applicant's request to be recognised as a civil party, stating that it had not been established beyond all doubt that Mr Gongadze was dead or that the body found in Tarashcha was his.

On 15 January 2001 the Pechersky District Court recognised the right of the applicant and the deceased's mother to be civil parties and ordered the GPO to grant them this status. However, despite the order, the GPO again refused this status on 17 January 2001. Exceptionally, the GPO agreed to give them the Tarashcha body for burial, whilst emphasising that the GPO was not competent to issue a death certificate.

Also on 15 January 2001 the editor-in-chief of the Grani newspaper made public the names of four policemen who had allegedly participated in the surveillance of Mr Gongadze.

The applicant and the deceased's mother challenged the refusal to grant them aggrieved-party status in the Pechersky District Court. On 9 February 2001 that court found that the GPO's decision was illegal. The GPO appealed.

On 24 January 2001 the investigators severed a defamation case involving a Mr Melnychenko from the Gongadze case (see Melnychenko v. Ukraine, no. 17707/02, § 15, ECHR 2004-X).

Despite its appeal, on 26 January 2001 the GPO recognised the status of the applicant and the deceased's mother as civil parties in the light of further forensic evidence. (The applicant maintained that this was done under the influence of Resolution 1239 (2001) of the Parliamentary Assembly of the Council of Europe, adopted on 25 January 2001, which called on the authorities to conduct “an expeditious, full and transparent investigation into the disappearance or death of Mr Gongadze, and to make known the results of the investigation as quickly as possible; ... to respect the rights of the victim's relatives, including their right to be the aggrieved side in the case of Mr Gongadze's death”.)

On 27 February 2001 the GPO informed the applicant that additional evidence had confirmed that the body found in Tarashcha was that of Mr Gongadze. An investigation into the murder of Mr Gongadze was initiated, and the applicant and the deceased's mother were granted the status of aggrieved parties.

On 16 March 2001 the applicant requested the Prosecutor General to give her access to the case-file material concerning the forensic medical examination of the body. On 19 March 2001 the investigating officer refused, stating that it was part of the preliminary investigation and the applicant could only have such access when the preliminary investigation was over. The applicant's lawyer unsuccessfully challenged this refusal in the Pechersky District Court of Kyiv.

On 30 March 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv alleging negligence by the investigators.

On 26 April 2001 the investigator carried out an inspection of the Tarashcha body in the presence of the deceased's mother and her lawyer, and the applicant's lawyer. An additional forensic examination and a genetic identification test were carried out by United States specialists. The joint examination by the United States and Ukrainian experts confirmed that the Tarashcha body was that of Mr Gongadze.

On 8 May 2001 the applicant requested full access to the case file, which was refused on 17 May 2001 pending the pre-trial investigation.

On 15 May 2001 the Minister of the Interior announced that the two presumed murderers of Mr Gongadze, identified as drug users, had died and that the case was therefore solved. The Minister further stated that the murder had been spontaneous, with no political motive. On 17 May 2001 the GPO contradicted this announcement and recommended that the Minister refrain from disclosing any information about the criminal investigation.

On 18 May 2001 the applicant requested the GPO to confirm the Minister's statement and to inform her as to when she would be allowed access to the case file. The same day the GPO informed the applicant that important additional information had been obtained and needed further examination, and that it would therefore be premature to say that the preliminary investigation was over.

On 22 May 2001 the applicant requested the GPO to involve experts from the United States Federal Bureau of Investigation (FBI) in the investigation. Her request was refused on 25 May 2001.

By a letter of 30 May 2001, the GPO authorised the Kyiv Office for Forensic and Medical Examinations to deliver the remains of Mr Gongadze to his relatives for burial. A copy of this letter was handed to the representative of the deceased's mother and sent by mail to the applicant's representative. On 6 July 2001 the forensic office informed the deceased's mother that she could take the body away for burial. However, according to the Government, the body was still in the Kyiv Office for Forensic and Medical Examinations, although the burial decision remained exclusively with the deceased's mother and the applicant.

On 6 September 2001 the applicant's representative requested access to the results of all the forensic examinations in the case file. She also asked when the preliminary investigation would be finished. On 7 September 2001 the GPO replied that it was not yet possible to say.

In a further reply of 10 September 2001, the GPO stated that the representative of an aggrieved party had a right of access to the results of forensic examinations, but only after the pre-trial investigation had been completed. According to the Government, the GPO noted that the representative had had access to the results of the forensic examinations and genetic tests within the limits permitted by the confidentiality of the investigation.

On 10 October 2001 the Kyiv City Justice Department informed the applicant that her negligence claim against the investigators, lodged on 30 March 2001 with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with that court.

On 30 October 2001 the applicant requested the GPO to provide her with information about the forensic medical examination conducted by the FBI and the reasons for the contradictory findings of the forensic medical examinations conducted by the Russian and German experts. She requested that an additional forensic medical examination be held to answer these questions.

On the same date the applicant was informed by the GPO that the case file could not be disclosed before the end of the preliminary investigation and that the preliminary investigation would be finalised when the person guilty of the crime had been found.

On 31 October 2001 the GPO stated that the forensic medical examinations had established that the body found in Tarashcha was that of Mr Gongadze. It further informed the applicant that the results of the forensic medical examination conducted by the German experts could not be included in the case file, as the tissue samples for that examination had been taken by an unauthorised person in breach of established procedures.

On 13 November 2001 the Kyiv City Justice Department again informed the applicant that her negligence claim against the investigators, lodged with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with the Pechersky District Court.

On 3 December 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv about the GPO's refusal to allow her access to the case-file material concerning the forensic medical examination of the body.

On 11 February 2002 the Pechersky District Court held that the applicant's complaint against the GPO could not be considered prior to the transfer of the case to the court. It decided to attach the complaint to the case file for consideration at a later date. The court stated that the Code of Criminal Procedure did not provide for a separate appeal against the investigators on the ground of their refusal of access to the case-file material relating to the forensic medical examination.

On 20 February 2002 the State Civil Registration Office in Lviv refused to issue a death certificate for Mr Gongadze in the absence of any document confirming his death.

On 28 March 2002 the applicant requested Mr Robert Ménard, the Secretary-General of “Reporters sans frontières”, to be her representative in the case.

On 22 May 2002, while the power of attorney for this purpose was being prepared, Mr Ménard requested the GPO, on behalf of the deceased's mother who was also a civil party to the case, to interview the four police officers named in the press as having followed Mr Gongadze. He further requested access to the case-file material concerning the forensic medical examinations, and asked for another examination by foreign experts. His request was not answered.

Another request by Mr Ménard on 10 June 2002 was refused by the GPO on 18 June 2002 on the ground that he could not be recognised as the representative of the civil party. On 19 June 2002 Mr Ménard asked the GPO to annul that decision.

On 6 July 2002 a new Prosecutor General was elected, who confirmed on 3 September 2002 that there had been numerous irregularities in the previous investigation.

On 10 September 2002 the Prosecutor General announced an investigation into the alleged falsification of procedural documents by the prosecutor and investigator from the town of Tarashcha.

On 16 September 2002 “Reporters sans frontières” requested access to all the forensic results in the case file and their examination by an independent expert. They also requested information about the identity of the four persons who had followed Mr Gongadze before his disappearance.

In October 2002 a new forensic examination took place in Switzerland. On 11 March 2003 “Reporters sans frontières” announced that the last DNA test had unequivocally identified the body as that of Mr Gongadze.

In November 2002 the prosecutor from the Tarashcha district prosecutor's office was arrested and charged with negligence in the investigation of the case. On 6 March 2003 the prosecutor was sentenced to two and a half years' imprisonment but absolved from serving the sentence by the Shevchenkivsky Local Court of Kyiv under an amnesty law.

On 15 January 2003 the chairman of the parliamentary ad hoc committee on the Gongadze case announced that the persons responsible for the death of Mr Gongadze were members of the police.

On 17 February 2003 Parliament requested the GPO to investigate the possible role of Mr Kravchenko, who had been Minister of the Interior at the time of the disappearance of Mr Gongadze, in the death of the journalist. This request was supported by 120 members of parliament.

On 24 February 2003 the Prosecutor General, Mr Piskun, declared that they were checking the information about the involvement of senior officials of the Ministry of the Interior in the death of Mr Gongadze.

On 28 February 2003 the Prosecutor General openly criticised his predecessor, Mr Potebenko, for impeding the investigation into the murder of Mr Gongadze.

In May 2003 a former police officer, Mr G., was arrested and charged with setting up a criminal group with the participation of the police. He died in prison on 1 August 2003 in unclear circumstances. His lawyers maintained that he had been beaten and tortured. The body of Mr G. was cremated on 3 August without an autopsy.

On 5 August 2003 the letters of the late Mr G. appeared in the media. In these letters he accused the police and senior officials of kidnapping and killing Mr Gongadze. These letters, and the documents attached to them, were sent to the GPO.

On 9 September 2003 the GPO confirmed that the handwriting of the letters was that of the late Mr G.

On 22 October 2003 Lieutenant-General Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He was accused of ordering the destruction of important documents in the case.

On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President.

On 6 November 2003 the Kyiv City Court released Mr Pukach on his undertaking not to abscond.

On 15 August 2005 the applicant was allowed to have access to the criminal case file.

The applicant noted that, since 1991, eighteen journalists had been killed in Ukraine.

The applicant maintained that the political situation which had developed after the disappearance of her husband illustrated the attitude of the Ukrainian authorities towards freedom of the press.

Soon after the disappearance of Mr Gongadze, the President of Ukraine had promised to employ every means to find him. After a motion voted by Parliament, the President had assigned three law enforcement agencies – the GPO, the police and the security services – to work on the case.

On 18 September 2000 an anonymous person called the embassy of Georgia in Kyiv with the information that the responsibility for the disappearance of the journalist lay with Mr K., the notorious leader of a criminal group, and with the Minister of the Interior and an MP, Mr Volkov. The Ambassador of Georgia, who made the contents of the call public, was recalled to Georgia several weeks later. The Ukrainian authorities denied any link between the two events.

At the end of September 2000 Parliament created an ad hoc committee to investigate the disappearance of Mr Gongadze. The Prosecutor General refused to collaborate with the committee as its request to interview experts and officers was considered unconstitutional.

On 28 November 2000 the Chairman of the Socialist Party, Mr Moroz, publicly announced the existence of audio tapes, secretly made in the office of the President, implicating President Kuchma and other high-level State officials in the disappearance of Mr Gongadze. In one of the recorded conversations, allegedly between the President and the Minister of the Interior, the President had asked for Mr Gongadze to be threatened. The Minister had then proposed certain people whom he called “real eagles”, capable of anything, to do the job.

The applicant maintained that, due to doubts as to the quality of the tapes, it was not possible to establish their authenticity, although a United States laboratory (BEK TEK) confirmed that they were genuine. She referred to the report of 22 January 2001 by “Reporters sans frontières” that testified to the existence of special forces in the police, and groups of retired police officers recruited by the mafia who would commit acts of violence against political figures or journalists.

After the disappearance of Mr Gongadze, many news media experienced pressure and censorship over their coverage of the case.

On 15 September 2001 several thousand opposition supporters demonstrated in memory of Mr Gongadze.

The case of the disappearance of Mr Gongadze attracted the attention of many international organisations. It was analysed in the context of the lack of freedom of the media in Ukraine, which had been criticised for several years at international level.

On 25 January 2001 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1239 (2001) expressing its concern about “the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the competent Ukrainian authorities in respect of freedom of expression”. It further stated that the investigation into the disappearance of Mr Gongadze “should be considered as a test for freedom of expression and the functioning of parliamentary democracy in Ukraine”.

A plea for a speedy and transparent investigation into all cases of violence against and the death of journalists, particularly in the Gongadze case, was repeated in PACE Recommendation 1497 (2001) of 25 January 2001, Resolution 1244 (2001) and Recommendation 1513 (2001) of 26 April 2001 and Resolution 1262 (2001) of 27 September 2001.

Similar pleas were made by the European Union in a statement on 5 February 2001, and by the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe (OSCE) in its resolution of July 2001. The OSCE Assembly also awarded the 2001 OSCE Prize for Journalism and Democracy to Mr Gongadze posthumously.

The case of the disappearance of Mr Gongadze was reported in the documents of certain United Nations bodies: the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee.

“Reporters sans frontières” conducted its own investigation into the disappearance of Mr Gongadze, the results of which were published in the special report of 22 January 2001 mentioned above. It concluded that the investigating authorities had been mainly preoccupied with proving the innocence of high-level State officials.

On 2 July 2003 the report of Mr H.C. Krüger, Deputy Secretary General of the Council of Europe, was presented to PACE. The documents attached to the report confirmed that, prior to the appointment of a new Prosecutor General on 6 July 2002, the investigation had been ineffective, although later developments had raised hopes of more efficacy. According to the applicant, the further developments in the investigation demonstrated that the hopes expressed had been premature.

On 16 September 2003 the Euopean Union made a declaration in which concern was expressed at the lack of progress in the investigation.

The issue of the effectiveness of the investigation in the case was similarly raised by the United States Congress and by NATO.

On 13 September 2005 several international non-governmental organisations published a report about the progress of the investigation in the Gongadze case. They maintained that the GPO, supported by the President, had tried to limit the investigation and had not made enough efforts to find and prosecute the instigators of the kidnap and murder of Mr Gongadze. They further criticised the Ukrainian authorities for serious setbacks in the investigation, in particular:

“– the disappearance of Lieutenant-General Pukach; the leaking of information that disrupted the work of Ukrainian and Israeli agencies who were preparing to detain him; the lack of any public scrutiny of that potentially criminal action; and the absence of any investigation into the process by which Lieutenant-General Pukach was previously released and the Pukach case closed in December 2003;

– the death of former Minister of the Interior Mr Kravchenko, who could have provided important information about the link between the conversations recorded by Melnychenko and the murder; and the lack of any public scrutiny of the possible negligence of the GPO in its handling of the Kravchenko case and in protecting him as a witness;

– the failure to interview numerous witnesses in the Ministry of the Interior with a knowledge of the system of surveillance operated there; and the failure to investigate thoroughly the links between the 'werewolves' and Honcharov cases with the Gongadze case;

– the failure to resolve the problems surrounding the Melnychenko tapes, with a view to using them as primary evidence in court, caused mainly by the mistakes and sluggishness of the GPO;

On 19 September 2000 the Pechersky district prosecutor's office of Kyiv instituted a criminal investigation, pursuant to Article 94 of the Criminal Code of Ukraine, into a case of premeditated murder. In order to determine the circumstances of the disappearance, an investigation group was formed. The group included officers of the Department of Criminal Investigations and the GPO. The following three lines of inquiry were pursued:

(i) Did the disappearance involve family problems?

(ii) Was Mr Gongadze the victim of a criminal offence unrelated to his profession?

(iii) Was the disappearance connected to his critical publications in the Ukrayinska Pravda online newspaper?

From 19 September 2000 until 10 October 2000, a number of investigative measures were taken to identify witnesses, check Mr Gongadze's contacts, search localities, etc.

On 2 November 2000 the unidentified corpse of a man was found in a forest in the Tarashcha district. The law enforcement authorities were informed about this and immediately went to the site. On 3 November 2000 the investigation group examined the site and prepared the necessary procedural documents. The corpse was transferred to the morgue of the Tarashcha district for a forensic examination. The investigating officer of the Tarashcha district prosecutor's office instituted a criminal investigation into the premeditated murder of an unidentified person, pursuant to Article 94 of the Criminal Code. The forensic expert found jewellery on the corpse that day and near the corpse in the soil nearby the following day.

The Pechersky district prosecutor's office enquired whether the corpse could be that of Mr Gongadze. For this purpose the applicant was summoned before the prosecutor and requested to describe the jewellery which Mr Gongadze could have been wearing when he disappeared.

On 15 November 2000 a group of journalists – close friends of Mr Gongadze – went to Tarashcha, having learned about the unidentified body from a newspaper article. They met with the forensic expert, who informed them about the jewellery and showed them the corpse. Upon the journalists' request, he took an X-ray of one of the arms of the corpse. The X-ray showed pieces of metal in the arm that could have corresponded to an old wound of Mr Gongadze's. On this ground the journalists concluded that the corpse was that of Mr Gongadze. The same day the Tarashcha prosecutor ordered and effected the transfer of the corpse to the Kyiv city morgue for further forensic examination.

On 7 December 2000 the GPO joined the investigations in the Gongadze and Tarashcha cases, and a case of defamation against senior State officials (the Melnychenko case), in order to ensure their comprehensive and speedy examination.

On 13 December 2000 the applicant was questioned as an aggrieved party. She agreed to provide samples of her own blood and of that of her children for forensic examination. The applicant insisted on participating in the identification of the Tarashcha body, and said that she was certain that she could recognise her husband's jewellery.

On 14 December 2000 the applicant refused to give blood samples because of a family conflict. That day the applicant requested the GPO to conduct the forensic examinations in a western country. This request was rejected on 18 December 2000.

On 15 December 2000 the investigator reported to the Deputy Prosecutor General that the deceased's mother had refused to participate in the identification of the Tarashcha body, scheduled for 18 December 2000, as she did not feel well and wished to postpone her participation until the completion of the genetic identification tests.

On 18 December 2000 the applicant was summoned to the GPO to participate in the identification of the Tarashcha body and the jewellery. She stated that there was a high probability that the corpse was that of her husband. She recognised the jewellery with absolute certainty. The same day the applicant requested to see the documents relating to the examination of the scene of the events and the body. Her request was allowed and a note made to that effect.

On 20 December 2000 the GPO received a letter from the deceased's mother, stating that she was under stress and could not come to Kyiv for the identification. She also stated that she would only participate in the identification once an independent forensic examination of the corpse had been conducted.

On 12 January 2001 the applicant and the deceased's mother requested the GPO to conduct an additional forensic examination with the assistance of United States experts. They also requested that efforts be made to find the head of the Tarashcha body. The request for the forensic examination was allowed and, with the assistance of the FBI and the United States Department of Defence, an additional forensic examination and a genetic identification test were conducted on 22 February 2001. The head could not be found, however.

On 27 February 2001 the GPO sent a request for legal assistance to the competent German authorities asking for the official results of a genetic identification test done in that State following a request from Mr Holovaty, a Ukrainian MP. According to Mr Holovaty, the German experts had concluded that the Tarashcha body was not that of Mr Gongadze. However, according to the Government, this test had no legal value, as neither the test nor the procedure for taking tissue samples had complied with Ukrainian legislation.

On 6 September 2001 the applicant's representative applied to the GPO, stating that, according to the media, journalists had visited Tarashcha on 15 October 2000. The journalists had examined the body in the Tarashcha morgue and taken photographs of it. She asked the GPO to interview those journalists and to join the photographs to the criminal case file. On 7 September 2001 the applicant's representative was informed that the journalists had been identified and interviewed as witnesses in the course of the investigation. They had been requested to submit their photographs for inclusion in the case file.

On 30 October 2001 the applicant's representative requested the GPO to fix a time-limit for the completion of the pre-trial investigation into the murder of Mr Gongadze. The GPO replied that it could not do so until the murderer had been identified.

On the same day the applicant's representative requested an additional forensic examination in order to determine, inter alia:

(i) whether the X-ray of the corpse's hand done in Tarashcha and given to the journalists corresponded to the X-rays taken when Mr Gongadze was alive, and to those taken by the FBI on 27 April 2001;

(ii) whether the FBI analyses proved the presence of traces from bullets that corresponded to the wounds known to have been suffered earlier by the late journalist; and

(iii) whether the hair identification and DNA analysis confirmed the corpse's identity.

On 31 October 2001 the GPO refused to authorise an additional examination, as the Tarashcha body was undoubtedly that of Mr Gongadze and during their examinations the Ukrainian and United States experts had already answered the applicant's questions.

On 11 June 2002 the applicant's representative requested access to the decision ordering a new forensic examination, allegedly to be carried out by German experts. She further requested to be allowed to put questions to these experts. She referred in her application to the alleged statements of investigators, disseminated by the media, about this new examination.

On 21 June 2002 the GPO rejected the application. The applicant's representative was informed that she could study the case file after the pre-trial investigation was completed and that no statement about a new examination by German experts had been made by the Deputy Prosecutor General to the media.

On 17 July 2002 the newly appointed Prosecutor General ordered the creation of a new investigation group in the Gongadze case.

On 26 and 30 July 2002 the new group conducted two additional examinations of the site where the body was found, together with forensic experts. They took soil samples, carried out a thorough search and took a number of objects for analysis.

On 9 August 2002 an additional examination of the Tarashcha body was conducted and samples for further forensic tests were taken. The additional forensic examinations were to establish more accurately the approximate time of Mr Gongadze's death.

On 3 September 2002 the deceased's mother was provided with the documents necessary for the burial of Mr Gongadze's remains.

On 24 September 2002 the GPO sent a letter to the Director of the FBI inviting them to assist Ukrainian specialists in investigating the case.

In September and October 2002 Mr Ménard, Secretary-General of “Reporters sans frontières”, visited Kyiv twice as the representative of the deceased's mother in the criminal case. He met the Prosecutor General and had access to the results of the forensic examinations in the case. Moreover, samples were taken for an additional forensic examination, which was carried out in Lausanne (Switzerland) from 20 to 25 January 2003.

On 14 January 2005 the GPO instituted proceedings against Lieutenant-General Pukach for abuse of power. His case was joined to that of Mr Gongadze.

On 24 January 2005 the Pechersky District Court of Kyiv ordered the arrest and detention of Mr Pukach. The Security Service and the Ministry of the Interior were ordered to find him, without success.

During the investigation it was established that Mr Gongadze had been the subject of illegal surveillance operations by certain officers of the Department of Criminal Investigations, previously headed by Mr Pukach, from July 2000 until the day he disappeared in September 2000. It was also established that, in 2003, all the material relating to this illegal surveillance had been destroyed.

On 28 February 2005 the GPO instituted proceedings against police officers K. and Pr., as well as Mr Pukach, charging them with the premeditated murder of Mr Gongadze. On the same day Mr K. and Mr Pr. were arrested.

On 3 March 2005 the Pechersky District Court remanded Mr K. and Mr Pr. in custody.

On 5 March 2005 Mr K. and Mr Pr. were officially charged with premeditated murder. They confessed their involvement. On the same day Mr K. was dismissed from his position as head of unit in the Intelligence Department of the Ministry of the Interior.

On 5 March 2005 it was also decided to charge Mr Pukach, but he could not be found.

On 17 March 2005 the investigation established that a fourth person, Mr P., had been involved in the disappearance and murder of Mr Gongadze. Mr P. was interrogated and admitted his role in the crime. On the same day Mr P. was dismissed from his position as a senior officer of the Intelligence Department of the Ministry of the Interior.

All three accused participated in an on-site reconstruction of the events of the crime. Other police officers who had followed Mr Gongadze before his disappearance were questioned.

Some objects belonging to the journalist were found and presented to his relatives for identification.

The investigation pursued further forensic examinations of the corpse and the audio tapes of Mr Melnychenko and a number of other matters.

On 11 December 2000 the GPO received a video tape with statements by Mr Melnychenko made in the presence of several Ukrainian MPs. These statements concerned the involvement of the President of Ukraine and many other high-ranking officials in giving illegal orders. Mr Melnychenko claimed to have made audio recordings of incriminating conversations, using a digital recorder placed under the sofa in the office of the President of Ukraine.

On 13 December 2000 Mr Moroz, a Ukrainian MP, lodged an application with the GPO, enclosing a copy of a complaint by Mr Melnychenko dated 16 November 2000 and video-recorded statements containing accusations about the involvement of senior State officials in the disappearance of Mr Gongadze. A forensic examination of the audio tapes was ordered but could not determine their authenticity. (The applicant contended that a United States laboratory had confirmed the authenticity of the tapes.)

On 15 December 2000 the GPO requested Interpol to establish the whereabouts of Mr Melnychenko.

On 16 September 2002 the GPO requested the assistance of the United States Department of Justice in interviewing Mr Melnychenko as a witness in the Gongadze case.

Mr Melnychenko refused to provide the GPO with his tapes and recording equipment, but agreed to provide written answers to the GPO's questions, which he had not done by the time the Government submitted their observations to the Court. The applicant stated that the reason for Mr Melnychenko's implied lack of cooperation was his well-founded fear of prosecution by the Ukrainian authorities.

After Viktor Yushchenko was elected President of Ukraine on 26 December 2004, he pledged to reopen the investigation into the Gongadze case. It was reported in the press on 2 March 2005 that the Prosecutor General had announced the arrest of three security officers in connection with the present case: a general and two colonels. On 4 March 2005 the death by purported suicide of Yuriy Kravchenko, the above-mentioned Minister of the Interior at the time, was announced. He had been due to be interviewed by the GPO that morning.

Recently, the GPO announced that the criminal investigation was complete and would be sent to the Court. The aggrieved parties were given access to the case file. They stated that the latest forensic examination in September 2005 by German experts had confirmed that the Tarashcha body was that of Mr Gongadze.

On 15 September 2005 Mr Turchinov, who had been dismissed from his post as head of the security service, informed journalists that the Service had been preparing for the arrest and extradition of Lieutenant-General Pukach from Israel, but the operation had failed due to a leak of information from the GPO. He stated that the interim results of the laboratory examination of the Melnychenko tapes had not established any sign of tampering, and had identified persons whose voices were recorded on the tapes.

On 20 September 2005 the parliament of Ukraine heard the report of the chairman of its ad hoc committee investigating the murder of Mr Gongadze. This report concluded that the kidnap and murder of Mr Gongadze had been organised by former President Kuchma and the late Minister of the Interior, Mr Kravchenko. The report found that the then head of the presidential administration and the current speaker of parliament, Mr V. Lytvyn, and the then head of the security service and a current member of parliament, Mr L. Derkach, had been involved in the crimes. The report noted finally that, having been informed about the crimes and the names of suspects, the GPO had failed to take any action or to react to the conclusions of the ad hoc committee.

The relevant provisions of the Constitution of Ukraine provide:

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”

“Every person has the inalienable right to life.

No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”

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

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

The relevant provisions of the Code of Criminal Procedure provide:

“Anyone who has suffered material damage as a result of a crime shall be entitled to lodge an application to join the criminal proceedings as a civil party claiming damages ..., which shall be considered by the court at the same time as the criminal case ...”

“Anyone who has suffered ... damage as a result of a crime may be recognised as an aggrieved party. ...

A citizen who has been recognised as an aggrieved party in respect of the crime shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to ... make requests; study all the materials of the case file when the pre-trial investigation is completed; ... [and] lodge complaints against the actions of the inquirer, investigator, prosecutor and court ...

In cases where the crime has caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased's next of kin.”

“A criminal action shall be instituted on the following grounds:

(1) applications or communications from ... individuals;

(5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court.

An action may be instituted only when there is sufficient evidence that a crime has been committed.”

The relevant provisions of the Prosecution Service Act, in the 1995 version, provided:

“The main functions of the Prosecution Service are:

supervision of compliance with the law by the bodies that combat crimes and other offences and investigate circumstances indicating that a crime has been committed;

investigation of circumstances indicating that a crime has been committed;


The applicant, Zakria Sadiq Mir, is a citizen of the United Kingdom born in 1937. A lawyer and banker by profession, he resides in Zurich in Switzerland.

After marrying in 1968 the applicant and his then wife moved to the United Kingdom where they took up residence with their two children, born in 1967 and 1970 respectively. In 1972 they moved to Switzerland, although from 1975-1978 the applicant resided in the United States and the United Kingdom. He then returned to Switzerland where he obtained annual residence permits (Aufenthaltsbewilligung).

Meanwhile, having been separated from his wife since 1975, their marriage was dissolved in 1977.

Subsequently, the applicant was frequently unemployed and intermittently depended on social assistance.

In 1978, and again in 1980, 1983, 1984 and 1990, the Police Directorate (Polizeidirektion) of the Canton of Zurich refused the applicant’s request for a long-term residence authorisation (Niederlassungsbewilligung) in view of his continuing tax and alimony debts and his dependence on public welfare. In 1985 the applicant was in fact warned by the Government (Regierungsrat) of the Canton of Zurich that he would be expelled from Switzerland if he failed to comply with his alimony payments and if he continued to be a burden on the social assistance fund.

In 1994 the applicant’s residence permit was renewed until 1995. In 1996 the Aliens’ Police requested the applicant to regularise his status in Switzerland. The applicant’s further request for a domicile authorisation was refused by the Police Directorate on 13 November 1996, which, furthermore, ordered him to leave the Canton of Zurich by 31 January 1997. In its decision, the Police Directorate noted, inter alia, that the applicant was unemployed and had not tried to find employment; he had debts amounting to 53,000 Swiss francs (CHF), and the social assistance had paid out over CHF 140,000 to him.

The applicant’s appeal against this decision was dismissed by the Government of the Canton of Zurich on 29 April 1998.

On 27 November 1998 the Federal Court (Bundesgericht) rejected the applicant’s administrative law appeal (Verwaltungsgerichtsbeschwerde). In its judgment, the court found that the applicant could not rely on Article 8 of the Convention as he was no longer married and his children were adults. Moreover, the applicant could not claim to have any particular ties with Switzerland in view of his unemployment, his debts, and his dependency on social assistance. Warnings had also not been heeded.

On 17 December 1998 the Aliens’ Police of the Canton of Zurich ordered the applicant to leave Switzerland by 28 February 1999.

On 22 December 1998 the applicant filed with the Federal Court a public law appeal (staatsrechtliche Bescherde) against the decision of 29 April 1998. When informed by the Federal Court that he had missed the time-limit for appealing, the applicant insisted on pursuing his appeal, pointing out that the decision of 29 April 1998 had not contained a statement as to possible remedies available to him. On 19 January 1999 the Federal Court declared the applicant’s public law appeal inadmissible.

On 1 October 1999 the applicant was brought by the police to Zurich airport where he boarded a plane to London.

On 10 November 1999 the Zurich District Court (Bezirksgericht) fined the applicant CHF 40 for failing to comply with the order to leave Switzerland by 28 February 1999.

On 13 November 1999 the applicant married a Swiss citizen and on the same day moved to Zurich. It appears that he subsequently obtained an annual residence permit.


The applicant, Mr Tamás Dányádi, is a Hungarian national who was born in 1975 and lives in Székesfehérvár, Hungary. He is represented before the Court by Mr E. Petruska, a lawyer practising in Budapest. The Hungarian Government (“the Government”) are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.

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

After having searched his home – with no result – on 14 October 1993 and heard two witnesses on 15 October 1993, the Budapest Police Department interrogated the applicant on 18 October 1993. He was suspected of bodily assault, allegedly having stabbed Mr K. on 20 September 1993. On 31 October 1993 the applicant retained Mr Petruska as defence counsel. The latter’s request of 2 November for access to the investigation documents which had been created prior to his appointment was rejected by the police and, finally, by the public prosecutor’s office on 10 December 1993. The lawyer eventually had access to the entirety of the case file on termination of the investigation.

On 30 December 1993 the Budapest XX/XXI District Public Prosecutor’s Office indicted the applicant for severe bodily assault, noting that the victim had had a 2.5 cm wide, 6 cm deep knife wound.

The Budapest XX/XXI/XXIII District Court held a hearing on 12 April 1995. At that hearing the victim described the weapon used as a knife with a blade approximately 3-4 cm in width.

In another case, on 21 November 1995 the Public Prosecutor’s Office indicted the applicant for the offence of causing unlawful damage. This case was joined to the first proceedings on 18 July 1997.

Meanwhile, in the principal proceedings a forensic opinion was obtained on 17 June 1996. Hearings took place on 8 November 1996, 8 April and 25 June 1997.

In yet another case, on 12 August 1997 the Public Prosecutor’s Office indicted the applicant for the offence of riotous behaviour. This case was joined to the existing proceedings on 8 October 1997. On that date, a hearing took place in the joined proceedings. Further hearings were held on 11 December 1997 and 13 March 1998. On 12 June 1998 another forensic opinion was obtained. Additional hearings took place on 17 July and 15 September 1998.

At the hearing of 29 October 1998, the prosecution and the defence made their final submissions. Defence counsel argued inter alia that the weapon as described by the victim could not possibly have caused the injury suffered. On that date the court found the applicant guilty as charged and imposed a cumulative sentence of one year and four months’ imprisonment, suspended for two years. The court observed that the forensic opinion corroborated the victim’s account of the incident and the weapon used, although the latter was nowhere to be found. Regarding the severe bodily assault committed by the applicant, which was punishable with imprisonment of up to five years, the court took into account as a mitigating factor the substantial lapse of time since the offence had been committed.

On appeal, on 17 March 2000 the Budapest Regional Court disjoined the case concerning the assault and, quashing the first-instance judgment in this respect, remitted the case. It acquitted the applicant of the charge of causing unlawful damage and reduced his sentence for riotous behaviour to a fine.

For reasons of competence, on 10 May 2000 another bench of the Regional Court was appointed to retry the applicant for assault. In the resumed proceedings, hearings took place on 27 March and 7 June 2001. On that date, the defence had its only opportunity ever to question the prosecution’s main witness in the case. Further hearings were held on 5 July and 20 September 2001. On that date the Regional Court convicted the applicant of aggravated bodily assault and sentenced him to one year’s imprisonment, suspended for two years. The court relied on the testimonies of the victim and several witnesses, the opinion of a forensic expert and the inspection of the crime scene. The court observed the substantial lapse of time since the offence had been committed and took it into account as a mitigating factor.

On appeal, on 25 June 2002 the Supreme Court held a hearing. According to the minutes of the hearing, the applicant’s lawyer argued inter alia that:

“the applicant’s [procedural] rights had been seriously prejudiced [in the proceedings before the Regional Court]”.

In his submissions to the Court, the applicant explains that this statement of his lawyer, as presented orally to the Supreme Court, concerned the alleged deficiency of the Regional Court’s reasoning.

In its 4-page decision served on 9 September 2002, the Supreme Court upheld the first-instance judgment. Completing the findings of fact on certain points, it held that the reasoning of the Regional Court’s judgment was, as such, sufficient and the establishment of the facts correct. It explained that, contrary to the defence’s arguments, no breach of the prohibition of reformatio in peius had taken place. Finally, it observed that the sentence imposed by the first-instance court was lawful.

Section 44 § 4 of the (Old) Code of Criminal Procedure, as in force in the material period, provides that the defendant shall have access to the case file on termination of the investigation.