No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

The first applicant was born in 1948 and lived in the village of Kalinovskaya, Naurskiy District, Chechnya. She was killed on 21 May 2003 in her house, along with three other members of her family. The second applicant is the first applicant's daughter. She was born in 1976 and currently resides in Germany, where she sought asylum.

The facts of the case are partly disputed by the parties. In view of that, the Court requested the Government to submit copies of certain documents in relation to the applicants' complaints. The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the Government is set out in Part B and a summary of other relevant documents in Part C below.

The first applicant lived in the village of Kalinovskaya in the Naurskiy District in Chechnya, together with her husband, Ramzan Iduyev, and her children, Idris Iduyev, I. and X (the second applicant).

The first applicant was an active political figure in the Republic and participated in anti-war protests. From 1994 to 1996 she worked with the Russian NGO Committee of Soldiers' Mothers.

The applicants submitted that on 24 January 2000 Russian soldiers had entered the first applicant's house to conduct a passport check. The first applicant and her son Idris Iduyev explained that their passports had been submitted to the local authority for renewal. This explanation had apparently been accepted and the soldiers had left.

On 25 January 2000 at about 6 a.m. about 20 men in military uniforms, some wearing balaclava masks, entered the house. Four men, apparently the same ones who had been in the house the previous day, said that they were carrying out a passport check and ordered the first applicant, whom they had addressed by name, to go with them to the local police department to find out about her passport. The first applicant's son Idris Iduyev was also ordered to go.

The first applicant and her son were taken to the Naurskiy District Temporary Department of the Interior (VOVD). After about two hours they were transferred to the Chernokozovo detention facility, where the first applicant and her son were separated.

The first applicant submitted that upon arrival in Chernokozovo she had been forced to watch other detainees being ill-treated. About 60 men were made to run naked, with their clothes folded in their arms, along a corridor about 50 metres long while the soldiers beat them.

The first applicant was forced to stand with her face to the wall, with her hands raised against the wall until the evening. The hall was unheated, with broken windows, and it was very cold. She was not allowed to sit or lie down. In the evening she was taken to a cell.

Cell no. 2, where the first applicant was detained, was very small. It contained four metal beds and a toilet. Three to ten women were kept there at different times, and sometimes the detainees had to sleep in turns. The cell was very dirty and the stench from the toilet was unbearable. Once a day the detainees were given four litres of water per cell and one bowl of food for three persons in dirty crockery.

During her detention the first applicant was humiliated constantly as a woman and as a person of Chechen origin. The guards told her that she would not leave the place alive, that she would go insane or kill herself. The applicant was pushed and hit with rifle butts on many occasions. On one occasion, around 3 February 2000, the guards sprayed gas into each cell, causing the detainees to cough.

Other inmates in the cell, according to her submissions, included sick persons and children. The applicant witnessed other detainees being beaten and humiliated by the guards. Sometimes she could hear her son's screams while he was being beaten in the corridor in front of her cell.

The first applicant was called for questioning about four times during her stay. The person questioning her did not state his name or rank and asked questions of a general character. The applicant was asked about her name and where she was from, to which clan she belonged, if she was a Muslim and if she prayed. She was also asked questions about the “peace march” to Moscow in which she had participated and who had financed it.

The first applicant, who suffered from cholecystitis and heart failure, was denied professional medical help while in detention. Her medical condition deteriorated rapidly. On one occasion she fainted in the corridor and the guards only allowed other women inmates to carry her into the cell after half an hour.

The second applicant submitted that she had brought food and medicines to her mother and brother in detention in Chernokozovo, but that little had reached them, as the soldiers had taken most of it.

In support of the first applicant's submissions as to the conditions of detention in Chernokozovo the applicants submitted a statement by Sh., who had been detained in the same cell as the first applicant in January and February 2000. She confirmed the first applicant's submissions concerning the conditions of detention, the beatings of other detainees and the applicant's health problems.

In addition, the applicants submitted press and NGO reports about the situation in the Chernokozovo detention facility at the end of 1999 and the beginning of 2000, which described the intolerable conditions of detention and the widespread torture and ill-treatment of detainees, together with relevant Council of Europe documents (see Part C below).

In their observations the Government submitted that the first applicant and her son Idris Iduyev had been detained on 25 January 2000 on the basis of the Presidential Decree of 2 November 1993 (no. 1815) on measures aimed at prevention of vagrancy, and placed in the reception and identification centre (приемник-распределитель) in Chernokozovo, which had operated from November 1999 to February 2000. The first applicant had remained there until 17 February 2000, when her identity had been established and she had been transferred to a hospital in view of the deterioration of her health. The Government submitted some documents relevant to the first applicant's detention (see Part B below).

As to the status of the Chernokozovo detention facility, in December 2005 the Government submitted that there were no documents available about the legal status of the institution prior to 8 February 2000, but that the premises of the former high-security wing of correctional facility IS-36/2 (помещение бывшего штрафного изолятора исправительной колонии ИС-36/2) had been used as a reception and identification centre. According to the Government, on 8 February 2000 the Minister of Justice had issued orders for a pre-trial detention centre (“SIZO”) to be set up and for responsibility for the institution to be transferred to the Ministry of Justice of Chechnya.

At the same time the Government submitted a copy of the order issued by the Minister of Justice on 8 August 2000 (no. 229), by which responsibility for pre-trial detention centre IZ-4/2 in Chernokozovo had been transferred from the Ministry of Justice of Kabardino-Balkaria to the Ministry of Justice of Chechnya. The institution was designated as “IZ-14/2”. Its capacity was established at 150 persons. (Documents issued by the pre-trial detention centre in 2004 and 2005 referred to it as “IZ-20/2”.)

The first applicant was transferred to the district hospital in Naurskaya on 17 February 2000. According to the second applicant's statement, her mother was unconscious and the doctors insisted that she should be taken to the hospital for intensive care. The first applicant submitted that in the hospital she had been guarded by the military for another few weeks.

The first applicant submitted that in mid-March 2000 she had been visited in the hospital by the Naurskiy District Prosecutor, who had told her that she had been cleared of charges.

The first applicant was issued with a certificate by the head of the Naurskiy VOVD, dated 2 March 2000, which stated that “from 25 January to 26 February 2000 the criminal police of the Naurskiy VOVD investigated on the basis of incriminating materials [the first applicant's] participation and involvement in illegal armed groups in Chechnya. No incriminating material was found.”

The first applicant was discharged from the hospital on 15 March 2000. The second applicant submitted that she had remained very weak and spent another month in bed. She had lost a significant amount of weight, and her arms and head had trembled.

The first applicant's son, Idris Iduyev, was released from Chernokozovo on 26 February 2000. The second applicant submitted that he had likewise suffered beatings and ill-treatment while in detention. No medical documents were submitted to substantiate this.

Neither the first applicant nor her son Idris Iduyev was charged with any crime in relation to their detention.

The Government submitted that the first applicant had been admitted to Naurskiy District Hospital on 17 February 2000 and diagnosed with “bronchopneumonia on both sides and cardiac-type neurocirculatory dystonia with asthmatic syndrome”. She had undergone a number of complex examinations, but no injuries or traces of beatings had been recorded. After release neither the first applicant nor her son had filed complaints with the prosecutor's office about alleged ill-treatment while in detention.

The Government further stated that it was impossible to identify the persons who had worked at the reception and identification centre at the relevant time or to obtain copies of documents, in view of the absence of any archives. A check carried out by the Naurskiy District Prosecutor's Office resulted on 27 January 2005 in a decision not to open a criminal investigation. Later this decision was reversed (see Part B below).

The applicants submitted a number of NGO and media reports relating to the situation in Chernokozovo at the material time. In particular, they referred to a Human Rights Watch report of October 2000 entitled “Welcome to Hell: Arbitrary Detention, Torture and Extortion in Chechnya”. The report contained a special section on the Chernokozovo detention centre in January and early February 2000 based on interviews with former inmates. The report presented a picture of systematic abuse and ill-treatment of detainees, compounded with sordid conditions of detention. It called upon the Russian authorities to investigate fully the events in Chernokozovo in January and February 2000 to ensure prosecution of those responsible for the abuses and to grant compensation to the victims.

On 24 March 2000 the NGO Memorial contacted the Prosecutor General following a publication in Itogi magazine about “filtration points” for persons whom the federal authorities had suspected of being linked to illegal armed groups. The article and accompanying pictures described the harsh conditions of detention at a filtration point in Tolstoy-Yurt, near Grozny. It also spoke of abuse and ill-treatment in Chernokozovo. On 24 March 2000 the prosecutor of the Grozny District responded to Memorial, confirming that from 2 to 12 February 2000 a “filtration point” had indeed been set up in the village of Tolstoy-Yurt. He stated that in the period in question 356 persons had been detained there. Of these, 141 persons had been charged with the offence of participating in illegal armed groups, detained on the basis of a prosecutor's order and transferred to the Chernokozovo pre-trial detention centre (SIZO). All others had been released. The legality of their detention had been supervised by the relevant prosecutors and the detainees had been provided with sleeping facilities, food and medical assistance.

The second applicant submitted three statements by witnesses to the events: her brother I. and two neighbours, M. and G. According to these statements, on 21 May 2003 the first applicant, her husband Ramzan Iduyev (the second applicant's father), their son Idris Iduyev (the second applicant's brother) and the first applicant's brother Abubakar Bitiyev (the second applicant's uncle) spent the night at the first applicant's house at 7 Filatova Street in Kalinovskaya. The first applicant's other son, I., was sleeping in a separate house in the same courtyard, and his one-year old son was in the house with the first applicant, his grandmother.

At around 3 a.m. two UAZ-45 cars without registration plates, equipped with large aerials, arrived at the house next door to the first applicant's house. Several men entered the house very quietly, so the owner of the house, D., did not hear them enter. They woke D. up and gagged her with adhesive tape. Then they demanded her passport. One of them looked at the photograph and told the others in Russian “This is not her”. They then left, having warned the inhabitants to be quiet for ten minutes. They took the passport along with them. D. later found her passport in the first applicant's house.

The group arrived at the first applicant's house at about 3.30 a.m. Eleven persons entered the first applicant's house; a few others, armed with grenade-launchers and machine guns, gathered in the street around the house. They were all tall and well-built and were wearing camouflage which the witnesses identified as the uniform of the special forces. Four of them were masked; others were wearing black helmets covering their necks and ears. The men who entered the house were armed with AK-7.62 guns. After a few minutes a neighbour heard six or seven sounds of muffled blows, which he at first mistook for knocking at the gates. He then realised it had been the sound of shooting.

I., the first applicant's son, testified that he had heard noise and a scream at the neighbours' at about 3.30 a.m. He thought that it was probably a special operation, something that happened regularly in the village. He dressed very quickly and looked outside. He noticed several men in camouflage and “special forces helmets” jumping into the courtyard across the fence. The witness guessed that they would not immediately break into the house and noted that they had first taken up combat positions around the door. He rushed into the room and covered his bed with a blanket, then hid behind an armchair. As soon as he did so, several men ran into the house and spread into the rooms. One of them said “There is no one here”, and another one said “Take the video”. They spoke Russian and did not mention any names or ranks when addressing each other. In two or three minutes they left, having taken the video player. The second applicant's brother heard the dog barking and some noise outside. Then he heard about 10 shots being fired very rapidly. About five minutes later he heard them shouting “Come on, let's leave, quick”, and then the sound of the cars leaving.

The neighbours saw two UAZ cars leave towards the main road to Grozny.

I. waited a few more minutes and went outside. He saw three women in the street and was very surprised that his mother had not come out, because usually she was very active and intervened when someone had been detained in the village. He noticed that the door of his parents' house was ajar and thought that his whole family had been taken away. When he entered the house he noticed his mother lying on the floor. A female neighbour entered and he gave her his one-year-old son, who was crying in his bed, and asked her to take him out.

He then returned to the room and turned on the light. He found the first applicant on the floor, lying on her back. Her mouth was covered with adhesive tape and her hands were bound together with the same tape. She had been shot in the face and in the hands. I. later counted three bullet holes in the floor, from an AK-7.62 machine gun.

Then he went into the corridor and found the body of his uncle, Abubakar Bitiyev. The neighbour M. submitted that there was a black hood with strings on his head, used by the military when they detained people. His hands and feet were taped together. He had been shot three times in the back of his head. I. testified that his uncle had been sleeping that night in a separate house in the same courtyard and that the killers must have brought him to the first applicant's house by force because the furniture in that house had been smashed.

In the living room they found the body of the first applicant's husband, Ramzan Iduyev. He was lying on the floor near the sofa, and his hands and legs were taped together. He had been shot in the back of his head. A roll of adhesive tape was lying near his body. In the bedroom on the floor they found the body of the first applicant's son, Idris Iduyev, with his hands taped behind his back and his legs taped together. He had also been shot three times in the back of his head.

In the morning the villagers learnt that on the same night two other men had been killed, apparently by the same group. A.G.'s house at Oktyabrskaya Street had been raided at about 2 a.m.; his wife, who had opened the door, had been gagged and her hands and feet bound with tape. Once she had managed to free herself, she had found her husband's body with bullet wounds to the head. At about 3 a.m. the group had raided the house of T.I. in Kooperativnaya Street. His wife and mother had been bound up with adhesive tape and the owner of the house had been taken out by men identified by the witnesses as “military”. T.I.'s body, with his hands bound in front of the body with adhesive tape, was found by his relatives later that night in the vegetable patch at the house with four or five bullet holes in the head and shoulder.

Once I. discovered the bodies he ran into the courtyard screaming for help. In response to his cries neighbours came and one of them went to call the local police. The police came in the morning, at least two hours later. At about 11 a.m. scene of crime experts arrived from the district's administrative centre in Naurskaya, photographed the bodies and collected the cartridges.

On 21 May 2003 the relatives washed and buried the bodies. The second applicant submitted that the experts had not asked them to postpone the burials or to allow an autopsy.

The witnesses submitted that some villagers had asked the military at the roadblocks surrounding the village who had come that night and why they had been allowed to pass through to Kalinovskaya and back. They were apparently told that this had been a military group with a “special mission” permit. They also alleged that similar information had been given to the local police and that was why they had not interfered.

On 21 May 2003 the Naurskiy District Prosecutor's Office opened criminal investigation no. 48023 under Article 105, part 2 (a) and (g), of the Criminal Code (killing of two or more persons with aggravating circumstances).

On 26 May 2003 the NGO Memorial issued a press release entitled “Political Crime in Kalinovskaya”. It reported the killing of the first applicant and her family and linked it to the first applicant's complaint to the European Court of Human Rights. It also referred to the pending criminal proceedings against the first applicant's brother and son, Abubakar Bitiyev and Idris Iduyev, for possession of illegal drugs for non-commercial purposes. The document reported that the first applicant had insisted that the proceedings had been contrived in retribution for her active position in relation to the crimes committed by the military, including a request to investigate a mass burial discovered in the Naurskiy District in February 2003.

On 31 July 2003 the Court, acting under Rule 40 of the Rules of Court, informed the Russian Government about the application lodged by the first applicant and about her killing and that of her family members, on the basis of information received from the applicants' representatives.

On 12 August 2003 Memorial contacted the Prosecutor General with an inquiry about the killings in Kalinovskaya. In October 2003 the Prosecutor General's Office replied that their letter had been forwarded to the Chechnya Prosecutor's Office.

In November 2003 the second applicant contacted the Naurskiy District Prosecutor's Office with a request to grant her victim status in criminal case no. 48023. She received no answer to this letter.

The Government in their observations submitted additional information about the investigation into the killings. According to them, on 21 May 2003 the investigators examined the site of the crime and collected evidence. The relatives of the deceased refused to submit the bodies for forensic examination. In view of that, the forensic experts' reports had been carried out on the basis of medical documents. They confirmed the presence of gunshot wounds, which had caused the deaths. A ballistic expert report was also carried out.

According to the Government, on 21 May 2003 the investigation questioned eight relatives and neighbours of the persons who had been killed. They also questioned 20 servicemen of the law-enforcement bodies. In June 2003 the investigation questioned I. and the first applicant's brother B., who were both granted victim status. Additional questioning of the witnesses and victims took place in May and July 2005. In July 2003 and April 2005 the investigation questioned and granted victim status to the relatives of A.G. and T.I. The second applicant had never applied to the prosecutors in relation to the killings of her family members. Thus, a decision to grant her victim status was only taken on 15 December 2005, but it was not announced to her, in view of her absence from her place of residence.

According to the Government, the investigation established that on 21 May 2003 between 3.30 and 4 a.m. a group of unidentified men wearing camouflage and masks and armed with automatic weapons had entered three houses in the village of Kalinovskaya and killed six persons, including the first applicant and three members of her family. The identities of the perpetrators were not established. The involvement of the special forces was not confirmed by the investigation. According to the information supplied by the United Group Alliance (UGA), no servicemen of the UGA had been involved on 20 and 21 May 2003 in any operations in the Naurskiy District. The investigation reviewed the log records of the vehicles belonging to the military units stationed in the district, which indicated that no vehicles had left their location on that night. The Federal Security Service also denied that they had carried out any operations in the district.

The investigation of criminal case no. 48023 was adjourned and reopened on several occasions. It failed to identify the perpetrators of the crimes. Following a request from the Court, the Government submitted a number of documents from the criminal investigation file in case no. 48023 (see below).

The second applicant submitted that she and her brother I. had been threatened and harassed by the military and law-enforcement bodies after the killing of the first applicant and her family. She submitted that about two months after the killings her brother had been detained by the military for some time, and that while in detention he had been beaten and ill-treated. Soon afterwards he had left without any notice and she had no information as to his whereabouts.

She also submitted that on an unspecified date in April 2004 her aunt (the first applicant's sister) had been visited in Grozny by officers of the Naurskiy District Prosecutor's Office, who had told her that they were looking for the second applicant. The woman told them that she did not know where the second applicant lived, because the latter had no permanent address. The prosecutors asked the second applicant's aunt questions about the complaint to the Court, who had applied and why the prosecutor's office had not been informed of this complaint. The second applicant submitted that her aunt had not been aware of the complaint and had replied that they had never applied to the Court. The prosecutors had asked her to sign some papers without disclosing their contents, or blank papers, but she had refused.

The second applicant also submitted that on 17 May 2004, while in the village of Kalinovskaya, she had been approached by a local policeman, an officer of the District Prosecutor's Office and their three guards. They had demanded that the applicant produce her internal passport and had taken it away. They had then asked her if she was aware of Article 222 of the Criminal Code (illegal possession of arms), where she kept her weapons, what she was doing in Grozny and in Kalinovskaya and what the price of arms was. The second applicant replied that she had nothing to do with weapons and that she did not have any. The second applicant submitted that when they had noticed her relative, a member of the security service, they had returned the passport to her, had said that they “just wanted to talk” and had left.

The second applicant submitted that her husband had divorced her because he and his relatives were afraid that they could have problems being associated with her. She felt intimidated and feared for her safety, security and life.

On 24 June 2004 the Court, acting under Rule 39 of the Rules of Court, requested the Russian Government to take all measures to ensure that there was no hindrance in any way of the effective exercise of the second applicant's right of individual petition as provided by Article 34 of the Convention. This measure was lifted on 20 October 2005.

The Government submitted that in response to the second applicant's complaint about intimidation, the Naurskiy District Prosecutor's Office had carried out an inquiry. The office had refused to open criminal proceedings, but later this decision had been reversed by the Chechnya Prosecutor's Office. Following a request from the Court, the Government submitted a number of documents relevant to these proceedings (see Part B below).

The second applicant submitted that on 14 July and on 2 September 2004 investigators from the District Prosecutor's Office had questioned her and obtained written explanations about the alleged intimidation. In July 2004 questioning had taken place at the Naurskiy District Prosecutor's Office and in September the investigator had visited her while she was working in a hospital in Grozny.

The second applicant submitted to the Court her own statement and a copy of the “explanation” obtained on 14 July 2004. She submitted that the investigator had assured her that she would be protected from further threats and that no one would bother her in the future. The applicant stated, however, that the questioning had concerned not only the incidents of harassment, but also some details about her complaint to the Court and about her lawyer. The investigator had warned her that she should submit correct information, otherwise she could be prosecuted for giving false statements. The second applicant submitted that the questioning had been an intimidating experience, because of the nature of the questions, because she had been pregnant at the time and had to take care of her two-year-old child and because her elderly relatives, who were present, had not been happy to learn that she had applied to Strasbourg, fearing for their lives and safety. The applicant also referred to the poor security situation overall, when any contact with representatives of the law-enforcement bodies was perceived by her and her family as a threat.

Following the decision on admissibility, the Court requested the Government to submit copies of a number of documents. In particular, the Government were requested to submit documents concerning the investigation into the first applicant's complaints of ill-treatment, documents specifying the legal status of the detention centre in Chernokozovo during the relevant period and documents relating to the first applicant's medical complaints and condition. The Court also requested the Government to submit a copy of the file on the criminal investigation opened into the murder of the first applicant and documents relating to the inquiry into the second applicant's allegations of harassment. In response, the Government submitted about 100 pages of relevant material. The Government stated that the submission of other related documents was impossible because they contained information about the location and actions of the military and special units and personal information about the participants in the proceedings. They referred to Article 161 of the Code of Criminal Procedure (CCP).

The relevant documents are summarised below.

In 2003 the temporary isolation facility of the Naurskiy District Department of the Interior (ROVD) informed the investigator from the District Prosecutor's Office that the first applicant had not been detained there between 1 and 31 January 2000.

On an unspecified date the head of the Chernokozovo SIZO (IZ-20/2) informed the Chechnya Prosecutor that the first applicant had been detained there between 25 January 2000 and 16 February 2000. On the latter date she had been transferred to the district hospital in Naurskaya. The letter further informed the prosecutor that no copies of the criminal investigation file or of the personal file on the first applicant had been preserved, with the exception of the entry cards. Another document issued by the same officer in 2003 stated that it was impossible to find out any details about the first applicant's detention because no proper records had been kept at the relevant time. It further stated that between November 1999 and February 2000 the facility had been guarded by military servicemen on assignment from other regions and that it was impossible to identify them. From 8 February 2000 the institution had come under the authority of the Ministry of Justice of Kabardino-Balkaria and had been manned by its staff. After August 2000 the detention facility had operated under the authority of the Ministry of Justice of Chechnya.

In December 2005 the Ministry of Justice of Chechnya issued a note to the effect that it had no information as to the operation of a reception and identification centre in Chernokozovo or whether it had ever been under the authority of the Ministry of Justice of Kabardino-Balkaria.

The Government also submitted copies of log entries for the first applicant and for her son Idris Iduyev. The first applicant's card contained information about her name, date and place of birth and place of residence. It stated that she had entered Chernokozovo on 25 January and that on 16 February 2000 she had been transferred to hospital. The entry for Idris Iduyev also contained personal information, and stated that on 26 February 2000 he had been “checked and released”.

The Government submitted a number of documents relating to the first applicant's treatment at the District Hospital. In so far as they are legible, the documents confirm that on 17 February 2000 the first applicant was delivered by ambulance from the “detention facility” in a grave condition and diagnosed with acute bronchopneumonia on both sides, heart failure, stenocardia, exacerbations of chronic cholecystitis and pyelonephritis on both sides. The records state that the first applicant had fallen ill about two weeks previously as a result of hypothermia. She was treated at the hospital until 15 March 2000.

From the documents submitted by the Government it also appears that in January 2005 the Naurskiy District Prosecutor's Office carried out an inquiry into the first applicant's ill-treatment while in detention. The inquiry was prompted by an Amnesty International report about the persecution of human-rights activists in Chechnya. The documents referred to the records kept in Chernokozovo, according to which on 6 February 2000 the first applicant had been diagnosed with and treated for tracheobronchitis and cholecystitis. She had again sought medical assistance on 15 February 2000, when her pulse and blood pressure had been taken. On 27 January 2005 the investigator stated that no other records were available and ruled that no criminal investigation should be opened on account of the absence of corpus delicti. In December 2005 a supervising prosecutor quashed that ruling and ordered a further inquiry.

On 21 May 2003 a prosecutor of the Naurskiy District Prosecutor's Office opened a criminal investigation into the murders of A.G., T.I., the first applicant and her three family members in the village of Kalinovskaya “by unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons”. The order referred to the types of weapons used: a PM pistol and Kalashnikov sub-machine guns of 7.62 mm and 5.45 mm calibre. The case file was registered as no. 48023. On the same day the Deputy Prosecutor of Chechnya set up an investigative group of 14 officers from the prosecutor's offices of the Naurskiy District and Grozny, and from the military prosecutor's offices and the Ministry of the Interior.

On 4 June 2003 I., the first applicant's son, was granted victim status in the proceedings. On 7 June 2003 M.B., the first applicant's brother, was also granted victim status. In July 2003 the relatives of T.I. were granted victim status in the proceedings. In April and July 2005 relatives of A.G. were recognised as victims.

On 15 and 28 December 2005 the investigating body issued orders to grant victim status to the second applicant. They were forwarded to her place of residence in Kalinovskaya by mail, and were not countersigned by her.

The documents submitted by the Government include a number of prosecutors' orders to extend the term of the investigation, and to adjourn and reopen the proceedings. These orders mention some investigative steps, such as information requests, forensic and fingerprint experts' reports, and the records of the questioning of witnesses and victims. They also refer to a certain “directive of the Regional Operative Headquarters” (“директива РОШ”). The Government did not submit copies of these documents and no further details of these measures have been made available to the Court.

Between 21 May 2003 and 9 December 2005 the investigation was adjourned four times owing to the failure to identify the culprits. Each time it was reopened by a supervising prosecutor on the ground that the investigation had not been carried out in full. The last order to reopen the proceedings is dated 9 December 2005.

The persons who had been granted victim status were informed of the decisions to adjourn and reopen the investigation.

In July 2004 an investigator from the Chechnya Prosecutor's Office ordered an inquiry into these allegations further to information provided by the Representative of the Russian Federation at the Court.

The investigators questioned the second applicant, the local policeman, an officer of the District Prosecutor's Office, guards and the second applicant's relatives. They confirmed that in May 2004 there had been a passport check in Kalinovskaya, during which the second applicant had been asked questions about the presence of illegal items, including weapons, in her house. The witnesses stated that the second applicant had not been subjected to any threats or pressure. The documents also confirm that after the prosecutor's office had been instructed to investigate the complaint of harassment, a number of questions put to the second applicant and her relatives concerned her application to the Court. The second applicant stated that she had not received any threats after applying to the Court.

Between July 2004 and 15 December 2005 four orders not to open a criminal investigation into the second applicant's complaints of harassment were issued, each time being quashed by the supervising prosecutor. The last document issued on 15 December 2005 by the Deputy Prosecutor of Chechnya ordered the investigators from that office to carry out an additional inquiry and to question the second applicant'

The detention centre in Chernokozovo, where the first applicant was detained, received extensive attention from various human-rights institutions, including the European Committee for the Prevention of Torture (CPT), following allegations of severe ill-treatment of detainees. On 4 March 2000 the head of the CPT delegation, Mr Hajek, issued a statement to the Russian officials at the end of the visit to the North Caucasian region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo:

“... the information gathered by the delegation strongly indicates that many persons detained at Chernokozovo were physically ill-treated in the establishment during the period December 1999 to early February 2000. In different locations, the delegation has interviewed individually and in private a considerable number of persons who were held at Chernokozovo during that period. A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usually when prisoners were taken to an investigator's room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physically ill-treated in the investigators' rooms. Investigators were said to have been fully aware of the ill-treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegation has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned.”

On 10 July 2001 the CPT issued a public statement concerning the Chechen Republic, under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This step was prompted by the Russian authorities' failure to cooperate with the CPT in relation to two issues: (i) the carrying out of a thorough and independent inquiry into the events in the detention facility at Chernokozovo during the period from December 1999 to early February 2000; and (ii) action taken to uncover and prosecute cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the current conflict. The statement said, in particular:

“I. The information gathered by the CPT during its visits to the North Caucasian region in late February/early March and in April 2000 strongly indicated that many persons were physically ill-treated in a detention facility at Chernokozovo during the period December 1999 to early February 2000. Ever since the beginning of March 2000, the CPT has been urging the Russian authorities to carry out a thorough and independent inquiry into events at this detention facility during that period. To date, an inquiry of the kind requested by the CPT has not been carried out and the Russian authorities have now made it clear that they have no intention of organising such an inquiry. A particularly disturbing aspect of the Russian authorities' current position is their contention that no facilities intended for accommodating detainees were established by public authorities in the area of Chernokozovo during the period referred to by the CPT.

It is an indisputable fact that a detention facility operated at Chernokozovo during the period December 1999 to early February 2000, prior to the formal setting up in that village of a pre-trial establishment (SIZO no. 2) by a Ministry of Justice Order dated 8 February 2000. The CPT's delegation interviewed many persons who stated that they had been held in a detention facility at Chernokozovo during that period. Numerous Russian officials (prosecutors, investigators, custodial staff) met by the delegation confirmed that the establishment designated as from 8 February 2000 as SIZO no. 2 had prior to that date been used as a detention facility. The CPT is in possession of a copy of the medical journal of the establishment covering the period 8 November 1999 to 12 February 2000, in which the day by day arrival of detainees (and any injuries they bore) was recorded; the staff who completed that journal referred to the establishment first as an 'IVS' (temporary detention facility) and at a later stage as a 'temporary reception and distribution centre'. The Russian authorities have themselves, in earlier correspondence, provided to the CPT written statements signed by officers attesting to the fact that they worked in the detention facility during the period December 1999 to early February 2000 as well as written statements signed by persons who certified that they were held at Chernokozovo during that period.

The Russian authorities' contention that no detention facilities were established by public authorities at Chernokozovo during the period in question (and that, as a result, an inquiry of the kind requested can serve no purpose) is clearly untenable and constitutes a failure to cooperate with the CPT.”

On 10 July 2003 the CPT issued a second public statement in relation to Chechnya. It was prompted by allegations of continued recourse to torture and other forms of ill-treatment by members of the law-enforcement agencies and federal forces operating in the Chechen Republic. It also described the action taken to bring to justice those responsible for ill-treatment as slow and ultimately ineffective.

Presidential Decree no. 1815 of 2 November 1993 on measures aimed at prevention of vagrancy and begging provided for the reorganisation of the system of “reception and distribution centres” for persons detained by the bodies of the Ministry of the Interior for vagrancy and begging into centres of social rehabilitation for such persons. Under the Decree, persons could be placed in such centres on the order of a prosecutor for a period of up to ten days.

Article 161 of the Code of Criminal Procedure (CCP) prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings or prejudice the investigation. Divulging information about the private lives of participants in criminal proceedings without their permission is prohibited.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

In February 1994 the Hungarian National Bank authorised a private limited company (“the Company”) to issue payment cards to its customers. After 1995, however, purchase with such cards was no longer possible. Despite this fact, in 1996 the applicants concluded agreements with the Company for so-called “savings cards” in which they invested various amounts of money.

In November 1996 bankruptcy proceedings were initiated against the Company and its insolvency was established in June 1997. The applicants recovered part of their investments through partial reimbursement by the Company. They sold their remaining claims against the Company to third parties.

On 26 October 1998 three hundred and thirty private individuals, including the applicants, who were all represented by one law firm, brought an official liability action against the Hungarian National Bank before the Budapest Regional Court. They claimed that the respondent had not exercised its supervisory duties over the Company, therefore making it possible for the applicants to conclude the above-mentioned agreements which had resulted in substantial losses.

On 11 January 2001 the Regional Court dismissed their action, finding that the respondent had no duty of supervision according to the relevant domestic legislation.

On 28 January 2003 the Supreme Court, acting as a second-instance court, quashed the Regional Court’s decision and remitted the case to the first instance court due to the incomplete findings of fact.

In the resumed proceedings the Budapest Regional Court found for the applicants on 6 December 2005. It established that the Company had unlawfully overstepped the boundaries of its activities, which had been known to the respondent; nevertheless, the latter could not prove that it had fulfilled its supervisory duties in this respect.

On 26 October 2006 the Budapest Court of Appeal dismissed their appeal. It acknowledged that there were omissions on the respondent’s side. However, since the applicants had already sold their claims to third parties, the court held that they could have no substantive claims whatsoever in the circumstances.

The applicants lodged a petition for review with the Supreme Court. It upheld the Court of Appeal’s decision on 5 June 2007, finding that the latter decision had been in compliance with the law.


CASE OF MURTIĆ AND ĆERIMOVIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in 1963 and 1959 respectively and live in Velika Kladuša.

They were both employed by Agrokomerc (“the company”), an agricultural company based in Velika Kladuša. In August 1991 the workers’ council of the company adopted a decision on the issuance of internal shares to the company’s employees as part of its reorganisation from a socially owned company into a joint-stock company under the applicable regulations. It was decided that one third of the employees’ salaries would be allocated towards instalment payments for the internal shares to be issued to them. On 30 March 1993 the company’s management board issued a series of resolutions authorising retention of earnings that resulted in an increase in the company’s internal share capital. As a result of these board resolutions, the internal share capital amounted to 80.9% of the company’s total share capital (the remainder being held by the State). The reorganisation process continued until August 1994, when the management of the company was taken over by the State following armed conflict in the north-western part of Bosnia and Herzegovina (where Velika Kladuša is located) during the 1992-95 war. Following the State taking control of the company, the applicants were effectively unable to exercise any of their rights as shareholders, although the company continued to state the privately-held internal share capital allotted to its employees on its annual balance sheets, as well as the State-owned capital, until 30 June 1999.

On 7 August 1995 the applicants’ employment was suspended, as well as that of many other employees of the company, and they were placed on a waiting list for potential future employment by the new management of the company. However, they were never subsequently offered the opportunity to resume their employment.

On 20 June 2000 the applicants complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) in two separate appeals.

On 7 March 2001, Revsar, an auditing and consulting company based in Sarajevo, conducted an audit of the transfer of ownership of the company. It held that the measures taken from 1991 until 1994 to establish internal share capital had not been in accordance with the law and that, therefore, such internal share capital had never been formed. Consequently, it concluded that the company was 100% State-owned.

On 31 July 2001 the Federation of Bosnia and Herzegovina issued a decree placing the company on the list of the companies under its control on the basis of the State-owned capital.

On 8 February 2002 the Human Rights Chamber joined the applicants’ cases (see paragraph 8 above) and those of Mr M. Š. and the Association for the Protection of Unemployed Shareholders of Agrokomerc and adopted a single decision. It was delivered on 8 March 2002. The Human Rights Chamber held that the applicants had acquired possessions, in the form of their paid-up internal shares in the company, which were protected by law and found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The reasons were set out in the decision, the relevant paragraphs of which read as follows:

“290. In summary, the Chamber has concluded that the applicants acquired protected “possessions” in their paid internal shares in Agrokomerc for which payment was made on the basis of: (a) permanent deposits; (b) allocation of parts of salaries, either on monthly basis during the period of 1991 to 1994, or on an annual basis for 1992; and (c) distribution of profits for 1992 in proportion to the amount of paid internal shares. The decision on the results of the renewed Revsar audit of 7 March 2001, which cancelled all internal shares in favour of state capital in Agrokomerc, deprived the applicants of these protected possessions. In addition, by exercising effective exclusive control over the management of Agrokomerc, the authorities of the Federation further interfered with the rights of the applicants to participate in the management and to share in the profits of Agrokomerc in relation to their paid internal shares. In these respects the Federation did not act “subject to the conditions provided by law”. Consequently, the Chamber concludes that the Federation has violated the rights of the applicants protected by Article 1 of Protocol No. 1 to the Convention.

The applicants are correct that they have had no real and effective means to participate in the establishment of the ownership structure of Agrokomerc, as that has been established through the performance of the audit, which was conducted exclusively by the auditor Revsar [...]. There have been no actual or effective proceedings in which the applicants have been invited to participate. Under the law, the only way for the applicants to participate in the establishment of the ownership structure of the company in which they are shareholders has been to challenge the appointment of the auditor and to challenge the results of the audit [...]. This has not proven effective in this case. Moreover, the Chamber considers that this type of process has not been adequate properly to allow the applicants to have access to courts for the determination of their civil rights, as guaranteed by Article 6 of the Convention”.

Furthermore, the Human Rights Chamber ordered the Federation of Bosnia and Herzegovina to take all necessary steps to recognise the applicants as holders of internal shares in relation to the amount of their paid-up internal shares and to enable them to exercise their right as shareholders to participate in the management of the company. In particular, the Federation was ordered to: (i) employ, at its own expense, internationally recognised auditors to undertake an audit to determine the complete ownership structure of the company, in compliance with International Accounting Standards and International Auditing Standards; (ii) establish the value of the applicants’ shares and have them formally registered; and (iii) provide them with individual share certificates. Lastly, the Human Rights Chamber ordered interim measures whereby certain procedures and arrangements were put in place as regards the company’s management until the adoption of the final audit report and the convocation of a general meeting of the company’s shareholders.

On 28 November 2003 the Prague branch of Deloitte & Touche produced an audit report, which found that 90.33% of the company’s capital was State-owned, the remaining 9.67% being in private ownership. In addition, only 3.34% of the total capital had been assigned to individual private shareholders, whilst the outstanding 6.33% remained unassigned. The value of the applicants’ shares had not been established. Consequently, they could not attend the general meeting of the company’s shareholders which was to be held on 16 March 2004.

On 7 May 2004 the Human Rights Commission (the legal successor of the Human Rights Chamber) decided to lift the interim measures indicated in the decision of 8 March 2002 (see paragraph 12 above), after having received the final report on the completed audit from the Federation of Bosnia and Herzegovina and a signed copy of the minutes of the first general meeting of the company’s shareholders.

On 12 May 2005 the Bihać Cantonal Court registered the changes in the ownership of the company resulting from its reorganisation.

On 14 February 2006 a general meeting of the company’s shareholders adopted a resolution authorising the distribution of the unassigned private share capital to individual shareholders (see paragraph 13 above).

On 29 October 2007 the applicants were issued with individual share certificates and their shares were formally registered with the Securities Commission. It was established that the first applicant was entitled to 451 shares with a market value of 4,510 convertible marks (BAM) and the second applicant to 1,086 shares with a market value of BAM 10,000. Consequently, the applicants were also allowed to attend general meetings of the company’s shareholders.

On 15 January 2009 the Constitutional Court of Bosnia and Herzegovina (which became responsible for the supervision of the execution of the Human Rights Chamber’s decisions after the Human Rights Commission ceased to exist) concluded that the Human Rights Chamber’s decision of 8 March 2002 had been fully implemented.

In accordance with Article 239 of the Criminal Code 2003 (Official Gazette of Bosnia and Herzegovina, nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10), non-enforcement of a decision of the Human Rights Chamber is a criminal offence:

“An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term of between six months and five years.”


Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant was born in 1976 and is currently serving a life sentence in Kherson.

On 2 March 2001 the applicant was arrested and placed in the Kyivskyy District police station of Simferopil on suspicion of murder.

On 7 March 2001 the applicant was transferred to the Simferopil police temporary detention centre (the “ITT”).

On 27 April 2001 the applicant was transferred to the Simferopil no. 15 pre-trial detention centre (“the SIZO”) and on the same date placed in the Crimean Psychiatric Hospital for in-patient psychiatric assessment.

On 24 May 2001 the applicant was transferred back to the SIZO.

On 26 October 2001 the Court of Appeal of the Autonomous Republic of Crimea convicted the applicant of murder and sentenced him to life imprisonment.

On 28 February 2002 the Supreme Court of Ukraine upheld this judgment and it became final.

In October 2004 the applicant was transferred to Sokalska no. 47 Penitentiary, Lviv Region (“Penitentiary no. 47”).

In November 2006 the applicant was transferred to Kherson no. 61 Penitentiary (“Penitentiary no. 61) and placed in the prison hospital.

In spring 1997 (prior to his detention) the applicant was diagnosed with infiltrated tuberculosis of the lung. In February 2000 he was also diagnosed with late stage of HIV (Aids).

According to the applicant, throughout the period of 2001-2008 the medical assistance afforded to him on account of his HIV and tuberculosis was grossly inadequate, while the physical arrangements of his detention were incompatible with his state of health.

In particular, as regards HIV, no treatment was offered whatsoever. Furthermore, in spite of the doctors' recommendations and the applicant's numerous requests, throughout the period of his detention he was denied blood tests to establish his count of CD-4 immunity cells, which are instrumental in combating tuberculosis and possibly inhibited as a result of HIV. On several occasions the applicant was informed that antiretroviral therapy would become available to him after the successful treatment of his tuberculosis.

As regards the treatment for tuberculosis, it was irregular and insufficient. In particular, in spite of the applicant's numerous complaints about his state of health (namely, shortness of breath, fever, chest pain, and so on), no medical assistance whatsoever was provided to him between March and May 2001.

On 28 May 2001 the applicant was examined by a panel of the SIZO medical officers, who found that he was at risk of death if his state of health was not promptly addressed and recommended his release in view of the fact that the SIZO lacked the necessary facilities for his treatment. The applicant submitted a copy of the letter from the medical panel addressed to the SIZO governor and a letter from the governor to the district court dated 16 July 2001 requesting his release on humanitarian grounds. It is not clear whether these letters generated any reaction from the court. The applicant, however, remained in detention.

Since June 2001 the applicant has been receiving treatment for tuberculosis, but it has not been effective. On many occasions he was denied routine consultations in spite of his demands. However, even when he was able to obtain consultations, the recommendations of the doctors were not followed through effectively. For example, on 13 July 2006 the applicant consulted a panel of medical specialists and was advised to undergo a number of tests. However, these tests were not carried out because the necessary facilities were unavailable, with the exception of two blood tests (biochemical and general) carried out in August 2006. The applicant was likewise unable to obtain timely tests on a number of other (unspecified) occasions in spite of his demands.

The applicant's recovery from tuberculosis was further impeded by the physical conditions of his detention. In all of the facilities in which he was detained, the applicant was largely confined to his cell. In the ITT he had to sleep on a bare mattress, as no linen was provided. Furthermore, he had no opportunity to wash, shave or take outdoor exercise. In Penitentiary no. 47 the cells had no mirrors or drawers and were poorly heated. The air was so damp that the walls and ceilings were covered with fungi and mould, as well as frost during the winter months. The drinking water was rusty and hot water for washing was not available more than once every two to three weeks. Despite suffering from active tuberculosis, on some occasions the applicant had to share a cell with other prisoners, including those who were healthy, which provoked conflicts. As a result of the lack of treatment and the inadequate conditions of his detention, the applicant caught bronchitis and pneumonia on various occasions, while his tuberculosis spread further and became chronic.

By way of evidence, the applicant presented a statement by his cellmate, Mr G. According to him, he shared the applicant's cell on various occasions for periods lasting from several days to several weeks. Their cell was very cold and no adequate clothing was provided. On numerous occasions the applicant's requests for medical assistance were ignored and the actual administration of anti-tuberculosis drugs was irregular, provoking the aggravation of his condition and resistance of the bacteria to treatment.

On numerous occasions the applicant complained to various authorities, including the ombudsman, the Prosecutor's Office and the local Department for the Enforcement of Sentences, of the inadequacy of his medical assistance and the incompatibility of the conditions of his detention with his state of health. His complaints, however, were to no avail.

On two occasions the applicant attempted to lodge complaints about the conditions of his detention with two different courts; however, his submissions were rejected with reference to a lack of territorial jurisdiction. At one time the applicant demanded that a court clerk be commissioned to assist him in drafting his submissions, but this request was refused as not based on law. The applicant never appealed against the court decisions not to examine his claims.

In September 2006, following the applicant's numerous complaints to the prosecutor's office, the Lviv Prosecutor's Office contacted the Chief of the Regional Department for the Enforcement of Sentences and the governor of Penitentiary no. 47, urging them to take urgent measures to ensure that the applicant receive a comprehensive medical examination. Following this intervention, in November 2006 the applicant was transferred to Kherson no. 61 Penitentiary Hospital. However, following the applicant's transfer, healthcare arrangements did not improve significantly. In particular, no HIV therapy was made available to him.

The Government presented extensive handwritten medical notes, which are hardly legible, and a typed synopsis of the applicant's treatment history, on the basis of which they alleged that the applicant was regularly and consistently supervised and received treatment in compliance with the applicable Ministry of Health guidelines.

According to the synopsis, on 27 April 2001 the applicant was examined by a tuberculosis specialist and diagnosed as suffering from focal tuberculosis of the upper part of the right lung in the consolidation stage.

On 28 May 2001 the applicant was x-rayed. His x-ray indicated small low-intensity foci of the tuberculosis infection in the upper part of the right lung. Following this test, the applicant was prescribed standard treatment of a combination of “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide) and vitamins.

The applicant was further examined by a tuberculosis specialist and (or) x-rayed in September 2001 (infiltrating tuberculosis; same treatment continued); March 2002 (diffusion and consolidation of the infection – positive dynamics); September and November 2004 (disseminated tuberculosis of the upper parts of both lungs, diffusion and consolidation stage); February 2005 (positive dynamics: namely, large remaining modifications after the tuberculosis infection – anti-recurrence treatment with “first-line” antibiotics and diet prescribed); May 2005 (same as before); June and November 2005 (recurrence of the tuberculosis infection in both lungs, including tissue destruction); January and February 2006 (recurrent tuberculosis, consolidation stage (positive dynamics), same treatment); June and July 2006 (same diagnosis including tissue destruction; same treatment); October 2006 (chronic tuberculosis including pulmonary fibrosis, numerous polymorphous foci of various sizes and numerous tuberculomas); October 2007 (results unspecified); August 2008 (the number of foci increased in both lungs); February 2009 (slight diffusion and consolidation of the infection foci (positive dynamics)).

The synopsis further gives a detailed account of the numerous tests carried out of the applicant's blood, urine and sputum between November 2006 and December 2007 and a record of a drug-resistance test taken in February 2007. Following the test for drug resistance, it was established that the applicant was resistant to some of the “first-line” anti-tuberculosis medication and his treatment regime was supplemented with some “second-line” drugs.

In addition, in May and June 2005 the applicant received anti-inflammatory treatment on account of pneumonia in May 2005 and was treated for bronchitis in August 2005. In August 2008 the applicant was diagnosed with chronic bronchitis and hepatitis.

In the light of the positive tuberculosis dynamics, the applicant began preparing for HIV therapy at the beginning of 2009.

According to the applicant, immediately upon his and two other convicts' arrival at Penitentiary no. 47 in October 2004, they had their heads covered with sacks, were forced onto their knees, handcuffed and beaten by unnamed junior officers for no reason. Furthermore, they were threatened with a dog, strip searched, and then forced to do sit-ups which were counted. Subsequently, on numerous occasions the officers continued to humiliate the applicant and create a stressful atmosphere. In particular, on numerous occasions they beat him, threatened him with a dog, knocked on the door with a stick for no reason, interrupted his sleep, opened the door to the cell suddenly for various checks, and verbally insulted him. During the daytime the applicant was forbidden to lie on the bed. Furthermore, when the applicant needed to leave the building, for instance for fluorography, his head was covered with a sack and he was made to walk in an unnatural position (“a duck”- legs bent with hands behind the head). On 6 April 2005 the applicant was beaten for lying on his bed during the daytime when ill and on 29 June 2005 for refusing to assume the “duck” walking position. Each day the applicant was handcuffed and body-searched, being forced to stand barefoot on the concrete floor while the officers searched his shoes.

The applicant presented a handwritten statement of claim dated 14 June 2006 referring to the above conduct of the prison officers and addressed to the Shevchenkivskyy District Court of Kyiv. However, he did not provide any evidence that this statement was received by the court or even despatched from the penitentiary.

According to the Government, none of the incidents mentioned above concerning the applicant's ill-treatment at the hands of the penitentiary officers ever took place.

Article 55 of the Constitution of Ukraine, insofar as relevant, reads as follows:

“Human and citizens' rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

Article 248-1 of the Code (Chapter 31-A) provided in so far as relevant:

“Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms ...”

Article 2 of the Code, insofar as relevant, reads as follows:

“1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...

Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”

According to paragraph 14 of the Order, depending on the stage of the disease, HIV sufferers should have their count of CD-4 cells tested every one to six months.

According to paragraphs 2.1 and 2.3 of the Instruction, approved by the Order, medical assistance for HIV sufferers is viewed as comprising compulsory dispensary supervision, treatment of opportunistic diseases and access to antiretroviral therapy. In-patient treatment of patients with stage III-IV HIV suffering from active tuberculosis infections should be administered in prison hospitals specialising in the treatment of tuberculosis.

According to paragraph 6.1 of the Protocol, tuberculosis treatment was to be administered in specialised anti-tuberculosis institutions and to consist of two phases: basic chemotherapy and rehabilitation. The basic chemotherapy course consisted of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide), or, in the event of resistance of the infection to the above drugs, with “second-line” or “reserve” antibiotics.

According to paragraph 6.6.1, to obtain maximal results, medical or surgical treatment was to be implemented in conjunction with a particular hygiene and exercise regime (complete bed rest, part-time bed rest or training regime) prescribed to an individual patient based on an assessment of his condition.

Treatment was to be followed by rehabilitation, including curative exercise, massage and physiotherapy, which was recommended to be started within two to two and a half months after the antibiotic treatment.

According to paragraph 6.6.4, within several months of starting treatment, a medical commission was to examine whether the intensive treatment stage could be substituted by the supportive stage based on x-ray and microbiological tests. If treatment appeared ineffective at this stage the patient was to be tested for drug resistance, and, if necessary, his case referred to a more qualified institution. In the event that chemical treatment remained ineffective, surgical intervention was to be explored as a possible alternative.

According to paragraph 6.6.4.3, it was recommended that antibiotic treatment be supplemented with anti-pathogenic medicines.

According to paragraph 6.7, tuberculosis patients were to be continuously monitored, which included x-rays every two months; blood (general and biochemical) and urine tests every month during the intensive therapy stage and once every two months during the supportive stage.

On 9 June 2006 Order no.45 was replaced with the Order no. 384 approving an updated Protocol; however, the major approaches remained the same.

According to the Protocol, patients co-infected with HIV and tuberculosis should predominantly be administered anti-tuberculosis therapy first, based on the same principles as for patients suffering from tuberculosis only. Under the general rule, antiretroviral therapy should be administered after the completion of the intensive anti-tuberculosis therapy stage, unless the level of CD-4 immunity cells is lower than a certain threshold, in which case antiretroviral therapy is administered immediately. On average, the level of CD-4 cells is expected to be tested once every three months.

Relevant parts of the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 read as follows:

Access to medical care in specialised facilities remains problematic for this category of prisoner, both male and female...

Further, the transfer of life-sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible. Such persons were kept in their detention units, isolated in their cells, sometimes for many months.

The CPT recalls that obliging prisoners to stay in an establishment where they cannot receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them, is an unacceptable state of affairs which could amount to inhuman and degrading treatment.

The CPT recommends that the Ukrainian authorities ensure that life sentenced prisoners – men and women – who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay.”

Other relevant domestic and international materials can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006), Yakovenko v. Ukraine (no. 15825/06, §§ 49-55, 25 October 2007) and Kats and Others v. Ukraine (no. 29971/04, §§ 85-86, 18 December 2008).


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in 1953 and lives in Ankara.

He is a professor of history who researches and publishes extensively on the subject of the historical events of 1915 concerning the Armenian population in the Ottoman Empire.

On 6 October 2006 the applicant published an editorial opinion in AGOS, a bilingual Turkish-Armenian newspaper, entitled “Hrant Dink, 301 and a Criminal Complaint”. In this editorial opinion the applicant criticised the prosecution of Hrant Dink, the late editor of AGOS, for the crime of “denigrating Turkishness” under Article 301 of the Turkish Criminal Code. He also requested, in an expression of solidarity, to be prosecuted on the same ground for his opinions on the Armenian issue.

On 12 October 2006 a complaint was lodged against the applicant with the Eyüp public prosecutor. The complainant, R.A., alleged that the applicant’s defence of Hrant Dink in the editorial published in AGOS violated Articles 301, 214 (incitement to commit an offence), 215 (praising a crime and a criminal) and 216 (incitement to hatred and hostility among the people) of the Turkish Criminal Code. Following this complaint, the applicant was summoned to the Şişli public prosecutor’s office to make a statement. He was informed that he would be brought to the public prosecutor’s office by force, in accordance with Articles 145 and 146 of the Criminal Code, if he did not comply with the summons.

On 5 January 2007 the applicant went to the Şişli public prosecutor’s office to submit his defence statement in relation to the criminal complaint against him. The applicant stated, in the presence of his two lawyers, that he had indeed written the said article published in AGOS. He explained that the policy of the Ittihad ve Terakki towards the Armenians in 1915 could well be defined as genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide of the United Nations of 1948. He had written the said article in order to express his opinion on the Armenian issue in the context of freedom of the press. He pointed out that he was a professor of history who had been working on this subject for almost twenty years and that he had expressed his opinion several times in his books and articles. He had not written the impugned article in order to serve any association, organisation, race or ethnic group, or to denigrate a nation. The applicant’s two lawyers also argued that the applicant’s statements did not amount to a crime.

On 30 January 2007 the investigation against the applicant was terminated by the Şişli public prosecutor, who noted that at all the scientific seminars he had taken part in and in his publications the applicant had expressed the opinion that the events that took place between 1915 and 1919 could be described as genocide. Having examined the applicant’s article published in AGOS, the public prosecutor concluded that the applicant’s statements in his capacity as a professor of history came within the realm of protected expression under Article 10 of the European Convention on Human Rights and that as such they did not constitute denigration of Turkishness. Nor did they amount to incitement to commit a crime, or to praising a crime or criminal, or incitement to hatred and enmity amongst the people.

On 6 July 2007 the complainant, R.A., filed an objection against the above-mentioned decision of non-prosecution.

On 30 October 2007 the Third Chamber of the Beyoğlu Assize Court dismissed the complainant’s objection. Having examined the investigation carried out and the reasons given by the Şişli public prosecutor, the court held that the decision of non-prosecution was in accordance with procedure and law.

On 11 October 2007 a judgment was issued by the Şişli Criminal Court against Arat Dink (the editor of AGOS) and Serkis Seropyan (the owner of AGOS) whereby both were sentenced to one year’s imprisonment under Article 301 of the Turkish Criminal Code for accusing the Turkish nation of genocide via the press. Although the applicant was not a party to those proceedings, the court decided of its own motion that the Şişli public prosecutor had erred in discontinuing the investigation against the applicant on 30 January 2007 and held that this matter should be duly investigated by the prosecutor’s office.

On 26 November 2007 another complaint was lodged against the applicant, by a certain A.P., with the Chief Public Prosecutor’s office in Şişli. The complainant alleged that the applicant’s statements published in AGOS on 6 October 2006 violated Article 301 of the Turkish Criminal Code.

On 28 November 2007 the Şişli Public Prosecutor issued a decision of non-prosecution. He noted that a similar complaint by another complainant had been examined and dismissed by a non-prosecution decision on 30 January 2007.

On 10 January 2008 the applicant made an urgent request for interim measures under Rule 39 of the Rules of Court. He also requested that the respondent Government be notified of the introduction of the application in accordance with Rule 40 of the Rules of Court and that the case be given priority under Rule 41 of the Rules of Court.

On 14 January 2008 the applicant’s requests under Rules 39, 40 and 41 of the Rules of Court were rejected.

The Government submitted to the Court a decision of nonprosecution issued by the Şişli Chief Public Prosecutor’s office on 17 February 2006. It appears from this decision that on 21 October 2005 a criminal complaint was lodged by a certain K.K., who alleged that the applicant had attempted to denigrate the Republic and to influence the trial of Hrant Dink by his editorial opinion dated 14 October 2005 published in the AGOS newspaper. The public prosecutor who examined the complaint concluded that the alleged offence was time-barred and therefore issued a decision of non-prosecution.

According to the information provided by the applicant’s representative on 6 May 2008, no further investigation had been instigated against the applicant after the judgment of the Şişli Criminal Court dated 11 October 2007.

The Government submitted a list of thirteen books published by the applicant. It appears that these books are on sale in Turkey and that they mainly concentrate on the Armenian question. A selection of the books included is as follows:

– “The Armenian question has been resolved; Ottoman documents concerning the policies towards the Armenians during the war years”, 2008;

– Turkish national identity and the Armenian question: “From the Ittihad ve Terakki to the War of Independence”, 2001;

– “Lifting the Armenian taboo, is there any solution other than dialogue” 2000; and

– “Human Rights and the Armenian Question”, 1999.

The Government further noted that, contrary to the applicant’s allegations that he had been prevented from pursuing his research on the Armenian issue, he had been given permission to conduct research in the State Archives by the Directorate General of State Archives. Between 27 June 2006 and 17 July 2007 the applicant personally consulted the Ottoman archives and had been granted further permission to photocopy 527 documents. On page 17 of his book entitled “The Armenian question has been resolved” the applicant thanked the State Archives for assisting him in his research.

In an annex to their observations, the Government have furnished the Court with sample copies of non-prosecution decisions issued by public prosecutors and judgments of acquittal given by criminal courts in cases concerning prosecutions under Article 159/1 of the former Criminal Code and Article 301 of the new Criminal Code. In particular, the suspects were mainly accused of insulting or denigrating the army, the security forces, the judiciary or the Republic.

In these decisions and judgments, given between 2005 and 2008, the prosecuting authorities either dropped the charges against the suspects, considering that the necessary elements of the crime in question were not present, or terminated the proceedings on the grounds that the Ministry of Justice had refused permission to prosecute the suspects. In acquitting the suspects, the criminal courts relied on the case-law of the European Court in cases concerning Article 10 of the Convention.

The above-mentioned documents furnished by the Government included two judgments given by the Beyoğlu and Şişli Criminal Courts in respect of two prominent writers, namely Elif Şafak and Orhan Pamuk.

In the criminal proceedings against Elif Şafak the Beyoğlu Criminal Court had examined a criminal complaint filed by a group of lawyers and an association called the Turkish World and Culture and Human Rights Association of Izmir, who alleged that Elif Şafak had denigrated “Turkishness” as a result of statements about the Armenian issue in her book entitled “Baba ve Piç” (“The Bastard of Istanbul” in English). In a judgment dated 21 September 2006, the court acquitted Elif Şafak, holding that the book in question was fiction and that the impugned statements made by the characters in the novel could not be taken as constituting an offence of denigrating Turkishness. Having examined the novel written by the accused, the court concluded that the statements contained in the book should be examined in the context of freedom of expression. The court, however, observed that the limits of the concept of “Turkishness” should be determined and based on a solid ground by the legislator. It further remarked that opinions should only be compared with opinions. Otherwise, one could not talk of freedom of opinion and expression and would be forced to adopt uniform thoughts.

In the case brought against Orhan Pamuk, the Şişli Criminal Court had examined a criminal complaint lodged by two individuals who alleged that the writer had denigrated Turkishness in a speech he had given abroad. In a judgment dated 20 January 2006, the court decided to discontinue the proceedings on the ground that the requisite permission to press charges against the accused had not been obtained from the Ministry of Justice. It thus ruled that the lack of permission should be considered as a refusal and that the proceedings should be terminated.

The Government submitted statistical information which indicated the situation by 5 November 2008. They noted that following the amendments made to Article 301 of the Criminal Code on 8 May 2008 there had been a significant decrease in prosecutions under Article 301. In this connection, of the seventy authorisation requests made by public prosecutors to commence criminal proceedings under Article 301, the Ministry of Justice had granted only three.

The Government further pointed out that between 2003 and 2007 the number of sets of criminal proceedings instituted under Article 301 (Article 159/1 of the former Criminal Code) was 1,894. Of those, 744 cases had resulted in convictions and 1,142 in acquittals; 193 cases were still pending following the Court of Cassation’s decisions to quash the first-instance courts’ judgments.

In their supplementary observations dated 30 October 2009, the Government noted that between 8 May 2008 and 30 September 2009 the Ministry of Justice had received 955 requests for authorisation to institute criminal proceedings under Article 301. The Ministry had refused 878 of these requests but granted 77. In this connection, the Government furnished the Court with sample copies of decisions of refusal issued by the Ministry of Justice. It appears from these decisions that the Ministry of Justice extensively relied on the case-law of the Court in cases concerning Article 10 when refusing public prosecutors’ requests for authorisation to institute criminal proceedings under Article 301 of the Criminal Code. The Government further noted that in 244 cases where the Ministry of Justice refused authorisation to institute criminal proceedings, the criminal complaints mainly concerned publications in the press.

The European Commission’s 2008 Progress Report on Turkey stated:

“Following the adoption of the amendments to Article 301, Turkish courts had forwarded, by September [2008], 257 cases to the Minister of Justice for prior authorisation. This requirement concerns cases at the investigation stage or for which judicial proceedings have started. By September, the Ministry had reviewed 163 cases and refused to grant permission to proceed in 126 cases.

However, the wording of Article 301 remains largely the same and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration. So far, the Minister of Justice authorised the criminal investigations to continue in 37 statements made by a Turkish writer on the Armenian issue shortly after the assassination of the Turkish journalist of Armenian origin, Hrant Dink. Furthermore, there is legal uncertainty as regards cases which had been granted authorisation by the Minister of Justice under the former Article 159 of the Turkish Criminal Code”.

The applicant highlighted examples of post-amendment Article 301 cases with specific reference to the Armenian issue. He noted that in October 2008 the Ministry of Justice had authorised the continuance of the trial of Temel Demirer for stating that Hrant Dink had been killed not only for being an Armenian, but also for raising the issue of genocide. Another example was Ragıp Zarakolu’s conviction and sentencing on 17 June 2007 to five months’ imprisonment (subsequently commuted to a fine) under Article 301 for translating and publishing a book about the Armenian genocide entitled “The Truth Will Set Us Free”, written by George Jerjian.

Furthermore, according to the United States Department of State’s 2008 Human Rights Report on Turkey, the Minister of Justice himself (Ali Şahin) also made a statement that could be interpreted as instructions to the judiciary: “I will not let someone call my state ‘murderer’. This is not freedom of expression. This is exactly what the crime of insulting the person of the state is.”

The applicant also submitted a report published by the Media Monitoring Desk of the Independent Communications Network, for the period of July-August-September 2008. According to this report a total of 116 people, 77 of whom were journalists, were prosecuted in 73 freedom of expression cases.

In its editions of 10 and 29 October 2000, 5 November 2000 and 31 December 2000 the magazine Aydınlık published articles alleging that the applicant was a paid employee of the German intelligence service and that he had been commissioned to conduct research and write on the subjects “Violence in Turkish history”, “Torture in Turkish history” and “the Armenian Genocide”. These studies had been commissioned and financed by the German intelligence service and had been published in a book.

In its edition dated 4 January 2001 the daily newspaper Hürriyet published an article entitled “The German Intelligence Chief and Tessa Hoffmann couple” containing allegations that the applicant’s studies were determined and financed by the German intelligence service.

In its editions dated 21, 22 and 23 June 2007, the Hürriyet newspaper published articles describing the applicant as an individual who had betrayed Turkey and vomited hate towards Turkey in all of his books and speeches.

By press releases, the applicant and his family condemned the allegations published by the Hürriyet newspaper and called for apology. They referred to the killing of Hrant Dink and said that the press should act with responsibility and sensibility when publishing articles containing allegations labelling someone as a “traitor”. They further warned against Turkey becoming a country where citizens could be lynched with the help of the press.

By a judgment dated 8 November 2005 the Istanbul Civil Court of First Instance dismissed the applicant’s claims for non-pecuniary damage. The court held that even though the words used and allegations made by the defendants were offensive they were within the limits of permissible criticism. This judgment was confirmed by a Court of Cassation decision dated 14 March 2007.

On 26 July 2007 the applicant brought an action in the Ankara Civil Court of First Instance requesting the court to order the Hürriyet newspaper to publish a letter of correction in response to the offensive articles published on 21, 22 and 23 June 2007. By a decision dated 30 July 2007 the court dismissed the applicant’s request. It held that even though the criticism contained in the impugned articles was harsh in tone, it was covered by the right to freedom of expression enjoyed by the press in a pluralist democracy.

On 24 November 2007 the Taraf newspaper published an article criticising the attitude of the judiciary in regard to the media campaign against the applicant.

The applicant claimed that he had received hate mail from unknown persons. He submitted a copy of an e-mail sent by a person insulting him and threatening him with death as a result of his views on the Armenian issue.

Between 9 and 23 July 2007 a number of articles were published on internet portals and in magazines and newspapers criticising the attacks against the applicant and expressing support for him.

Former Article 301 of the Turkish Criminal Code reads as follows:

“1. A person who publicly denigrates Turkishness, the State of the Republic of Turkey or the Grand National Assembly of Turkey shall be sentenced to a penalty of imprisonment for a term of six months to three years.

A person who publicly degrades the Government of the Republic of Turkey, the judicial bodies of the State or the military or security organisations of the State shall be sentenced to a penalty of imprisonment for a term of six months to two years.

In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.

The expression of an opinion for the purpose of criticism does not constitute an offence.”

The new text of Article 301 of the Turkish Criminal Code, as amended on 29 April 2008, reads as follows:

“1. A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey or the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years.

A person who publicly degrades the military or security organisations of the State shall be sentenced to a penalty in accordance with paragraph 1 above.

The conduct of an investigation into such an offence shall be subject to the permission of the Minister of Justice.”

In the criminal proceedings against Hrant Dink (see Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28, ECHR 2010... (extracts)), the Grand Chamber of the Court of Cassation interpreted the term Turkishness as follows (Yargıtay Ceza Genel Kurulu, E.2006/9-169, K.2006/184, judgment of 11 July 2006):

“... [T]he term “Turkishness” (Türklük) refers to the human element of the State; that is to say, the Turkish Nation. Turkishness is constituted by the national and moral values as a whole, that is, human, religious and historical values as well as the national language and national feelings and traditions ...”

The European Commission’s 2009 Progress Report on Turkey stated the following, insofar as it concerns the use of Article 301 of the Criminal Code in cases concerning freedom of expression:

“...[t]he Turkish legal framework still fails to provide sufficient guarantees for exercising freedom of expression and, as a result, is often interpreted in a restrictive way by public prosecutors and judges. There are still some prosecutions and convictions based on Article 301...”

The European Commission’s 2010 Progress Report on Turkey stated, insofar as relevant, the following:

“...As regards freedom of expression, an increasingly open and free debate continued on a wide scale in the media and public on topics perceived as sensitive, such as the Kurdish issue, minority rights, the Armenian issue and the role of the military.

There are few cases initiated on the basis of Article 301 of the Turkish Criminal Code (TCC) after it was amended in May 2008.

According to the Ministry if Justice, since the amendment to Article 301 of the Turkish Criminal Code, a decrease in the number of cases opened has been observed. The figures below cover examinations concluded between 1 January 2010 and 31 July 2010: 369 files examined, 270 files for which permission was denied, 10 files for which permission was granted, 3.57% file for which permission was granted...”

In his report dated 12 July 2011 Thomas Hammarberg Commissioner for Human Rights of the Council of Europe, stated the following:

“17. Following his visit to Turkey in 2009, the Commissioner expressed his concern regarding Article 301, notwithstanding an amendment adopted in 2008 which led to a decrease in the number of proceedings brought under this article. On 14 September 2010 the Court delivered its judgment in the case of Dink v. Turkey in which it found a violation of Article 10 ECHR on account of Hrant Dink’s conviction based on Article 301. The Court held that Hrant Dink’s conviction for denigrating Turkish identity prior to his murder did not correspond to any “pressing social need” which is one of the major conditions on which interference with one’s freedom of expression may be warranted in a democratic society. The Commissioner considers that the amendment adopted in 2008, which subjects prosecution to a prior authorisation by the Ministry of Justice in each individual case, is not a lasting solution which can replace the integration of the relevant ECHR standards into the Turkish legal system and practice, in order to prevent similar violations of the Convention.”