Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1970 and lives in Goyty, Urus-Martan District, Chechnya.

The applicant is a widow, whose husband died in 1994. She lived with her son, Sayd-Salekh Ibragimov, born in 1990, who at the relevant time was in his second year of studies at the Grozny Oil Institute. The applicant also has a daughter. The family lived in the village of Goyty, Urus-Martan District, Chechnya. Their household at 117 Gonchayeva (previously Sovetskaya) Street consisted of three houses sharing a common courtyard. One house belonged to the applicant and her children, and the other two to her husband’s brothers. According to the applicant, one of them had left Chechnya with his family and in 2009 that house was uninhabited.

On 21 October 2009 the applicant was in Grozny. At about midday on that day she received a phone call from a relative, who told her that a special operation was taking place at their household and that soldiers were going to burn the house down. The applicant called her son, who was in Grozny, and told him not to come home but to stay at his uncle’s place.

In the meantime, the applicant and her brother-in-law Adnan I. went to Goyty by car. As soon as they arrived the car was surrounded by armed men in military uniforms, who they understood to be servicemen of the Ministry of the Interior. The servicemen showed them a body and told them that this man had been hiding in their household since the previous day, in the attic of Adnan I.’s house. The body was that of a young man, aged 1719, with long hair. His shirt was pulled up to the neck and his hands were raised behind the head; there was one wound in the heart area. Adnan I. then went to see his paralysed mother, who had been taken to the neighbours.

Police officers then took the applicant and her brother-in-law to the Urus-Martan district department of the interior (“the ROVD”) and questioned them. Both denied all knowledge of fighters’ presence in the attic of a house situated in their household.

The applicant and her brother-in-law were released at about 9 p.m. that day. They returned to Goyty and found that their houses had been burned down. Firefighters told them that the houses had been set on fire deliberately. Then the applicant’s brother-in-law returned to Grozny.

Adnan I.’s daughter M. later told her father that Sayd-Salekh Ibragimov had come to their home in Grozny at about 3 p.m. that day. Soon afterwards he had called a taxi and left, heading towards the city centre. M. told her father that a group of armed men had arrived at their house almost as soon as the applicant’s son had left and demanded that she tell them where he had gone or take them there. As M. did not know where he had gone, they left.

At about 10 p.m. on the same day Adnan I. received a call from the head of the Urus-Martan ROVD, who requested that he return to that office. When he arrived there three soldiers took him to Grozny in their car. He was taken to the office of Mr Sherip Delimkhanov, head of the external guards regiment of the Ministry of the Interior of Chechnya (полк милиции Управления Вневедомственной охраны МВД Чечни), also known as the “oil regiment”, as one of their main tasks was to secure oil pipes and installations.

Adnan I. was taken into a room where there were about a dozen members of the police force who had participated in the operation in Goyty earlier that day. They told Adnan I. that two police officers had been wounded and one had been killed. Adnan I. denied that any members of illegal groups had ever lived in their household, and stressed that the house in question was uninhabited. He was given to understand that the “blood feud” for the police officer who had been killed would fall on him and his family.

After about twenty minutes another soldier brought Sayd-Salekh Ibragimov into the room. Adnan I. saw signs of beatings on his nephew’s face: his right cheek was discoloured, there was blood in the right corner of his mouth and nose, and he had difficulty standing up without assistance. He also remarked that his nephew was shaking, looked frightened and spoke fast, without looking at anyone. The policemen told them that Sayd-Salekh Ibragimov could save his life by cooperating; otherwise they would kill him in retribution for the death of their colleague. Adnan I. was allowed to talk to his nephew. The latter admitted that he had maintained contacts with members of illegal armed groups through the Internet and his mobile phone and promised that he would cooperate with the police. Adnan I. pleaded with him to do anything to save his life.

Soon after midnight Adnan I. and his son Magomed, who had also been brought to the regiment’s headquarters, were released. The family had no news of Sayd-Salekh Ibragimov after that date.

In support of her submissions the applicant presented written statements drawn up by her and by her brother-in-law, Adnan I., in December 2009 and July 2011.

The special operation in Goyty on 21 October 2009 was officially reported by the Ministry of the Interior of Chechnya as follows:

“21 October 2009

Policeman killed saving elderly woman

Two illegal fighters were killed in Goyty in the Urus-Martan district as a result of a special operation.

‘“The operation aimed at locating and exterminating members of illegal armed groups has just been completed. It took place in Sovetskaya Street, where members of illegal armed groups had been spotted in one of the houses,’ stated the Chechnya Minister of the Interior Mr Ruslan Alkhanov.

One of the fighters was identified as Abdul Dzhumayev from Shatoy district. The Minister also said that a member of the police force had been killed while saving an elderly woman from a house seized by terrorists there. ‘Unfortunately, one of our comrades died. He was a member of the external guards’ regiment of the Ministry of the Interior of Chechnya. Two other policemen were wounded,’ said Mr Alkhanov. He stressed that the officers had received injuries while trying to save the life of an 80-year-old woman. They evacuated her through the window and were shot at by the bandits. One police officer lost his life. The operation was carried out by the Sever (Northern) regiment of the internal troops of the Ministry of the Interior, the Special Police Force (“the OMON”) and the external guards regiment of the Ministry of the Interior of Chechnya under the command of Lieutenant-Colonel of the Ministry of the Interior Sherip Delimkhanov.”

The Government, in a memorandum of 26 January 2011, acknowledged the basic facts as submitted by the applicant. They confirmed that a special operation had been carried out in Goyty, in Sovetskaya Street, on 21 October 2009, during which one soldier of the external guards regiment had been killed and two others wounded. Two members of illegal armed groups had been killed and a third had escaped. As a result of this conflict, the houses at 117 Sovetskaya Street had burned down. In connection with this incident, at about midnight on 21 October 2009 the servicemen of the external guards regiment had taken Sayd-Salekh Ibragimov to the regiment’s headquarters in Grozny. He had an oral exchange about these events in room 13 of the building and was released at about 12.30 a.m. on 22 October 2009.

In the days immediately following 21 October 2009 the applicant expected to be informed about the whereabouts of her son, and did not apply to any authorities. On 1 November 2009 she and her brother-in-law Adnan I. were called to the office of the Achkhoy-Martan District Prosecutor. The applicant submitted that the investigator had asked them about the events of 21 October 2009. However, the investigator had refused to note Adnan I.’s statements about the meeting at Mr Delimkhanov’s office. According to the applicant, the investigator told them that if they wanted to pursue complaints against the “oil regiment”, they would be forced to change their statements. The applicant and Adnan I. did not insist on noting their statements.

The applicant submitted that she continued to seek information about her son from various officials.

On 2 December 2009 she submitted a complaint to the Investigating Committee at the Prosecutor’s Office in the Achkhoy-Martan district (hereinafter “the district investigating committee”). She described the events of 21 October 2009 and asked to be informed about the whereabouts of her son. She also asked for him to be allowed to meet with a lawyer and to be given medical assistance if needed.

Upon this written application, the district investigating committee initiated a check, under Articles 144-45 of the Criminal Procedural Code. By 8 December 2009 the investigator in charge of the case had collected personal information about Sayd-Salekh Ibragimov from the local village administration, and requested all the district and regional police and investigating departments in Chechnya to check whether they had any information about the young man. The letters mentioned that on 21 October 2009 he had been delivered by unidentified police officers to the headquarters of the external guards’ regiment of the Ministry of the Interior of Chechnya and that there had been no news of him after that.

On 9 December 2009 an investigator took a statement from Adnan I. The latter explained that he had come to Goyty on 21 October 2009 at the applicant’s request; that he had seen a large group of Ministry of the Interior soldiers and the body of a young man with long hair; that his paralysed mother had been taken to the neighbours; that he and the applicant had been taken to the Urus-Martan ROVD for questioning; that they had been released on the same day and had seen their houses in Goyty burned down; that he had been called late at night to return to the Urus-Martan ROVD and that from there he had been brought back to Grozny, to the “oil regiment” headquarters in Mayakovskaya Street. The witness then went on to describe in detail the interior of the building and the office where he had been questioned, and where he had last seen Sayd-Salekh Ibragimov. He recognised Mr Delimkhanov among the soldiers. He also stated that his nephew had been questioned by a soldier called Valid, who had earlier told him that he was the commander of the sixth platoon of the regiment and was a native of Goyty. Valid showed a mobile phone to Sayd-Salekh and showed him something on the phone, asking whether he knew these people, to which Sayd-Salekh gave a positive answer. Valid told Sayd-Salekh that they had been following him for about a month. He also asked him where he had met these people, to which the Adnan I.’s nephew responded “In a chat room”. Adnan I. stressed that his nephew had looked scared and had signs of beatings on his face. The nephew also stated that the police officers had told him that they would pursue him for the death of their colleague and that he felt threatened and had asked for protection. Adnan I. had not seen his nephew after that.

On 10 December 2009 the investigator took a statement from the applicant. She gave similar statements about the events of 21 October 2009; she also stated that the house where she lived had burnt down and she and her family (herself, her daughter and her son) had lost their property, including gold jewellery, and documents. The applicant submitted that she had had no news of her son since 21 October 2009, and gave the police two GSM phone numbers used by her son.

On 10 December 2009 the same investigator wrote down explanations submitted by Ms Aminat O., Sayd-Salekh’s girlfriend, who lived with him at his house. She was an eyewitness to the events of 21 October 2009. She stated that at about 2 p.m. a group of armed servicemen had arrived at their house and searched part of the household. There was an exchange of fire in the courtyard and she had asked police officers who were there to take “granny” out of the house, which they did, bringing her out through the window on a mattress. She thought that the house had been set on fire by the police officers. She had not seen SaydSalekh Ibragomov after 21 October 2009 and had no news of his whereabouts.

On 11 December 2009 the investigator of the Achkhoy-Martan district investigating committee asked the ROVD to take action to find out Sayd-Salekh’s whereabouts, in particular to obtain information from the GSM operator about his movements and calls received since 1 September 2009 and to find and question the driver of the bus which took the students of the Grozny Oil Institute to and from classes.

Between 11 and 12 December 2009 the investigator sought information about Sayd-Salekh Ibragimov from the management of the Grozny Oil Institute, from the Public Health department of Chechnya, from the Chechnya Prison Department, and from a number of other lawenforcement bodies. In particular, on 12 December 2009 the investigator requested the commander of the external guards regiment to identify and send for questioning the servicemen who had been on duty on the night of 21 to 22 October 2009 and to send a copy of the regiment’s registration log to the district investigating committee.

On 15 December 2009 the Grozny Oil Institute informed the investigator that Sayd-Salekh Ibragimov had not attended classes since 19 October 2009. One of his classmates and a professor confirmed that they had not seen him at the Institute since 19 October 2009; a copy of the class record was acquired.

On 15 December 2009 the investigator, together with Adnan I. and the applicant’s representative from NGO Committee Against Torture, inspected the headquarters of the “oil regiment” in Grozny. Adnan I. showed the office where he had last seen his nephew, at about midnight on 21 October 2009, and specified that about a dozen police officers had been there at the time, including Mr Sherip Delimkhanov.

On 17 December 2009 the district investigating committee ruled that criminal proceedings would not be opened. It concluded that there was no reason to suspect that murder had been committed, and that therefore there was no evidence of a crime. On the same day the applicant’s representative was forwarded a copy of the decision and informed of the appeal procedure.

It appears that the applicant complained about the above decision. As a result, the documents collected during the investigation were sent to the Leninsky district investigating committee in Grozny, the location of the headquarters of the “oil regiment”. On 28 December 2009 that office opened criminal investigation file 66102 in respect of a suspected murder (Article 105 of the Criminal Code). The document considered it established that on 21 October 2009 Sayd-Salekh Ibragimov had been taken to the headquarters of the regiment by unidentified servicemen of the Ministry of the Interior. There he was questioned orally in room 13 about the incident which had occurred earlier that day in Goyty. Sayd-Salekh Ibragimov was released and left the premises of the regiment at about 12.30 a.m. on 22 October 2009. His whereabouts remained unknown. On the same day the applicant was informed about this development.

On 15 January 2010 the investigator responsible for the case drew up a detailed plan of the necessary actions which should be taken.

On 2 February 2010 the applicant was granted the status of victim in the proceedings.

On 2 and 10 February 2010 the applicant was questioned as a victim of the crime. On the same day Aminat O. was questioned. They reiterated their previous statements and stated that their jewellery had disappeared after the special operation.

On 24 March 2010 Adnan I. was questioned as a witness. He gave detailed submissions about the events of 21 October 2009, in line with his statement of 9 December 2009 (see paragraph 24 above). He described in detail the encounter with Sherip Delimkhanov, Valid A. and about fifteen servicemen of the regiment at its headquarters on the night of 22 October 2009. The witness stressed that the police officers had referred to a blood feud which would now fall on his family, in retribution for the death of their colleague in his house. He then described how Valid A. had led SaydSalekh into and out of the room by holding him by the neck from behind and forcing him to bend forward. The witness described the signs of beatings and blood on his nephew’s face, the fact that he was frightened and was shaking, and that he spoke fast and without looking at anyone. His nephew had admitted that he had maintained contacts with illegal fighters by “Internet chat”. After that admission Mr Delimkhanov had said that “we shall kill this dog and avenge our colleague”, but that he could be spared if he cooperated. Adnan I. then pleaded with Sayd-Salekh to do so to save his life. His nephew said that he could establish contact with illegal fighters on the Internet, but only during the daytime. After that, at about 12.30 a.m. on 22 October 2009, the witness was released from the regiment headquarters and returned home. He had not seen his nephew after that.

Adnan I. described the threats directed at him and his son Magomed. He stated that in early December [2009] he had been invited, under threat, to talk to Mr Delimkhanov, who had told him that he had two days to prove that he had seen Sayd-Salekh at Mr Delimkhanov’s office. Then, at about 6.45 a.m. on 29 December 2009, a group of about fifteen armed men wearing black uniforms and masks burst into his house looking for his son Magomed. After that Magomed I. left Russia, and the witness was not prepared to disclose his place of residence, out of fear for his life.

At some point the investigation found out that the headquarters of the “oil regiment” was equipped with CCTV cameras, but that their contents were erased within ten days.

In September 2010 the investigation sought to establish a complete list of servicemen from various security and police detachments who had taken part in the operation on 21 October 2009.

On various dates during 2010 the investigators questioned a number of police officers from the external guards regiment and from the UrusMartan ROVD who had taken part in the special operation in question and who had been present at the offices when the applicant and her relatives had been there.

The servicemen from the Urus-Martan ROVD confirmed that they had taken part in the operation, and also that two suspects had been killed and that there had been police casualties. They also confirmed that the applicant’s house had been burned down. They were not aware that the applicant and her brother-in-law had been questioned at the ROVD.

Mr Delimkhanov was questioned as a witness on 23 June 2010. He confirmed that after the operation of 21 October 2009 he had orally instructed his subordinates to bring Sayd-Salekh Ibragimov, his uncle and cousin to the regiment’s headquarters. During a conversation Sayd-Salekh Ibragimov had confirmed that he had information about members of illegal armed groups, and promised to cooperate. He also promised to return in order to submit further information. He and his relatives had then left the regiment’s headquarters. Since that date neither Sayd-Salekh Ibragimov nor his relatives had been to the regiment’s headquarters.

Another serviceman of the regiment, Valid A., on 23 June 2010 gave similar statements about the three men being brought to the regiment headquarters at about midnight on 21 October 2009, the ensuing discussion and the fact that they had left the premises.

Several other servicemen of the external guards regiment were also questioned. Some of them denied any knowledge that Sayd-Salekh Ibragimov or his relatives had been to the regiment’s headquarters in the evening of 21 October 2009. However, one serviceman, Shamsudy A., who had been on duty on the night in question, stated on 18 December 2009 and again on 4 March 2010, that Sayd-Salekh “had come to see the commander of the regiment”. Soon afterwards, two other men – Adnan I. and his son Magomed I. – also arrived to meet Mr Delimkhanov. About thirty minutes later the three men had left. No records were made of their visit or questioning. Another serviceman of the regiment, Usman D., stated on 18 December 2009, referring to Shamsudy A., that Sayd-Salekh and his relatives “have been invited to see Sherip Delimkhanov at about 11 p.m. on 21 October 2009”.

It appears from the exchange of letters between the Investigating Committee and the Ministry of the Interior that the investigation on several occasions tried to secure further participation of Mr Delimkhanov and two other high-ranking servicemen of the Ministry in the investigation, by means such as questioning and confrontation with other witnesses. On 28 September 2010 the investigator in charge of the case wrote a report to his superior, the head of the second serious crimes department of the Chechnya Investigating Committee. He described his attempts to obtain a confrontation between Adnan I. and Mr Delimkhanov. The investigator wrote that he had finally been invited to Mr Delimkhanov’s office, where the latter first refused to participate in the confrontation due to his heavy workload, and then insisted that the confrontation should take place immediately and in his office. The investigator’s attempts to arrange for a confrontation within a reasonable time and on the premises of the Investigating Committee have been unsuccessful.

From the subsequent documents it follows that on 4 October 2010 the investigator terminated his work with the Investigating Committee and the file was transferred to another investigator.

At 4.30 p.m. on 21 October 2009 investigators of the AchkhoyMartan district department of the investigating committee examined the buildings at 117 Gonchayeva Street. They described two male bodies, two machine guns, two improvised explosive devices, and a number of new and empty ammunition cartridges. They also noted the effects of fire in the houses and outbuildings. Both bodies bore gunshot wounds. An additional inspection of the site took place on 22 October 2009.

On 19 December 2009 the Achkhoy-Martan district department of the investigating committee opened a separate criminal investigation of the events of 21 October 2009, on suspicion of violence directed at state officials, membership of an illegal armed group, wilful damage to property and unlawful handling of arms and explosives. A number of police officers who had taken part in the operation were questioned. Firefighters who had attended the scene were also questioned. It does not appear that the cause of the fire at the applicant’s address has been established.

It appears that this investigation, directed at unknown persons, is still pending.

In response to the Court’s request, the Government submitted a complete copy of the criminal investigation file no. 66102 (five volumes, over 1,100 pages). The investigation was adjourned on one occasion and reopened. In the latest documents the investigator summarised the findings as follows (the passage quoted below is taken from the decision of 6 September 2010 to extend the term for investigation):

“On 21 October 2009 a special operation aimed at discovering members of illegal armed groups was carried out at 117 Gonchayeva Street. The operation was carried out jointly by servicemen from [five different units of the Ministry of the Interior of Chechnya, including the external guards regiment], [the Argun Town Department of the Federal Security Service (FSB)] and servicemen of the Urus-Martan ROVD. In the course of the operation unidentified servicemen of the Urus-Martan ROVD detained [the applicant] and [Adnan I.]. At about midnight on 21 October 2009 SaydSalekh Ibragimov arrived voluntarily at the headquarters of the [external guards regiment] situated in Grozny at the following address ... where he was orally questioned in room 13 about the incident which had taken place on 21 October 2009 ... At about 12.30 a.m. on 22 October 2009 S.-S. Ibragimov left the headquarters of the [regiment] and his whereabouts remain unknown”.

In addition to the measures described above, the investigation has sent out dozens of requests to various law-enforcement bodies, detention centres, hospitals and travel agencies, but has not received any additional relevant information about the whereabouts of Sayd-Salekh Ibragimov.

It appears that by the end of 2010 the investigation was still pending, without any tangible results as to the fate of the applicant’s son. No-one has been charged with any crime.

The applicant submitted that on 14 December 2009 Adnan I. had been invited to meet with the commander of the “oil regiment”, Mr Sherip Delimkhanov. Adnan I. and his representative went to Mr Delimkhanov’s home, situated next to the regiment’s headquarters. Adnan I. claimed that he had covertly made an audio recording of the conversation, which was partly in Chechen and partly in Russian; a copy of that recording has been submitted to the Court by the applicant. According to the applicant, Mr Delimkhanov told Adnan I. that as the oldest man in the house he was to be held responsible for what had happened there. Accordingly, the blood feud resulting from the death of the policeman should fall on him. Mr Delimkahnov alleged that he had protected Adnan I. from revenge attacks by other servicemen, but now since he had accused Mr Delimkhanov of the torture and murder of his nephew, he would no longer do so. Mr Delimkhanov also stated that he could obtain plenty of statements which would show that Sayd-Salekh Ibragimov was released from the headquarters of the regiment. He suggested that Sayd-Salekh had “gone to the forest” to fight, and that his family had staged the story of kidnapping.

The applicant submitted further that on 29 December 2009 a group of armed men had burst into Adnan I.’s house and searched it, without presenting any documents or identifying themselves. The applicant submitted that her brother-in-law had complained to the prosecutors’ office about this incident, but did not present any documents.

On 7 February 2010 three lawyers of the Committee Against Torture NGO involved in representing the applicant and other individuals complaining of human rights violations in Chechnya were detained overnight by officers of the Shali District Department of the Interior. On 10 February 2010 the Committee issued a public statement denouncing the detention as unlawful, and referred to previous instances of pressure on the applicant and her relative.

Articles 20, 21 and 20 of the Constitution provide that everyone has the right to life and the right to liberty and personal security, which are guaranteed and protected by the State. No one shall be subjected to cruel or degrading treatment or punishment.

Articles 45 and 46 of the Constitution guarantee judicial protection of rights under the Constitution.

Articles 52 and 53 of the Constitution protect the rights of victims of crimes. The State guarantees victims access to justice and compensation for damage. Everyone is entitled to compensation for damage caused by unlawful actions of State officials.

Articles 126 and 127 of the Russian Criminal Code stipulate that kidnapping and unlawful deprivation of liberty, respectively, are crimes punishable by up to fifteen and eight years of imprisonment respectively. Article 105 provides that murder is punishable by six to fifteen years’ imprisonment. Aggravated murder, for example if committed by an organised group, is punishable by prison terms, including life imprisonment, and by the death penalty.

Articles 21 and 22 of the Code provide as follows:

Article 21. Obligation to prosecute

“1. Public prosecution in criminal cases ... shall be carried out on behalf of the State by a prosecutor, an investigator or an inquiry officer.

In every instance in which evidence of a crime is observed, the prosecutor, investigator, inquiry agency, or inquiry officer shall take the actions specified by this Code to determine the facts of the crime that took place and to apprehend the persons guilty of committing the crime ...”

Article 22. Victims’ right to take part in criminal prosecutions

“The victim, his legal guardian and/or designated representative shall have the right to take part in the criminal prosecution of the accused ...”

Articles 124 and 125 of the Code provide as follows:

Article 124. Examination of complaints by a prosecutor or head of an investigating body

“1. A prosecutor or head of an investigating body shall examine a complaint within ... ten days of its receipt ...”

Article 125. Judicial examination of complaints

“1. Decisions of an investigator or prosecutor to refuse to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the legality and grounds of the impugned decisions ...

The court shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ...

Following examination of the complaint, the court shall deliver one of the following decisions:

(1) Declaring the decisions, acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate any defects;

(2) Not allowing the applicant’s complaint ...”

Articles 140,141 and 144 of the Code provide as follows:

Article 140. Grounds and bases for initiating a criminal case

“1. The following shall serve as grounds for initiating a criminal case:

a) a complaint of a crime ...”

Article 141. Criminal complaint

“1. A criminal complaint may be submitted in oral or written form.”

Article 144. Procedure for reviewing a report of a crime

“1. An inquiry officer, inquiry agency, investigator, or prosecutor must accept and investigate every report of a crime ... and shall make a decision on that report ... no later than three days after the filing of the report ...

A prosecutor, head of an investigation unit or head of an inquiry agency ... may extend the time period specified by (1) of this Article to up to ten days ...

Any refusal to accept a report of a crime may be appealed against to the prosecutor or to a court in accordance with the procedures established by Articles 124 and 125 of this Code ...

Articles 157 and 159 of the Code provide as follows:

Article 157. Urgent investigative actions

“1. When there is evidence of a crime for which a preliminary investigation is required, an inquiry agency shall initiate a criminal case and take urgent investigative actions ...”

Article 159. Mandatory review of official requests submitted

“1. An investigator or inquiry officer shall be obliged to review every official request filed in a criminal case ...

Under this requirement ... a victim ... or their representatives may not be denied the opportunity to question witnesses or to have a forensic expert analysis or other investigative actions conducted ...”

Chapter 59 of the Code provides that pecuniary and non-pecuniary damage caused, amongst other things, by unlawful actions of State officials should be compensated for in full.

According to document CM/Inf/DH(2010)26E of 27 May 2010 entitled “Action of the security forces in the Chechen Republic of the Russian Federation: general measures to comply with the judgments of the European Court of Human Rights”, a special unit has been set up within the Investigating Committee in Chechnya to address the issues raised in the Court’s judgments. An information document submitted by the Russian Government in March 2011 (DH-DD(2011)130E) stated that of 136 cases discussed (concerning the “Khashiyev group” involving findings of violations of core rights in the Northern Caucasus), only two criminal cases have been concluded (one of which was terminated as a result of the suspect’s death). The remainder were pending; most of them have been suspended for failure to identify the suspects.

The relevant part of Interim Resolution CM/ResDH(2011)292 of 2 December 2011 on “Execution of the judgments of the European Court of Human Rights in 154 cases against the Russian Federation concerning actions of the security forces in the Chechen Republic of the Russian Federation” stated:

“1. General framework for domestic investigations carried out in cases which gave rise to a judgment of the Court or to an application before the Court

Considering the important changes introduced after the events described in the Court’s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the Court or an application before the Court; ...

Noting with interest the efforts reported by the Russian authorities with a view to remedying the shortcomings of the initial investigations, establishing the facts as well as the identities of those responsible, including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments; ...

Noting however with concern that despite the efforts made by the Investigative Committee and by other competent authorities, more than six years after the first judgments of the Court, in the vast majority of cases, it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible, even in cases where key elements have been established with sufficient clarity in the course of domestic investigations, including evidence implicating particular servicemen or military units in the events;

Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required, bearing in mind the difficulties inherent in investigations conducted into the consequences of a large-scale antiterrorist operation such as that at issue;

Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time, the risk of loss of evidence increases and even if they are eventually identified, the prosecution of those responsible may become impossible given the expiry of the time-limits in the statutes of limitation ...

URGES the Russian authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the Court’s judgments are conducted, in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co-operation of all law-enforcement and military bodies in such investigations;

STRONGLY URGES the Russian authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons;

ENCOURAGES the Russian authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation; ...”

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued three public statements in relation to Chechnya between 2001 and 2007, deploring the absence of cooperation in the investigation of the alleged violations. The public statement of 13 March 2007 conceded that “the abductions (forced disappearances) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the Chechen Republic”. In January 2013 the CPT, for the first time, published a report to the Russian Government drawn up after its visit to the North Caucasian region of the Russian Federation from 27 April to 6 May 2011. The report focussed on the allegations of ill-treatment and reported allegations of unrecorded detentions and detentions in unlawful locations. It raised the problems of impunity of the law-enforcement personnel for such crimes and recommended to implement measures aimed at safeguarding the interests of the detainees as of first moments of detention, including proper record-keeping of detention, notification of relatives, access to a lawyer and to medical council, providing full information about their rights.

On 4 June 2010 the PACE Committee on Legal Affairs and Human Rights presented a report entitled “Legal remedies for human rights violations in the North-Caucasus Region”. On the basis of that report, on 22 June 2010 PACE adopted Resolution no. 1738 and Recommendation no. 1922 deploring the absence of an effective investigation and prosecution of serious human rights violation in the region, including disappearances. They found that “the suffering of the close relatives of thousands of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace.” Among other measures, the Resolution called on the Russian authorities to:

“13.1.2. bring to trial in accordance with the law all culprits of human rights violations, including members of the security forces, and to clear up the many crimes which have gone unpunished ...;

13.1.3. intensify co-operation with the Council of Europe in enforcing the judgments of the European Court of Human Rights, especially where they concern reinforcement of the individual measures to clear up the cases of, in particular, abduction, murder and torture in which the Court has ascertained a lack of proper investigation;

13.1.4. be guided by the example of other countries which have had to contend with terrorism, particularly as regards the implementation of measures conducive to the suspects’ co-operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces, and to prevent further acts of violence; ...

13.2. both Chambers of the Russian Parliament to devote their utmost attention to the situation in the North Caucasus and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution, and to stipulate that the necessary measures be applied.”

In Recommendation no. 1922, PACE advised the Committee of Ministers to:

“2.1. pay the utmost attention to the development of the human rights situation in the North Caucasus;

2.2. in enforcing the judgments of the European Court of Human Rights (the Court) concerning this region, emphasise the prompt and complete elucidation of the cases in which the Court has ascertained an absence of effective investigation; ...”

In Resolution 1787 (2011) entitled “Implementation of judgments of the European Court of Human Rights”, PACE considered deaths and illtreatment by law-enforcement officials and a lack of effective investigation thereof in Russia as one of the four “major systemic deficiencies which cause a large number of repetitive findings of violations of the Convention and which seriously undermine the rule of law in the states concerned”.

A report dated 6 September 2011 by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to the Russian Federation from 12 to 21 May 2011, found a number of positive developments aiming to improve daily life in the republics visited. Despite those positive steps, the Commissioner defined as some of the most serious issues counter-terrorism measures, abductions, disappearances and ill-treatment, combatting impunity and the situation of human rights defenders. The report included the Commissioner’s observations and recommendations in relation to those topics.

In particular, the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of people deprived of their liberty in the Northern Caucasus. While the number of abductions and disappearances in Chechnya might have decreased recently compared with 2009, the situation remained far from normal. Referring to the far-reaching effects of disappearances on a society as a whole, he supported the proposal of the Presidential Council for Civil Society Institutions and Human Rights to create an interdepartmental federal commission to determine the fate of individuals who had gone missing during the entire period of counter-terrorism operations in the Northern Caucasus. The Commissioner further emphasised the importance of systematic application of rules prohibiting the wearing of masks or non-standard uniforms without badges, as well as the use of unmarked vehicles in the course of investigative activities.

The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him. There had certainly been a number of positive steps, such as the establishment of Investigating Committee structures, increased support for victim participation in criminal proceedings, and the promulgation of various directives regarding the conduct of investigations. Despite those measures of a systemic, legislative and regulatory nature, the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in September 2009. He called on the Russian leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated.

In September 2009 Human Rights Watch (HRW) issued a report entitled ‘Who Will Tell Me What Happened to My Son? Russia’s Implementation of European Court of Human Rights Judgments on Chechnya’, which was strongly critical of the absence of progress in the investigations in disappearance cases.

On 20 April 2011 HRW and two Russian NGOs, the Committee Against Torture and Memorial, published a joint open letter to the Russian President. They spoke of a “complete failure of the Chechen Republic investigating authorities to deal with abductions of Chechnya residents by local law-enforcement and security agencies”, of “systematic sabotage of investigations by Chechen law-enforcement agencies and the inability of the Investigating Committee to fulfil its direct mandate to investigate crimes”.


Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Ms Iryna Mykolayivna Tereshchenko, is a Ukrainian national who was born in 1966 and lives in Kyiv. She was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv.

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

On 10 September 2004 the police officers took the applicant to the Holosiyivskyy District Police Department of Kyiv (“the Police Department”) in order to question her about a crime allegedly committed by I., one of the applicant’s colleagues. A number of the applicant’s co-workers were also taken to the Police Department for the same reason.

According to the applicant, she was held in the Police Department from 3 p.m. on 10 September to 1 a.m. the next day.

At 10 a.m. on 11 September 2004 the applicant was allegedly again taken to the Police Department, where she was questioned further and released at 7 p.m. that day.

While the applicant was being held in the Police Department she was allegedly physically and psychologically coerced to testify against I.; the reasons why she had been brought to the Police Department were not immediately explained to her; and her relatives were not informed of her whereabouts.

On 19 January 2005 the applicant lodged a complaint under Article 106 of the Code of Criminal Procedure (“the CCrP”) with the Holosiyivskyy District Court of Kyiv (“the District Court”) against the police officers. She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her. The applicant invoked Articles 29 and 55 of the Constitution in support of her complaint.

By letter of 1 February 2005 the President of the District Court replied that her complaint under Article 106 of the CCrP could not be considered by the court since she had not been arrested as a suspect.

On 22 February 2005 the applicant lodged with the Prosecutor’s Office of the Holosiyivsky District of Kyiv (“the Prosecutor’s Office”) an application for criminal proceedings to be instituted against the police officers. The applicant alleged that she had been unlawfully arrested, the reasons for the arrest had not been explained to her, and she had been illtreated by the police officers.

By a letter of 24 March 2005 the Prosecutor’s Office informed the applicant that her application was unsubstantiated. It noted that at about 6 p.m. on 10 September 2004 the applicant and her co-workers were taken to the Police Department for an interview concerning a crime allegedly committed by I.; at 9 p.m. the applicant left the Police Department; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under Article 97 of the CCrP.

On 9 April 2005 the applicant challenged the Prosecutor’s Office’s reply of 24 March 2005 before the District Court in accordance with the procedure provided by Article 236-1 of the CCrP. The applicant alleged that the Prosecutor’s Office had unlawfully refused to institute criminal proceedings.

On 22 June 2005 the District Court dismissed the applicant’s complaint. It noted that under Article 236-1 of the CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings. No such a decision had been taken in the applicant’s case.

On 29 June 2005 the applicant and her lawyer lodged an appeal against that decision.

On 8 September 2005 the Kyiv City Court of Appeal upheld the decision of the District Court.

The relevant provisions of the Constitution read as follows:

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.

In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

“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 exercising State power, local self-government bodies, officials and officers...”

“A prosecutor, investigator, body of inquiry or a judge shall be obliged to accept applications or communications as to the committed or prepared crimes, including in cases that fall outside their competence.

Following an application or communication about a crime the prosecutor, investigator, body of inquiry or a judge shall be obliged, within the three-day time limit, to adopt one of the following decisions:

(1) to institute criminal proceedings;

(2) to refuse to institute criminal proceedings;

(3) to remit the application or communication for further examination according to jurisdiction. ...”

“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

if the person is discovered whilst or immediately after committing an offence;

if eyewitnesses, including victims, directly identify this person as the one who committed the offence;

if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.

If there is other information which gives grounds for suspicion that a person has committed a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.

For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel, starting with the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee.

A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for the detention shall be sent to him as well. ...

Within seventy-two hours of the arrest, the body of inquiry shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.

The ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body which carried out the arrest accordingly.”

“Complaints against a decision of a prosecutor, an investigator or a body of enquiry to refuse to institute criminal proceedings shall be lodged with the district (city) court ...by the person whose interests are touched upon, or a representative of that person, ...within seven days of its receipt or information given by the prosecutor that he has refused to quash the decision.”

“Complaints against a decision of a prosecutor, investigator or body of inquiry to refuse to institute criminal proceedings shall be examined by a single judge within ten days of the arrival of the complaint at the court.

The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date when it will be examined. If necessary, a judge shall hear explanations by the complainant.

... the judge shall take one of the following decisions:

1) to quash the decision refusing to initiate criminal proceedings and return the case file materials for additional examination;

2) to reject the complaint.

Within seven days of its adoption the decision of a judge may be appealed against to the court of appeal by a prosecutor or a complainant.

A copy of the judge’s decision shall be sent to the person who has adopted the contested decision, the prosecutor and the complainant.”

Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials.

In particular, Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court. Article 248-3 §§ 1 and 4 of the Code provided that such complaints were outside the courts’ jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor’s office or court which could be challenged by a different procedure.

In this decision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor’s offices in cases where the legislation provided only for a non-judicial remedy.

According to this Resolution, inactivity on the part of a body of enquiry, investigator or prosecutor resulting in a decision not being taken under Article 97 § 2 of the Code of Criminal Procedure could be challenged by a procedure established in Chapter 31-А of the Code of Civil Procedure.


Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.

At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul.

In issue no. 51 of the review, dated 13 March 1993, a news commentary entitled “Kawa and Dehak Once Again” was published. The article analysed possible events, which could occur during the upcoming celebrations of Newroz.

A translation of the relevant parts of the news commentary is as follows:

“... It’s Newroz week in Kurdistan. The biggest confrontation between the demands of the Kurdish people and intolerance in the face of the expression of these demands occurs during these days. The tradition of rebellion is awakened. Dehak and Kawa are once again invested with flesh and bones. It is time to settle accounts. There is nothing vague about Kawa. All the mountains, all the cities are full of Kawa. There are millions of them. All right, who, then, is Dehak? Who is the candidate for representing Dehak in our day? Is it Demirel? Is it Güreş? The regional Governor? Or the new commander İlter? This time round, is Dehak represented by every counter-insurgency chief, indeed, every counter-insurgency operative, every special team member, every police commissioner or superintendent officer? Has Dehak become anonymous too? Be it as it may, but Dehak and Kawa will settle their accounts once again. ...

Last year, a revolutionary publication described the days preceding Newroz as follows:

‘Nowadays over 200 thousand soldiers massed into Kurdistan. Tanks and weapons are sent over. Bombs are raining on Kurdish villages and mountains. The Chief of the General Staff has inspected the preparations for the offensive. Instructions are being issued to provincial and district governors, special team leaders, police chiefs and military officials. The Head of MİT intelligence agency talks of the prospect of much blood being shed. Members of Parliament are organising information-gathering trips in order to take the pulse of the people.’ ...

Unlike previous years, the PKK-leaning Kurdistan National Assembly (KUM) is also expected to take on a role during Newroz this year. ...

On the other hand emergency measures are being implemented in large cities outside Kurdistan where there are concentrations of Kurdish people. It is highly likely that there will be large demonstrations in the Kurdish quarters there.”

In the same issue and within the context of the above news commentary, an interview was also published by the Kurdish News Agency with a representative of the National Liberation Front of Kurdistan (“the ERNK”), the political wing of the Kurdistan Workers’ Party (“the PKK”). Both organisations are illegal under Turkish law.

A translation of the relevant part of the interview is as follows:

“... We wish to emphasise this finding, indeed, we feel that it ought to be underlined. And we call on all European countries. We are open to any humanitarian, political solution, including the calls for an armistice. The PKK movement and its struggle are absolutely not terrorist movements. This misapprehension must be abandoned – it must definitely be abandoned – and a move must be made towards co-operation and support. The real terrorist is the Republic of Turkey. We believe that attitudes on this matter will be much clarified this year, that very positive dialogues will develop and that the Republic of Turkey will be gradually further isolated.”

On 14 March 1993 the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) ordered the seizure of all copies of issue no. 51 of the review, since it allegedly disseminated separatist propaganda.

In an indictment dated 22 April 1993, the Public Prosecutor at the Istanbul National Security Court, on account of the publication of the above news commentary, charged the applicant in his capacity as the owner of the review with disseminating propaganda against the indivisibility of the State. He was also charged with publishing the declaration of the ERNK (see paragraph 12 above). The charges were brought under sections 8 and 6 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”: see paragraphs 24 and 25 below), respectively.

In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He pleaded that the incriminated news commentary did not fall within the scope of section 8 of the 1991 Act. He maintained that arguing and commenting on possible activities in which the PKK might engage during the Newroz celebrations could not be regarded as publishing a declaration of a terrorist organisation within the meaning of section 6 of the 1991 Act. As regards his freedom of expression, the applicant referred to Article 10 of the Convention and the case-law of the Commission and the Court. He stated that pluralism of opinion was essential in a democratic society including opinions which shock or offend. He argued that the provisions of sections 6 and 8 of the 1991 Act restricted freedom of expression in contravention of the Turkish Constitution and the criteria laid down in the case-law of the Commission and the Court.

In a judgment dated 27 September 1993, the Istanbul National Security Court found the applicant guilty of an offence under section 8 § 2 of the 1991 Act. The court first sentenced the applicant to a fine of 100,000,000 Turkish liras. However, having regard to the applicant’s good conduct during the trial, it reduced the fine to 83,333,333 Turkish liras.

In its reasoning, the court held that the incriminated news commentary contravened section 8 of the 1991 Act. The court concluded that it referred to a certain part of the Turkish territory as “Kurdistan” as well as a certain section of the population as “Kurds”, and amounted to propaganda against the indivisibility of the Turkish State.

The court further observed that the review had also published the declaration of an illegal terrorist organisation in which the Republic of Turkey was referred to as a terrorist State. However, it considered that the declaration constituted part of the incriminated news commentary. Having regard to the provisions of Article 79 of the Turkish Criminal Code, the court found no grounds for a separate conviction under section 6 of the 1991 Act.

The applicant appealed against his conviction to the Court of Cassation. He relied on the defence grounds which he had invoked at his trial before the National Security Court.

On 8 February 1994 the Court of Cassation dismissed the applicant’s appeal, upholding the National Security Court’s reasoning and its assessment of the evidence.

On 29 November 1995 the applicant paid the last instalment of the fine imposed on him.

Following the amendments made by Law No. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 24 and 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case.

On 22 April 1996 the court ruled that these amendments did not affect the applicant’s case as his sentence had already been executed.

The relevant provisions of the Criminal Code read as follows:

“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence…”

Article 79

“A person who infringes various provisions of this Code by a single act, shall be punished under the provision which prescribes the heaviest punishment.”

The relevant provisions of the Press Act 1950 read as follows:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.

It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”

(before amendment by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

(as amended by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras…

The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law 4126 of 27 October 1995:

“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.”

The Code of Criminal Procedure contains the following provisions:

“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.

Non-application or erroneous application of a legal rule shall constitute unlawfulness.”

“Unlawfulness is deemed to be manifest in the following cases:

1- where the court is not established in accordance with the law;

2- where one of the judges who have taken the decision was barred by statute from participating;

The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decisions included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.

Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/87) and 17 June 1998 (no. 1998/133).

As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the scientific, historical and/or objective nature of the words used.

The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:

“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.

No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”

“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”

“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.

The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.

Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.

Appeal against decisions of National Security Courts shall lie to the Court of Cassation.

“Military legal proceedings

“The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”

Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:

“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”

“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”

“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”

“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.

Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…

If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”

“National Security Courts shall have jurisdiction to try persons charged with

(a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code …,

(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,

(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.

“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”

“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…

The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”

“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”

The relevant provisions of the Military Legal Service Act are worded as follows:

“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).

(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.

“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”

“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…

The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”

“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”

“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:

A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.

B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.

The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”

“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”

Article 112 of the Military Criminal Code of 22 May 1930 provides:

“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”

Under section 22, the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.


The applicant is a Bulgarian citizen, born in 1945. It appears that he is presently residing in Aalborg, Denmark. Before the Court the applicant is represented by Mr Christophe Darbois and Mr Olivier Gutkes, both lawyers practising in Strasbourg, France.

A.

On 25 September 1990 the applicant was arrested in Spain on the basis of an international arrest warrant issued by the Danish authorities in order to obtain his extradition to Denmark. He was suspected of having committed drug offences contrary to Danish law.

The applicant was extradited to Denmark in May 1991 where he was placed in pre-trial detention.

On 20 and 21 August 1991 the applicant and seven witnesses were heard by the Criminal Court of Silkeborg (Kriminalretten i Silkeborg). The applicant was assisted by counsel at the hearing. On 21 August 1991 the Court convicted the applicant of having committed drug offences contrary to Section 191 of the Danish Penal Code (straffeloven). He was sentenced to three years’ imprisonment. On the same day the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) which had competence to determine the case on points of law as well as on facts. The Criminal Court decided to release him during the appeal proceedings. It appears that the applicant left Denmark upon his release.

The prosecution appealed against the decision to release the applicant to the High Court which decided, on 22 August 1991, that he was to be detained until 19 September 1991 pursuant to Section 762, subsection 1, of the Administration of Justice Act (retsplejeloven), as there was specific reason to believe that he would leave the country and evade prosecution if he remained at large. On 28 August 1991 the State Prosecutor of Viborg (Statsadvokaten i Viborg) requested the High Court not to fix the length of the applicant’s detention as the applicant was presumed not to reside in Denmark any longer. On 30 August 1991 the High Court decided in accordance with the State Prosecutor’s request.

The hearing in the High Court was scheduled to take place on 9 December 1991. Prior to the hearing the applicant was appointed a Danish lawyer, S.M., who put forward several requests to the State Prosecutor on 19 November 1991 in order, inter alia, to prepare for the hearing.

On 6 December 1991 a Dutch lawyer, N.M., sent a fax to the High Court whereby the court was informed, inter alia, that N.M. had been approached by the applicant, who had chosen his domicile at N.M.’s office address. N.M. requested that the hearing be adjourned due to the applicant’s alleged illness. A notice impressed with the hallmark of the Prinsengracht Hospital (Prinsengrachtziekenhuis) in Amsterdam, in a Dutch and an English version, was enclosed with the letter. According to the notice the applicant was admitted to “a general medical check-up” lasting three days. From N.M’s letter it transpires that the purpose of the medical check-up was the applicant’s alleged heart decease and a severe flu. N.M. stressed that the applicant wished to appear before the court to defend himself against the charges brought against him.

On 10 December 1991 N.M. faxed a medical statement to the High Court signed by “Dr. P. Stevens Cardiologist” that described - in medical terms - the applicant’s alleged heart decease and the envisaged cure.

On 9 January 1992 the applicant’s Danish counsel, S.M., sent a letter to N.M., which read as follows:

Since [the applicant] has not reacted to my letters forwarded to his PO address, I ask you to try to obtain his comments to the following:

At the court meeting held at [the High Court of Western Denmark] on December 9, 1991, the Prosecutor requested a refusal of [the applicant’s] appeal claiming that there was not sufficient documentation that his absence was unavoidable. However, the Court sustained my claim that the trial was to be postponed as it was not found that the information contained in your letter of December 6, 1991, and the enclosed letter of admission from Prinsengrachtziekenhuis of December 1, could be disregarded. As previously informed the trial was then postponed until Thursday April 30 and Friday May 1, 1992, both days at 9.00 hours.

However, the Public Prosecutor has again made a request to [the High Court] that the [appeal] be dismissed. In support of this request the Public Prosecutor maintains that the letter of admission of December 1, 1991 is false. The police have contacted the management secretary of the hospital and [the] chief physician who have stated that [the applicant] has never been admitted. And the hospital does not know him, neither [by] name or the file number mentioned in the letter. Besides, the hospital has stated that it has never used letter paper as the one [used for] the letter of December 1, 1991 ... However, until May 1991, the printed letterhead on the invoices of the hospital has been used. Finally, the hospital has stated that the signature on the letter of admission does not belong to anybody employed at the hospital.

The letter sent later by you of December 9, 1991, from Doctor P. Stevens the police have submitted to the only Dutch doctor of this name. And in [a] letter of December 12, 1991 ... he has stated that also this statement is false.

[The High Court] has postponed the decision of the claim made by the Public Prosecutor for a dismissal, awaiting my comments on the information provided. If possible, please obtain and send to me as soon as possible [the applicant’s] comments to the claim that the two letters are false.

On 7 February 1992 N.M. sent a letter to the State Prosecutor, which read, inter alia, as follows:

As I already informed you, [the applicant] was not able to travel to Denmark because of problems with his health in December last year.

Because of his health [the applicant] was not able to visit me at my office and for that reason he sent some friends. I pointed out to these gentlemen that it was necessary that I should receive a medical statement about the state of health of [the applicant] in order to send this statement to Denmark.

Shortly after I received the statement of dr. Stevens, known by you, which appeared to be false. I can tell you that I was unpleasantly surprised by this false statement and I informed [the applicant] about this matter immediately.

[The applicant] was also unpleasantly surprised and [he has in the meantime learned] that the abovementioned gentlemen - entirely without his knowledge - tried to help him with a misplaced [enthusiasm] in an illegal way.

[The applicant realises] that he has been brought in a very difficult situation, but requests the Court for understanding, all the more because he has been really ill and was not able to travel. [The applicant] refers to the enclosed medical statement of his physician dr. Klein...

[He] should like to have the opportunity to defend himself in appeal and should like to appear in court.

Finally I want to inform you that I want to declare formally that I will be the lawyer in this matter and that I will prepare the defence together with a Danish lawyer. I request you to send me a copy of the entire criminal file.

It appears that the medical statement from Dr Klein - a short hand written note in Dutch, dated 23 December 1991 - was faxed to the State Prosecutor by a colleague to N.M., on 19 January 1992.

On 13 February 1992 S.M. sent a letter to the High Court of Western Denmark, reading, inter alia, as follows:

(Translation)

The State Prosecutor has, by letters of 12 December 1991 and 11 February 1992 with enclosures ... requested [the High Court] that [the applicant’s] appeal be dismissed.

As appointed defence counsel for [the applicant] I hereby object to [the Prosecutor’s proposal].

Immediately upon receipt of the State Prosecutor’s letter of 12 December 1991 I sent a letter to [the applicant] on 13 [December 1991], addressed to the P. O. box address abroad of which he had informed me - which is the only address I know of - and asked him to inform me what was the actual position as regards his admission to the Prinsengrachtziekenhuis on 6 December 1991 and the received statement from dr. P. Stevens. As [the applicant] did not react I requested [N.M.] to obtain and forward [the applicant’s] views on the material from the State Prosecutor, by letter of 9 January 1992. Subsequent to my receipt, on 28 January 1992, of the court transcripts of 20 [January 1992], I informed [N.M.] of their contents by letter of 29 [January 1992]. On 7 February 1992, I have received a copy of [N.M.’s] letter of the same date with enclosures to the State Prosecutor.

In support of my objection against the State Prosecutor’s proposal I have only the possibility of referring to the contents of [N.M.’s] letter of 7 February 1992 from which it appears that it cannot be ruled out that [the applicant] had a lawful excuse for his absence at the hearing in the High Court, on 9 December 1991.

On 25 February 1992 N.M., inter alia, requested the High Court to appoint a new Danish lawyer as the applicant had no longer confidence in S.M. and as he was informed that S.M. had recommended the High Court that the latter’s appointment as counsel for the applicant be withdrawn. N.M. further requested the High Court to adjourn the case until a new lawyer had been found. In addition N.M. requested the Court to inform him whether it would “acknowledge [him] as lawyer in [the applicant’s] case” and to send him copies of the State Prosecutor’s letters of 12 December 1991 and 11 February 1992 with enclosures. On 9 and 13 March 1992 N.M., inter alia, repeated his request for access to the file and for acknowledgement as counsel for the applicant. He also requested that the Dutch lawyer, L.K., be acknowledged as counsel for the applicant.

In the meantime, on 27 February 1992, S.M. informed N.M. that the State Prosecutor had decided on 26 February 1992, pursuant to Section 745 of the Danish Administration of Justice Act (retsplejeloven), not to hand over copies of the aforementioned letters in the file to N.M. or the applicant.

On 13 March 1992 the High Court, sitting with three professional judges and three lay judges, decided to dismiss the applicant’s appeal. Neither the applicant - or any of his representatives - nor the prosecutor was present at the court meeting. The decision was made on the basis of the written material in the case, including the medical statement of 23 December 1991 from Dr Klein, N.M.’s letters of 7 and 25 February and 9 March 1992, S.M.’s letters of 13 and 25 February 1992, a report of 14 January 1992 from the Chief of Police of Silkeborg, and the letter of 11 February 1992 from the State Prosecutor. The Court transcripts read, inter alia, as follows:

(Translation)

The hearing is public.

On the basis of the material now available it must be considered established that the admission notice from the Dutch hospital was false. In addition, subsequent to that, a false medical certificate allegedly issued by Dr P. Stevens has been submitted. On this background - notwithstanding ... the medical certificate issued by a doctor, N.F.M. Klein - the submission that [the applicant] had a lawful excuse [for his absence] at the beginning of the hearing, on 9 December 1991, must be rejected. The High Court therefore, pursuant to Section 222 of the Administration of Justice Act, reverses its decision of 9 December 1991 as to the adjournment of the case.

On the basis of the information provided by the prosecution about the efforts made to have the indictment and summons served on the applicant, the Court is satisfied that it has been impossible to serve these documents in the usual manner because he has changed address or place of residence without giving due notice thereof.

For these reasons the prosecution’s request for dismissal of [the applicant’s] appeal is sustained pursuant to section 965c, subsection 3, second part.

It is decided:

This appeal is dismissed.

In accordance with [S.M.’s] recommendation of 25 February 1992 the High Court withdraws the appointment of [S.M.] as defence counsel for [the applicant].

The High Court has not found any reason to appoint a new counsel for [the applicant] before the decision to dismiss [the applicant’s] appeal was made.

On 14 April 1992 the High Court rejected the applicant’s request to reopen the case.

Upon the applicant’s request, the Ministry of Justice granted him leave to appeal to the Supreme Court (Højesteret) on 29 July 1992. Enclosed with the letter from the Ministry was, inter alia, a copy in English of Section 730 of the Administration of Justice Act, which sets out the conditions a lawyer must fulfil in order to be appointed counsel for an accused person.

Following several requests from the applicant for access to the file, the Ministry notified him on 23 November 1992 that it did not consider itself competent to grant access to the file as long as the case had not been finally decided upon. However, the Ministry informed the applicant that it had forwarded his request for access to the file to the Supreme Court.

On 11 February 1993 the Supreme Court decided that the lawyers [N.M. and L.K.] could have access to the file, (cf. Section 745 of the Administration of Justice Act). However, in order to secure that the Danish rules concerning access to files in criminal cases were observed, the permission was subject to the condition that the lawyers were assisted by a Danish lawyer in the sense that the latter would receive a copy of the file for the use of the Dutch lawyers.

On 2 November 1993 the Supreme Court appointed the Danish lawyer T.R. to assist N.M. and L.K. in the aforementioned manner. On 2 February 1994 T.R. informed N.M. and L.K that he was not entitled to send the file or copies of the documents of the file to them or to the applicant but they were welcome to go through the file at his office and that he was willing to give them oral explanations regarding the contents of the documents.

On 7 March 1994 T.R. asked the Supreme Court for permission to forward the file to the applicant’s Dutch lawyers.

On 23 March 1994 the Supreme Court rejected the request and emphasised, by reference to its decision of 11 February 1993, that only T.R. was permitted to receive copies of the file for the Dutch lawyers’ use.

After the parties’ submission of written statements, the Supreme Court decided, on 10 April 1995, as follows:

(Translation)

Notwithstanding [S.M’s] request of 25 February 1992 for withdrawal, which request was granted at the date of the order of dismissal, the Supreme Court holds that it has not been established to the satisfaction of the court that [the applicant] has been deprived of an adequate and effective defence in connection with the High Court’s decision of 13 March 1992 to dismiss his appeal or that the decision of the High Court is wrong. On those grounds the Supreme Court rejects [the applicant’s] claim for remission of the case for retrial. As no other allegations have been submitted which can lead to a reversal of the High Court’s decision, the Supreme Court [dismisses the appeal against the High Court’s decision].

The applicant was arrested in Germany in September 1995 and expelled to Denmark. It appears that he has now served his prison sentence.

B. Relevant domestic law

Appointment of defence counsel

Section 730 of the Administration of Justice Act reads, in so far as relevant, as follows:

(Translation)

Subsection 1

“Any person who is charged with a crime shall have the right to choose a defence counsel to assist him in accordance with the rules laid down below...”

Subsection 2

“Only lawyers who have a right to appear before the court concerned or who have been appointed by the Ministry of Justice to act as public defence counsel before the court concerned may be chosen to act as defence counsel. However, the court may, if it considers it justified, taking into account the nature of the case and other special circumstances, allow the choice of a lawyer from another Nordic country to act as defence counsel...”

Access to the file

Section 745, subsection 1, of the Administration of Justice Act reads, inter alia, as follows:

(Translation)

“Counsel must have access to the material which is in the possession of the police ... Counsel is not allowed to hand over the material to the accused without the approval of the police.”

The last part of subsection 1 serves to prevent misuse of the case file. However, the accused is not prohibited from acquainting himself with the file at his counsel’s office.

Dismissal of appeal

A person convicted in a criminal case tried by a city court is free, in principle, to appeal against the judgment to the High Court in the district of which the city court in question belongs. Immediately upon pronouncement of the judgment, the convicted person can give notice orally to the court records that he wants to appeal against the judgment.

As soon as possible after receipt of the notice of appeal, the State Prosecutor sees to it that attempts are made to serve a notification (notice of appeal and indictment) on the appellant in the usual manner, (cf. Sections 963 and 948 of the Administration of Justice Act).

When an appeal also comprises assessment of the evidence, the State Prosecutor arranges for a summons containing information on the time and place of the hearing to be served on the appellant at a notice of at least four days, (cf. Section 965 and Section 840 of the Administration of Justice Act). If a summons is not served or if a summons is served on the appellant at a notice of less than four days, the effect is that the appellant is not lawfully summoned to the hearing and therefore, as a point of departure, the hearing cannot be held if the appellant fails to appear at the hearing.

However, Section 965c, subsection 3 of the Administration of Justice Act reads as follows:

(Translation)

“If the accused fails to appear without stating a lawful excuse for his absence in proceedings where the appeal was raised by him and comprises the assessment of evidence, the court can dismiss his appeal by order if it finds that the hearing cannot usefully proceed in his absence. Furthermore, the accused’s appeal can be dismissed if it has not been possible to serve the indictment or the summons upon him in the usual manner because he has changed his address or place of residence without giving due notice thereof.”

The usual manner to serve indictments and summons on somebody are by postal or by personal service, (cf. Sections 155 until 158 and Section 948, subsection 2, of the Administration of Justice Act). In criminal cases documents cannot be served upon the accused’s lawyer.