Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in 1948, 1980 and 1944 respectively. The first applicant lives in the village of Kurchaloy and the second and third applicants live in the village of Akhkinchu-Barzoy, Kurchaloy district, in the Chechen Republic. The first applicant is a brother of Mr Vakhazhi Albekov, the second applicant is a brother of Mr Khasayn Minkailov and the third applicant is the mother of Mr Nokha Uspanov.

The facts of the case are partially disputed by the parties. The principal discrepancies may be summarised as follows.

Between March 2000 and February 2001 military unit no. 73881-2 was stationed near Akhkinchu-Barzoy, a village of about 1,000 residents.

According to the applicants, the military unit occupied land used by the residents for tillage and pasture, and soldiers mined the area around the unit and in the adjacent parts of the communal forest using anti-personnel mines and, specifically, mines with a trip wire.

According to the Government, the mines in the forest were planted by illegal armed gangs.

In statements submitted by the applicants, the head of the local administration and other residents alleged that there had been several incidents since March 2000 in which cattle and people had been injured by mines. The head of the administration stated that he had asked the military to remove the mines from the land used by the villagers but that the incidents had continued.

According to the Government, the population of Akhkinchu-Barzoy was regularly warned by the military that mines had been laid by armed gangs in the forest. They said that the minefield around the military unit was marked.

On 23 October 2000 at about 2 p.m. the first applicant’s brother, Mr Vakhazhi Albekov, born in 1969, went to the meadow to collect the family’s cattle from a field situated about 500 metres from the village. He was wearing a black jacket with a hood, a black sweater, blue sports trousers and black rubber boots. At about 3 p.m. another villager, Mr B., met Mr Vakhazhi Albekov in the meadow and the latter told him that he was going north to collect the calves. As a rule it took very little time to collect the cattle and return, and at 4 p.m. his family became concerned.

At about the same time another resident of the village, Mr M., was in the southern part of the pasture and heard an explosion somewhere to the north. He was scared and decided to return home along the road. On the road he was fired at by soldiers returning to the military unit, but escaped unharmed.

After 4 p.m. Mr Vakhazhi Albekov’s relatives and neighbours decided to search for him. They broke up into small groups and searched the pasture land and a short way into the forest, shouting his name. At about 10 p.m. they decided to report his disappearance to the military unit and ask for assistance. The first applicant’s sister, along with the head of the village administration, Mr E., and two other neighbours, went to the location of the military unit. Only Mr E. was allowed to enter and a serviceman informed him that they had no news of Mr Albekov and that they had not detained anyone.

On the morning on 24 October 2000 Mr E. went to the district centre of Kurchaloy and reported Mr. Albekov’s disappearance to the district authorities, namely the police station, the military commander and the head of the administration.

At the same time villagers continued to search for Mr Vakhazhi Albekov in the pasture land and forest. At about 2 p.m. the second applicant and Mr G. found Mr Albekov’s body in a pit in the forest, about 30 metres from the road and about 300 metres from the military unit. The body was lying face down, and the upper part of the body had been disfigured by an explosion. The two men noticed the remains of tape on the body and recognised the clothes he had been wearing. Nearby they found his passport, which was intact. They also noted footprints on the ground, allegedly made by military boots, leading towards the military unit. They did not touch the body as they were afraid that it was mined.

At about 3 p.m. on the same day the first applicant’s brother, Umar Albekov, and another villager went to the military unit with a request for sappers who could check if the body had been mined. The military refused and suggested that they should seek help in Kurchaloy. While waiting at the barrier of the military unit for an answer, Umar Albekov heard an explosion from the north-eastern part of the forest. Later they learnt that this was an explosion, which had injured Mr I. and Mr Khasayn Minkailov.

After the refusal by the military to help retrieve Mr Albekov’s body, the residents decided to recover it themselves. They tied a long rope to one of his legs and pulled the body from a distance of 30-40 metres. Mr Vakhazhi Albekov was buried on 25 October 2000 in the village cemetery. His relatives did not seek medical or other professional examination of the body before burial.

The villagers searching for Mr Vakhazhi Albekov on 24 October 2000 divided up into several small groups. At about 3.30 p.m. one such group, consisting of Mr Khasayn Minkailov, born in 1982, the second applicant’s brother, and Mr I., were blown up by a booby-trap mine in the forest. The sound of that explosion was heard by Umar Albekov, who was at the gate of the military unit.

Mr I., who was injured on the right side of his body and in both legs, managed to reach a roadblock near the village of Dzhugurta, which is about three kilometres from Akhkinchu-Barzoy. The soldiers stopped a passing car, and the driver, who happened to be a resident of Akhkinchu-Barzoy, took Mr I. home. Mr I. told the other villagers that they had been blown up by a mine and that Mr Khasayn Minkailov had been seriously injured in the same blast and had lost a leg. The head of the local administration again appealed to the military unit, asking them for sappers and for medical assistance. The military refused to send sappers, but a military doctor attended Mr I. at his home at about 4 p.m. and gave him first aid. He did not issue any medical documents in respect of Mr I.’s injuries.

When the residents of the village were informed by Mr I. that Mr Khasayn Minkailov was seriously injured, they immediately went to look for him. They again broke up into small groups and entered the forest. Two of Mr Khasayn Minkailov’s cousins, namely Mr Nokha Uspanov, born in 1973, the third applicant’s son, and Mr Sh. M., volunteered to check the most dangerous sites, such as ravines, pits and abandoned dugouts. While checking a dugout in the north-eastern part of the forest, Mr Nokha Uspanov was blown up by a mine. Mr Sh. M. rushed to his aid and was also blown up. As a result each received serious injuries to their right legs, which were later amputated in hospital. Two of Mr Nokha Uspanov’s fingers were also seriously injured and later had to be amputated. His left leg was fractured. Other residents brought the men to the village, where they were attended to by the first applicant.

On the morning of 25 October 2000 Mr Nokha Uspanov and Mr Sh. M. were taken by their relatives to a hospital in Kurchaloy, where they were operated on the same day. Mr Uspanov’s right leg was amputated at shin level and two fingers on his right hand were also amputated; Mr Sh. M.’s right leg was amputated at ankle level. They remained in hospital until 21 November 2000.

On the morning of 25 October 2000 the head of the village administration, together with residents of Akhkinchu-Barzoy and Dzhugurty, again went to the military unit and asked for sappers in order to find Mr Khasayn Minkailov and to prevent further casualties. This time the commander of the military unit ordered an armoured personnel carrier (APC) and about ten sappers to assist the villagers. The sappers had a map of the area, presumably indicating minefields. They used it to reach the body of Mr Khasayn Minkailov, who had died in the meantime. His left leg had been torn away by the blast and he had other injuries. The body was brought to his home in Akhkinchu-Barzoy with the help of the military. He was buried on 26 October 2000 in the village cemetery. His relatives did not contact any medical personnel or authorities before the burial.

According to the applicants, on 25 October 2000 a group of officials arrived at Akhkinchu-Barzoy. They included individuals from the Kurchaloy district police, the military commander’s office and the prosecutor’s office. Accompanied by local residents, they filmed the site where Mr Vakhazhi Albekov’s body had been found. They also visited Mr Albekov’s home, where they took photographs and filmed the body. They also questioned a number of witnesses who had participated in the search and retrieval of the body. The officers drew up a report on Mr Vakhazhi Albekov’s sweater and an axe he had been carrying to protect himself in case of attack by wild animals. None of the witnesses recalled signing any papers or statements.

The officers assured the first applicant that a criminal investigation would be conducted into the circumstances of the deaths. They gave him the name of the prosecutor responsible for the case in the district prosecutor’s office. After his brother’s funeral, the first applicant, who worked in Kurchaloy Hospital, tried to meet the prosecutor on eight occasions but was denied access to the building on each occasion on the ground that the prosecutor was absent.

The first applicant’s sister, Petimat Albekova, also tried at some stage to inquire about the investigation into her brother’s death. She submitted that a prosecutor had shouted at her and turned her out of his office. The first applicant’s family made no further attempts to inquire about the investigation.

On 10 December 2000 an official from military unit no. 73888-2 issued a certificate to Mr Nokha Uspanov, confirming that he had received a blast injury while looking for cattle near the village of Akhkinchu-Barzoy.

On 11 December 2000 the head of the village administration issued a note which contained the following account of the events of 22-25 October 2000:

“At about 2 p.m. on 22 October 2000 a resident of Akhkinchu-Barzoy, Vakhazhi Albekov, born in 1969, went to look for his cattle and did not return. The whole village went out to look for him. By 7 p.m. the search had produced no results and we applied to the headquarters of the federal forces, who denied any knowledge of him. The following day in the morning we applied to them again, because the pasture land and surrounding forest are mined. By 11 a.m. on 23 October we were told that Albekov had been found dead at the edge of the village, blown up by a TNT block. On 24 October we notified the district police authorities, who came and started a criminal investigation.

Khasayn Minkailov, born in 1982, who went to search for Albekov on 23 October, did not come back to the village. Another man who was with him, [I.], informed the villagers that [Minkailov] was seriously wounded; meanwhile [I.], also seriously wounded, reached the road near the village of Dzhugurty, from where he was brought back by another resident.

Another group of villagers went to look for Minkailov, knowing that he had been seriously injured and needed help. Nokha Uspanov and [Sh. M.] went by a separate path, hoping to be the first [ones] to reach him. They stated later that first Nokha Uspanov was blown up by a mine, and then [Sh. M.], trying to reach him. Another group took them home, where they were given first aid by the village doctor.

For the third time I asked the federal forces for help, but at the roadblock they told me that they could not send sappers and reconnaissance groups, as they were busy. On 25 October I asked them again, and finally they provided an APC and a group of sappers, who found Minkailov already dead and brought his body home.”

According to the second applicant, he was not questioned by any investigators about the circumstances of his brother’s death. However, in January 2001, during a “sweeping” operation in Akhkinchu-Barzoy, he and several other men from the village, including Mr Nokha Uspanov, were detained by Russian soldiers, beaten up and questioned about the circumstances of his brother’s death. The second applicant was also asked if he had complained anywhere about the incident, and replied in the negative. He was released a day later, and was too scared to apply to any other officials.

The third applicant submitted that her son, Mr Nokha Uspanov, had remained in hospital for a month after the injury sustained on 24 October 2000. His right leg was operated on twice, because his wound had become infected after the first amputation. After being discharged from hospital her son remained at home, suffering from severe pain and requiring constant care for several weeks. On 11 January 2001 Mr Nokha Uspanov, along with a few other men from the village, was detained by soldiers during a “sweeping” operation. The applicant had no news of her son for several weeks, despite having personally visited the military commander’s office, the local administration and other authorities. At the end of January 2001 her son’s body was discovered on the outskirts of the village of Bachi-Yurt. The third applicant submitted that her other son, Ruslan Uspanov, born in 1964, had been killed in the summer of 2001. She further submitted that after January 2001 she had not applied to any authorities in relation to the events of October 2000, because she had been afraid and had not trusted any officials.

On 29 January 2002 the Kurchaloy district civil registry office issued death certificate no. 23 in respect of Mr Vakhazhi Albekov, stating that he had died in Akhkinchu-Barzoy on 22 October 2000.

According to the Government, until July 2004 no applications for institution of criminal proceedings were submitted by relatives of the deceased persons to the prosecutor’s offices of the Chechen Republic. After the receipt on 12 July 2004 of unspecified materials concerning the explosions, the Kurchaloy District Prosecutor’s Office conducted an inspection. On 22 July 2004, having regard to the results of the inspection, the district prosecutor’s office refused to institute criminal proceedings on the ground that there was no indication that a crime had been committed.

On 24 July 2004 a lawyer from the NGO Memorial wrote to the Kurchaloy District Prosecutor’s Office and asked for an update on the criminal investigation into the death of Mr Vakhazhi Albekov. No reply was received. In August 2004 the head of the village administration was visited by various officers from the district police station. He was questioned about the circumstances of the events of 23-25 October 2000, but was not asked to sign any papers.

The Government submitted the following information on the subsequent progress of the investigation.

On 5 March 2005 the decision of 22 July 2004, refusing to institute criminal proceedings, was quashed by the district prosecutor. However, on 9 March 2005, following the results of an additional inspection, another decision was given refusing the institution of criminal proceedings.

On 10 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 9 March 2005 refusing the institution of criminal proceedings. On the same date criminal investigation no. 54007 was instituted into the death of Mr Vakhazhi Albekov. On 11 March 2005 criminal investigation no. 54008 was instituted into the death of Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, Mr Sh. M. and Mr I. The Kurchaloy District Prosecutor’s Office was responsible for the investigations.

On 12 March 2005 an inspection of the crime scene was carried out. In the course of the inspection an unspecified metal fragment was seized. It was later examined with unspecified explosives. In addition, at the prosecutor’s request, the Shalinskiy District Court ordered the exhumation of the corpses of Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov. However, that order could not be enforced because the relatives of the deceased persons objected to the exhumation. A forensic examination was then conducted on the basis of the medical documents available. According to the results of the examination, the injuries sustained by Mr Nokha Uspanov and Mr Sh. M. were described as serious.

On the same date Ms Kh. A., the sister of Mr Vakhazhi Albekov, was granted the status of victim in the criminal proceedings and questioned. She confirmed that on 23 October 2000 her brother had gone to the meadow to collect the cattle from the field and had been killed by an explosion not far from the village. In the course of the search for him other villagers had been injured in similar circumstances. Ms Kh. A. submitted that neither she nor her relatives had lodged any complaints with the law-enforcement bodies in connection with the events and she did not consider her rights to have been breached.

Also on 12 March 2005 the father of Mr Nokha Uspanov and the brother of Mr I. were granted the status of victims in the criminal proceedings. Mr Uspanov’s father stated that on 23 October 2000 his son had gone to search for Mr Vakhazhi Albekov and had been injured by an explosive device. He had not filed any complaints with the law-enforcement agencies in this respect. Mr R. I., Mr I.’s brother, stated that the military unit stationed near the village had provided transport and sappers who had found Mr Khasayn Minkailov and had brought his body to the village of Dzhigurty. The villagers then had taken his body to Akhkinchu-Barzoy and had buried him on the same day. Neither Mr R. I. nor his relatives had filed any complaints with the law-enforcement agencies in connection with the incidents.

Mr S. U., Mr Nokha Uspanov’s cousin who was questioned on the same date, submitted that in October 2000 Mr Vakhazhi Albekov had disappeared after going to collect cattle. His body had been found in a dugout in the forest. His body had been lying face down and there had been a wound on his right side. There had been no injuries on other parts of the body. Later he had learned that Mr Khasayn Minkailov, Mr Nokha Uspanov and Mr M. Sh. had also been blown up by mines.

The third applicant, who was questioned on the same date, submitted that in October 2000 her son, Mr Nokha Uspanov, had gone to search for Mr Vakhazhi Albekov. He had returned home to have lunch and then had gone out again. Later her brother-in-law had come to tell her that Mr Nokha Uspanov and Mr Sh. M. had been injured. They had stayed in the Kurchaloy hospital for a month and then had continued treatment at home. Mr Nokha Uspanov had never told her what exactly had happened to him and Mr Sh. M.; however, she knew that they had been blown up by a mine while searching for Mr Vakhazhi Albekov. Neither she nor her husband had applied to police, or to the prosecuting or other authorities in this respect.

Ms P. A., another sister of Mr Vakhazhi Albekov, was questioned on the same date.

On 14 March 2005 Mr Khasayn Minkailov’s cousin, Mr A. M., was granted the status of victim in the criminal proceedings and questioned. He submitted that in October 2000 he came from Gudermes to visit his parents in Akhkinchu-Barzoy. On his arrival he had learned that his cousin Khasayn Minkailov had had been blown up by a mine earlier that day. In the evening of that day servicemen from the military unit located next to the village brought Khasayn Minkailov’s body in an APC.

On 13 March 2005 Mr T., head of the village administration, was questioned. He submitted that in 1994-1996 some young men from the area, under the command of a certain Geriskhanov from the Gudermes district, had obtained weapons and set up watch at the village’s entrance. He did not know what exactly they had been doing. According to rumours, Geriskhanov had been under the command of Shamil Basayev. Salman Raduyev had also passed through the village with his brigade of twenty-thirty men. They had stayed in Akhkinchu-Barzoy for a while. Sometimes convoys with military vehicles from the federal troops had passed through the villages. However, the federal troops had never stayed in the village. Between 1996 and 2000 a lot of cattle had died on account of the explosives, which could have been planted by members of illegal armed gangs headed by Geriskhanov or Salman Raduyev. Since 2000 a military unit, “the fifteenth regiment” as it was called by the servicemen, was located near the village. In the course of time the servicemen and the villagers established good relations. The military doctor provided medical assistance to the villagers, and the servicemen assisted them with transportation and other matters.

With regard to the explosions of October 2000, Mr T. submitted that he had been permanently resident in Gudermes at that time. However, he had heard about the events from the villagers. After being appointed head of the Kurchaloy District administration in 2003, he had met with the commanders of the military unit located within two kilometres of the village. The commanders had told him that they had information concerning the minefields set up by rebel fighters in that district and had asked him to tell the villages not to walk there. The sites in question had been marked with notices containing warnings about the mines. Furthermore, the commanders had warned him that there could be mines laid by rebel fighters near the village; however, they had not known their precise location, since the rebel fighters had planted them up chaotically. In January 2005 servicemen from the unit had been blown up on such mines themselves and had been badly injured.

On 15 March 2005 Mr L., the village’s imam, was questioned. He submitted that in 2000 he had washed the dead bodies of Mr Vakhazhi Albekov and Mr Khasayn Minkailov. He had not participated in the search for Mr Vakhazhi Albekov. However, when his body had been found, his relatives had invited Mr L. for ablution, which he had performed on the next day at around 9 a.m. He had observed the following injuries on Mr Vakhazhi Albekov’s body: the left side of the chest and the front abdominal walls had been missing, apparently as a result of an explosion, and internal organs had been visible through the opening. The edges of the opening had been burnt and uneven and smelled of explosives. The hands had been seriously injured. A hand (he could not remember which) and the left leg had been almost torn apart, and had remained attached to the body only by the skin and remains of the muscles. There had been blood on Mr Vakhazhi Albekov’s head, which had been washed off. He had not seen any bullet wounds. Mr Vakhazhi Albekov had been buried in the village cemetery.

Mr L. did know the exact place where Mr Khasayn Minkailov was blown up. From Mr I. he had learned that Khasayn had participated in the search for Mr Vakhazhi Albekov and had stepped on a mine. Mr I. had shown the place of the explosion to the servicemen who brought Mr Khasayn Minkailov’s body to the village. He and Mr G. performed the ablution. Mr L. had observed the following injuries on his body: traumatic amputation up to the knee of a leg (he could not remember which one), and minor wounds on other parts of the body. It had been obvious that Mr Khasayn Minkailov’s death had been the result of the traumatic amputation of the leg, pain, shock and blood loss. Mr Khasayn Minkailov had been buried in the village cemetery on the same day.

Mr L. had learned about the injuries sustained by Mr Nokha Uspanov and Mr Sh. M. from the villagers. He had not talked to them personally and therefore did not know any details of the explosions.

On 21 March 2005 Mr G., the village imam’s assistant, was questioned. He submitted that since 1994 rebel fighters had repeatedly passed through the village. They had used different vehicles and weapons. Federal troops had never permanently stayed in the village or its vicinity. In the autumn of 1999 rebel fighters had passed through their village in motor vehicles. One morning in October 2000 somebody told him that the whole village had gone to search for Mr Vakhazhi Albekov. Then he heard that his body had been found, and he had gone to the spot together with other villagers. Within approximately one kilometre of the village they reached a dugout, surrounded by villagers. He had never seen this dugout before. It was a log-covered pit in the ground. The entrance to the dugout had no stairs. Having consulted the villagers, he concluded that the dugout had been left by rebel fighters, since it did not resemble the buildings usually left by the federal troops. He had looked into the dugout and had seen a corpse. Mr Vakhazhi Albekov’s relatives who were present said that they recognised him by his clothes. Mr G. had not entered the dugout. He had said that the body could have been mined and asked for a long rope. Then someone attached the rope to a leg. Everybody had stepped back for 15-20 metres so as to avoid the consequences of a possible explosion, and had pulled the body out. Mr G. had put a blanket on the ground and had placed the body on the blanket. There had been no skin or muscles on the left side of the body. There had been no other injuries. Then Mr Vakhazhi Albekov’s relatives had taken his body home. During the ablution Mr G. had not seen any gunshot wounds on Mr Vakhazhi Albekov’s body.

Mr G. further submitted that Mr I. and Mr Khasayn Minkailov had been blown up by a mine while searching for Mr Vakhazhi Albekov to the north-east of the village. Mr Khasayn Minkailov had died and Mr I. had only been frightened. Mr G. had been invited to Mr Khasayn Minkailov’s ablution. His body had smelled of burnt meat. He had taken the clothes from the body and had laid them out on the table. In the process of ablution he had observed the following injuries: the left leg had been injured, the left foot had been smashed and had no toes, and its lower part was missing. In the inguinal region there was a hole of approximately ten centimetres in diameter. The buttocks were scratched. There had had been no injuries on other parts of the body. Later Mr Khasayn Minkailov’s father had objected to having his son’s dead body examined and photographed. On the same day Mr Nokha Uspanov and Mr M. Sh. had also been blown up on a mine. Each of them had a leg torn off. They had both survived and walked with crutches. He had not talked to them and did not know any details of the explosion.

On an unspecified date several residents of the village of Akhkinchu-Barzoy and other witnesses were questioned. In particular, Mr D. submitted that in 1994-1996 an armed group, under the command of Geriskhanov, had conducted military actions in the whole mountain district and had stayed in Akhkinchu-Barzoy. Their headquarters had been in the school. The rebel fighters’ dugout had been placed in the forest between the villages of Dzhugurty and Akhkinchu-Barzoy. Russian troops had never stayed there permanently; their convoys had merely passed through the village sometimes. Between 1996 and 2000 cattle had been regularly blown up on mines around the village, including the sites of the rebel fighters’ dugouts. All the villagers had been aware that there were mines in the forest. He did not know who had laid them. However, judging from the fact that in 1994-1996 rebel fighters rather than Russian troops had stayed in the forest, it was more likely that the former had mined the land so as to prevent attacks from the federal forces. Mr D. described the circumstances of the explosions in which Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov had been killed and injured as he had learned them from other villagers. He considered it unlikely that Mr Vakhazhi Albekov had been intentionally killed and considered it most probable that he had been blown up accidentally on a mine.

Mr S. submitted that military actions between members of illegal armed groups and the federal forces had been conducted in the Kurchaloy District until the end of 1999. At the time approximately 800 members of illegal armed groups had been present in the district. In the forest, approximately 1,5 kilometres to the north of Akhkinchu-Barzoy, there were dugouts from the camp of the former field commander Salman Raduyev. He and other villagers had known that, when leaving the district, the rebel fighters had mined their camps so as to annihilate any servicemen of the federal troops who might come to inspect the place. Near the military unit there were notices stating that the land had been mined. He did not have any precise information concerning the deaths of the villagers. It is not clear who Mr S. was.

Mr S. I. submitted that in 2000 there had been numerous instances of explosions in the forest. However, he did not have any information concerning the events in Akhkinchu-Barzoy. It is not clear who Mr S. I. was.

Mr Dzh. made a statement similar to that of Mr S. I. It is not clear who Mr Dzh. was.

Mr A. G. and Mr N. G. made statements similar to that of Mr G., the village imam’s assistant. It is not clear who Mr A. G. and Mr N. G. were.

Mr Razh. and Mr O. did not have any information concerning the events in question. It is not clear who they were.

Mr M., who was questioned on an unspecified date, submitted that since 1963 he had been working as a medical assistant at the medical station in Akhkinchu-Barzoy. In 1994-1996 rebel fighters, in particular, one of Salman Raduyev’s groups, had stayed in the village. The federal troops had not stayed in the village. Their convoys had sometimes passed by but had not stopped. He knew that between 1996 and 2000 a lot of cows had been blown up on mines around the village.

Mr M. had seen Mr I. after he had been blown up but he had not noticed any injuries. Mr I. had told him that he and Mr Khasayn Minkailov had been searching for Mr Vakhazhi Albekov and that Khasayn had been blown up on a mine. On the next day the villagers and servicemen from the 15th regiment had gone to search for Mr Khasayn Minkailov, and later the servicemen had brought his dead body to the village. Mr Nokha Uspanov and Mr Sh. M. had been among the villagers that had participated in the search and they had both been blown up on mines. Other villagers had brought them on stretchers to the house of the S-vs. family on the outskirts of the village. Somebody had called Mr M. and the first applicant, who was in the village that day, for medical assistance. The villagers had told Mr M. and the first applicant that they had gone with Mr Nokha Uspanov and Mr Sh. M. to search for Mr Khasayn Minkailov. In the forest Mr Sh. M. had noticed a dugout and had approached it in order to look inside. At the entrance of the dugout he had been blown up. Mr Nokha Uspanov had run over to help him and had been blown up too. In the S-vs.’ house Mr M. and the first applicant had provided the two men with the first medical aid. They had been given styptic and anti-tetanus injections; the first applicant had cleansed the wounds and removed the injured parts of the muscles and skin. Mr Sh. M.’ right leg had been torn off up to the middle of the ankle. Mr M. did not remember him having other injuries. Mr Nokha Uspanov had a similar injury. Mr M. had not seen the bodies of either Mr Vakhazhi Albekov or Mr Khasayn Minkailov.

Mr R-v., who was questioned on an unspecified date, submitted that from August 2000 to February 2001 he had been seconded to military unit no. 73881. In October 2000 the military unit had been located on the outskirts of Akhkinchu-Barzoy. At the time the situation in the village had been tense; members of illegal armed groups had opened fire on several occasions. The military unit had not mined the area. In the forest near the military unit’s location there had been a lot of mines, including trip-wire mines. There had been instances where servicemen or military vehicles had been blown up. The mines had most probably been laid by members of illegal armed groups. When explosive devices had been found by servicemen of the military unit, they had been destroyed on the spot by sappers. The administration of Akhkinchu-Barzoy had always been informed of the discovery of explosive devices.

Other unspecified servicemen from military unit no. 73881, questioned on unspecified dates, also submitted that the military unit had not laid any mines while located in the Kurchaloy District. When mines or other explosive devices were found, they had been destroyed by sappers. The command of military unit no. 73881 had always informed the residents and the administration of Akhkinchu-Barzoy of the discovery of mines.

According to the Government, it had not been possible to question either Mr Nokha Uspanov, because of his subsequent death, or Mr I., because he had moved to Germany permanently, although the Prosecutor’s Office of the Chechen Republic had requested the German authorities to take certain investigative measures in respect of Mr I. Nor had it been possible to question Mr M. Sh., as he and his relatives had left the Chechen Republic. However, certain steps to establish his whereabouts had been taken.

The investigative authorities had requested the competent bodies to provide information concerning the laying of mines near the village of Akhkinchu-Barzoy. According to the military commander’s office, there was no information to support the assumption that the mines had been laid by the federal forces. The involvement of representatives of the federal forces in the incident was therefore not established. Mr Vakhazhi Albekov had been blown up on land occupied by the military unit and which had previously been “abandoned by members of illegal armed formations”. Mr Khasayn Minkailov, Mr Nokha Uspanov, Mr Sh. M. and Mr I. had been blown up while they had been searching for Mr Albekov in the forest where members of illegal armed gangs had laid mines.

The investigation was being conducted under the supervision of the Prosecutor General’s Office and the persons granted the status of victim were being informed of all the decisions taken.

Despite specific requests made by the Court on several occasions, the Government did not submit copies of the investigation files concerning the deaths of Mr Vakhazhi Albekov and Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, except for 31 pages of documents containing decisions to open, suspend and resume the investigation and to grant victim status. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure.

Article 20 of the Constitution safeguards the right to life. Russia is not a party to the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP).

Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.


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

The applicant, Mr Matti Antero Puttonen, is a Finnish national, who was born in 1953 and lives in Vantaa. He was represented before the Court by Mr Esko Sydänmäki who was granted leave to represent the applicant by the President of the Chamber (Rule 36 § 2 of the Rules of Court).

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

On 21 January 1974 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement on 1 August 2008.

On 3 May 1977 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) introduced an equal retirement age of 60 years for all men and women who entered the service of the Bank on that date or later. The retirement age for women was thereby raised from 55 years to 60 years while for men the retirement age remained unchanged. As the rule was not retroactive, the different retirement ages for men and women still applied to those persons who had started employment before 3 May 1977.

On 17 June 1998 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) amended the pension rules of the Bank so that men who had joined the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, and the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.8% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had joined the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual.

Since 10 March 1994 the pension rules of the Bank had provided that a civil servant who applied for early retirement, who had been employed by the Bank prior to 3 May 1977 and who had 30 years of service behind him, had a right to a pension guarantee (takuueläke, garantipension) which was 60% of the salary. This pension guarantee was increased by 1.5% for each year the person’s personal retirement age (henkilökohtainen eläkeikä, individuell pensionsålder), which was 60 years for men and 55 years for women, fell short of 63 years (the personal retirement age before 1 December 1993). This guarantee was significantly reduced as from 1 January 2005.

On 12 June 2008 the applicant was granted a pension, which was calculated with a 47.53% pension guarantee which included the increase of 4.5% as his personal retirement age was 60 years. This method of calculation was chosen as it was more beneficial to the applicant than the method by which the pension was reduced by 18.81%, or 163.44 euros (EUR) per month, on the ground that he had retired at the age of 55. The pension so calculated amounted to EUR 1,426.15 per month, starting from 1 August 2008.

On an unspecified date the applicant submitted a letter of appeal to the Bank, requesting that his pension be recalculated so that the years 55-63 would bring him an additional pension of 1.5% per year, thus altogether 12%. He claimed that the amendments made to the pension guarantee on 1 January 2005 had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was 60 years, even if they retired earlier, whereas for women it was always 55 years. In the applicant’s situation the percentage for accrued pension was 4.5% while for a woman in the same situation it would be 7.5% higher, namely 12%. He also complained about the fact that his pension had been reduced by 18.81%, or EUR 163.44 per month, on the ground that he had retired at the age of 55. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen).

On 18 May 2010 the Insurance Court partly accepted, partly rejected the applicant’s appeal. As concerned the percentage for accrued pension, the court accepted the applicant’s appeal and ordered that the percentage be 12% instead of 4.5%. It found that in this respect the pension was not calculated in an equitable manner with regard to men and women, and that women were placed in a more favourable position than men. The applicant’s personal retirement age should also have been 55 years, as was the case for women in the same position. As this inequality affected also the time after 1 January 1994, the date on which the EU rules on equal pay became applicable in respect of Finland, the applicant’s pension had been calculated in a manner contrary to EU law during the period from 1 January 1994 until 31 December 2004. In this respect the case was referred back to the Bank for a new decision. As to the rest of the applicant’s complaints, they were rejected. As concerned the reduction of 18.81% due to early retirement, the court found that as the reduction concerned the time before 1 January 1994, it was not contrary to EU law.

On 2 August 2010 the Bank issued a new pension decision to the applicant. The percentage for accrued pension was now 12%, increasing his personal pension guarantee percentage to 55.03%. The pension calculated in this manner amounted thus to EUR 1,622.81 per month.

By letter dated 3 September 2010 the applicant submitted an appeal to the Bank, requesting that the pension decision of 2 August 2010 be recalculated as his pension guarantee still remained at 55.03% when it should have been 30/30 x 60% = 60% on the ground that he had over 30 years of service. He noted that the Insurance Court had already on 25 October 2005 amended a similar pension decision in the case of Mr K.H. and granted him a pension right amounting to 60% on the ground that he had fulfilled the pension guarantee requirement as he had completed 30 years of service. Moreover, the applicant complained about the amendment to the Pension Regulations on 17 June 1998 which introduced the reduction system in cases of early retirement. He claimed that it was discriminatory and unconstitutional and that therefore it should be declared null and void or at least left unapplied. Such practice was not in use in the State pension system and under the State Pension Act (valtion eläkelaki, lagen om statens pensioner), which the Pension Regulations of the Bank were intended to follow. The applicant also pointed out that the European Commission had also found in this respect that the Finnish system was contrary to EU law. Finally, the applicant complained about lack of transparency in the Bank’s decision.

As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court on 6 October 2010. These proceedings are still pending before the Insurance Court.

Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that:

“No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.”

Article 15 of the Constitution provides that the property of everyone is protected.

Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3, of the same Act provides that:

“An employer’s conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer’s service.”

Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that:

“The Trustees of the Bank shall confirm the Bank of Finland’s Pension and Survivors’ Pension Regulations and issue regulations concerning the management of the Bank’s pension liability, upon proposal of the Directorate.”

Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following:

“The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases.

The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.”

Section 33, subsections 1-3, of the same Act provide the following:

“An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974).

Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court.

Decisions of the Board concerning pensions can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.”

Section 58, subsection 1, of the same Act provides that

“[t]he right of an employee of the Bank of Finland to a pension paid from the Bank’s funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors’ pensions and other benefits which are payable from the state’s funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors’ pensions are granted by the Directorate of the Bank.”

More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in the Bank’s Pension and Survivors’ Pension Regulations (Suomen Pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank’s proposals.

Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows:

“Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.”

The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age for women was raised from 55 to 60 years but the retirement age for men remained unchanged at 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter.

For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner:

“However, as of 1 January 1994, the earlier provision is applicable both to women who entered service in the Bank prior to 3 May 1977 and to men who entered service in the Bank before that date.

The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement.”


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant, Milorad Gavric, is a Danish national who was born in 1947 and lives in Fuglebjerg. He was represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mrs Nina HolstChristensen, of the Ministry of Justice.

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

The applicant was employed as an abattoir worker.

On 26 October 1992 he sustained an injury while transporting slaughtered pigs to a cooling room on devices called “Christmas trees”. The transportation took place by pushing the devices along a rail system in the ceiling. While pushing, suddenly the applicant suffered intense back pains. He went to see a doctor on 2 November 1992 and went on sick leave from 20 November 1992.

On 29 December 1992 his employer notified the Danish Working Environment Authority (Arbejdstilsynet).

On 28 January 1993 the applicant’s insurance company filed a claim about the incident with the National Board of Industrial Injuries (Arbejdsskadestyrelsen) and on 26 March 1993, the applicant submitted a form, in which he provided a summary of the accident. He specified that while pushing the devices along the rail system, he had reached for a switch and accordingly had to give an extra push, whereby he strained his back and fell to his knees due to sharp pains. He replied in the negative to a question on the form as to whether he slipped, fell or stumbled.

On 4 May 1993 the applicant’s request for compensation was refused by the National Board of Industrial Injuries on the grounds that the injury could not be recognised as an industrial injury under section 9, subsection 1(i) and (ii) of the Act on Protection against the Consequences of Industrial Injuries (Arbejdsskadeforsikringsloven) then applicable.

In October and December 1993 the applicant appealed against the decision to the Social Appeals Board (Den Sociale Ankestyrelse).

In addition, on 17 January 1994 he requested that the National Board of Industrial Injuries reopen the case. Later, during the proceedings he submitted a statement of 13 October 1994 by a medical expert, to whom the applicant had explained that, on the day of the accident, he slipped on the greasy floor, lost his balance, and fell on his knees. In that connection he suddenly felt the sharp pain in his back. The applicant’s request was refused on 9 November 1994.

On 5 December 1994 the applicant appealed against that decision to the Social Appeals Board, which on 15 February 1995 upheld the parts of the decisions of the National Board of Industrial Injuries of 4 May 1993 and 9 November 1994 concerning section 9, subsection 1(i) of the Act on Protection against the Consequences of Industrial Injuries then applicable. At the same time, the Social Appeals Board remitted the part of the case that related to section 9, subsection 1(ii) of the Act on Protection against the Consequences of Industrial Injuries then applicable to the National Board of Industrial Injuries, requesting the Board to obtain further information with a view to determining whether the incident could be recognised as having caused a short-term injury.

On 9 November 1995 the National Board of Industrial Industries decided that the incident of 26 October 1992 could not be recognised as having caused a short-term injury under section 9, subsection 1(ii) of the said Act.

On 7 December 1995 the applicant appealed against this decision to the Social Appeals Board, which upheld it on 13 September 1996.

On 11 June 1997 the applicant brought the case before the High Court of Eastern Denmark (Østre Landsret).

The pre-trial proceedings lasted from 11 June 1997 until 30 June 2000. During this period the applicant requested seven times, and was granted, an extension of a time limit set by the High Court. The case was brought before the Medico-Legal Council (Retslægerådet), which delivered an opinion and a supplementary opinion. On 30 June 2000 the High Court closed the pretrial proceedings and offered to schedule the trial in August or September 2000. This was refused by the applicant, and the trial was then initially scheduled for 22 March 2001. Due to rescheduling, however, the trial was ultimately conducted on 6 December 2000. The applicant and two witnesses were heard and substantial documentary material was submitted.

A judgment was passed in favour of the Social Appeals Board on 18 January 2001. The applicant was ordered to pay costs to the opponent party amounting to a total of 15,000 Danish kroner (DKK) (approximately 2,000 euros (EUR)).

On 6 February 2001 the applicant appealed against the judgment to the Supreme Court (Højesteret). He stated that he wanted further witness testimony and reserved the right to put supplementary questions to the Medico-Legal Council.

Before the Supreme Court the pre-trial proceedings lasted from 6 February 2001 until 12 December 2005. The trial was held on the latter date. During this period, the applicant requested fifteen times, and was granted, an extension of a time limit set by the Supreme Court and three times the applicant and the Social Appeal Board jointly were granted an extension of a time limit. The case was brought before the Danish National Institute for Occupational Health (Arbejdsmiljøinstitutet) and once again before the Medico Legal Council.

The trial took place as scheduled on 12 December 2005 and by judgment of 19 December 2005 the Supreme Court upheld the High Court’s judgment. The applicant was ordered to pay costs to the opponent party amounting to DKK 75,000 (approximately EUR 10,000).

With regard to civil proceedings the Administration of Justice Act reads in as far as relevant:

(1) The losing party shall compensate the opponent for the expenses inflicted on the opponent by the proceedings, unless otherwise agreed by the parties.

(2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate.

Thus, although Danish law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings, accordingly to domestic case-law, in civil proceedings initiated by an individual against or involving Government Institutions, if the courts, having examined a length of proceedings complaint, finds a violation, they may grant redress therefore by, for example, exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see, inter alia, Kirsten Norman v. Denmark (dec.), no. 44704/98, 14 June 2001).

To illustrate that section 312, subsection 2 of the Administration of Justice Act is an effective remedy for providing adequate redress for a violation of Article 6 § 1 of the Convention in civil lawsuits of this nature, the Government referred to the decision of the Supreme Court of 24 April 2003 published in the Weekly Law Review (Ugeskrift for Retsvæsen) 2003, page 1550 (U 2003.1550 H). In that case the Supreme Court upheld a High Court judgment in a case filed by a child and its parents against a County Council. Even though the plaintiffs lost the case, the Supreme Court, taking into account the extraordinary length of the legal proceedings, invoked section 312, subsection 2 and exempted the plaintiffs from compensating the County Council for its legal costs. When doing so the Supreme Court explicitly referred to Article 6 of the Convention.


Violation of Article 3 - Prohibition of torture (Substantive aspect)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in 1970 and lives in Iaşi.

On 23 November 1999 the prosecutor attached to the Piteşti Court of Appeal issued an arrest warrant against the applicant, who was accused of tax evasion.

The applicant was apprehended on 5 September 2000 and was placed in police custody for a period of thirty days. The Piteşti District Court, to which the applicant was first brought on 28 September 2000, repeatedly extended his pre-trial detention, until the end of the proceedings before it.

The District Court gave judgment on 19 February 2002. On the basis of the depositions made by the applicant, four co-defendants and twenty-one witnesses, the court convicted the applicant under several heads of tax evasion and forgery, and sentenced him to six years and six months’ imprisonment with an obligation, under Article 113 of the Criminal Code, to undergo medical treatment for his mental disorder as identified by the medical reports adduced in the case. The court ordered that the medical treatment be administered through the prison hospitals, while the applicant was in detention, and continue after his release until his complete recovery. It also upheld the order for the applicant’s detention.

In a decision of 25 June 2002, the Argeş County Court allowed appeals against the judgment and, based on the evidence in the case and the defendants’ depositions, reduced the applicant’s sentence to five years and six months’ imprisonment. It upheld the remainder of the District Court’s judgment.

This decision was confirmed, upon an appeal on points of law by the defendants, in a final decision of 8 October 2002 of the Piteşti Court of Appeal.

On 20 September 2000 the applicant’s lawyer filed a request with the prosecutor for the applicant’s psychiatric evaluation. The Argeş Forensic Medicine Institute examined the applicant and concluded, on 2 October 2000, that he had been mentally competent for legal purposes both when the alleged offences had been committed and at the date of the evaluation.

The applicant contested the conclusion of the report.

On 18 December 2000 the “Mina Minovici” Forensic Medicine Institute in Bucharest confirmed the Argeş Forensic Institute’s report, after having examined the applicant. It also recommended that, pursuant to Article 113 of the Criminal Code, the applicant be required to undergo medical treatment for his mental disorder both during the detention and after his release.

On 29 November 2000 the applicant underwent a full medical examination at the Argeş Forensic Medicine Institute. The medical commission concluded that the applicant’s mental disorder did not render him unfit for detention.

According to the detailed medical record from the period of pre-trial detention, submitted by the Government, the applicant was hospitalised seven times in prison hospitals. He was mainly diagnosed with thrombophlebitis, venous insufficiency and a mental disorder. Each time he was discharged, the doctors recommended treatment for his various illnesses, periodical re-evaluations and medical check-ups when needed.

During this interval he was seen twenty-seven times by the prison doctors, on 23 and 30 October, 6, 13 and 27 November, 11 and 20 December 2001, 11 February, 17 June, 1, 8, 20, 22 and 29 July, 5, 12, 16, 19 and 26 August, 2, 9, 20, 23 and 30 September, and 7, 13 and 19 October 2002.

Records indicate that medicine was systematically administered for his venous insufficiency and until 20 December 2001 for his mental disorder. The latter treatment was interrupted until 5 August 2002 and after this date was given sporadically.

During his detention, several disciplinary measures were taken against the applicant. Accordingly, his visit and parcel rights were withdrawn on 26 March 2001, 28 December 2001, 10 January and 8 April 2002, for possession of forbidden objects. From 4 to 14 January 2002 he was kept in solitary confinement.

Lastly, on 5 February 2002 the penitentiary authorities placed the applicant in restrictive confinement (“regim restrictiv”), for twelve months due to his recalcitrant behaviour and repetitive infringements of the prison regulations. However, on 14 June 2002 he was reintegrated into the normal detention regime, for good behaviour.

The applicant claimed that while subject to the restrictive detention regime he had been kept in a cold cell wearing worn clothes that had been inadequate for the temperature, sometimes handcuffed with his hands above his head, and that for the first month he had not been seen by a doctor and that correspondence to and from his family had been tampered with.

In October 2002, after the adoption of the final decision in the case, the applicant was transferred to Iaşi high-security Prison and placed in the section designated for extremely dangerous prisoners.

The applicant claimed that, despite his repeated requests to be seen by a specialist doctor and administered adequate medical treatment, during the first eight months of detention he had only been examined by the prison doctor, who had consistently informed him that there had been no funds for continuing his treatment. The prison doctor had told him: “there is no problem if you die, we have a priest and there is wood in the store house” (“nu e nici o problemă dacă mori, avem preot şi scânduri la magazie”).

On an unspecified date, upon repeated requests by his family to the prison authorities, the applicant was transferred to a different dormitory.

According to the Government, the applicant was placed in shared dormitories, the first measuring 41.12 sq. m and the latter 60.69 sq. m, which he shared respectively with nine and fifty-three other prisoners. The dormitories had windows. Hygiene facilities were permanently accessible to prisoners in a separate room. Warm water was available once a week. The applicant had daily one-hour walks, frequently received visits from members of his family and participated in the social programme of the penitentiary. His medical treatment continued.

On 11 July 2003, the Iaşi prison authorities informed the applicant’s counsel that the applicant was not receiving any medical treatment at that moment, but that such treatment would be administered if necessary.

From 3 February 2004 to 7 February 2005, the execution of the sentence was suspended for medical reasons. On 16 June 2005 the applicant was released on probation.

Article 195 of the Criminal Code (“CC”) and the relevant provisions of Law no. 23/1969 on the execution of sentences are described at paragraphs 23 and 25 of the Năstase-Silivestru judgment (see NăstaseSilivestru v. Romania, no. 74785/01, 4 October 2007).

Law 23/1969 was replaced by Emergency Ordinance no. 56/2003 (“Ordinance 56”) on the rights of prisoners, adopted by the Government on 25 June 2003 and ratified by Parliament on 7 October 2003. This Ordinance constituted a general measure taken by the Government in the execution of the judgment adopted by the Court in the case Petra v. Romania (judgment of 23 September 1998, Reports of Judgments and Decisions 1998VII; see the Committee of Minister’s Resolution CM/ResDH(2007)92). The relevant parts of the Ordinance read as follows:

“(2) Prisoners may complain against the measures taken by prison authorities (...).

(5) In examining a complaint, the court takes one of the following decisions:

(a) allows the action and orders the annulment, revocation or change of the measure taken by the penitentiary authority;

(b) dismisses the action if it is ill-founded.”

That Ordinance was replaced by Law no. 275/2006 on the execution of sentences, which in its Article 38 provides for a similar appeal lodged with the judge responsible for the execution of sentences, who has the powers described in Article 3 § 5 of Ordinance 56 and whose decision can be appealed against before a court.

The legislation on the organisation of the military prosecutors’ offices and military tribunals is summarised in paragraph 40 of the Barbu Anghelescu judgment (see Barbu Anghelescu v. Romania, no. 46430/99, 5 October 2004) and in paragraph 68 of the Bursuc judgment (see Bursuc v. Romania, no. 42066/98, 12 October 2004).

Until 28 September 2004 when Law no. 293/2004 entered into force, the penitentiary commanders were active military officers (see Articles 1 and 2 of Law no. 10/1990 and Article 4 § 24 of Government Decision no. 736/2003).

The findings of the European Committee for the Prevention of Torture (“the CPT”) following visits to Romanian prisons, as well as the Committee’s general findings, are summarised at paragraphs 73-75 of the Bragadireanu judgment (see Bragadireanu v. Romania, no. 22088/04, 6 December 2007).


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in 1961. He is currently serving a prison sentence in Izyaslav, the Khmelnytsk Region.

On 12 April 1998 a police officer was killed and another police officer was severely wounded by a group of people using fire arms. On the same day the police stopped a car, whose driver stated that he had dropped off three people, who had allegedly committed the above crime, in a field several hundred metres away. Thereupon four police officers went to search for the suspects. They saw three people, including the applicant, crossing the field. The police officers fired several shots into the air and ordered the people to lie down on the ground.

According to the applicant, they all obeyed the orders of the police. The officers then approached them and started beating the applicant and the two others. The applicant was hit and kicked in the head, chest, kidney and groin area, as a result of which he lost consciousness. The applicant stated that the officers had pierced his cheek with a needle and had used a cigarette lighter to burn his right hand and suggested that they had done so in order to make him regain consciousness.

According to the written statements of the police officers submitted by the Government, while the applicant and the other suspects threw aside their guns they refused to obey the orders of the police and “offered physical resistance to the arrest”. Because of this, the police officers employed “unarmed combat techniques”, forced the suspects to the ground and handcuffed them.

Several hours later the applicant was taken to the medical wing of the investigative detention unit (слідчий ізолятор – “the SIZO”) in Cherkasy where he regained consciousness.

He was examined by a doctor who noted a number of lesions and bruises on the applicant’s head and body, including a wound and a haematoma on his forehead, and haematomas on his left shoulder, chest and right thigh. The medical report, written by that doctor, also stated that the applicant had several blisters on his fingers which, according to the applicant, were the result of burns. The doctor stitched the wound on the applicant’s forehead, prescribed a pain killer and suggested that the applicant see a neurologist. According to the report, an X-ray examination of the applicant’s chest did not reveal fractures of his ribs.

According to the applicant, the doctor did not note down all of his injuries. For instance, fractures of the applicant’s ribs and two fingers on his right hand were not revealed as no X-ray examination was carried out.

The next day a medical expert examined the applicant and noted that his injuries were minor.

In the course of the criminal investigations against him, the applicant complained of ill-treatment by the police to various public authorities, including the prosecutors.

By decisions of 21 August 1998 and 25 January 1999, the prosecutors refused to bring criminal proceedings against the police officers, finding that they had acted lawfully during the arrest. The finding was based on the statements of the police officers and the applicant’s medical documents (see paragraphs 8, 10 and 11 above). The applicant did not challenge the prosecutors’ decisions before the courts.

He again raised complaints of ill-treatment in the course of his trial before the Cherkasy Regional Court of Appeal (“the Cherkasy Court”) and the Supreme Court, which rejected them as unsubstantiated (see paragraphs 30 and 39 below).

On 13 April 1998 the investigator came to see the applicant in the SIZO. The investigator wished to question the applicant. He informed the applicant that he was suspected of aggravated robbery and murder committed on 12 April 1998 and explained to the applicant his basic procedural rights and guarantees, including the right to legal assistance and to remain silent. The relevant records were signed by the applicant, the investigator and a lawyer, Mr B., who, according to the Government, was also present during the applicant’s questioning. The lawyer was appointed by the investigator to represent the applicant in the proceedings.

The records also contain a statement by the applicant expressing the wish to be represented by another lawyer, Mr T., but that if that lawyer refused to take part in the case he would agree to be represented by Mr B. In the records the applicant also noted that the statement was made in the presence of Mr B. Accordingly, the applicant refused to be questioned on that day. During his subsequent questioning, including at the trial stage, the applicant denied his responsibility for the crimes of which he was suspected.

In his application to the Court, the applicant stated that Mr B. had taken part in the proceedings at the request of the applicant’s wife, who had paid the lawyer’s fees. The applicant also contended that the lawyer had not been present at the SIZO on 13 April 1998 and that he had signed the records at a later date. The applicant submitted letters issued by the SIZO administration on 16 June 2004, according to which during the pre-trial investigations lawyers had not visited the applicant in the SIZO and the applicant had left the SIZO only once – to undergo a psychiatric examination on 12 August 1998.

On 14 April 1998 the prosecutors invited Mr T. to defend the applicant. As that lawyer refused to take part in the proceedings, Mr B. continued to represent the applicant throughout the proceedings.

According to the records submitted by the Government, Mr B. took part in the investigative actions, including the applicant’s questioning which took place in the SIZO on 21 April 1998 and 10 January 1999, studied the materials of the case, attended the court hearings, made written and oral pleadings, and prepared an appeal in cassation contesting the applicant’s conviction. The court hearings which the lawyer did not attend were adjourned.

The applicant argued that during the entire period of the investigations he had not communicated with Mr B. and had not been allowed to correspond with anyone outside the SIZO. The investigators allegedly told him that it was not possible to see the lawyer before the trial. The applicant met the lawyer for the first time when the trial commenced.

On 21 April 1998 the applicant was charged with several counts of aggravated robbery, murder and inflicting bodily injuries.

In March 1999 the investigations were completed. The applicant and Mr B. were invited to familiarise themselves with the case file. The applicant expressed the wish to study it without the lawyer, allegedly at the request of the investigator, who promised the applicant that he would be allowed to meet with his brother.

In January 2000 the applicant finished studying the case file and in March 2000 the Cherkasy Court started examining the case as a court of first instance.

In the course of the court proceedings the applicant submitted several requests for the withdrawal of Mr B., stating that he did not need a lawyer at all. While the trial court made several requests to the local bar association inviting it to suggest another lawyer for the applicant, no replacement was found. The court also invited the applicant to hire a new lawyer himself, which the applicant did not do. By a letter dated 13 September 2000, the President of the Cherkasy Court informed the Deputy Minister of Justice that the applicant’s and his co-defendants’ refusal to be legally represented had resulted in a delay of three months to the court proceedings, which could not be pursued without the participation of a lawyer given the gravity of the charges. It was also noted that the defendants had submitted numerous procedural requests, including requests for their representation by the Minister of Justice and relinquishment of jurisdiction in favour of the Supreme Court, which evidenced that they were in fact trying to protract the proceedings.

Before the trial court the applicant contested the charges against him and alleged that the testimony of his co-defendants confirming his and their involvement in the impugned criminal acts had been obtained under physical and psychological pressure from the police. The applicant also lodged a request with the court for a video or audio-recording to be made of the proceedings, but this was rejected by the court.

The applicant’s co-defendants raised similar complaints before the court and denied their submissions made in the course of the pre-trial investigations.

On 28 January 2002 the Cherkasy Court found the applicant guilty of several counts of aggravated robbery, inflicting grievous bodily injuries and murder. It sentenced the applicant to life imprisonment. The court based its judgment on the testimony of about thirty witnesses and victims of the crimes, partly on the statements of the applicant’s co-defendants in the course of the investigations, and also on the conclusions of several forensic, ballistic and other expert examinations. The court further took into account the fact that in the course of the searches at the defendants’ places of residence the police had found a large number of objects belonging to the victims of the crimes.

The court also dealt with the defendants’ allegations that they had been tortured by the police in the course of the pre-trial investigations in order to obtain their confessions. It questioned the investigators and the police officers concerned and concluded that those allegations were unsubstantiated. The court also noted that the defendants, excluding the applicant, had made their statements to the investigators in the presence of their lawyers. The applicant’s co-defendants had not complained of illtreatment to the law-enforcement authorities. The court therefore found no ground which could prevent it from relying on these statements in its judgment.

As to the applicant, the court observed that he had not admitted his guilt at any stage of the proceedings, and there was no evidence that he had been forced to do so. Having questioned the police officers who had arrested the applicant on 12 April 1998 and one of the officers from the Cherkasy SIZO, the court noted that the applicant had been injured during the arrest but that there was no evidence that he had been ill-treated during his subsequent detention.

On 12 and 27 February 2002 respectively the applicant and Mr B. lodged separate cassation appeals, contesting the factual findings of the first-instance court. The applicant also complained that the trial court had failed to give due consideration to the defendants’ arguments that “they had been denied the opportunity to have and meet with a lawyer before their first questioning” and that the trial court had not allowed the defendants’ lawyers to visit them in detention. The applicant further made reference to his ill-treatment on 12 April 1998 and alleged that the statements of his codefendants had been obtained under physical and psychological pressure from the police.

Meanwhile, on 7 February 2002 the applicant and one of his codefendants concluded an agreement with Mr Br., pursuant to which Mr Br. undertook to defend them in the proceedings.

On 10 February 2002 the applicant asked the Cherkasy Court to allow Mr Br. to participate in the proceedings as his defence counsel.

On 20 February 2002 the Cherkasy Court informed the applicant that it had no jurisdiction to decide on the matter.

On 11 March 2002 Mr Br. complained to the President of the Supreme Court about the Cherkasy Court’s refusal to allow him to act as the applicant’s and his co-defendant’s counsel. Mr Br. also requested access to the criminal case file so that he could prepare a cassation appeal on behalf of the applicant and his co-defendant and to be granted leave to visit them in the SIZO. No reply was given by the Supreme Court to Mr Br.’s requests.

On 21 May 2002 the applicant sent an amended cassation appeal to the Supreme Court in which he complained about the Cherkasy Court’s refusal to allow Mr Br. to act as his defence counsel.

By a letter of 4 June 2002, the Cherkasy Courtdefendant submitted that the applicant had been there.

The court also noted that Mr Br. did not have an advocate’s licence and that he had not proved that, under domestic law, he could participate as defence counsel in criminal proceedings. The court further reiterated that Mr Br. should have asked the Supreme Court to grant him leave to participate in the cassation proceedings, since the first-instance court, which had already delivered a judgment in the case, was not competent to decide on that matter.

On 9 July 2002 the Supreme Court held a hearing on the cassation appeals. According to the applicant, Mr Br. was allowed to take part in the hearing on the applicant’s behalf. The applicant, his co-defendants and their lawyers were also present. The Supreme Court rejected the cassation appeals submitted by the applicant and Mr B. The Supreme Court further upheld the conclusions of the Cherkasy Court concerning the defendants’ allegations of their ill-treatment at the pre-trial stage of the investigation.

According to the applicant, Mr Br. was not given an opportunity to study the case file or to meet with the applicant prior to the Supreme Court hearing.

On 23 November 2002 the applicant lodged his present application with the Court.

On 22 April 2004 the applicant asked the Cherkasy Court to provide him with copies of the medical reports drawn up after his examination in the SIZO and of the procedural decision concerning his request for a video or audio-recording of the proceedings before that court, which he intended to submit to the Court in substantiation of his application.

By a letter of 28 May 2004, the Deputy President of the Cherkasy Court informed the applicant that his request had been refused, as it was not the function of that court to copy documents for the applicant. The court also noted that there were no funds in the court’s budget allocated for such purposes.

On 21 June 2004 the applicant lodged a complaint with the Prydniprovskyy District Court of Cherkasy (the “Prydniprovskyy Court”) against the Deputy President of the Cherkasy Court for failure to provide him with copies of the documents from his case file. In his complaint, the applicant stated that he needed copies of these documents in order to submit them to the Court. He also sought compensation for the damage allegedly caused by the refusal to provide him with the documents.

On 25 June 2004 the Prydniprovskyy Court declined jurisdiction to consider the applicant’s complaint. The court held that under Ukrainian law judges acting in their official capacity enjoyed immunity from court proceedings against them.

On 8 July 2004 the applicant appealed against the decision of 25 June 2004.

On 15 July 2004 the same court granted the applicant time to rectify certain shortcomings in his appeal. The court held that the applicant’s appeal should have been typewritten and should have contained information concerning the parties to the proceedings, in particular, their names and addresses.

On 26 July 2004 the applicant submitted a new version of his appeal. The applicant also attached a note, issued by the administration of the SIZO, stating that, in accordance with the law, detainees were not provided with the opportunity to type their documents.

On the same day the Prydniprovskyy Court refused to accept the applicant’s appeal for failure to comply with the decision of 15 July 2004. According to the applicant, he appealed against the decision of 26 July 2004. There is no information concerning the outcome of his appeal.

By a letter of 28 June 2004, the Court asked the applicant to submit copies of his appeal in cassation against the judgment of 28 January 2002 and of his requests for legal assistance.

On 19 July 2004 the applicant asked the President of the Cherkasy Court to provide him with a copy of his appeal in cassation as well as with copies of the documents which he had already requested in his letter of 22 April 2004. The applicant referred to the Court’s letter, but did not enclose a copy.

On 4 August 2004 the acting president of the Cherkasy Court rejected the applicant’s request on the same grounds as in the letter of 28 May 2004. The acting president of the court also stated that, if necessary, the Court could ask the State authorities to provide it with copies of these documents.

The applicant’s further requests for copies of the documents from his case file were also rejected by the Cherkasy Court.

In April 2007 the Government submitted, at the Court’s request, copies of various documents from the applicant’s criminal case, including his appeal in cassation and documents concerning legal assistance in the course of the domestic proceedings.

In July and October 2007 the Court received several letters sent from the applicant’s brother’s address. In these letters the applicant alleged that the Government had blocked his correspondence with the Court. In particular, the applicant stated that on 10, 14, 17 and 23 May, and on 9 and 15 July 2007 he had submitted his observations on the admissibility and merits of the application, claims for just satisfaction, a friendly settlement proposal, and some additional information to the staff of the Colony, to which the applicant had been transferred from the SIZO in 2005, for them to send to the Court. The applicant provided a copy of the document dated 4 October 2007 in which the authorities confirmed that they had dispatched the applicant’s correspondence addressed to the Court on the above dates. However, the Court never received the applicant’s submissions.

According to the Government, the impugned letters were sent promptly to the Court. The staff of the Colony was not responsible for the fact that they did not reach the Court.

In December 2007 the applicant complained to the Prosecutor General and the Izyaslav Court alleging interference with his correspondence. The complaints were dealt with by the prosecutors and the postal service. The prosecutors replied to the applicant that his letters had been duly dispatched by the staff of the Colony. The prosecutors also noted that it was not possible to check whether the postal service had received and dispatched the applicant’s letters, which were unregistered mail. That was confirmed by the postal service.

By a letter dated 1 July 2009, the Vice-President of the Cherkasy Court rejected another request from the applicant for copies of documents from his case file. In the letter it was also noted that the applicant had the right to hire a lawyer, pursuant to paragraph 2 of Article 8 of the Code on the Execution of Sentences, or to appoint a representative among one of his close relatives. The applicant was informed that such a representative would be given an opportunity to study the case file and to make notes.

The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules were summarised and quoted in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14 October 2010), which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the Court.

In the context of the execution of the Court’s judgment in Naydyon, in September 2011 the Ukrainian Government submitted to the Committee of Ministers an action plan on measures to comply with that judgment. An extract from the action plan concerning general measures reads as follows:

“1. Publication and dissemination of the judgment

The summary of the judgment was published in the Government’s Gazette [Uriadovyi Kurier], no. 28 of 15 [February] 2011.

By letters of 22 March 2011, explanatory notes on the conclusions of the Court in the above-mentioned judgment were sent to the Supreme Court of Ukraine, the High Specialised Court of Ukraine for civil and criminal cases, the Donetsk Court of Appeal, the General Prosecutor’s Office and the State Prison Service.

Moreover, the Court’s conclusions in the above judgment were included in the submission to the Cabinet of Ministers of Ukraine concerning the execution of ECHR judgments (as of March 2011). The Cabinet of Ministers of Ukraine instructed the relevant authorities to take measures to remedy the violation found, to avoid similar violations and bring their practices in accordance with the requirements of the Convention.

Legislative measures

In order to determine whether any legislative amendments are required the authorities are currently holding multilateral discussions. As soon as this issue is determined at the national [level] the Committee of Ministers will be informed thereof.”

At its 1120th meeting on 13-14 September 2011 the Committee of Ministers took note of the action plan and invited Ukraine to keep it informed of the progress made in its implementation. So far, the Committee of Ministers has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.